DOJ Pokes its Nose into States’ Administration of Their Voter Rolls

A panel in the Sixth Circuit today will hear arguments in a case brought by the Justice Department to obtain Michigan’s complete and unredacted voter rolls.

This is part of the Justice Department’s rogue, nationwide campaign – divorced from its legal authorities and past practice – to obtain states’ unredacted voter registration rolls. Those rolls contain highly sensitive voter information such as registrants’ dates of birth, driver’s license numbers, and partial social security numbers. The department apparently intends to review the rolls to identify purportedly ineligible voters, although the details of how it will conduct this review remain murky.

Many states have expressed strong privacy concerns about the department’s actions. In an effort to allay these concerns, the department has proposed a memorandum of understanding establishing security protocols governing the transfer of and access to voter rolls. But the memorandum is not limited to data-security protocols. It also establishes a preemptive remedial process triggered whenever the department identifies purported “issues” with a state’s voter-list maintenance: in particular, if, “when testing the state voter roll,” the department identifies voter list maintenance “issues, insufficiencies, inadequacies, deficiencies, anomalies, or concerns,” the state must, within 45 days, clean its rolls by removing ineligible voters and resubmit the updated list to the Justice Department for verification that the state has conducted “proper list maintenance.” Although the department has not explained how it is “testing” voter rolls, it admitted in court that it intends to share the rolls with the Department of Homeland Security in an effort to identify noncitizens.

So what legal authority permits the department to federalize review of state voter rolls and insert itself into the business of voter list maintenance?

There is none.

Although these actions align with the President’s erroneous view that states are merely “agents” of the federal government in administering elections, the Justice Department has identified no logical or legally persuasive basis for them – and none exists.

Unsurprisingly, the department’s efforts have met significant resistance by most states and losses in the courts.

I worked in DOJ’s Civil Rights Division for more than 15 years, including five years in its Voting Section. While priorities shifted from administration to administration in the past, what we are seeing now is not that. There were approximately 30 attorneys in the Voting Section at the start of this administration. Months later, all but two were gone. Why? Because the Civil Rights Division has abdicated the section’s underlying purpose – to protect the right to vote – for an unlawful power grab.

List Maintenance Requirements under Federal Law

The Elections Clause of the U.S. Constitution provides that states shall prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives” but “Congress may at any time by Law make or alter such Regulations.” Thus, states retain substantial discretion over election administration, including voter-list maintenance, except where federal law provides otherwise.

The National Voter Registration Act (NVRA), enacted in 1993, requires states to “conduct a general program that makes a reasonable effort” to remove ineligible voters from the rolls due to death or a registrant’s move outside the jurisdiction, consistent with the NVRA’s procedures. The program must be uniform and nondiscriminatory and comply with the Voting Rights Act.

The Help America Vote Act (HAVA), enacted in 2002, requires that states create “a single, uniform, official, centralized, interactive computerized statewide voter registration list,” which will “serve as the single system for storing and managing the official list of registered voters throughout the State.” As in the NVRA, HAVA requires states to adopt a “system of file maintenance that makes a reasonable effort to remove registrants who are ineligible to vote.” HAVA further requires states to ensure that “duplicate names are eliminated from the computerized list.”

Evaluating compliance with the NVRA and HAVA thus turns on whether a state maintains an adequate list maintenance program, whether its procedures conform to that program, and how those procedures are implemented.

States’ Reactions to the Department’s Demands for Unredacted Voter Rolls

States have responded to the department’s requests in sharply different ways, though a majority have resisted turning over their full voter rolls. However, at least 13 states – Alaska, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Nebraska, Ohio, Oklahoma, South Dakota, Tennessee, Texas, and Wyoming – have agreed to provide their complete voter rolls.

Even states willing to turn over their full voter rolls have shown reluctance to sign the department’s proposed memorandum of understanding. While Alaska and Texas signed it, Mississippi, South Dakota, and Tennessee reportedly declined to do so.

Most states and the District of Columbia have balked at the department’s demands for unredacted voter rolls, citing privacy concerns under both state and federal law. Some addressed the department’s questions about list maintenance policies and procedures but did not produce their rolls. Other states addressed the department’s questions about list maintenance policies and procedures and provided or directed the department to the publicly available version of the statewide voter list, which excludes sensitive voter information such as driver’s license numbers and social security numbers.

Blitz of Lawsuits against Uncooperative States

Faced with widespread resistance from the states, the department filed a flurry of lawsuits – 30 in total – seeking unredacted statewide voter registration lists. While the initial complaints attempted to allege violations of the NVRA and HAVA, the most recent iterations of the lawsuits claim that Title III of the Civil Rights Act of 1960 entitles the department to states’ full voter rolls.

So what is Title III of the Civil Rights Act? Title III was enacted during the Jim Crow era when election officials used voter suppression tactics such as literacy tests, poll taxes, and voter identification laws to prevent Black Americans from voting. Officials sometimes destroyed voter-registration applications and poll-tax records or refused to produce those records to federal officials who attempted to investigate allegations of disenfranchisement.

In response to these concerns, Title III was enacted to require election officials to preserve for a period of 22 months “all records and papers” that come into the official’s possession “relating to any application, registration, payment of poll tax, or other act requisite to voting in such election.” It authorizes the Attorney General to seek a copy of these records upon providing the target with both a “purpose” for conducting an inquiry and a “basis” for believing there may be a legal violation to which the requested records would be relevant.

Here, as to the “basis and purpose” of its request for unredacted voter rolls, including voters’ driver’s license numbers and partial social security numbers, the department argues that it needs the full rolls to assess compliance with NVRA and HAVA’s requirements that states have a general program that makes a reasonable effort to remove ineligible voters.

But that rationale is difficult to square with the NVRA and HAVA because those statutes focus principally on the sufficiency of state procedures. The department has not explained how a static snapshot of a voter roll would permit meaningful evaluation of a state’s ongoing list maintenance procedures.

So far, the department’s Title III claim has not proven persuasive: All six federal district courts to consider states’ motions to dismiss have dismissed the complaint.

Four courts held that the department either failed to articulate any basis for its Title III demand or offered one that was inadequate or contrived; two of these also held that the department’s stated purpose, to test the adequacy of the state’s list maintenance, did not fall within the “purpose” required in a demand for records under Title III, which must relate to a purpose of investigating violations of individuals’ voting rights. The remaining two dismissed the complaint because a voter registration list is not a “record” that came into the state’s “possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election,” under Title III.

To date, the department has appealed the California, Michigan, and Oregon rulings.

The Department’s Prior Approaches to Enforcing List Maintenance Requirements

The Justice Department’s current tactics depart sharply from prior federal efforts to enforce the NVRA and HAVA’s list maintenance requirements.

In previous consent decrees and court-ordered stipulations to resolve claims of unlawful list maintenance, the department required states to establish statewide voter registration databases, establish policies and procedures to effectuate list maintenance, and identify potentially ineligible voters. But none of those agreements contemplated any role for the department itself in identifying allegedly ineligible voters.

For example, in 2006, the department entered into three statewide agreements to resolve claims under Section 8 of the NVRA. The agreement with Maine required the state to have a statewide voter registration database consistent with HAVA and to identify and resolve voter records of ineligible voters by a date certain; the agreement with Indiana directed the state to advise county officials of potential deceased and duplicate voters and to make determinations as to their eligibility; the agreement with New Jersey required the state to take reasonable efforts to identify duplicates and direct county officials to remove them, to direct county officials to remove deceased voters where applicable and voters with felony convictions upon confirmation by the county, and to require counties to follow procedure for removing voters who have moved under the NVRA. In each prior agreement, the state, not the department, acted to enforce list maintenance requirements.

Focus on Voter Rolls Undercuts Protecting Voter Rights

The Justice Department’s campaign to obtain and “test” complete statewide voter rolls is unprecedented as a matter of practice and outside the bounds of law. Worse still, the department seeks to repurpose Title III of the Civil Rights Act – a statute enacted to investigate discrimination and protect eligible citizens’ right to vote – as a tool to obtain voter rolls with the end goal of purging purportedly ineligible voters based on “concerns.”

The cases that the department has filed to obtain full voter rolls represent the vast majority of this administration’s Voting Section’s docket. They are also aligned with the other matters on the docket, all of which suggest that the department has little, if any, interest in dismantling unlawful barriers to voting. Of particular note, not a single one of the press releases issued by the Voting Section during this administration announces efforts to protect the voting rights of military and overseas voters under the Uniformed and Overseas Citizens Absentee Voting Act – a statute historically enforced by administrations of both parties.

Federal district courts, along with many states, have thus far served as a bulwark against the department’s attempts to obtain sensitive voter information and federalize voter list maintenance under Title III. Harmeet Dhillon, the Assistant Attorney General for Civil Rights, has threatened to pursue this issue all the way to the Supreme Court.

Courts should continue to reject the department’s effort to use Title III as a means of furthering the department’s unprecedented foray into voter list maintenance.

Elizabeth Westfall served as a trial attorney in the Voting Section of the Civil Rights Division of the U.S. Department of Justice from 2010-2015 and as a deputy chief in the Civil Rights Division’s Disability Rights Section from 2015-2025.