Mike Pitts, a former DOJ attorney who worked on voting rights issues, and now a professor at Indiana, sent the following interesting post to the election law listserv, which I reprint below by permission:

There are a couple of interesting aspects—one procedural and one substantive—of the Department of Justice’s letter to the Commonwealth of Pennsylvania that demands information related to the Commonwealth’s nascent photo ID law.

The procedural aspect is that the letter was signed by the Assistant Attorney General for Civil Rights rather than a career attorney in the Voting Section.  Perhaps some of my former DOJ colleagues on this listserve would disagree, but my recollection is that’s not the usual course of events for such a letter.  Put simply, it’s somewhat unusual for the Assistant Attorney General for Civil Rights to sign a letter that essentially opens an investigation.  I can think of at least a couple of reasons for this atypical process.  First, the investigation is so high profile that just the mere opening of an investigation warrants the Assistant Attorney General’s signature.  Second, it could reflect that there is some dissension amongst the career lawyers as to the propriety of the letter.

The substantive aspect is that the Assistant Attorney General’s demand for information is made pursuant to 42 U.S.C. § 1974 and it seems unlikely that this statute applies to at least some of what the Assistant Attorney General is requesting.  Without quoting the entirety of the statute, the gist of the statute seems to be that Commonwealth officials are required to keep records related to a federal election for 22 months following a federal election.  I don’t quite see how Pennsylvania’s current driver’s license and personal identification database—the second item requested in the letter—falls within the scope of that statute.  Put differently, I doubt Pennsylvania’s driver’s license database is a record related to a federal election held in Pennsylvania during the past 22 months.

It will be interesting to see how the Commonwealth of Pennsylvania responds to the request for information.  On the one hand, the Commonwealth probably has a legitimate argument that it does not have to provide at least some of the information demanded in the letter.  On the other hand, Pennsylvania may just want to comply with the demand in order to show it has nothing to hide, as the law often operates in the shadow of public relations.

Michael J. Pitts

Professor of Law & Dean’s Fellow

Chair, Faculty Recruitment Committee

Indiana University Robert H. McKinney School of Law