We had a great discussion with Ben Haiman, Liz Howard, and Stephen Richer. Watch:

Tuesday, September 16, 12:15pm-1:15pm PT, Webinar

Register here.

Ben Haiman, UVA Center for Public Safety and Justice, Liz Howard, NYU Law Brennan Center for Justice, and Stephen Richer, Ash Center for Democratic Governance and Innovation, Harvard Kennedy School

Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)

UCLA School of Law is a State Bar of California approved MCLE provider. This session is approved for  ​1  hour of MCLE credit. 

NYT:

The Justice Department is compiling the largest set of national voter roll data it has ever collected, buttressing an effort by President Trump and his supporters to try to prove long-running, unsubstantiated claims that droves of undocumented immigrants have voted illegally, according to people familiar with the matter.

The effort to essentially establish a national voting database, involving more than 30 states, has elicited serious concerns among voting rights experts because it is led by allies of the president, who as recently as this January refused to acknowledge Joseph R. Biden Jr. fairly won the 2020 election. It has also raised worries that those same officials could use the data to revive lies of a stolen election, or try to discredit future election results.

The initiative has proceeded along two tracks, one at the Justice Department’s civil rights division and another at its criminal division, seeking data about individual voters across the country, including names and addresses, in a move that experts say may violate the law. It is a significant break from decades of practice by Republican and Democratic administrations, which believed that doing so was federal overreach and ripe for abuse.

“Nobody has ever done anything like this,” said Justin Levitt, an election law expert at Loyola Marymount University’s law school and a former Justice Department official.

The Justice Department has requested data from at least 16 Republican-controlled states, including Mississippi, Alabama and Texas. It has also sent more formal demands for data to at least 17 mostly Democrat-controlled or swing states, including Pennsylvania, Nevada, Wisconsin and New York.

Nearly every state has resisted turning over voter files with private, personally identifiable information on voters like driver’s license numbers or Social Security numbers. Last week, a local judge blocked South Carolina from releasing private voter information to the Justice Department.

In a private meeting with the staff of top state election officials last month, Michael Gates, a deputy assistant attorney general in the civil rights division, disclosed that all 50 states would eventually receive similar requests, according to notes of the meeting reviewed by The New York Times. In particular, he said, the federal government wants the last four digits of every voter’s Social Security number….

Mr. Levitt likened the effort to sending federal troops to bolster local police work. “It’s wading in, without authorization and against the law, with an overly heavy federal hand to take over a function that states are actually doing just fine,” he said, adding that “it’s wildly illegal, deeply troubling, and nobody asked for this.”

In a statement, a Justice Department spokesman, Gates McGavick, said, “Enforcing the nation’s elections laws is a priority in this administration and in the civil rights division.”…

Chilling video:

Must-read:

Yesterday, federal District Judge Charles Breyer ruled that the Trump Administration’s federalization of the National Guard in Los Angeles to assist in immigration law enforcement violated the Posse Comitatus Act, which is 18 U.S.C. section 1385. The Posse Comitatus Act bars use of the military for law enforcement, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” The Trump Administration argued that the National Guard authorization statute on which it relied—10 U.S.C. section 12406(3)—is an express exception. Judge Breyer’s ruling to the contrary, at pages 26-32 of his decision, was his core holding. Although the Los Angeles deployment was not about elections, if an appellate court adopts certain arguments made by the Trump Administration in that case, such a decision could set our country on a path to military interference in the 2026 elections.

It would be criminal for any Administration to use the military to interfere with voting or vote counting in any election. In particular, 18 U.S.C. sections 592 and 593 (“Sections 592 and 593”) criminalize both having troops at the polls and military interference with voting, conducting elections, or election officers. These statutes apply to use of both the regular military and members of National Guard units “called into Federal service.” 10 U.S.C section 12405; see also 10 U.S.C. section 10106. Although Sections 592 and 593 apply only to officers and members of the military, 18 U.S.C. section 2 also makes it criminal for others—for example, a member of the Cabinet or a White House official—to aid, abet, counsel, command, induce, procure, or willfully cause violations of Sections 592 and 593. And 18 U.S.C. Section 371 makes it criminal for both military and non-military officials to conspire to violate Sections 592 and 593.

But, in the Los Angeles case, in addition to the Trump Administration’s expansive interpretation of 10 U.S.C. section 12046(3), the Administration has raised three arguments that, if adopted by the Ninth Circuit or the Supreme Court, would disable federal court enforcement of Sections 592 and 593 and thus encourage using the military to interfere in the 2026 elections. The first such Trump Administration argument is that the President has an inherent power to use the military to protect federal property, federal personnel, and federal functions and that this inherent protective power is not subject to federal statutory limitations. One can almost hear the Trump Administration arguing in 2026 that it is using the military to protect the federal function of federal elections. But Judge Breyer’s decision at 33-42 exhaustively surveyed the precedents and correctly decided that any inherent protective power to use the military domestically is subject to federal statutory restrictions. Under this ruling, no inherent protective power would override the statutory prohibitions in Sections 592 and 593 against employing the military to interfere with elections….