New data from The Civics Center:
Category Archives: voter registration
“Emergency Relief Sought to Protect Upcoming Elections From Trump-Vance Administration Plot to Facilitate Illegal and Inaccurate Voter Roll Purge”
With elections rapidly approaching in locations around the nation, the League of Women Voters, along with three individual plaintiffs, asked a court for emergency relief in a class action lawsuit that seeks to stop the Trump-Vance administration’s unlawful creation of massive government databases consolidating sensitive and legally protected personal information on millions of people in America to unlawfully open investigations and purge voter rolls. Today’s emergency filing follows last week’s class action lawsuit, filed on behalf of the League of Women Voters, League of Women Voters of Virginia, League of Women Voters of Louisiana, and Electronic Privacy Information Center (EPIC), along with five individual plaintiffs. The coalition is represented by Democracy Forward Foundation, Citizens for Responsibility and Ethics in Washington (CREW), and Fair Elections Center.
The request for a preliminary injunction, filed in the U.S. District Court for the District of Columbia, details how the so-called “Department of Government Efficiency” (DOGE), the U.S. Department of Homeland Security (DHS), Social Security Administration (SSA), and other agencies have secretly merged personal data from across the federal government into centralized “Interagency Databases” in direct violation of the Privacy Act of 1974 and the U.S. Constitution.
The complaint alleges that the administration has unlawfully transformed the DHS’s Systematic Alien Verification for Entitlements (SAVE) system into a national citizenship database pooling SSA data known to be unreliable, now being used by some states to purge voter rolls and open criminal investigations. The filing seeks to prevent voters from being unlawfully purged and targeted by this broken and illegal system….
More litigation over federal access to the voter files (and and and)
On Tuesday, a group of nonprofits and private citizens sued DHS, SSA, and DOJ, alleging “a months-long campaign to access, collect, and consolidate vast troves of personal data about millions of U.S. citizens and residents stored at multiple federal agencies,” centralized at a USCIS “data lake.”
Per the complaint, this includes the pooling of data in the immigration-related SAVE database and distinct Social Security records (which NPR was on top of from the beginning), along with the voter rolls that DOJ’s been after and DOGE teams thrown in the mix. And on both the voter file side and the SAVE side, the complaint asserts (inter alia) violations of the Privacy Act along the same lines I’d been flagging.
This is a case to watch.
DOJ sues six more states over the voter file
This morning, the DOJ’s Civil Rights Division filed six new lawsuits, against states that have refused to give DOJ copies of the voter file complete with sensitive information like SSN digits (and, not for nothing, data on individuals’ party registration). The litigation was filed against California, Michigan, Minnesota, New York, New Hampshire, and Pennsylvania (the complaints are linked in the press release) — joining suits filed a few days ago against Maine and Oregon.
As with Maine and Oregon, while nobody likes getting sued, I think this litigation is likely to be a good thing — now there will be federal judges carefully examining the claims that DOJ has made about its authority under specific statutes, and truly putting them to the test. I also think the breadth of the litigation is likely to be a good thing, as it enables that conversation in the context of the DOJ’s reported attempt to acquire a national voter file – having eight states sued at once makes that context more present.
I’ve not been shy about my feelings about the merits of the DOJ’s demands under HAVA or the NVRA or the CRA, or about what I still think are grievously unanswered questions about Privacy Act lapses subjecting DOJ officials to criminal liability. (See, for example, here, here, and here.) Now there are eight opportunities for federal judges to decide whether those concerns are right or wrong — and eight reasons for other states to wait for the courts rather than rush to comply with an unwarranted demand — and I think that’s also a good thing. (And even if the states lose, having disclosure driven by court order — including the potential for court-supervised confidentiality protections otherwise unavailable in just responding to a DOJ letter — also seems like a win.)
DOJ’s new lawsuit seems to show DOJ is violating federal law
Justin again. On Wednesday, Ned linked to two new lawsuits DOJ filed in Oregon (here’s the complaint) and Maine (here’s the complaint) over DOJ’s demand to get full copies of the voter files. Though it’s never a great feeling to be sued, I’m glad these suits were filed. Because I think the litigation is likely to show exactly why Oregon and Maine have been right to push back against DOJ’s demands. The Privacy Act still seems like a giant red flag to me.
Leave aside, for a second, the flawed factual predicate in both complaints, which includes an insinuation of wrongdoing based on a repeatedly debunked apples-to-oranges methodology, comparing a pinpoint number of registrants on the file to a multi-year census estimate of eligible locals. (A summary of the problems with the comparison: these aren’t measures of the same information, they’re not measures of the same time range, they’re comparing a snapshot to a survey estimate, and they don’t account for the law. Which is why a federal court said 7 years ago that the disparate data sets do not allow for an accurate comparison and did not amount to credible evidence of wrongdoing, and why the 11th Circuit affirmed that conclusion.)
The real fight here isn’t over inadequate list maintenance. It’s about getting access to the lists themselves.
I’ve written about these DOJ demands for the lists before (for starters, here and here), trying to explain why they’re not particularly useful in enforcing the parts of the statutes the Civil Rights Division says it needs them to enforce. There’s new reporting that indicates DOJ may be after the information for an entirely different reason: to give it to DHS for immigration probes (though that’s likely to be a conspicuously target-poor environment for DHS). The Civil Rights Division hasn’t mentioned that little detail in its demands to the states.
But the real sticking point for me is the Privacy Act, which I think affirmatively precludes the DOJ from getting the voter files until it answers some basic questions about who would have access to what information for what purpose. (Indeed, the Privacy Act makes it a federal crime to collect the info first and explain later.)
The DOJ has been demanding these files with such confidence that I’ve been wondering whether there’s some not-visible-to-outsiders internal document that relieves those Privacy Act concerns. Both the Oregon complaint and the Maine complaint begin to lay out DOJ’s response to why it’s complying with the Privacy Act. And if what they said is all they got, that’s an awful lot of confidence without the substance to back it up.
In the complaints, most of the DOJ responses on the Privacy Act (including their citation of a website for voluntary reports by individual citizens of civil rights violations) are non sequiturs: they just don’t answer the question. But the DOJ does mention the “systems of records notices” – the disclosure required under the Privacy Act – that it thinks authorize grabbing the voter files. (Here, here, and here.) There’s only one that’s even plausibly relevant: it’s the one that allows the Civil Rights Division (CRT) to keep general info on targets, victims, and witnesses associated with their cases. The notice is pretty straightforward, and its roots go back to 1975 (when the information was stored “on index cards and file jackets”).
It’s not hard to understand why law enforcement needs to keep some information on people for cases involving people. Here’s the unedited description of the “individuals covered by the system” that DOJ has provided to the public:
These persons may include: Subjects of investigations, victims, potential witnesses, individuals of Japanese ancestry who were eligible, or potentially eligible, for restitution benefits as a result of their evacuation, relocation, or internment during World War II, and representatives on behalf of individuals and other correspondents on subjects directed or referred to CRT or other persons or organizations referred to CRT in potential or actual cases and matters of concern to CRT, and CRT employees who handle complaints, cases or matters of concern to CRT.
You know who’s not in that list? Voters who are innocent bystanders for all of this nonsense. The 3 million people in the Oregon voter registration file and the 1 million people in the Maine voter registration file aren’t targets, victims, or witnesses of a civil rights investigation. Before the DOJ “explained” itself, I was wondering where DOJ ever notified the public that it’s going to be collecting all those voters’ information. After the DOJ “explained” itself, I’m still left wondering where DOJ ever notified the public that it’s going to be collecting all those voters’ information.
Read the public notice for yourself, and see whether you think it offers fair notice that the Civil Rights Division plans on building a database to collect the personal information of every voter in the country, including not just SSN digits and dates of birth but party registration. The notice DOJ issued decades ago (and updated periodically in the interim) isn’t built to authorize fishing expeditions. It’s built for individual records pertinent to an individualized investigation. Because that’s actually the individualized information DOJ needs when it’s doing its real job.
I suspect that the states resisting DOJ’s demands are going to respond, in part, by saying that they’ve got the right (and responsibility) to decline to abet DOJ’s violation of federal law. That, in turn, means that the DOJ is likely to have to defend its compliance with the Privacy Act in court, with federal judges probing whether they’ve done their homework. And that is a resolution I think Oregon and Maine – and their citizens – are likely to welcome.
““Modernizing Voter List Maintenance: An Evidence-Based Framework for Access and Integrity”
Michael Morse, Rachel Orey, and Joann Bautista have published a Bipartisan Policy Center report on list maintenance, based on Morse’s earlier article. Here’s an excerpt of the executive summary:
Voter registration lists are widely regarded as the backbone of election administration. To keep these lists up to date, election officials are responsible for identifying when voters move, die, or otherwise become ineligible to vote. The bureaucratic process known as “list maintenance” has long been a quiet feature of election administration, but has come under increasing scrutiny in recent years. Some advocacy groups equate the removal of voter registrations with disenfranchisement, labeling it voter purging; others maintain that voter lists are plagued by errors, characterizing them as “dirty,” and argue that registrations aren’t being canceled often enough.
In reality, list maintenance doesn’t need to be a trade-off between access and integrity. Rather, well-crafted, evidence-based policies can advance both goals simultaneously. This report discusses two of the most salient topics in list maintenance policy discussions today:mobility and citizenship.
Mobility and citizenship present fundamentally different types of problems for election officials. Although voters move frequently, audits have found that very few registered voters are not citizens. Nonetheless, identifying when voters move and verifying citizenship present similar types of administrative challenges for election officials, who must coordinate with other officials in their state, between states, and in the federal government to gather the most up-to-date information.
Drawing on Michael Morse’s 2023 law review article, this report first addresses the recurring problem of voter mobility for list maintenance and suggests targeted reforms. It then turns to nascent efforts to verify the citizenship of voters, highlighting emerging challenges and urging caution to avoid premature policymaking.
DOJ increases pressure to vacuum up voter files
A month ago, I noted that the DOJ’s Civil Rights Division had sent demands to a bunch of states for copies of the voter files. These letters were pretty unusual. I didn’t think DOJ’s ostensible rationale for demanding the files made much sense. I didn’t think the statutes DOJ cited entitled them to the information they were demanding. Indeed, I thought federal law precluded DOJ from amassing this information (at least until they do some more homework).
Now the Civil Rights Division is out with a new letter (as before, it’s not clear how many states were recipients, but it seems to be widespread, and perhaps national). The new letter is from the head of the Civil Rights Division, Assistant AG Harmeet Dhillon (previous iterations were from the acting chief of the Voting Section). It cites some different statutes. But it’s not ultimately more persuasive on any of the points above.
It sure looks like the Civil Rights Division is trying to do what the Pence-Kobach Commission failed to do eight years ago: assemble a national voter file. (Why? I’m not sure. And that’s part of the problem. I’ve got guesses, but federal law says I don’t have to guess. Before the federal government does something like this, it has to explain itself.) I thought that was likely illegal then, and I think it’s still likely illegal now.
What follows takes a closer look at these new letters. (It’s a longer analysis, so I’ve tucked the good stuff away under the headers below.)
The ostensible rationale for the files (the NVRA/HAVA).
The NVRA and HAVA each require states to conduct general programs of list maintenance that make reasonable efforts to clean the rolls. (Here’s the NVRA version, here’s the HAVA version.) There are more specific provisions in each statute protecting against inaccurate overcleaning: list maintenance comes with a thumb on the scales for not tossing potentially eligible voters if you’re not sure. But the main point is that both statutes put list maintenance firmly in the hands of the states, and in that endeavor, both require reasonable maintenance procedures, not record-by-record assurance that every ineligible voter is removed.
The new letters offer a very different vision. “In charging the Attorney General with enforcement of the voter registration list requirements in HAVA and in the NVRA, Congress plainly intended that DOJ be able to conduct an independent review of each state’s list.” Not just a review of a state’s general program of list maintenance – a review of each state’s list. Each state’s list. That staggering assertion of federal intervention comes with no citation to any specific statutory provision, and is not supported by any that I’m aware of (nor any historical DOJ practice, nor any judicial precedent). But the Civil Rights Division thinks it so important that it copied the sentence twice, verbatim, in a 2½-page letter. Maybe they think repeating it makes it seem truthier?
If the Civil Rights Division were focused instead on the actual language of the statute, they’d recognize that the responsibility they actually have is reviewing a state’s general program of list maintenance. That means that it’s entirely legit to ask questions about state procedures for cleaning the rolls, and even to ask for statistics that might touch on those procedures’ efficacy. (While federal law puts some constraints on collecting personal voter information – see below – it’s entirely agnostic about DOJ questions on procedures and stats.) But data on particular individuals isn’t particularly helpful in enforcing the NVRA/HAVA provisions the letters cite. Knowing whether “Justin Levitt” is on the voter rolls in a particular state, and knowing Levitt’s Social Security digits, isn’t especially responsive to whether that state has or doesn’t have the general program required by statute.
The new statutory citation (the Civil Rights Act).
Earlier versions of the gimme-all-your-data letter focused on the NVRA’s provision for public access to the voter rolls, which has been repeatedly construed to allow states to keep sensitive info (like Social Security digits) private even while requiring public disclosure of a lot of other material. The new letter makes clear that the Civil Rights Division wants all fields – which, again, the letter says twice, because then you know it’s serious. And the new letter cites a different source of authority: the Civil Rights Act of 1960. But that statute doesn’t do what DOJ wants it to do either.
The Civil Rights Act of 1960 has a provision that requires election officials to keep election-related records for 22 months. And it has a provision that authorizes the Attorney General to ask to inspect, reproduce, or copy any such record (which is cited in the letter), with a written note explaining the basis and the purpose for the demand (which is not cited in the letter).
There’s admittedly not a ton of caselaw on this provision, and what little there is was developed around Southern jurisdictions at a time when records involved less personal data and more blatant discrimination. But I’ve always thought of the retention provision like a litigation hold: election officials, don’t throw anything out for 22 months, in case there’s a problem. If DOJ has reason to believe there was a problem, it may come asking for specific records later. The litigation hold is for everything, but any particular DOJ request from that universe isn’t automatically coextensive with “everything”: each request has to have not merely a “purpose,” but also – and separately under the statute, lest it be mere surplusage – a “basis.” That’s a little like probable cause — it’s not terribly demanding (the articulation in an internal justification memo for opening an investigation in the first instance would normally more than suffice), and properly gives a lot of latitude to the government, but “I’m just curious” isn’t enough.
And this all makes sense, given the recordkeeping environment of 1960. If the Civil Rights Division had reason to believe that particular eligible voters had been denied the right to vote, it’s clear that this provision authorized the Division to go look up their registration cards and go look at the pollbooks to see if they checked in. But it’s just as clear to me that this provision didn’t authorize DOJ to collect copies of all of the registration cards from all of the states — “each state’s list” — to go fishing to see what they could find. Such a demand wouldn’t have the “basis” the statute requires.
The affirmative restriction on the federal government (the Privacy Act).
Everything above is about why the statutes in the letter don’t authorize the Civil Rights Division to get what it wants. But there’s a different federal statute that I think affirmatively prevents the DOJ from getting what it wants, and the statutes above have to be read in light of that statute too.
That statute is the Privacy Act of 1974. It says that before the federal government collects records on individuals, the government has to facilitate a public conversation – a Federal Register notice and notification to congressional committees — about what information it plans to collect, why it needs the information, who has access, and the like. That’s 5 U.S.C. § 552a(e)(4) and 552a(r). Federal officials who collect info on Americans without this public notice are committing a federal crime. State officials who intend to help the Civil Rights Division blow past this notice requirement may be abetting that crime.
The new letters mention a totally different part of the Privacy Act, and otherwise make some noises about privacy, but those are mostly non sequiturs. I still haven’t seen any indication that the Civil Rights Division has done the homework the Privacy Act requires to collect the voter files. They’ve provided notices on some information the Division maintains in the course of regular enforcement work: enforcing civil rights means you’ll collect some info about victims and targets and witnesses. But none of those notices fairly flag that the Division plans to accumulate a national voter file, with the personal information (and First Amendment activity) of Americans who aren’t any of the above.
The Privacy Act isn’t just a process barrier of its own. It also provides important context for understanding the litigation-hold provisions of the Civil Rights Act of 1960. Given increasing congressional skepticism of federal government acquisition of Americans’ personal data in 1974, it would be deeply weird (not to mention ahistorical) to read the 1960 statute to override the careful constraints in the Privacy Act, giving the Civil Rights Division the authority to vacuum up information on more than 155 million voters, without any individualized “basis” and in service of an invented federal power to double-check every state’s list. Instead, reading the two statutes together helps confirm that the Civil Rights Act authority is as we thought it was: authorizing the AG to get specific information where there’s reason to believe there was a particularized problem in an election within the last 22 months.
NVRA Case Against Virginia Voter Purge Purportedly to Remove Non-Citizens Survives Motion to Dismiss
See this press release from the Lawyers’ Committee about this ruling from a federal district court partially denying the state’s motion to dismiss.
“Minnesota rejects DOJ demand for state’s voter rolls”
The Justice Department asked Minnesota election officials in June for voter rolls and other information to show proof of compliance with federal election law. Similar requests were made to other states, including Colorado, Wisconsin and Pennsylvania.
In a letter sent Friday, Justin Erickson, general counsel for the Secretary of State’s Office, said the Justice Department did not “identify any legal basis” for its request, nor did it explain how the data would be “used, stored and secured.”
“Michigan becomes latest target of Justice Department inquiry on voter roll maintenance”
The U.S. Justice Department is asking Michigan for a copy of its voter rolls and information about how the state maintains them, as well as a series of questions about its high levels of voter registration.
In its letter to Secretary of State Jocelyn Benson, dated July 21 and obtained by Votebeat, the Justice Department also said it has received a complaint about the state’s compliance with a provision in federal law requiring all voters to be assigned unique identifiers.
It is the latest in a series of letters the Justice Department has sent to states about their management of voter rolls, following directives in President Donald Trump’s March executive order on elections.
“House Republicans endorse stricter state and federal-led voter roll purges despite dearth of evidence on fraud”
CyberScoop on efforts to make it easier to remove voters from the rolls, including changes to the National Voter Registration Act (NVRA) proposed by Georgia’s Secretary of State:
In a congressional hearing on state voter registration practices Tuesday, Republicans on the House Administration Committee were united around common sentiments: It is too easy for citizens to register to vote and too easy for them to stay on voter rolls, states aren’t doing enough to remove ineligible voters, and it’s all led to the country’s elections being vulnerable to mass voter fraud and noncitizen voting.
There was little evidence presented to back up most of those claims….
In a letter sent to House Administration Committee Chair Bryan Steil, R-Wis., Georgia Republican Secretary of State Brad Raffensperger urged the committee to use his state’s policies as a “blueprint” for national election laws, including Voter ID, banning ballot harvesting of mail-in and absentee votes, and robust use of tools like the Federal SAVE database to identify and purge voters suspected of being noncitizens.
One “federal barrier” cited by Raffensperger was a section of the National Voter Registration Act that prohibits states from conducting voter roll purges less than 90 days before an election. This “quiet period” was explicitly designed to prevent states from disenfranchising large numbers of voters right before an election — when relief from the courts could come too late.
But Raffensperger pressed Congress to lift those restrictions, saying the 90-day period “restricts us from conducting systematic list maintenance in federal election years precisely when clean voter rolls are most scrutinized.”
More on Tuesday’s hearing from Ja’han Jones at MSNBC.
“As Texas dives into federal SAVE database to verify voter citizenship, some experts are worried”
Texas is one of the earliest states to start using the U.S. Citizenship and Immigration Services’ overhauled SAVE database to check voters’ eligibility. That comes after the Trump administration, in its campaign to eliminate the risk of noncitizen voting, made the database free for states to use and easier to search.
But some experts and watchdogs warn that the changes haven’t necessarily made the system more reliable. They say the administration hasn’t publicly released enough information about it, which makes it difficult to assess how complete and accurate the search results are, and whether there are enough safeguards to protect people’s privacy and voting rights.
More on the issues with SAVE here.
Brennan Center: “Homeland Security’s ‘SAVE’ Program Exacerbates Risks to Voters”
Jasleen Singh and Spencer Reynolds:
The Systematic Alien Verification for Entitlements, or “SAVE,” program was designed to help states verify the citizenship and immigration status of people applying for government benefits…. But SAVE’s results — sometimes based on incomplete or outdated information — have never been perfect. For that reason, the information gleaned from the SAVE program should be considered useful, but not definitive, in assessing an individual’s citizenship.”
…. DHS has allowed state and local election officials to search for hundreds of thousands of voters simultaneously. This increases the risks that state officials will carry out erroneous voter purges and disenfranchise eligible voters. SAVE could also mislead, either because it incorrectly identifies someone as a noncitizen or fails to confirm immigration status, fueling false conspiracy theories about the integrity of U.S. elections.
“Trump Admin Defying Court By Stonewalling on Anti-Voting Order, Plaintiffs Say”
The Trump administration is defying a court order by refusing to say how federal agencies may be implementing President Donald Trump’s sweeping anti-voting executive order, pro-voting groups and Democrats alleged in a filing Friday.
Among the order’s directives that lawyers for the administration have failed to provide answers about: How is the Department of Homeland Security (DHS) allowing its databases to be used to purge voters? How will the U.S. Department of Justice (DOJ) punish states for continuing to offer a grace period for mail ballots that arrive after Election Day? And how will the U.S. Election Assistance Commission — an independent agency — withhold funds from states that don’t comply with aspects of the order?
“To this day, Defendants have failed to serve a single interrogatory response or make any specific objection to a particular interrogatory,” the groups challenging the order wrote, referring to written questions one party sends to another as part of the discovery process. They added that the Trump administration broke a court-mandated July 11 deadline in failing to respond.