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.