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.

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.

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.