The Department of Justice has been on a massive losing streak in its quest to force states to turn over their complete voter lists, suffering a 28th straight loss this week in federal court.
The lists were supposed to serve as the core of the Trump administration’s effort to boot ineligible people off states’ rolls. If the Justice Department had gotten the lists, it would have been run against Department of Homeland Security databases to try to spot noncitizens, or checked for cross-state duplications or dead people.
Without the lists, President Trump’s election integrity push stumbled.
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The latest defeat came in Delaware, where U.S. District Judge Richard Andrews said the 1960 Civil Rights Act — the law Justice Department says gives it access to state voter registration records — doesn’t actually cover the registration lists.
Judge Andrews said the law only covers documents that “come into [their] possession.” That means the Justice Department could likely ask for the actual registration forms voters submit, but it cannot demand the lists compiled by the state, since those lists were created by government officials and didn’t come into its possession.
“Title III was passed in 1960. The ‘records’ that existed at the time were paper records,” the Judge wrote.
Judge Andrews is an Obama appointee to the court. But judges across the political spectrum have ruled the same way. Among the 28 district court losses were six Obama appointees, nine Biden appointees, eight Trump appointees, four George W. Bush picks and one Clinton appointee.
Some ruled that the 1960 law didn’t cover the state lists, while others ruled that the Justice Department didn’t properly justify its request for the records. Some judges cited both reasons.
And some went further, suggesting the government was twisting the purpose of the 1960 law, adopted in the middle of the Civil Rights Movement.
“The Department of Justice seeks to use civil rights legislation which was enacted for an entirely different purpose to amass and retain an unprecedented amount of confidential voter data. This effort goes far beyond what Congress intended when it passed the underlying legislation,” Judge David Carter, the Clinton appointee, said in rejecting a demand for California’s records.
In Pennsylvania, Judge Cathy Bissoon, an Obama pick, said the Justice Department was barking up the wrong tree altogether.
“Concerns regarding widespread voting by non-citizens simply are not borne out by reality,” Judge Bissoon wrote.
One circuit court of appeals has ruled, and it, too, rejected the Justice Department’s arguments — though one of the three judges on the panel did side with Mr. Trump. Sixth Circuit Judge John Nalbandian, a Trump appointee, said the 1960 law covers state voter lists, and he said the Justice Department did adequately justify why it needed to get a look at Michigan’s list.
Ten other circuits are examining the issue, with four of them slated to hear oral arguments over the next three months.
The Justice Department said it thinks it will fare better when the case goes higher.
“We disagree with the courts’ rulings and believe the Supreme Court will ultimately rule in the department’s favor once it has the opportunity to do so,” the department told The Washington Times in a statement.
Hans von Spakovsky, senior legal fellow at Advancing American Freedom who used to work at the Justice Department’s Civil Rights Division, blamed “hostile, liberal judges” for the string of losses.
But he also faulted the Justice Department for its arguments, saying the agency should have relied more on the 1993 National Voter Registration Act and the 2002 Help America Vote Act.
“Both laws have statutory provisions requiring states to maintain accurate voter registration rolls that only list eligible voters, and it is the federal government’s responsibility to enforce those requirements against the states,” Mr. von Spakovsky said.
Many GOP-led states voluntarily turned over information — including Oklahoma, which did so via a settlement after the Justice Department’s lawsuit.
But the majority of states refused. Some make part of their lists available, such as names and addresses.
But the Trump administration sought the full files, including dates of birth and driver’s license numbers or partial Social Security numbers.
That information is crucial to coming up with exact matches between registered voters and the feds’ own databases. Without it, things can get iffy — as was the case when the Trump administration tried to use California’s public voter file to spot noncitizens.
The feds used third-party data to try to match the state’s list to available Social Security numbers, then ran that against the government databases. The Justice Deparment said it came up with roughly 20,000 names of potential noncitizens whose ballots shouldn’t be counted until they were investigated.
Judge Carter, and later the 9th U.S. Circuit Court of Appeals, rejected that demand, in part because they found the government’s attempt to match names was riddled with errors.
Judge James Boasberg, an Obama appointee in the District of Columbia ruling on a tangential case related to the 20,000 names, came to the same conclusion.
“The lists are flawed,” Judge Boasberg said.
Delaware Attorney General Kathy Jennings, who defeated the Justice Department in this week’s case, said the feds should butt out of states’ voting operations.
“To those in this administration who still fail to understand: the states, not the president, run elections. It’s our job to keep voters’ data safe and we’re not backing down,” Ms. Jennings said.
The Elias Law Group, led by prominent Democratic campaign law attorney Marc Elias, was involved in Delaware’s defense and many of the other cases. Elisabeth Frost, the group’s litigation chair, celebrated the shutout being pitched against Mr. Trump.
“With today’s ruling, every single one of the federal district courts with active cases — 28 in total — has rejected the attempt by President Trump’s Department of Justice to turn a law intended to protect civil rights into a tool to seize Americans’ private voter data,” Ms. Frost said.
The states Justice Department sued were Connecticut, Arizona, Maryland, Delaware, New Mexico, Rhode Island, Washington, Vermont, Georgia, Illinois, Wisconsin, Nevada, Colorado, Minnesota, Michigan, Pennsylvania, New Hampshire, Massachusetts, New York, Hawaii, Oregon, California, Virginia, Utah, Oklahoma, Kentucky, West Virginia, New Jersey, Idaho and Maine. It also sued the District of Columbia.
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