The Department of Homeland Security rushed to the Supreme Court on Tuesday, asking permission to restart a system that states were using to check their voter rolls to identify potential noncitizens who registered to vote.
A district court ruled in June that the administration was violating privacy law by using DHS’ SAVE system as a voter check. The U.S. Circuit Court of Appeals upheld that ruling last week, spurring the Trump team to ask the justices to step in.
“The district court has issued an indefensible order that threatens the integrity of upcoming elections,” said Solicitor General D. John Sauer in his petition to the high court.
SAVE, or the Systematic Alien Verification for Entitlements, was created to check whether an immigrant was eligible to receive welfare. The Trump administration added new functionality so it could be used to run batch checks, rather than individual names, and to report back on purported citizenship status.
Many GOP-led states rushed to check their lists, and the Trump administration tried to pressure Democrat-led states to do the same — but ran into opposition.
Attempts to get those states’ voter lists so DHS could do its own checks have failed universally in the courts.
Challengers, led by the League of Women Voters, said that using SAVE for that purpose broke the law because it required disclosure of Social Security numbers. The lower courts agreed and said the SAVE system was too shoddy, flagging citizens as noncitizens.
Mr. Sauer, in his petition to the justices, said the lower court got it wrong on the privacy argument and that the importance of verifying citizenship was too critical to halt.
The case is separate from another one seeking to have the U.S. Postal Service refuse to deliver some mailed ballots. That grew out of an executive order from President Trump.
That order also directed Homeland Security to receive lists of voters from states and run those lists through its own systems to try to spot noncitizens. DHS has yet to finalize those plans, which are also facing court scrutiny.
The D.C. Circuit, in its Friday ruling, said the Trump administration botched the legal arguments in the case, belatedly raising a defense for its actions.
“The public interest does not favor interim restoration of a system the government has not made a strong showing it may lawfully operate,” the judges said.
Judge Gregory Katsas, a Trump appointee, dissented. He said the concerns over Social Security numbers’ release were overblown because the numbers would be shared only with DHS.
And he said the false negatives — citizens who are flagged as noncitizens because they never updated their records after naturalization — have an easy solution. They just have to provide proof of citizenship to remain on the rolls.
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