A federal appeals court sharply questioned the Department of Justice on Tuesday over its purpose and authority for obtaining voter information from California and Oregon, as the DOJ attempts to end its legal losing streak for its multiple efforts to collect state voter roll information.
In dozens of lawsuits filed across the country, the DOJ has claimed the National Voter Registration Act, Help America Vote Act, and Civil Rights Act of 1960 require states to turn over the full state voter registration lists, including voters’ personal information, such as Social Security numbers and driver’s license information, as part of voter roll maintenance. In various federal district courts, the Trump administration’s efforts have been unsuccessful, with district court judges tossing lawsuits filed by the DOJ against six states, including California and Oregon.
A three-judge panel on the U.S. Court of Appeals for the Ninth Circuit became the latest court to hear arguments in the DOJ’s bid to obtain voter registration information, hearing appeals in both the California and Oregon cases. The panel appeared largely skeptical of the Justice Department’s motives and authority to obtain the sensitive data.
U.S. Circuit Judge Lucy Koh, an appointee of former President Joe Biden, asked DOJ lawyer Andrew Braniff early in oral arguments if their authority to obtain the information under the Civil Rights Act of 1960 was as “plain” as he argues, when the initial letter to Oregon officials seeking the information did not cite the law.
“Would you expect if that authority was so plain that you would have included it in that first letter?” Koh asked.
Braniff noted that the DOJ did cite the Civil Rights Act of 1960 in its subsequent letter to state officials, but that “the first letter was intended to provide Oregon the opportunity to work with the Department of Justice in maintaining a clean and accurate voter role of eligible voters as they are required to do under both the NVRA and HAVA.”
Robert Koch, the lawyer arguing for Oregon, called on the three-judge panel to reject the DOJ’s appeal to force the state to hand over the data, alleging it actually violates the same laws the Justice Department has pointed to in an attempt to justify the action.
“DOJ seeks to reimagine a 66-year-old civil rights statute to force Oregon to create and disclose an unredacted version of its statewide voter list, and not just Oregon’s, but every state in this country to amass a federal … database of every registered voter in America. That shocking demand fails” for multiple legal reasons, Koch argued.
The panel, which heard both cases, included U.S. Circuit Judges Mark Bennett, an appointee of President Donald Trump, Salvador Mendoza Jr., a Biden appointee, and Koh.
The Trump administration has sought access to states’ voter rolls to force compliance with laws requiring states to purge ineligible voters from their rolls. Critics have accused some states, particularly blue states, of failing to remove dead or out-of-state registrants from their records even as they loosen election rules, such as by mailing every registered voter a ballot even if he or she did not request one.
The Justice Department under Trump has filed lawsuits across the country seeking sensitive voter registration information from roughly 30 states, and most of those legal battles are still pending in federal district courts. Among the federal district courts that have ruled, the Trump administration has yet to win in a single case.
In federal district court, U.S. District Judge David Carter, an appointee of former President Bill Clinton, dismissed the lawsuit seeking to get access to California’s voter rolls, saying “the government’s request is unprecedented and illegal.” U.S District Judge Mustafa Kasubhai, a Biden appointee, rejected the effort to get access to Oregon’s voter rolls, issuing a sharply worded opinion that claimed the actions by the administration were not ordinary. Appeals from both of these cases were heard before the Ninth Circuit on Tuesday.
The DOJ has also faced losses in Arizona, Massachusetts, Rhode Island, and Michigan. In each instance, the judges were unconvinced by the DOJ’s arguments that federal law compelled states to hand over the voter registration information.
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As the losses have continued to mount in court, the Office of Legal Counsel at the Department of Justice issued a non-binding legal opinion last week claiming that the DOJ does have the authority to “seek statewide voter registration lists from states,” that “the Privacy Act, Driver’s Privacy Protection Act, and E-Government Act do not limit that authority,” and that information they obtain may be shared with other government agencies, like the Department of Homeland Security.
While the legal opinion changes the arguments advanced by the administration in federal court, it appears to show that the Justice Department does not intend to stop its efforts despite mounting court losses.