Dive Brief:
- The Justice Department is suing six additional Democrat-led states for not giving the federal government sensitive registered voter information — including driver’s license numbers and the last four digits of Social Security numbers — bringing the total to 14.
- The DOJ announced Dec. 2 it had filed federal lawsuits against Delaware, Maryland, New Mexico, Rhode Island, Vermont and Washington for allegedly not complying with the Civil Rights Act, the National Voter Registration Act and the Help America Vote Act. This follows Sept. 16 lawsuits against Oregon and Maine and Sept. 25 lawsuits against California, Michigan, Minnesota, New York, New Hampshire and Pennsylvania.
- The DOJ will likely sue more Democratic states, and local governments need to take steps to safeguard their voter data now, a legal scholar told Smart Cities Dive.
Dive Insight:
The Brennan Center for Justice reports that beginning in May, the DOJ’s Civil Rights Division sent demands to at least 40 states for their full voter-registration lists, including voters’ personal information.
To date, only Indiana and Wyoming have provided those lists. According to the Brennan Center’s Tracker of Justice Department Requests for Voter Information, most states have either refused to give the DOJ their full voter lists or have only released publicly available versions.
The DOJ alleges it’s necessary to file “proactive election integrity litigation” against some of those states to maintain “accurate voter rolls” and ensure “free and fair elections.”
But only suing Democrat-led states “creates a perception, which is hard to dismiss, that the actions are intended to advance a specific narrative regarding election administration in states viewed as politically adversarial, rather than to address universal noncompliance with federal law,” said Craig Barkacs, professor of business law at the University of San Diego.
Consequently, “legal experts widely anticipate a continuation of this litigation strategy” against other Democratic states, he said.
The current round of lawsuits focuses on the Civil Rights Act of 1960. In the Delaware lawsuit, the DOJ argues that Title III of the CRA “imposes a ‘sweeping’ obligation on election officials” to “retain and preserve … all records and papers which come into [their] possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election. Title III likewise grants the Attorney General the sweeping power to obtain these records.”
Barkacs said the states’ counter-argument focuses on “whether the [CRA] can truly compel a state to violate its own privacy statutes. The federal executive branch is attempting to override a state's fundamental duty to safeguard the personally identifiable information—sensitive data like Social Security numbers and driver's licenses—of its citizens.”
This federal-state confrontation creates “a significant dilemma at the operational level” for local governments, Barkacs said. He cites two key issues local government officials need to be aware of as the lawsuits progress:
- Data security: “Should the DOJ prevail, local offices will face an immense, unfunded security mandate to compile and transfer vast quantities of personally identifiable information,” he said. “This introduces a substantial new security liability, requiring compliance and resource allocation that many local election offices are not currently equipped to handle.”
- Due-process integrity: The DOJ’s “ultimate policy objective appears to be the utilization of this data for large-scale, automated list maintenance,” Barkacs said. Consequently, local governments need to “immediately audit and solidify their due-process protocols” for citizens flagged for removal from voter rolls.
