CREW files amicus briefs in support of states’ refusal to turn over voter rolls to DOJ 

The courts should dismiss the federal government’s lawsuits against California and Oregon seeking to force those states to turn over their states’ voter rolls, according to two amicus briefs filed by CREW on behalf of a bipartisan group of former secretaries of state. 

Since May, the Department of Justice (DOJ) has sent demands to at least 40 states for their statewide voter registration data. As CREW’s amicus brief lays out, these demands run afoul of federal law and contravene the principles of federalism and separation of powers that are codified in the Constitution. If fulfilled, the DOJ’s demands could “upend our constitutional framework” by interfering with states’ management of their voter registration systems and protection of sensitive voter information, including drivers’ license and social security numbers. 

As the Constitution mandates, the states—not the federal government—are charged with regulating and administering elections. Although the Constitution allows Congress to act as a check on state legislature’s regulation of elections, it does not authorize the president to do so without clear authorization from Congress. Moreover, the National Voter Registration Act (NVRA) and Help America Vote Act (HAVA) confirm states’ authority over voter roll list maintenance and election management. Under both laws, states are responsible for voter roll list maintenance, not federal agencies.

State voter files also contain sensitive information that states must protect in order to ensure voters’ privacy. Federal law requires that every voter registration application contains at least the voter’s driver’s license number, the last four digits of the voter’s Social Security number, or other unique identifying information. In addition to that, voter files commonly include other nonpublic information beyond what is federally mandated, such as addresses, phone numbers, birth dates, and full social security numbers. Numerous states have enacted statutes either prohibiting disclosure of confidential information in voter files or limiting the usage of such information. Moreover, most states have confidentiality programs that provide data disclosure protections for voters who at elevated risk of harm such as victims of domestic violence, sexual assault, and stalking.

CREW’s amicus brief also describes how the Privacy Act of 1974 prohibits DOJ’s demands. The Privacy Act, which was passed after the COINTELPRO and Watergate scandals, places limits on a state’s ability to share sensitive information with federal agencies. These limits are intended to prevent the government from creating “formal or de facto national data banks” or “centralized Federal information systems” that would consolidate sensitive personal data of Americans stored at separate agencies. The DOJ has not yet published any notice describing how it intends to use the state voter roll data it is attempting to collect, which in and of itself is also a violation of the Privacy Act. This lack of transparency also raises serious privacy concerns for voters who have entrusted their personal information to their state, not to the federal government.

For these reasons, the courts must dismiss the DOJ’s lawsuits against California and Oregon and allow states to retain their voter rolls in accordance with federal law.