Why It Matters

A recent CRS report on federal enforcement actions against states over voter registration lists highlights a fundamental clash over access to sensitive election data. The Department of Justice demanded election records, including full statewide voter registration lists with confidential personal data, from the majority of states, but the U.S. Court of Appeals for the Sixth Circuit held that DOJ is not entitled to Michigan's statewide voter registration list under Title III of the Civil Rights Act of 1960.

Executive Order 14248 directed the Attorney General to prioritize enforcement of laws barring non-citizens from voting and to cross-reference federal immigration databases with state voter registration lists. The order also threatened to withhold federal grants from non-cooperating states. But without access to voter registration data, the federal verification approach cannot proceed as planned.

The Big Picture

Following the executive order, the Department of Justice demanded election records, including full statewide voter registration lists with confidential personal data, from the majority of states. The data sought contained highly sensitive voter information such as dates of birth, driver's license numbers, partial Social Security numbers, and information shared from the Social Security Administration and other agencies. In some cases, the DOJ filed lawsuits to enforce compliance with its demands.

United States v. Benson involved Michigan. The DOJ sued under three statutes: the National Voter Registration Act of 1993 (NVRA), the Help America Vote Act of 2002 (HAVA), and Title III of the Civil Rights Act of 1960 (CRA). On February 10, the U.S. District Court for the Western District of Michigan granted Michigan's motion to dismiss, holding that while federal laws set certain requirements with regard to voter registration, none of the three statutes forces the disclosure of the statewide voter registration list demanded by the DOJ. The district court found that HAVA lacks any provision related to disclosure of statewide voter registration lists.

On appeal, the Department of Justice dropped its NVRA and HAVA claims and argued only the CRA claim. On June 24, the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal, holding that the DOJ is not entitled to Michigan's statewide voter registration list under Title III of the CRA. The court held that Michigan's statewide voter registration list is internally generated by Michigan officials and therefore does not fall within the Civil Rights Act's scope. The statewide voter registration list was based on diverse sources, such as state health-department records that are not requisite to voting under the relevant statute.

A dissenting judge argued that without unredacted voter lists, the federal government cannot effectively verify Michigan's compliance with the NVRA. Federal district courts in multiple other states had already dismissed similar DOJ claims before the Benson appellate decision, but the Sixth Circuit ruling is now the appellate precedent that other cases will look to. Similar cases involving other states remain pending.

The Bottom Line

Without access to confidential statewide voter registration lists, the cross-referencing strategy envisioned in Executive Order 14248 cannot be carried out as planned.

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