Voting booths await voters in the November 5, 2024 general election at North Junior High in Boise. (Photo by Pat Sutphin for the Idaho Capital Sun)
The U.S. Department of Justice suggested to a federal appeals court on Wednesday that upholding a lower court’s decision blocking the Trump administration’s access to sensitive voter data would weaken its ability to investigate racial discrimination in voting.
The 6th U.S. Circuit Court of Appeals held an oral argument on whether to reverse a district court judge’s ruling that Michigan does not have to provide the Department of Justice with an unredacted voter list containing dates of birth, driver’s licenses and partial Social Security numbers.
In the heart thing that’s how federal courts should interpret the Civil Rights Act of 1960, which gives the U.S. attorney general broad access to documents and records that “come into the possession of” election officials. Congress passed a bill authorizing investigations into voting discrimination against black citizens.
A Trump administration lawyer tried Wednesday to discredit the logic of a district court judge’s decision. He said the decision would have hampered 1960s investigations into discrimination against black voters if it had been in effect then. Michigan’s deputy attorney general called it a sedate misreading of the law.
The judges did not significantly indicate which argument they found persuasive.
The Department of Justice sued 30 states and the District of Columbia over their refusal to transfer data. At least 15 conservative states have voluntarily provided information that the Trump administration plans to input into a Department of Homeland Security computer program to identify potential non-citizen voters.
Democrats and voting rights advocates have raised privacy concerns about the Trump administration’s data plans. They also claim that the Department of Homeland Security falsely flagged voters as potential foreigners and that the administration is trying to build national voter list.
In the courtroom on Wednesday, the Justice Department presented its arguments in the context of the U.S. Supreme Court’s decision two weeks ago severely weaken the Voting Rights Act of 1965, which was intended to suppress discriminatory voting laws in the South. Trump cheered the ruling, and Republican state lawmakers in Southern states are rushing to draw modern congressional maps that could oust Black Democrats.
Debate over the Civil Rights Act
U.S. District Court Judge Hala Jarbou, an appointee of President Donald Trump, ruled in February that the Justice Department had no right to voter records. Michigan’s voter registration database is a record created by state officials, not a document that comes into their possession, she argued.
On Wednesday, Justice Department lawyer David Goldman told a three-judge appellate panel that Jarbou had created a “carve out” in the Civil Rights Act that was not rooted in the law.
“This creates a hole in the Attorney General’s investigative authority so large that the most egregious civil rights violations of the 1960s could pass through it,” Goldman said.
Michigan Deputy Attorney General Heather Meingast, representing Michigan Democratic Secretary of State Jocelyn Benson, told the justices that the Justice Department’s request is unprecedented and unsupported by federal law.
The state’s voter registration database contains voter information but is not a record under the Civil Rights Act, Meingast argued. The database is vigorous, she said, constantly changing as voters are added and removed.
“It doesn’t seem to meet the requirements of the Civil Rights Act of the 1960s.” Meingast said. “The goal was for voters to return documents, applications and poll taxes.”
The judges don’t shake hands
The case is being heard by Senior Judge R. Guy Cole Jr., a Clinton appointee; Judge Andre B. Mathis, a Biden appointee; and Judge John B. Nalbandian, a Trump appointee.
Many of the justices’ questions focused on what it meant for election officials to “take possession” of the documents. The judges asked skeptical questions of both sides, leaving it unclear who would win.
One judge compared the voter database to baking a cake, a sentiment used in a brief filed in the case by voters and civic groups. The judge said that anyone who bakes a cake would not be said to have “come into possession” of the cake.
“What about common sense?” said the judge.
Cincinnati-based Station 6th Circuit provided audio only live broadcast arguments, and the judges did not introduce themselves during their speeches. Court information service reported the judge who made this remark was Nalbandian.
The oral presentations lasted approximately 40 minutes. The three-judge panel did not specify a deadline for issuing an opinion.
Other cases
In Justice Department lawsuits over voter data, six district court judges have ruled against the Trump administration – in Arizona, California, Massachusetts, Oregon and Rhode Island, as well as in Michigan. The Michigan case is the first to have an oral hearing before an appellate court. Oral arguments are scheduled for next week in appeals involving Department of Justice losses in California and Oregon.
The appeals cases represent the next phase of the Justice Department’s yearlong campaign for state voter data. Justice Department lawyers turned to appellate courts to move quicklyarguing that the security of the November midterm elections is at risk.
On Tuesday, the Ministry of Justice issued an opinion from the Office of General Counsel, which provides legal advice to executive branch agencies and supports the Justice Department’s efforts to obtain state voter data. Justice Department lawyers immediately filed a brief in Michigan’s appeal in a last-minute attempt to strengthen their case ahead of oral arguments.
“This is commemorative advice given in early or mid-September,” Goldman said, around the same time the Justice Department began suing states for refusing to turn over voter data.
Aria Branch, an attorney with Elias Law Group representing the voters and citizens group in the case, noted that six courts have already ruled against the Justice Department.
“The Department of Justice’s attempt to use the Civil Rights Act to create its current trap is simply like trying to put a square peg in a round hole,” Branch told the justices. “It just doesn’t work.”
