Last week, the U.S. Department of Justice (DOJ) filed four new lawsuits seeking states’ unredacted voter rolls. DOJ has now brought similar actions against a total of 18 states, almost all of them led by Democrats.*
But Assistant Attorney General Harmeet Dhillon also announced that GOP-led Georgia will be one of the next states to be sued, calling the issue of voter roll maintenance “a bipartisan problem.”
That has some election experts questioning whether the DOJ’s stated purpose for the lawsuits — to ensure states are doing enough to remove ineligible voters from the rolls, as well as to remove voters directly by running the rolls through a Department of Homeland Security (DHS) database — tells the full story.
After all, under Secretary of State Brad Raffensberger (R), Georgia has conducted some of the most aggressive registration scrubs in the nation, so much so that it’s been forced to restore tens of thousands of registrations amid purges of hundreds of thousands at a time. Over the summer it canceled nearly half a million registrations, despite warnings from voting advocates that eligible voters were sure to be removed.
Dax Goldstein, a program director at the States United Democracy Center, suggested there’s a larger— and even more dangerous — goal: Establishing federal control of elections.
It’s a “power grab and a fishing expedition… meant to undermine state authority over elections,” Goldstein said. “It’s the states that have the power to run the voting process — not DOJ, not DHS, not the president.”
That notion is bolstered by other moves made by the administration on elections. Last month, the DOJ sent lawyers to monitor voting in New Jersey and California, and Trump has said he wants to require voter ID and ban mail voting nationwide. Steve Bannon has suggested that ICE officers could be stationed near polling places, and other close Trump allies have said the president might declare an “emergency” as a pretext to seize control of elections.
Whatever the ultimate goal, experts agree the DOJ’s case is extremely weak.
“This is unprecedented,” said Sejal Jhaveri, senior legal counsel at the Campaign Legal Center, noting both the depth of the demands — asking for unheard-of access — and the breadth.
“We certainly don’t think that they have a leg to stand on,” Jhaveri added, noting that the CLC has moved to intervene in many of the cases.
“Why are they bringing these lawsuits, since they’re unlikely to win?” said David Becker, the executive director of Center for Election Innovation & Research and a former DOJ Civil Rights Division attorney. “That’s the $64,000 question.”
One explanation is that they hope to selectively use the data to advance the false claims about illegal voting that have animated Trump’s base for years now.
“It might be for the same reasons we’ve seen in recent past elections, which is, this is the DOJ serving as more as a tool of the Trump campaign — rather than the American people through the executive branch — to fuel claims that an election was stolen after the minority party wins that election, if it wins that election,” Becker said. “And that’s incredibly unfortunate. I don’t think we’ve seen that before.”
“They want the voter rolls in order to facilitate a lie about how secure and how safe and how effective the roles are,” said Justin Levitt, a law professor at Loyola Marymount University and former DOJ official.
That would explain why the DOJ also sued Fulton County, Georgia last week, demanding election officials there turn over ballots cast in 2020.
The December filings came before courts have had a chance to rule on the eight similar lawsuits the DOJ filed in September. Another four states — Florida, Indiana, Iowa, and Ohio — voluntarily provided the access the DOJ has been seeking, Dhillon said on a conservative podcast last week, and another 12 states have “pending resolutions,” with the agency. Dhillon also said she’d go after all 50 states to get the data.
“What the DOJ is trying to do is something that should frighten everybody across the political spectrum,” Becker said. “They’re trying to use the power of the executive branch to bully states into turning over highly sensitive data — date of birth, social security number, driver’s license number; the holy trinity of identity theft — to the DOJ for who knows what.”
Along with the demand letters, the DOJ has asked states to sign memoranda that would grant the agency, “unprecedented power to conduct list maintenance and order those states to conduct list maintenance in particular ways,” Becker said.
“Not just tell them that they have to have a general program of reasonable list maintenance, but to tell them you have to remove ‘John Doe,’” Becker added. “That is something the DOJ does not have the power to do, and Congress would never authorize the DOJ to take power from the states in that way, and certainly has not, to date.’”
“Why is the DOJ in such a rush?” Becker wondered. “Why now, 11 months before the federal election, is the DOJ trying to get this information so fast?”
Does haste make waste?
The December lawsuits are shorter than the September ones. They cut out claims that were central to the earlier actions: that the provisions of the National Voter Registration Act (NVRA) and the Help America Votes Act HAVA) are sufficient to force states to hand over reams of private voter data. Instead the newer lawsuits argue that the 1960 Civil Rights Act (CRA) empowers the attorney general to demand that data to ensure compliance with NVRA and HAVA.
That switch in strategy has confused legal experts.
“I suspect there might be some recognition that the NVRA and HAVA claims are incredibly weak, almost laughably so,” said Becker.
The December lawsuit batches, in particular, claim that Title III of the CRA “imposes a ‘sweeping’ obligation” on states to turn over to the DOJ “all records and papers… relating to any application, registration, payment of poll tax, or other act requisite to voting,” upon a written demand citing the “basis and purpose therefor.”
But all these laws require is for states to make the records “available for inspection,” which almost every state offered to do before they were sued.
“All that the DOJ might be entitled to under the Civil Rights Act would be inspection, not production,” said Becker.
“You can see the unreasonableness of it when you look at an example like Michigan, where the Secretary of State offered them the public voter roll,” Jhaveri said. “I think that helps identify the purpose here, and it’s not what they are stating.”
Title III’s record inspection provisions were intended to help the DOJ enforce the CRA, which closed loopholes that had allowed racist state officials to continue to disenfranchise minority voters even after the enactment of the 1957 Civil Rights Act. The CRA’s goal is to ensure states let people vote.
In these lawsuits, the DOJ turns that purpose on its head — trying to pry access to unredacted state voter rolls under the claim that they are investigating the state for failing to properly maintain them under the NVRA, which tasks states with making a “reasonable effort to remove the names of ineligible voters from the official lists.”
Dhillon herself once recognized that. In a 2022 essay, she argued that the DOJ’s authority over elections was narrow, and while federal intervention was once necessary to dismantle Jim Crow-era voter suppression, such authority did not extend indefinitely.
“[The DOJ] has the power to administer the Voting Rights Act, a power that was once necessary to push back on Jim Crow laws,” Dhillon wrote. “But the era of Jim Crow is long gone, and it shouldn’t be up to a politicized DOJ to dictate what election integrity looks like.”
Even if you ignored Dhillon’s old arguments and bought her new ones — that the DOJ is rightfully looking into the quality of states’ voter record maintenance measures — an unredacted snapshot of the voter roll reveals nothing about that. A person’s social security number tells investigators nothing about how frequently voters who died or moved are scrubbed from the registration files.
“It just doesn’t add up,” Jhaveri said. “They don’t need this information to evaluate the compliance that they say that they’re trying to do, which should make all of us question — and it should hopefully make judges question — what are they really looking for?”
Beyond the DOJ’s substantive shortcomings in these cases, their complaints are riddled with errors. Some are minor — like missing punctuation or a duplicative sentence — while others could be dispositive. The DOJ filed its California case in the wrong court, bringing it in Los Angeles’ Central District rather than the Eastern District that covers Sacramento, the state capitol and where all the voter registration files are held.
The complaints also claim that the DOJ has complied with the 1974 Privacy Act. Not only is that not true — the DOJ has yet to file a Statement of Records Notice explaining how the agency will use the new data it’s demanding as required by the Privacy Act — it’s a premature assertion of an affirmative defense, which “huge unforced error on the part of the DOJ, among many unforced errors that we’ve seen,” said Becker.
… Or does waste make haste?
“They are working hard. I can’t say they are working particularly smart,” said Levittl. “They filed one of the first suits in Maine, which is the source of some pretty solid law that says you can’t get exactly what you’re seeking under the NVRA — there is already binding law in the First Circuit.”
“There’s not much strategy to this,” Levitt added.
The federal shutdown delayed courts from hearing many of these cases. The first hearing out of all of them was held in California earlier this month, while a second in Oregon is scheduled for January.
The Trump Administration might be rushing the lawsuits out the door just in the hopes of pressuring some states into compliance before any courts can rule against them, Becker added.
“The DOJ might be worried that the California court is going to rule against them because their legal claim is so incredibly weak and if that happens, they want to have seized as much data and bullied states into turning over as much data as possible,” said Becker.
If that’s the case, the prosecutors might already be out of time. A few days ahead of the previously scheduled hearing in California, the DOJ filed a motion for an order to produce records — essentially making the same demand that they made in the 10 other December lawsuits. California responded with an emergency ex-parte application asking the court to deny it, arguing it was both rushed and improper. On Monday, Judge David O. Carter, a Bill Clinton appointee, agreed, in a short order that did not elaborate on his reasoning.
Given how likely this outcome was, Levitt wondered if the DOJ was shooting these lawsuits from the hip simply to look like a hive of legal activity to a political base that doesn’t know any better.
“If this were serious, you wouldn’t file [18] cases at the same time about the same issue — you file a couple cases and wait and see how they went,” Levitt noted. “Filing without waiting for this stuff has a very ‘look busy for the boss’ kind of vibe.”
What’s the point?
DHS confirmed to Democracy Docket earlier this year that the DOJ was sharing the data it was collecting from the states with the agency for use in the Systemic Alien Verification for Entitlements (SAVE) program, which allows election officials to check the citizenship of registered voters.
The Trump Administration has expanded SAVE to allow administrators to upload voter files in bulk and use data from the Social Security Administration to check citizenship status, despite accuracy concerns. Dozens of GOP state election officials have already run their voter files through SAVE, even though it’s unclear how that data might be saved or used. The DOJ demand for social security numbers, driver license numbers and dates of birth matches the kind of information needed to turn SAVE into a federal voter file.
Dhillon recently touted in a social media video that, “We’ve checked 47.5M voter records. We’ve found 260,000-plus dead people enrolled in the voter rolls.”
While the DOJ doesn’t have a legitimate reason to access states’ unredacted voter files, it has a far better argument than DHS, Levitt noted.
“If DHS wanted the data, and DHS had the right to the data, DHS could ask for the data,” Levitt said. “If that’s the purpose — and I think it’s fairly clear that’s at least one of the purposes — then the agency that actually wants the data can go get it, if they have the right to it.”
“Using the Civil Rights Division as a stalking horse to try and slip around the back door, tells you there’s something not quite right here,” he added. “If they have legal access to it, just knock on the front door.”
Dumping every voter’s information into a singular DHS system could also help the Trump administration’s deportation crusade, as U.S. Immigration and Customs Enforcement officers triangulate who is undocumented from various databases.
Such a national voter file wouldn’t uncover many examples of noncitizen voting — studies and voter roll audits have repeatedly shown that very few noncitizens even accidentally register to vote, and vanishingly few actually cast ballots — but it could lead to sensationalized announcements that thousands of “potential noncitizens” have been uncovered, like those recently made in Texas. But GOP officials in the Lone Star State have been less eager to tout follow up reports showing many of these registrations flagged for fraud are actually legit.
Combined with the lawsuits themselves, such claims further longstanding lies about election integrity that have animated Trump’s base for years now, Becker theorized.
“It might be for the same reasons we’ve seen in recent past elections, which is, this is the DOJ serving as more as a tool of the Trump campaign — rather than the American people through the executive branch — to fuel claims that an election was stolen after the minority party wins that election, if it wins that election,” Becker said. “And that’s incredibly unfortunate. I don’t think we’ve seen that before.”
“They want the voter rolls in order to facilitate a lie about how secure and how safe and how effective the roles are,” Levitt said.
Jhaveri noted that the integrity concerns also support GOP efforts to make it harder to vote, justifying measures that effectively disenfranchise voters — like banning absentee ballots — in the name of preventing electoral fraud. “You have this sowing of doubt over the validity of elections. But you also have restrictions on the right to vote. It’s sort of a dual pronged right attack on elections.” she said.
But while Trump and his supporters continue to repeat their long-debunked claims of widespread voter fraud, Dhillon recently suggested in an interview that’s not what’s driving her crusade. “I’m not saying it’s fraud. I’m saying it’s sloppiness,” she said, waiving away the fact that illegally cast ballots are fantastically rare. “I’m saying it’s inaccuracy, and I’m saying it leads to infirm election results that people can’t trust.”
This often-repeated refrain about the need to “restore confidence” in elections is a rhetorical trick that ultimately undermines trust by implicitly suggesting there’s an issue that needs to be remedied.
Dhillon went on in the interview to espouse the unsubstantiated claim that Democrats are somehow manipulating unengaged voters into voting for them. “The sloppiness of the elections in blue states is no accident. It is on purpose. It is a feature, not a bug,” she said. “And the goal is to cram as many people on there, and [for] voters who are not particularly engaged, make it easy for someone else to help them fill out their ballot and return it for them when they didn’t care enough to do it themselves.”
Underpinning that belief — which is belied by evidence that its Republican voters, not Democrats, who are relatively uninformed — is an unstated assumption about who deserves to vote; that someone who might need help registering or voting (whether due to mobility issues, language barriers, or just misgivings in their paperwork-filling abilities) should not have their voice heard in elections.
That seems to be the common thread uniting these disparate, and desperate, attacks on the democracy, linking efforts to block early voting, throw out mail-in ballots, toss eligible voters from the registration rolls, build new bureaucratic barriers to the ballot, amplify wealthier voices in the national conversation, gut the Voting Rights Act, and gerrymander away competitive races — the idea that not every citizen has earned the right to vote.
That same logic is what led some states, amid the nation’s founding, to limit the right to vote to men who owned property. “Such is the Frailty of the human Heart, that very few Men, who have no Property, have any Judgment of their own,” John Adams wrote, defending Massachusetts’ limited enfranchisement. And it’s the same logic used to defend the literacy tests and poll taxes used to deny Black voters in the Jim Crow era.
Ultimately, though, those views were rejected. First, by the framers of the Constitution, who provided the right to vote to all free men, and then by the drafters of the 15th and 19th amendments, which enfranchised Blacks and women, and later by the lawmakers who would go on to enact the CRA, the 1965 Voting Rights Act, the NVRA and HAVA.
*Democracy Docket Founder Marc Elias’s law firm represents intervening defendants in some of these lawsuits.