by Dick Hall-Sizemore

There was considerable reaction to my recent article regarding the U.S. Dept. of Justice suing Virginia for not turning over an unredacted copy of the statewide list of registered voters. 

Two comments in particular struck me as needing some response from me. Matt Hurt posed this question: “The National Voter Registration Act of 1993 and the Help America Vote Act of 2002 both require states to maintain accurate voter rolls, and both provide DOJ with the authority to enforce them. If DOJ doesn’t have access to that information, how can it ensure states are compliant with these laws?” After considerable discussion, Nathan had a request of me: “I hope you will follow up, to provide the information necessary for a more complete understanding of this issue.”

These are legitimate questions and requests. I was out of the house for most of the day both Saturday and Sunday and thus not in a position to respond. I have now done some research and can provide some follow-up.

First, my major concern with this request lies with how DOJ said it was going to use it. In its MOU that DOJ asked agencies to agree to is this statement: “You agree therefore that within forty-five (45) days of receiving that notice from the Justice Department of any issues, insufficiencies, inadequacies, deficiencies, anomalies, or concerns, your state will clean its VRL/Data by removing ineligible voters.”

Simply stated, DOJ would examine a state’s voter registration list and identify ineligible voters for the state to remove from its registration list. This would be an extraordinary step. The state would be relinquishing a key component of its authority to administer elections. Identifying “ineligible” voters is prone to many errors, especially for the federal government, which is removed from the details of individual registration statuses. Even state governments, in their effort to purge ineligible voters, inadvertently remove eligible voters in the process. For example, in 2024, the Youngkin administration revoked the registration of approximately 1,600 eligible voters in its effort to find noncitizens who had registered.

Turning to the legal authority for the current DOJ request for unredacted statewide registration data, the federal government cited the following federal legislation statutes:

National Voter Registration Act (NVRA)—One provision of this act requires states “to ensure that accurate and current registration rolls are maintained.”  It requires states to maintain “records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy of official lists of eligible voters” and to make such records available for public inspection.

Help American Vote Act (HAVA)—Requires states to implement a centralized computerized statewide voter registration list and to maintain that list by removing ineligible voters. There is limited authority for the U.S. Attorney General to bring a civil action against any state to enforce the requirements of the act.

Title III of the Civil Rights Act of 1960 (Title III)—The legislation requires election officers to retain and preserve all records related to “any application, registration, payment of poll tax, or other act requite to voting.”  It also contains this provision:

 “Any record or paper required by Section 20701 of this title to be retained and preserved shall, upon demand in writing by the Attorney General or his representative directed to the person having custody, possession, or control of such record or paper, be made available for inspection, reproduction, and copying at the principal office of such custodian by the Attorney General or his representative.  This demand shall contain a statement of the basis and the purpose therefor.”

I am not a lawyer, nor do I have experience with election law sufficient to discuss these provisions of law. However, three federal district courts have ruled on suits filed by DOJ to force states to provide their unredacted statewide registration rolls. Each ruled against DOJ, saying that the provisions of federal law cited did not require the states to comply with the DOJ request. A summary of the reasons given by those courts to justify their rulings follows.

California

The California case was the first to be decided, January 15. The opinion issued is the broadest-ranging of the three.  In the broader context, the court viewed the DOJ request as part of an attempt “to centralize the private information of all Americans within the Executive Branch.” As a result, ‘the centralization of this information by the federal government would have a chilling effect on voter registration which would inevitably lead to decreasing voter turnout as voters fear that their information is being used for some inappropriate or unlawful purpose.” Therefore, any decision to create such a centralization of voter information “must be subjected to the crucible of public debate through the Legislative Branch of the American government.  It cannot be the product of executive fiat.”

As for the specific legislative authority claimed by DOJ, the court said, “Congress’ purpose in passing the civil rights laws the DOJ now invokes for its extraordinary request was to protect hard won civil rights victories allowing access to the ballot box….The pieces of legislation at issue in this litigation were not passed as an unrestricted means for the Executive to collect highly sensitive information about the American people.”

After articulating these broad objections, the court turned to the specific claims of authority asserted by the government.

Title III

The opinion focused on the requirement in Title III that the request for documents “shall contain a statement of the basis and the purpose therefor.”  The court stated, “The purpose of Title III is to detect voting-related racial discrimination.”  DOJ had explained to California officials that the purpose of its request for unredacted registration data was “to assist in our determination of whether California’s list maintenance program complies with the NVRA.”   The court declared this purpose as “being outside of the scope of what Congress intended Title III to be used for.”

Even if DOJ had a valid purpose for its request, the court ruled that it had not satisfied the other requirement set out in law—the basis for its request.  The court declared that “in no circumstance has the DOJ established the basis for its request.”  By “basis”, the court meant the “reasoning provided by DOJ regarding the evidence behind its investigation of a particular state and specific articulable facts pointing to the violation of a federal law.”  The court concluded, “Without these requirements, the DOJ could embark on a fishing expedition of voter records in any state looking for concerns, without identifying a single issue with the state’s policies beforehand.”  In conclusion, “The DOJ has not complied with Title III.”

NRVA

In dealing with DOJ’s claim that the NRVA entitled it to the state’s unredacted registration rolls, the court again turned to the original intent of Congress—“to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office.”  Rather than trying to implement this intent, the court declares, “The DOJ seeks to surpass the scope of the NRVA and wield it to collect information beyond the scope and purpose of what Congress envisioned.”  Going beyond the question of the Congress’s intent behind the NRVA, the court brushes aside the government’s claim that the law requires California to turn over all its registration data.  It declares, “Nothing in the NRVA prevents redaction of sensitive voter information as California law requires.  Furthermore, courts have routinely allowed for the redaction of sensitive voter information under the NVRA.  Therefore, the DOJ’s claim fails under the NVRA.”

HAVA

The court points out that HAVA does not have a disclosure provision.  “Without a statutory provision allowing for disclosure or inspection authority a government agency—like the DOJ- cannot claim to have that remedy tacked on to the text of the statute.”  Furthermore, “DOJ also simply fails to allege any violations of HAVA.  Even the federal government is not permitted to sue first, obtain discovery, and finalize its allegations later.  This appears to be a telltale ‘fishing expedition.’”

The major argument DOJ made was that it had identified apparent anomalies with California’s voter registration list, e.g. duplicates, which indicated that California must not be meeting minimum maintenance standards.  The court was not buying this argument.  It pointed out that the fact that California had reported duplicates, had reported removals of deceased registrants, and reported a change in inactive voters “indicates that its system is properly serving as a net.  A lack of reporting would be more telling than the de minimis numbers DOJ singles out.” (In a footnote, the opinion points out that these anomalies are related to NVRA, rather than HAVA.)  In summary, HAVA does not provide the authorization claimed by DOJ.

Privacy laws

Finally, the court declares, “The DOJ’s request for California’s unredacted voter rolls violates a plethora of federal privacy laws including the Privacy Act, E-Government Act, and Driver’s Privacy Protection Act, by failing to meet the requirements under each statue.”  The opinion goes on to cite in detail how these requirements are not met by DOJ’s request.

Oregon

The opinion issued by the federal district court in Oregon largely follows the reasoning set out in the California case, with a few differences.

NVRA

The opinion cites numerous cases in which courts have declared that “nothing in the text of the NVRA prohibits the appropriate redaction of uniquely or highly sensitive personal information contained in voter registration lists.”  The government tried to distinguish those cases from the current one on the grounds that the parties in the other cases were private organizations rather than the U.S. government.  The court rejected that argument, saying “plaintiff does not explain why that distinction warrants a different result in this case.”  There is no provision in the NVRA that says that the government must be treated differently.  In conclusion, “Plaintiff fails to state a claim the Defendants’ refusal to produce an unredacted voter registration list violated NVRA’s public disclosure provision.  The claim is dismissed.”

HAVA

As in the California case, the court makes short shrift of the government’s claim that HAVA compels the state to disclose its unredacted registration data.  “Plaintiff cites no provision of HAVA that Defendants violated by failing to produce an unredacted voter registration list, nor could it because HAVA contains no record disclosure provision.”  Therefore, that claim is dismissed.

Title III

This opinion also focusses on the requirement that the government’s demand for records must contain “a statement of the basis and purpose therefor.”  In this case, the government argued that the term “basis” refers to a legal basis, i.e. the statues setting out the disclosure requirement.  The court’s response was simply, “The Court is not persuaded.”  Citing precedent, the court concludes that it “understands ‘basis’ to mean a factual basis for investigating a violation of a federal statute.”  However, the government had provided “no statement of a factual basis for believing Oregon violated the NVRA.”

As for purpose, the court contended that “Plaintiff’s stated purpose is insufficient because it is unrelated to the purpose of Title III, which is to “protect against the infringement or denial of voting rights.”  The government had argued that it was not constrained by the Congress’s purposes for Title III and the language authorized it to demand “such records for the purpose of investigating the violation of any federal statute.”  The court rejected that argument because it would “grant [the government] unfettered authority to demand voting records for any purpose [emphasis in original]’’ and “the Court cannot conclude that Congress intended to grant Plaintiff such expansive and unfettered authority to invade citizens’ right to keep their sensitive information private.”

Going further, the court declared, “Title III does not require the disclosure of unredacted records.

In summary, “Because Title III does not require Defendants to disclose Sensitive Voter Data, Plaintiff fails to state a claim that Oregon violated Title III by failing to produce an unredacted copy of its registration list.  Count III is dismissed for that additional reason.”

Michigan

The federal district court in Michigan reached the same overall result as those in California and Oregon, but as the opinion, issued Feb. 10, 2026, illustrates, by different reasoning.

NVRA

The Michigan court rejects the argument used by the California and Oregon courts, i.e. that the NVRA does not prohibit the redaction of registration records before making them available to the government.  That approach, the court claims, “suffers from a simple flaw: there is no privacy exception” in the law.  Rather, the law requires the disclosure of “all records” within its scope.  “In short, there is no plausible reading of [this section of Title III] that gives rise to a privacy exception, nor is there any legal basis for the Court to impose an exception ungrounded from statutory text.”

However, the court does offer a statutory interpretation that “does not require the disclosure of voter registration lists.”  The court homes in on the statutory provision requiring that states make available “all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters” and concludes that the list of registered voters is not a “record” in this context.  According to this line of reasoning, “a natural reading of that language encompasses only records about the process that a state uses to maintain their voter list—not the underlying list itself.”  If it meant the voter registration list to be disclosed, Congress could have easily said so.  Instead, “it referred only to records concerning the implementation of programs.” [emphasis in original”] 

In conclusion, “the United States cannot obtain Michigan’s voter list under [NVRA], and the Court will dismiss the United States’ NVRA claim.”

HAVA

The reasoning to dismiss the claim under HAVA is similar to that used by the other courts.  “The United States does not state a HAVA claim because it does not allege any violations of HAVA’s substantive provisions….There is simply no basis in the Federal Rules of Procedure for the United States’s suggestion that it can file a HAVA claim, allege no violations of HAVA, and obtain information to support its (as-yet-nonexistent) claim via discovery.”

“Thus, the Court will dismiss the HAVA claim.”

Title III

In its treatment of the government’s Title III claim, the Michigan court again differs from the reasoning used by the California and Oregon courts.  It rejects those courts’ arguments that the request for unredacted registration rolls is invalid because it is not related to the purpose of Title III, remediation of racially discriminatory voter registration practices.  “[Title III’s] text includes no such limitation.”

Instead, the court goes back to the words that are in the statute—States must preserve and make available “all records and papers which came into [a state officer of election’s] possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election.”  As the court interprets this language, a voter registration list is not such a record.  “The phrase ‘come into [their] possession’ naturally refers to a process by which someone acquires an item from an external source [emphasis in original].”  The voter registration list is not something the state acquired from people submitting documents as part of the voter registration process.  It is something state officials created themselves. 

Congress could have referred simply to “records in the possession of” election officials if it meant all records.  Rather, by using the phrase, “come into [their] possession,” Congress is clear that it is referring to “something that the voter submits or does as part of the registration process.” 

“In sum, the records requested by the United States do not fall under [Title III’s] disclosure provision, and the Court will grant Defendants’ motion to dismiss the [Title III] claim…HAVA, the NVRA, and [Title III] do not allow the United States to obtain the records at issue in this case.”

There you have it—three different opinions all rejecting DOJ’s demand for unredacted voter registration rolls but using different lines of reasoning to get to that conclusion.  It will be fascinating to see what approach the Virginia federal district court takes with the case before it.