Attorneys for the U.S. Department of Justice have moved to compel West Virginia officials to release an unredacted statewide voter registration list to get state voters’ information like birth dates, residential addresses, drivers license numbers and partial Social Security numbers.
The DOJ filed a federal lawsuit over the dispute at the end of February. On Friday, attorneys for DOJ officially filed a motion to force disclosure of the West Virginia voter records, along with supporting documents like a more developed memorandum to lay out the federal government’s reasoning.
This has been an ongoing issue in West Virginia since Secretary of State, Kris Warner twice said no, citing state law and personal voter information.
The case has been assigned to U.S. District Judge Thomas Johnston, a George W. Bush appointee who has served on the federal bench since 2006.
DOJ, however, contends that the judge’s courtroom role is “severely limited” to confirming that a written demand was made, it was directed to an officer of election and the officer refused to comply
The lawyers for the Department of Justice maintain the demand for voting records is not a traditional civil action. Instead, they argue it is a summary proceeding similar to an administrative summons or a grand jury investigation. DOJ maintains that standard discovery and the Federal Rules of Civil Procedure do not apply to these requests.
As of April 1, the DOJ has filed lawsuits against 29 states and Washington, D.C.
The Department of Justice contends that parts of the Civil Rights Act of 1960 provide the Attorney General with a unique and broad investigative authority to compel the production of federal election records.
The Civil Rights Act of 1960 aimed to strengthen voting rights for African Americans by establishing federal inspection of local voter registration polls and introducing penalties for obstructing anyone’s attempt to register or vote.
In contrast, opponents of the current federal action contend it is aimed at kicking eligible voters off the rolls and suppressing the vote.
West Virginia’s secretary of state has maintained that voter lists are available in a redacted format, but additional information is protected by state law.
The Department of Justice has pointed to the authority of the Elections Clause of the Constitution, saying that preempts any state laws that prohibit the disclosure of sensitive voter information.
The clause empowers the states to determine the times, places and manner of holding elections for senators and representatives, but does say “Congress may at any time by Law make or alter such Regulations.”
The DOJ attorneys contend that federal law is “paramount” and that states cannot use privacy statutes to deny access to records required for federal oversight.
“While the United States Constitution invests states with broad powers over the conduct of federal elections, it also explicitly authorizes Congress to override those state choices,” wrote lawyers for the Department of Justice.
Moreover, the lawyers wrote, “The United States believes that state law can be read in harmony with federal law. If it cannot be, and there is a direct conflict between state and federal laws, then state law must yield.”
Last week, West Virginia Citizen Action Group filed a motion to intervene as a defendant in the lawsuit. The organization is represented by attorneys from Campaign Legal Center, the Brennan Center for Justice at NYU Law, the American Civil Liberties Union and the American Civil Liberties Union of West Virginia.
“The federal government has no valid basis or purpose for seizing West Virginia voters’ sensitive data, which includes highly sensitive information, such as voters’ Social Security numbers, dates of birth and other personal identifiers,” said Julie Archer, director of democracy programs for West Virginia Citizen Action Group.
“State and local election officials should be the only ones with access to these, as they run our elections. The DOJ’s investigation leans heavily on long-debunked conspiracy theories surrounding the 2020 election. These baseless claims are being used as justification to break the law and interfere with free and fair elections.”