A U.S. Justice Department lawyer admitted in court Thursday that if Rhode Island hands over unredacted voter rolls, that data will be shared with the U.S. Department of Homeland Security to check citizenship status.
The acknowledgment came during a nearly three-hour hearing in United States v. Amore, the federal lawsuit brought against Rhode Island Secretary of State Gregg Amore in December for his refusal last year to offer up unredacted voter rolls containing driver’s license numbers and the last four digits of Social Security numbers for the state’s electorate.
The DOJ wants the data, it says, to ensure the state’s compliance with voting integrity laws. But Rhode Island is one of two dozen states pushing back against the Trump administration’s nationwide request, with legal battles against the directive arguing for the supremacy of states in managing elections.
At one point, U.S. District Judge Mary McElroy asked, “Can you take this list and send it to Homeland Security and say, ‘Hey, check this out to see if any of these people are not citizens in compliance with all federal laws?’”
“Yes, and we intend to do so,” said Eric Neff, who represented the DOJ during Thursday’s hearing at the U.S. District Court for the District of Rhode Island. Neff said that the Justice Department and Homeland Security already have a “use agreement” in place for such sharing.
Amore has removed about 105,000 voters from the rolls during his tenure as secretary. He also offered a compromise: He would turn over a redacted statewide voter list, albeit one without the sensitive fields desired by the DOJ. That the Justice Department found this unsatisfactory was a recurring concern for McElroy, who appeared unimpressed Thursday by the feds’ rationale for acquiring the data.
Neff stated in his opening remarks that the suit’s purpose was “transparency,” but McElroy needled him until a more specific downstream use for the data — possible citizenship checks — was revealed.
“One thing I can promise for sure is that the Civil Rights Division is going to comply with every order this court gives, no questions asked,” Neff, who serves as acting chief of the voting section in the DOJ’s civil rights division, said during the hearing.
“I kind of doubt that,” McElroy replied.
McElroy, who was appointed by President Donald Trump during his first term, did not rule from the bench Thursday. She did not humor the feds much, either. At one point, she told Neff she would stop interrupting him with questions so he could make his arguments.
It did not last long.
Within a minute or two, McElroy was again interrupting, grimacing, frowning and pressing Neff on the statutes from which the government derived its request. Was there evidence of fraud that led the feds to include Rhode Island in its sweeping request for voter rolls nationwide? There wasn’t, Neff clarified, and the feds’ argument could rely on legal authority alone without needing a specific instance of fraud.
McElroy offered that if the DOJ’s purpose is to oversee the legitimacy of voting rolls, then it should look at how Rhode Island runs its elections and verify those procedures, rather than focus on procuring a voter roll which will already be outdated by the minute the DOJ obtains it.
“The list gives you nothing except a snapshot in time,” McElroy said.
The case now also includes a set of intervenors — including the ACLU and the ACLU of Rhode Island, representing three individual voters plus Common Cause Rhode Island — who are seeking dismissal of the federal complaint alongside the Secretary of State’s office. Union SEIU District 1199NE and the Rhode Island Alliance for Retired Americans also joined as intervenors, asking to dismiss the case.
McElroy said she would try to issue a written ruling soon, ideally within the next week.
Going in circles
Much of Thursday’s hearing orbited the search for a statutory pathway that would authorize — or shatter — the feds’ specific request for unredacted data. Three laws had starring roles in both sides’ arguments: The Civil Rights Act (CRA) of 1960, the National Voter Registration Act (NVRA) of 1993 and 2002’s Help America Vote Act (HAVA).
The NVRA and HAVA both built upon the foundations in the Civil Rights Act, and both attorneys and McElroy traveled through time to inspect how this nearly 70-year old law at the center of the DOJ’s arguments should be interpreted in light of its amendments and present-day use that the government said it intends for the data.
James Arguin, a special assistant attorney general in the Office of Rhode Island Attorney General, shouldered most of the defense’s core arguments. The case should be dismissed, he said, because the federal argument lacks the required ingredients that would make its demands legal. The Civil Rights Act cannot be used to cast an excessively wide investigative net, Arguin argued, and there must be a concrete factual basis that Rhode Island violated federal election law.
Neff said in his remarks that Rhode Island only complied with two criteria of the Election Administration and Voting Survey (EAVS), recommended by the feds for election integrity. Thursday was the first time the defense had heard this information, Arguin said in his rebuttal.
The DOJ never alleged — in either communications to Amore or previous court documents — that Rhode Island had done something wrong. Instead, in Arguin’s assessment, the DOJ appears to be looking for a big fish.
“That kind of fishing expedition is not allowed under the ordinary rules of civil procedure,” Arguin said. “And certainly it should not be allowed with respect to highly sensitive confidential information on 750,000 active registered voters in Rhode Island.”
McElroy was likewise curious about what reality the feds tethered their case to, and she asked Neff plainly, “Do you have a factual basis?”
“Our basis is the CRA,” Neff replied, and McElroy winced.
“You can’t say the CRA requires you to give a basis, and so our basis is the CRA,” McElroy said. “That’s circular logic.”
17 states have complied
The DOJ’s request for voter rolls went out to nearly every state last year. So far, Neff said, 17 states have handed over the requested data, and the DOJ has held onto these lists. But the department hasn’t dug into the lists yet, he said, even from states that were early to comply, like Texas.
“What did you do to verify those lists?” McElroy asked.
“We have not done anything yet,” Neff replied.
McElroy tried again: “Why haven’t you done anything with those states?”
“The United States is taking extra concern to make sure that we’re complying with the Privacy Act in every conceivable way,” Neff said.
Neff said the government wants the data so it can be used in conjunction with a “fetching system” by DHS that the agency claimed would accurately identify whether voter rolls contain deceased or noncitizen voters. The source of the system’s accuracy prompted an eye roll from McElroy. She was also displeased when Neff later said that states could willingly submit their voting data to the Safeguard American Voter Eligibility (SAVE) database.
I kind of doubt that.
“This is the new and improved SAVE database?” McElroy asked. “Not the one that was wildly inaccurate six months ago?”
The idea that the DOJ would hand over the data it collects to other agencies seemed to deepen McElroy’s concerns about the entire data collecting enterprise. Would the data be used for “ICE going to people’s homes and arresting them?” she asked Neff
“No,” Neff replied.
“Are you sure?” McElroy said.
Neff’s response: “Good question, your honor, because the [DOJ’s] Civil Rights Division cannot promise what any other agency will or will not do.”
That seemed to summarize the issue for McElroy, who replied, “Isn’t that why Rhode Island doesn’t want to give you the driver’s license and Social Security numbers, because you can’t promise what other people are going to do?”
This story was originally published by the Rhode Island Current.
