DOJ left out a lot of its disclosure on election interference. That could shape Democrats’ next move

The Trump administration disclosed Friday that federal officials sent voter-related demands to at least five states ahead of the midterms. But just as significant for Democrats’ lawsuit* seeking to prevent further election interference may be what the government says it left out.

The Department of Justice (DOJ) and Department of Homeland Security (DHS) sharply limited their response to an order by U.S. District Judge James Boasberg to provide information on which states they have contacted to pressure election officials over voting. They excluded informal or unwritten communications, and disputed whether several categories of federal outreach to election officials counted at all.

The omissions could make it harder for Democrats to show they have standing to bring the case, which seeks a nationwide order blocking the administration from threatening election officials or pressuring states to remove voters and withhold ballots.

Boasberg made clear at a Thursday hearing that standing is his biggest concern with the case.

Democrats may now focus on those limitations when they file supplemental briefing on standing Saturday — arguing, for example, that the five disclosed states represent only formal written communications fitting the government’s narrow definition rather than the complete universe of interactions between federal officials and state election administrators.

Whether that is enough to satisfy Boasberg will become clear over the next few days.

DOJ is expected to respond Sunday, and Boasberg has said he plans to rule Monday — one day before Election Day.

His ruling could determine whether Democrats can successfully challenge the administration’s escalating confrontations with state election officials, or whether disputes over federal demands involving voters and ballots continue to play out state by state.

In Thursday’s hearing, the judge questioned whether Democrats could show a sufficiently concrete threat that the administration would take similar action in additional states, rather than asking the court to intervene based on speculation about what federal officials might do next.

But Boasberg gave Democrats a chance to bolster that argument through expedited discovery, ordering the government to identify states where officials had formally asked election administrators since July 1 to remove specific registered voters, refuse to issue them ballots or segregate or refuse to count their ballots.

“You’re going to need to give me something based on what they give you,” Boasberg told the plaintiffs Thursday.

On Friday, the administration identified California and Washington as states where DOJ sent communications falling within its interpretation of that request.

DHS separately listed Nevada, Pennsylvania and New Jersey, meaning the agencies identified five states in total.

But before providing that answer, the administration spent several pages explaining what it would not provide.

DOJ and DHS said they understood Boasberg’s order to cover only “formal communications,” objecting to any definition that would require them to search for informal oral communications, conversations or meetings that were never memorialized in a record. The government said it would instead look for formal written communications similar to DOJ’s Oct. 13 letter demanding that California set aside ballots from people federal officials alleged were likely noncitizens.

The administration also objected to a broader definition of communications that would include officials “directing,” “urging,” “instructing” or “asking” states to take action, saying those terms could encompass government advocacy, routine communications or informational exchanges.

It separately objected to including communications that warn officials of civil or criminal penalties if they do not act, calling that definition overly broad.

And DHS maintains that even four of the states it disclosed do not technically fall within the interrogatory.

The department says its July letters to California, Nevada and Pennsylvania — and a similar communication to New Jersey — merely asked election officials to work with the federal government to determine whether people identified through federal data matching were noncitizens registered to vote.

Those letters did not expressly tell states to remove voters, deny them ballots or segregate their votes, DHS argues, and therefore are not responsive to the question Boasberg ordered it to answer. The agency disclosed the states anyway without conceding that point.

The government also disclosed in a footnote that the Office of the Deputy Attorney General sent a separate letter to election officials in all 50 states Thursday reminding them that federal law requires the preservation of ballots and other election records for 22 months.

Those letters warn officials that willfully violating the record-retention requirement can carry up to a year in prison. DOJ says they likewise fall outside Boasberg’s discovery order because they do not demand action against specific voters or ballots.

The result leaves Democrats with a more complicated record than a simple list of states.

The administration has now acknowledged formal voter-related communications involving five states, including DOJ demands in California and Washington that went considerably further than DHS’s earlier verification requests. But it has also expressly carved out categories of communications that could potentially bear on Democrats’ broader allegation that federal officials are using threats and pressure to influence state election administration.

That distinction could matter because the plaintiffs do not merely challenge individual letters already sent to California or Washington. They are seeking prospective relief barring future intimidation and coercion, which means they must establish a real enough threat of future harm to give a federal court jurisdiction.

DOJ has argued that they cannot.

At Thursday’s hearing, a government attorney said the fact that DOJ previously sent letters does not establish what it will do in the future.

“Merely sending the letters does not forecast or predict future actions by the government — perhaps to enforce them, perhaps not,” DOJ attorney Christian Dibblee told Boasberg. The administration argued the plaintiffs’ theory depends on a chain of speculative events involving both federal officials and states.

Democrats have argued the opposite: that the California and Washington episodes are part of an escalating pattern and that other states may have received federal pressure without publicly disclosing it.

Friday’s response gives them some additional evidence of the administration’s geographic reach, but it does not resolve the broader question because of the limitations DOJ placed on its search.

*The Elias Law Group (ELG) represents the Democrats in this case. ELG Firm Chair Marc Elias is the founder of Democracy Docket.