New lawsuit challenges Trump’s ‘flagrantly unlawful’ bid to create federal voter database for midterms

The Trump administration’s ongoing effort to create a national voter registry is an illegal attempt to influence who can vote just weeks before the midterms, a privacy advocacy nonprofit alleged in a new lawsuit Tuesday.

Filed by the Electronic Privacy Information Center (EPIC), the suit seeks to halt the Department of Homeland Security (DHS) and the Social Security Administration (SSA) from carrying out President Donald Trump’s March executive order to centralize Americans’ sensitive personal data and compile lists of people eligible to vote in every state.

While Trump’s order is currently the subject of multiple ongoing legal challenges, they largely focus on its directive to the U.S. Postal Service (USPS) to not deliver mail ballots to voters in states that do not provide the federal government with a list of people who intend to vote by mail. 

In contrast, EPIC’s lawsuit challenges the administration’s equally alarming attempt to federalize voter registration. If combined, the lists sought by Trump would amount to a nationwide database of eligible voters managed by the federal government. No such thing has ever before existed because the U.S. election system is designed to be managed at the state and local level, not by the executive branch.

“No statute authorizes Defendants to share and centralize vast volumes of Americans’ sensitive personal data across government agencies to create and disclose the ‘State Citizenship Lists,’” the lawsuit, filed in federal court in Maryland, reads.

Pro-voting organizations Protect Democracy and Citizens for Responsibility and Ethics in Washington are representing EPIC in the suit.

The Trump administration has claimed the lists are needed to prevent noncitizens from voting, which is already illegal and exceedingly rare.

Should DHS and SSA carry out Trump’s directive, they could vastly expand the president’s ability to challenge a person’s right to vote, giving the executive branch greater power to influence election outcomes. 

Though Trump’s order states that a person’s appearance on a federal list doesn’t automatically mean he or she is registered to vote, it remains silent on whether absence from one of the lists could be used by the federal government, political parties or anti-voting groups to challenge a person’s right to vote.

EPIC argued the directive unconstitutionally encroaches upon states’ authority to administer elections and determine voter eligibility — powers directly enumerated in the U.S. Constitution. The organization said that the order also violates several federal laws, including the Privacy Act of 1974, which Congress passed to prevent federal agencies from illegally gathering, sharing or misusing Americans’ personal information.

“Building a database containing the identities, Social Security numbers, addresses, and citizenship information of every U.S. citizen is an extraordinary illegal overreach by the federal government,” EPIC Deputy Director John Davisson said in a statement Tuesday.

“This is precisely the nightmare ‘Big Brother’ scenario that the Privacy Act exists to prevent,” Davisson added.

The lists would also likely be riddled with inaccuracies, further heightening the risk of eligible voters being disenfranchised, the group said. Because they were designed for different purposes, the databases DHS and SSA would pull from to compile the lists are notoriously inaccurate when used to determine voter eligibility.

DHS itself admitted that these lists will contain widespread inaccuracies that could result in eligible voters being erroneously removed from state voter rolls just weeks before Election Day and disenfranchised.

DHS and SSA have yet to formally adopt rules implementing Trump’s executive order, though they have taken several steps in that direction. 

In a June memo, DHS said it approved a plan to create a new online portal allowing election officials to access citizenship-related data on people in their states 60 days before a federal election. It claimed the data would be maintained by U.S. Citizenship and Immigration Services, SSA and the Department of State. The underlying information would remain inside each agency’s existing systems, though in practice the data would be centralized in the portal.

A federal judge in Massachusetts blocked Trump’s directive to DHS, SSA and USPS in a court order in June. 

However, the Supreme Court’s conservative majority lifted that injunction last week, claiming it prematurely blocked Trump’s order and not a specific action by a federal agency.

While the federal judge subsequently blocked a new Postal Service rule carrying out Trump’s mail voting directive, no court order currently bars DHS and SSA from creating the eligible voter lists in time for the upcoming midterms.

In a separate lawsuit, EPIC and other plaintiffs are challenging DHS’s attempt to overhaul its SAVE system, a database originally designed to help states check the citizenship status of people applying for government benefits, to police state voter rolls.

In June, a federal court barred DHS from offering the SAVE program to assist in voter roll purges, saying the endeavor “haphazardly” threatened “the sacred right to vote” and “trampled on the privacy rights of American citizens.”