Trump DOJ cites its own legal memo to defend voter roll demands on eve of appeal

With a key appeal looming, the Department of Justice cited an unusual source to defend its sweeping voter roll demands: itself.

In a filing Tuesday, just one day before oral arguments in the Sixth Circuit Court of Appeals, DOJ submitted a newly issued internal legal opinion as “supplemental authority” — a memo written by its own Office of Legal Counsel and published the same day it was filed. 

The department told the court the memo supports its argument that the Civil Rights Act of 1960 allows DOJ to force states to hand over unredacted statewide voter registration lists and then share that data with the Department of Homeland Security (DHS).

The move comes in the DOJ’s lawsuit seeking Michigan’s unredacted voter rolls after Secretary of State Jocelyn Benson (D) refused to turn over the list.

A federal, Trump-appointed judge dismissed the case in February, ruling that statewide voter registration lists are not the kind of records DOJ can demand under the Civil Rights Act. DOJ appealed, and oral argument is scheduled for Wednesday in the Sixth Circuit.

Rather than pointing the appeals court to a new ruling from another court backing its position, DOJ pointed to a legal opinion it wrote for itself that same day.

In other words, with real legal precedent in short supply, DOJ is now citing its own homework and asking the court to treat it like the answer key.

The OLC opinion concludes that DOJ has authority to compel states to produce voter registration lists, even if the department plans to share them with DHS or another federal unit.

“To start, we conclude that federal law authorizes the Division to compel states to produce their statewide voter registration lists regardless of whether the Division intends to share them with HSI or another unit within DHS so that DHS may cross-check them against existing databases,” OLC wrote.

The memo also asserts that states cannot withhold the lists based on privacy protections.

“No state is entitled to withhold responsive materials based on privacy or confidentiality provisions found in state law,” OLC added.

That is the exact kind of sweeping theory federal courts have repeatedly rejected.

DOJ has sued dozens of states that refused to hand over voter data, but courts in California, Oregon, Michigan, Massachusetts, Rhode Island and Arizona have all dismissed similar lawsuits.

Some courts found DOJ failed to properly explain why it needed the records. Others went further, including Arizona, where a federal judge ruled DOJ had no right to the statewide voter list under the law at all.

The new memo even acknowledges that the Michigan district court rejected DOJ’s position, but says the department is unmoved.

“Consistent with our ongoing obligation to provide our best view of the law to the Executive Branch, we have continued to monitor the evolving litigation landscape,” OLC wrote. “As of the date of this memorandum, no single case has provided reasoning that has led us to doubt or revise our advice from last fall.”

That creates an unusual loop. DOJ is asking the Sixth Circuit to rely on an internal opinion that explicitly declines to accept the reasoning of the lower court decision the department is trying to overturn.

The opinion also confirms the administration’s broader goal of using voter rolls beyond ordinary election administration. OLC wrote that DOJ wants to share voter lists with Homeland Security Investigations so officials can compare them against immigration databases and identify “illegal aliens” who may have registered or voted.

“As part of that compliance-ensuring effort, the Division has proposed to share these lists with HSI or another unit within DHS, which would cross-reference the lists against existing databases in order to identify illegal aliens who are ineligible to vote,” OLC wrote.

The memo’s bottom line is sweeping.

DOJ says the Civil Rights Act allows it to obtain state voter rolls, privacy laws do not stop it and the department may share the information with DHS for immigration-related investigations.

“In sum, we conclude that section 303 of the Civil Rights Act authorizes the Division to seek statewide voter registration lists from states,” OLC wrote. “Moreover, the Privacy Act, Driver’s Privacy Protection Act, and E-Government Act do not limit that authority. Finally, no other legal practice impedes the Division from sharing this information with HSI as part of its effort to identify individuals who are ineligible to vote, including — in DHS’s specific jurisdiction — illegal aliens.”

The last-minute filing underscores the stakes of Wednesday’s argument.

If the Sixth Circuit agrees with the Michigan district court, DOJ’s voter roll crusade could suffer another major blow. If it accepts DOJ’s newly minted internal reasoning, the department could revive its aggressive theory that states must provide sensitive voter data to the federal government, even when state officials cite privacy protections or election law limits.

For now, DOJ is heading into argument with a legal strategy that amounts to asking the court to trust DOJ’s view of DOJ’s power — even after multiple courts have already said no.

DOJ also cited its own opinion in the Ninth Circuit in its appeal to cases out of California and Oregon.