Trump DOJ fails to convince full Sixth Circuit to resurrect Michigan voter roll loss

The full Sixth Circuit Court of Appeals Friday rejected the Trump administration’s request to reconsider a ruling that denied the Department of Justice’s demand for Michigan’s unredacted statewide voter file — handing DOJ another major setback in its nationwide voter roll crusade.

President Donald Trump’s DOJ had asked the full appeals court to rehear the case after a three-judge panel ruled in June that the department could not use Title III of the Civil Rights Act of 1960 to compel Michigan to produce its statewide voter database.

The court denied DOJ’s petition after “less than a majority” of the judges voted in favor of rehearing the case en banc, leaving the panel’s ruling intact as binding precedent in the Sixth Circuit.

The court did not disclose the exact vote or issue a single majority opinion explaining the denial. But a concurrence from Judge Eric Murphy, joined by Chief Judge Jeffrey Sutton and Judge Joan Larsen, and joined in large part by Judge Chad Readler, made clear that several judges saw DOJ’s problems as largely self-inflicted and fixable without forcing the full court to intervene.

Murphy said the legal issues surrounding DOJ’s authority to obtain state voter records could eventually warrant en banc review, but that “now is not the proper time.” He read the panel’s decision as turning on “curable procedural problems,” particularly the wording of DOJ’s letters to Michigan.

The three-judge panel had concluded that DOJ demanded Michigan’s statewide voter registration list, not the underlying individual records used to create it. Murphy said DOJ could simply send a new letter that makes clear what records it is seeking.

That, he wrote, would be more efficient than convening the full appeals court and having “some 17 judges” spend more time “parsing the meaning of the letters than the meaning of the law.”

Murphy later called the defect a “simpler fix than en banc review,” saying DOJ could issue “a new letter unambiguously requesting these individual records.”

He made a similar point about Title III’s requirement that DOJ state the “basis and purpose” for its demand. Rather than ask the full court to decide whether information scattered across multiple letters satisfied the statute, Murphy said DOJ could send a new demand containing all of the information in one place.

DOJ, however, has shown little appetite for the simpler fix Murphy described. 

Even after losing its voter roll argument in 21 district courts and once before the Sixth Circuit, the department has continued insisting that Title III already gives it authority to obtain states’ voter databases. In recent appellate filings, DOJ has called courts’ contrary interpretation “narrow,” their reasoning “erroneous” and one ruling “unnecessarily formalistic” — doubling down on essentially the same theory that judges around the country have repeatedly rejected.

Murphy also identified a broader problem with DOJ’s theory: a “potential mismatch” between the department’s effort to investigate Michigan’s general compliance with federal list maintenance laws and Title III’s apparent focus on records tied to a specific election.

DOJ initially relied on the National Voter Registration Act when it sought Michigan’s voter file and did not invoke Title III until a later letter, Murphy noted. But that later letter did not change the scope of DOJ’s demand.

Two separate dissents argued that the full court should have reheard the case. 

Judge Richard Griffin, joined by Judge John Bush, called Michigan’s defenses “meritless” and “technical,” while Judge Amul Thapar wrote a separate dissent joined by Griffin, Bush, Judge John Nalbandian and Judge Chad Hermandorfer.

Still, DOJ failed to win over enough judges to secure rehearing.

The denial leaves intact the Sixth Circuit panel’s ruling against DOJ and adds another setback to a nationwide campaign in which the department has repeatedly argued that Title III gives it authority to obtain states’ full voter registration databases.

Murphy suggested the issue could return to the court later, noting that similar cases are still moving through courts around the country.

“These issues are not going away,” he wrote, adding that further litigation would help the Sixth Circuit — and “ultimately the Supreme Court” — decide them in the future.