Trump DOJ suffers first appeals court loss — after nine lower court failures — in floundering voter roll crusade

A federal appeals court panel Wednesday dealt the Trump administration its first appellate defeat in its nationwide crusade to obtain unredacted state voter rolls — after nine straight district court losses and no wins.

A three-judge panel of the Sixth Circuit Court of Appeals affirmed a lower court ruling dismissing a Department of Justice (DOJ) lawsuit against Michigan Secretary of State Jocelyn Benson (D), rejecting the department’s attempt to force the state to turn over its full voter registration file.

The ruling is a major blow to President Donald Trump’s effort to seize sensitive voter data from states across the country.

DOJ has now lost all ten decisions to have been issued in its voter roll cases: nine district court rulings and one appeals court ruling. 

And because Kentucky is also in the Sixth Circuit, Wednesday’s ruling is binding precedent for DOJ’s pending voter roll lawsuit there, making it all but certain that this case, too, will be dismissed.

The case centered on DOJ’s demand for Michigan’s statewide voter registration database. The department sought not only voters’ names, but also sensitive personal information including dates of birth, partial Social Security numbers and driver’s license numbers.

Benson refused to provide the unredacted file, giving DOJ only the public version of the list. 

A Trump-appointed district judge dismissed the case in February. DOJ then appealed only its claim under Title III of the 1960 Civil Rights Act, a provision originally designed to preserve records so the federal government could investigate racial discrimination in voting.

In a published opinion, the Sixth Circuit said DOJ is trying to use that civil rights law for the opposite purpose.

“Back then, the government used this power to ensure that everyone who had the right to vote could freely exercise that right,” U.S. Circuit Judge Andre Mathis wrote. “But today, the government invokes Title III for an inverse purpose—to ensure that some people have not voted.”

Mathis, appointed by President Joe Biden, wrote the majority 2-1 opinion and was joined by Judge R. Guy Cole Jr., appointed by President Bill Clinton. 

Judge John Nalbandian, appointed by Trump, dissented.

That finding strikes at the core of the Trump DOJ’s legal theory.

The court held that Michigan’s voter file is not the kind of record DOJ can demand under Title III because it is created and maintained by the state, not received from voters.

“An ordinary English speaker would not say that she has come into possession of something that she created, established, and maintained,” Mathis wrote. “Thus, the qualified voter file did not ‘come into [Benson’s] possession’ as that term is ordinarily understood.”

The court also warned that DOJ’s interpretation would put election officials in an impossible position. 

Federal laws such as the National Voter Registration Act and the Help America Vote Act require states to keep voter rolls current. DOJ’s theory would treat the voter file as a record that must be preserved and not altered for 22 months.

“We should not adopt a reading that would place election officials in violation of one federal law for trying to comply with others,” Mathis wrote.

The ruling is also a direct rejection of DOJ’s troubling attempt to rely on a legal memo it wrote for itself on the eve of oral argument.

In May, DOJ submitted a newly issued Office of Legal Counsel memo to the Sixth Circuit, arguing that the Civil Rights Act allows the department to force states to provide unredacted voter registration lists and share that information with the Department of Homeland Security.

The court was not persuaded.

“OLC issued the opinion the day before oral argument here, roughly 66 years after Title III’s enactment,” Mathis wrote. “So we reject OLC’s interpretation of Title III.”

The appeals court also found that DOJ’s demand letters failed to meet the statute’s requirements. Title III requires DOJ to tell states both the basis and purpose for demanding covered records. The court said the department failed to do so.

“The government cannot pinpoint a Title III demand with a statement of the basis and purpose,” Mathis wrote.

Wednesday’s decision is the first appellate ruling in the wave of DOJ voter roll lawsuits and gives states a major new precedent to cite as they fight similar demands. Appeals are already pending from DOJ’s losses in California, Oregon, Arizona, Massachusetts, Rhode Island, Maine and Wisconsin.