DOJ’s push to collect your data is a fishing expedition

Mary Ellen Klas, Tribune News Service

With his approval rating sinking lower and lower, and facing the prospect of losing control of the House to Democrats, President Donald Trump is engaged in an unprecedented attempt to manipulate the midterm elections. Not only has he demanded that Texas redraw its congressional districts, he’s now got Attorney General Pam Bondi and the Department of Justice embarking on another insidious strategy: Building a dossier of private information on every voter that Trump can use for political advantage. Over the past several weeks, the DOJ Civil Rights Division has sent letters to more than a dozen states demanding they hand over their voter lists, including sensitive private information — such as driver's license and Social Security numbers linked to names, home addresses and, in many cases, dates of birth.

The DOJ is telling state election officials that it needs the data to check their compliance with the National Voter Registration Act and the Help America Vote Act — presumably to hunt for illegal voting — and it reportedly intends to contact all 50 states. But while federal law gives the Justice Department the ability to require states to put procedures in place to comply with those laws and remove ineligible voters from voter rolls, it doesn’t give the federal government authority over election administration — and that includes reviewing and maintaining the rolls themselves, said David Becker, executive director of the Center for Election Innovation & Research.

“We’re seeing an unprecedented effort to seize power that is not granted under the Constitution, to realign the balance of power between the executive branch and the judiciary and, especially, the states,” he said. There’s another reason the DOJ may want the data. NPR reported recently that the administration is building a searchable national citizenship data system to be used by state and local election officials to root out noncitizen voting — something election experts say is an inconsequential problem. A report released last week from Becker’s organisation concluded that in states that have investigated the issue, incidents of noncitizen voting are minuscule and random.

By all indications, the DOJ data call is a massive fishing expedition. “They are just looking for any kind of indication of wrongdoing or error that they can point to, to further fuel the federal government's intrusion into election administration,” said Jonathan Diaz, director of voting advocacy and partnerships at the Campaign Legal Center, a nonpartisan organisation that advocates for government accountability. Yet Michael Whatley, the Republican National Committee Chair, obliquely defended the effort as about “election integrity” and trying to ensure “safe and secure elections in key states.” That’s obfuscation. It sounds to me — and to the election experts I’ve talked with from both parties — that this exercise isn’t really about election integrity, but about laying the groundwork for a political strategy for the midterm elections.

That strategy could take many frightening forms, the experts told me. Trump could suggest that states can’t be trusted and use that to justify a state of emergency that allows him to seize control of state voting operations or suspend voting in certain states. (Never in American history have we suspended federal elections, Becker says — and that includes during wars, pandemics and natural disasters.) Or Trump could distort the voter data he collects and use it to continue to spread false claims and conspiracy theories about the security of US elections. One result of these conspiracies, as we’ve learned, is that many Americans distrust any election where their candidate loses. Even just collecting the data may scare some people into staying away from the polls. There are many people who might decide not to vote if they think federal access to their personal data could be used to intimidate them.

What’s especially troubling is that the DOJ’s action could undermine the decentralised elections system “that makes our elections so resilient and so resistant to things like foreign interference,” Diaz told me. The Constitution intentionally gives election administration exclusively to the states because “the founders were very skeptical of a sort of all-powerful executive — having just thrown off the shackles of a king.” For states to comply with these letters, they would have to violate a federal law that prohibits the sharing of driver’s license numbers and, in many cases, also violate their state constitutions. According to a list assembled by the National Conference of State Legislatures, many states have stricter privacy protections for their voter files than the federal government does. Another troubling development is that while states have developed strict protocols for protecting this information, the DOJ hasn’t said how it will keep the data safe from hackers and cybersecurity breaches. The agency has an obligation to protect individuals, including elected officials, judges, domestic violence victims and others whose personal information is under a protective order or exempt from public disclosure and it owes the public an explanation for how it’s going to handle the data if it gets it.

Trump tried to intimidate states like this in his first term, when he created a special commission that told states to turn over their voter files so the federal government could audit them. Election officials forcefully pushed back. Members later admitted the group was set up to validate Trump’s voter fraud claims. The commission was disbanded. This time, that resistance may be quieter, but election officials in both red and blue states appear to be defying the DOJ request and turning over only the parts of their voter files that are already public.

In a letter to the DOJ, New Hampshire’s Republican Secretary of State David Scanlan pointed to a state law that says the voter database “shall be private and confidential” and not subject to any records requests. And Utah’s Republican Lieutenant Governor Deidre Henderson told the Salt Lake City Tribune on Thursday that the state turned over its public voter list to federal officials, but “if they want protected data, there’s a process for government entities to request it for lawful purposes.” Then there’s Maine Secretary of State Shenna Bellows, a Democrat, who said this week that her state law doesn’t allow her to release the data and suggested Trump’s DOJ “go jump in the Gulf of Maine.”

If Bondi has a good reason to force states to turn over the voter data, she should state the reason and ask Congress to change federal law to do it. Until then, every American should be concerned about the president trying to exercise power that he doesn’t have so he can invade your privacy because you decided to vote.