A Jim Crow-era civil rights law is central to the Trump Justice Department’s effort to ‘clean’ voter rolls

(CNN) — The Trump administration’s sweeping legal effort to obtain Americans’ sensitive data from states’ voter rolls is now almost entirely reliant upon a Jim Crow-era civil rights law passed to protect Black voters from disenfranchisement – a notable shift in how the administration is pressing its demands.

The Justice Department says it wants to use the registration records to “help” states “clean” their rolls by comparing it to other data sets held by the government, according to public comments from Assistant Attorney General Harmeet Dhillon, who was appointed by President Donald Trump to head the department’s civil rights division.

Voter advocates and election experts warn of the potential for sloppy purges that risk disenfranchising eligible voters instead. They have also raised concerns that the data will be shared with other agencies to be used for other purposes.

The Justice Department has been working with the Department of Homeland Security on plans to review state voter registration files for evidence of non-citizens on the rolls, according to a source familiar with Trump administration discussions.

States have provided the Justice Department with some of the information it has sought. Most state election officials, though, including some Republicans, have resisted turning over particularly sensitive fields of data – such as voters’ birth dates, social security numbers and driver’s license numbers – citing privacy protections.

The Trump administration is now suing 23 mostly Democratic-led states, as well the District of Columbia, for voter information in their registration files that those states’ have refused to produce.

As the pushback to the requests mounted, the department reworked its legal arguments for why it’s entitled to obtain the records. The pivot to the Civil Rights Act is just one example of several notable changes in the DOJ’s approach. The law was not mentioned when the Justice Department first began insisting that elections officials turn over their registration files.

Nearly all of the career experts in the Department’s voting section left or were pushed out in the early months of the second Trump administration. The quest for voter data has been carried out while the DOJ voting section has only a barebones staff and led mostly by attorneys hired in Trump’s second term. Some of those attorneys previously worked for right-wing groups that sued state and local election officials over their refusal to share certain voter roll data.

“You start seeing things that make it very clear, in the evolution of their arguments, that they had not thought this out in the way that any other Department of Justice would,” David Becker, a former DOJ attorney who now heads the Center for Election Innovation & Research, said.

The federal laws addressing voter registration that the department relied upon when it initially requested states’ voter files are no longer the focus of the litigation. The more recent lawsuits zero in on instead a records inspection provision of the 1960 Civil Rights Act, passed by Congress as election officials in the South were refusing to register Black Americans.

The law requires election officials to retain records related to voter applications and registration, and says that such records must be made available for inspection if the attorney general demands in writing to see them.

Dhillon touted in a recent podcast interview with Scott Atlas the CRA’s broadly-worded language.

“The Attorney General doesn’t have to show her homework as to what she is going to do with it, and I am her designee. So I get to ask for that information and they have to give it,” she said.

The Justice Department declined to comment to CNN when asked about the change of approach, citing the ongoing litigation.

“The idea that Congress would have envisioned the Civil Rights Act as a catch-all for the Department of Justice to just demand – full scale, without redactions – all records related to voters in a state, even when there are no allegations of racial discrimination in voting, is absurd,” said Elisabeth Frost, the litigation chair of Elias Law Group, which has sought to jump into all of the voter roll lawsuits DOJ has brought against the states to argue against the disclosure of the data.

In court filings, the Justice Department says its opponents are the ones misreading the Civil Rights Act. In one recent case, DOJ told a court it “must decline Defendants’ and Intervenors’ invitation to rewrite the statute to add a requirement of racial discrimination.”

Writing on a blank slate

In its initial flurry of letters last spring and summer to states demanding information about their voter rolls, the Justice Department told state officials that it was requesting the records on the basis of the National Voter Registration Act and the Help America Vote Act.

Though states have been willing to share some of the information the Trump administration sought, several said that they would not hand over particularly sensitive data held in their voter files, and they argued that the NVRA and HAVA did not give the federal government the authority to obtain it.

By August, the Trump administration began invoking the Civil Rights Act as well in its correspondence with states, and the early rounds of DOJ lawsuits, filed against eight states in September, brought claims under all three laws. But in its most recent lawsuits, the Justice Department dropped the NVRA and HAVA claims and is only bringing the Civil Rights Act claim.

“The change in strategy demonstrates weakness of the claims under NVRA and HAVA,” said Brent Ferguson, director of strategic litigation, for the Campaign Legal Center, which is seeking to get involved in some of the cases to argue against the disclosure of the voter roll data.

The NVRA and HAVA are federal laws that put some guardrails on how states go about maintaining their voter rolls and do allow the public to obtain some voter registration information from election officials. But those laws have been extensively litigated, and there are court precedents in several circuits making clear that sensitive information can be redacted when elections officials disclose voter roll data, according to Theresa Lee, a voting rights attorney at the ACLU, which is also seeking to oppose the DOJ in some of the cases.

Only a smattering of cases, dating back to the 1960s, deal with the Civil Rights Act provision the department is now leaning on, though DOJ’s opponents contend that limited precedent nonetheless forecloses what the administration is seeking.

“They would just get nowhere with the NVRA under existing court precedent,” Lee said. “They’re hoping to write on the relatively blank slate with regards to the Civil Rights Act.”

The task of maintaining voter registration files and making sure only eligible voters are on the rolls is a job done by state and local election officials, with federal law merely putting guardrails on the process. Still, the Justice Department contended in its case against Michigan last month, without citing any specific laws, that the federal government had “special standing under federal election statutes to conduct list maintenance.”

“The DOJ is supposed to work from the law and the facts, and then flow through the litigation strategy,” Becker said. “Not start with, ‘Oh, we want to get this information and then let’s find some manufactured reason to get it.’”

In negotiations with states for the data, the administration has proposed a process by which the administration would flag ineligible voters that states would be obligated to remove, according to drafts of the proposals that Colorado and Wisconsin made public after rejecting the offer.

“Voting in American elections is a right guaranteed solely to citizens. Under the leadership of Secretary (Kristi) Noem, DHS will take all steps needed to ensure that only U.S. citizens participate in the electoral franchise,” a Homeland Security spokesperson said in a statement.

Need for speed

With the narrowing of the claims in its lawsuits, the Trump administration has streamlined the cases in other ways that could allow for the litigation to move more quickly.

In the early cases, the DOJ had opposed requests by outside groups to intervene. Opposing such intervention would usually prompt a round of briefing, slowing down the proceedings. Now the department is largely not opposing the intervention of outside groups.

As the litigation has gone on, the department has also embraced another tactic to try to expedite the records’ release, by filing unusual requests for the courts to order the production of the records immediately – without going through the usual legal process of considering the case.

So far, no court has granted the request for immediate production of the data though one judge has a scheduled a hearing this month on DOJ’s fast-track request for Connecticut’s voter rolls. Other judges signaled they wouldn’t consider those requests until they got through the usual steps of handling a lawsuit.

CNN’s Katelyn Polantz contributed to this report.

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