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Federal judge sides with W.Va. Secretary of State, DOJ can’t have voter records

The Robert C. Byrd United States Courthouse in downtown Charleston. (File photo)

CHARLESTON – A federal judge told the U.S. Department of Justice that it had no right to West Virginia’s unredacted voter registration files.

In a memorandum opinion and order released Monday afternoon, U.S. District Judge Thomas E. Johnston denied a motion made by the Department of Justice (DOJ) in a February lawsuit against Secretary of State Kris Warner seeking to compel the production of unredacted statewide voter registration lists.

Johnston, appointed by former Republican president George W. Bush, also granted a motion made by the Secretary of State’s Office to dismiss DOJ’s lawsuit against the state brought by Harmeet K. Dhillon, a U.S. assistant attorney general with the DOJ’s Civil Rights Division.

Attorneys for the DOJ claimed authority under the Civil Rights Act of 1960 to inspect the Statewide Voter Registration System. While voter eligibility is determined by local county clerks, the state is responsible for maintaining the database.

The DOJ said it had the right to investigate compliance with federal election laws, such as the National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA). But the court denied the request and dismissed the lawsuit. Johnston determined that the federal government failed to provide a specific factual basis or a legally valid purpose for demanding sensitive personal data, such as partial social security numbers.

“Clearly, this demand is devoid of any factual basis,” Johnston wrote. “The demand includes no indication that West Virginia is suspected to be noncompliant with the list maintenance requirements of HAVA or the NVRA, nor does it point to any anomalies in West Virginia’s voter registration data.”

The DOJ began sending letters to state election officials last summer requiring states to turn over voter registration databases to federal law enforcement officials. DOJ officials first contacted the Secretary of State’s Office last September seeking this data, with follow-up letters sent in December and January. The DOJ filed a lawsuit against the Secretary of State’s Office on Feb. 26 after Warner sent a written response to the DOJ denying its request.

In a statement released Monday evening from the National Association of Secretaries of State summer conference in South Dakota, Warner said that Johnston’s ruling was a victory for the rule of law, voter privacy and for state and county election officials.

“From the outset, my office has maintained that West Virginia law prohibits the disclosure of sensitive personal information contained in the statewide voter registration system absent legal authority requiring its release,” Warner said. “Today’s ruling confirms that our position was well-founded and consistent with both our statutory obligations and our responsibility to protect the personal information of West Virginia’s registered voters.”

According to Johnston, DOJ officials did not begin trying to provide justification for seeking West Virginia’s records well into the litigation. Johnston determined that any demand for voting records under the Civil Rights Act “must relate to a purpose of investigating violations of individuals’ voting rights.”

“While (DOJ) argues that assessing compliance with HAVA and the NVRA does align with this purpose, Plaintiff’s only apparent motivation to assess list maintenance compliance involves generalized nationwide concerns that voter registration records may contain too many names,” Johnston wrote. “Plaintiff must state a ‘purpose’ that relates to an investigation into potential violations of an individual’s right to vote. It has not done so.”

State Code only allows the release of redacted voter registration files. The Secretary of State’s Office has also argued that the DOJ request violates several federal privacy laws. Johnston agreed, stating that courts in the past have agreed that states have a right to redact certain voter registration data.

According to the Brennan Center for Justice, the DOJ is seeking unredacted voter registration files from 48 states and Washington D.C., filing 31 lawsuits against states that have refused. Eight of those lawsuits were against states with Republican election officials. Thirteen states, including West Virginia, have had their DOJ court cases dismissed.

“As West Virginia’s Chief Election Official, I remain committed to ensuring that our elections are conducted with integrity, transparency and full compliance with both state and federal law,” Warner said.

President Donald Trump is pushing for a federal voter registration database to remove ineligible voters, such as illegal immigrants, from state voter rolls traditionally handled by state and local election officials. Trump signed an executive order last year instructing federal agencies to obtain state voter registration records, directing the Department of Homeland Security to cross-check publicly available voter registration information against NVRA records and federal immigration databases.

“We share the Department of Justice’s commitment to enforcing federal voter registration list-maintenance requirements and ensuring that only eligible voters remain on the rolls,” Warner said. “Our disagreement has never been with that goal, but with the means sought in this instance, which would have required the disclosure of sensitive personal information in a manner prohibited by West Virginia law.”

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