Voting and Privacy Groups Sue DHS Over Voter Records Collected From at Least 47 States, Demand Deletion

Since the Justice Department began demanding unredacted voter rolls from the states last year, the fight over who holds Americans' voter data has moved from DOJ to the Department of Homeland Security. On Thursday, Oct. 15, three groups took DHS to federal court in Washington.

The League of Women Voters, the Electronic Privacy Information Center (EPIC) and the League of United Latin American Citizens (LULAC) say DHS has collected and compiled voter registration records from at least 47 states. They argue that violates the Privacy Act of 1974. They want a judge to declare the effort illegal and order the government to delete what it has gathered. Democracy Forward and Citizens for Responsibility and Ethics in Washington represent the plaintiffs.

What the complaint alleges

The Privacy Act lets agencies keep only information that is relevant and necessary to an authorized purpose. The plaintiffs say a nationwide voter database is neither.

"Congress created DHS to prevent terrorism, secure the border, and address other specified threats, not to conduct a voter-fraud dragnet centered on the private voting information of millions of Americans," the groups said.

The complaint says the records can include Social Security numbers, driver's license numbers, dates of birth, home addresses, voting histories and political affiliations. It also alleges DHS has combined the voter files with information bought from commercial data brokers. The files cover most of the country's roughly 174 million registered voters, according to the plaintiffs.

The suit also leans on the Act's limit on records describing how people exercise First Amendment rights. Such records are barred unless a statute authorizes them or they are tied to an authorized law enforcement activity.

What internal records show

A 166-page set of internal records, released through a Freedom of Information Act suit by Democracy Forward, gives the clearest look yet at the operation. Homeland Security Investigations, the investigative arm of ICE, described a phased national initiative covering voter-roll acquisition, data analysis, investigative leads and field investigations.

A June 1 HSI report said investigators had ingested 50.6 million records from a Justice Department dataset. Another 48.4 million came from what the report called "independent sources of information." Those were obtained by Heather Honey, a senior counselor to Homeland Security Secretary Markwayne Mullin. The report does not name the sources.

The records also show dozens of nonprofit voter-registration groups under scrutiny, primary elections tracked, weekly progress reports and discussion of deploying undercover agents to investigate groups suspected of helping noncitizens register.

In July, Mullin announced that DHS had found roughly 250,000 noncitizens registered to vote in California, New Jersey, Pennsylvania and Nevada. Officials in those states have repeatedly challenged the figure. DHS bought public voter lists from the four states around that time.

DOJ has shared voter lists it obtained with DHS, according to letters the government released. More than a dozen Republican-led states handed over unredacted rolls voluntarily, and DOJ has sued 30 other states to force them to do the same.

DHS's position

DHS did not respond to requests for comment on the lawsuit. In an earlier statement about the internal records, a DHS spokesperson said the department "has been incredibly transparent about the acquisition and the analysis of publicly available voter files conducted by the Fraud Detection and National Security Directorate of USCIS."

The spokesperson added: "DHS and DOJ are laser focused on prosecuting and removing aliens who vote and preventing the dilution of the votes of US citizens."

Noncitizen voting in federal elections is illegal, and federal law requires states to maintain voter lists. DHS's stated position is that checking those lists against immigration data is part of enforcing that ban.

Democracy Forward president Skye Perryman said the records suggest "the president and his allies want to pick their voters, as opposed to the way things are supposed to function in a democracy where voters pick their leaders." That is an allegation, and the administration has not accepted it.

The courts have already weighed in on DOJ's part

The new suit follows an Oct. 9 ruling in Common Cause v. Department of Justice, in which a federal court in Washington found DOJ's campaign to consolidate state voter data unlawful. The court wrote that it "vacates a policy that has removed United States citizens from the voter rolls in their home states and risks disenfranchising many more." Democracy Docket reported the judge called the effort an "attempt to decide who gets to vote."

DOJ had demanded full voter rolls from 49 states and the District of Columbia. The plaintiffs' lawyers at the ACLU say the plan was to run the data through DHS's Systematic Alien Verification for Entitlements (SAVE) system, which they call "notoriously inaccurate" and say has wrongly flagged lawful citizens. The ACLU also says federal judges in 26 states and the 6th Circuit have rejected DOJ's demands.

What comes next

The DHS case is new, and no court has ruled on its claims. The government has not filed a response. The case turns on whether the Privacy Act allows DHS to hold tens of millions of voter records for fraud investigations, and whether a judge orders any of it deleted before the midterms.

The documents also leave open what DHS actually did with the 48.4 million records from outside sources, and where they came from.