The U.S. Department of Justice on Wednesday suggested to a federal appeals court that upholding a lower court decision blocking the Trump administration’s access to sensitive voter data would weaken its ability to investigate racial discrimination in voting.

The 6th U.S. Circuit Court of Appeals held oral arguments on whether to reverse a district court judge’s opinion that Michigan doesn’t have to provide the Justice Department with its unredacted voter list that contains dates of birth, driver’s license and partial Social Security numbers. 

At the core of the case is how federal courts should interpret the 1960 Civil Rights Act, which grants the U.S. attorney general broad access to documents and records that “come into the possession” of election officials. Congress passed the law to empower investigations into voting discrimination against Black citizens. 

A lawyer for the Trump administration on Wednesday sought to discredit the logic behind the district court judge’s decision. He said the decision would have hampered 1960s era investigations into discrimination against Black voters if it had been in place at that time. An assistant Michigan attorney general called that a major misreading of the law.

The judges did not meaningfully suggest which argument they found persuasive.

The Justice Department has sued 30 states and the District of Columbia over their refusal to turn over the data. At least 15 conservative states have voluntarily provided the information, which the Trump administration plans to feed into a Department of Homeland Security computer program to identify potential noncitizen voters.

Democrats and voting rights advocates have raised privacy concerns about the Trump administration’s plans for the data. They also say Homeland Security has wrongly flagged voters as potential noncitizens and that the administration is seeking to build a national voter list.

The Justice Department’s courtroom argument on Wednesday came amid the backdrop of the U.S. Supreme Court’s decision two weeks ago to severely weaken the 1965 Voting Rights Act, which was intended to stamp out discriminatory voting laws in the South. Trump has cheered the ruling and Republican state lawmakers in Southern states are rushing to draw new congressional maps that could oust Black Democrats.

Debate over Civil Rights Act

U.S District Court Judge Hala Jarbou, an appointee of President Donald Trump, in February ruled that the Justice Department isn’t entitled to voters’ data. Michigan’s voter registration database is a record created by state officials, not a document that comes into their possession, she reasoned.

On Wednesday, Justice Department attorney David Goldman told a panel of three appellate judges that Jarbou had created a “carveout” in the Civil Rights Act not rooted in the law. 

“It carves a hole in the attorney general’s investigative authority so gaping that the most blatant civil rights violations of the 1960s could have marched right through it,” Goldman said.

Michigan Assistant Attorney General Heather Meingast, representing Michigan Democratic Secretary of State Jocelyn Benson, told the judges that the Justice Department’s demand is unprecedented and unsupported by federal law. 

The state’s voter registration database includes voter information but isn’t a document under the Civil Rights Act, Meingast argued. The database is dynamic, she said, constantly changing as voters are added and removed.

“It doesn’t seem to meet the test of what the (Civil Rights Act) was talking about in the 60s,” Meingast said. “And the purpose was voters turning in their documents, their applications, their poll taxes.”

Judges don’t tip hand

The case is being heard by Senior Judge R. Guy Cole, Jr., a Clinton appointee; Judge Andre B. Mathis, a Biden appointee; and Judge John B. Nalbandian, a Trump appointee.

Much of the judges’ questions centered on what it means for records to “come into the possession” of election officials. The judges posed skeptical questions to both sides, leaving it unclear who will prevail.

One judge likened the voter database to baking a cake, an image used in a brief filed by voters and civic groups in the case. Anyone baking a cake wouldn’t say they “came into possession” of a cake, the judge said.

“What about common sense?” the judge said.

The 6th Circuit, based in Cincinnati, provided an audio-only livestream of the arguments and the judges didn’t identify themselves when speaking. Courthouse News Service reported the judge who made the remark was Nalbandian.

The oral arguments lasted about 40 minutes. The three-judge panel gave no deadline for issuing an opinion.

Other cases

In the Justice Department’s voter data lawsuits, six district court judges have ruled against the Trump administration — in Arizona, California, Massachusetts, Oregon and Rhode Island, in addition to Michigan. The Michigan case is the first to reach oral argument before an appellate court. Oral arguments are set for next week in appeals of the DOJ’s losses in California and Oregon.

The appellate cases mark the next stage of the Justice Department’s year-long campaign for state voter data. DOJ attorneys have urged appeals courts to move quickly, arguing that the security of the November midterm elections is at stake.

On Tuesday, the Justice Department released an opinion from its Office of Legal Counsel, which provides legal advice to executive branch agencies, that supports the DOJ’s efforts to obtain state voter data. DOJ attorneys immediately filed the opinion in the Michigan appeal in a last-minute bid to bolster their case before oral arguments.

“It’s memorializing advice that was given in early to mid-September,” Goldman said — the same time period when the Justice Department began suing states for refusing to turn over voter data.

Aria Branch, an attorney at the Elias Law Group representing voters and a civic group in the case, noted that six courts have already ruled against the Justice Department. 

“DOJ’s attempt to exploit the Civil Rights Act for its current dragnet simply resembles trying to fit a square peg into a round hole,” Branch told the judges. “It simply doesn’t work.”

The Department of Justice’s stated reason for obtaining sensitive personal data on millions of voters masks the Trump administration’s true intention for obtaining state voter lists, Michigan’s top election official asserted in federal appeals court Monday.

Attorneys for Michigan Democratic Secretary of State Jocelyn Benson made the allegation in a brief in the 6th U.S. Circuit Court of Appeals. The argument reflects a concern broadly held among Democratic state election officials that the Trump administration wants to compile voter data in an effort to influence the upcoming midterm elections. 

The Justice Department, under President Donald Trump, is suing 29 states for refusing to provide voter information. It says it needs the data to evaluate efforts to clean and maintain voter rolls, including whether noncitizens are registered to vote.

But Benson’s brief says that “appears to be a pretext for improper purposes.”

Michigan and other states argue the Trump administration is instead effectively building a nationwide voter registration list — a move not authorized under the 1960 Civil Rights Act, a federal law to combat voting discrimination that the Justice Department has cited in demanding states turn over voter data.

“Collecting Michigan’s voter data to conduct its own list maintenance and to use Michigan’s list as part of creating a national voter file is not encompassed within the purpose stated in DOJ’s demand, which is simply ‘to ascertain Michigan’s compliance with the list maintenance requirements’” of federal election laws, Benson’s brief says.

“Moreover, creating a national voter file of U.S. Citizens is beyond any purpose contemplated by the (Civil Rights Act).”

After U.S. District Court Judge Hala Jarbou ruled in February that the Justice Department isn’t entitled to Michigan’s unredacted voter list containing driver’s license and partial Social Security numbers, the department appealed to the 6th Circuit.

Trump priority

Over the past year, Trump has attempted to exercise greater power over federal elections, which, under the U.S. Constitution, are run by the states.

“Trump does not have the authority to create a Trump voter list,” Colorado Secretary of State Jena Griswold, a Democrat whom the Justice Department is suing for not providing voter data, said in an interview earlier this month.

Studies have shown noncitizen voting is extremely rare, though Trump has long fixated on the prospect of noncitizen voting and other forms of election fraud. Last year, Trump signed an executive order that would have unilaterally required voters to provide documents proving their citizenship. The order was struck down in court, but Trump is pressuring the U.S. Senate to pass the SAVE America Act, which would implement similar proof of citizenship rules.

Michigan state officials and other critics of the Justice Department’s voter data effort point to actions by Trump and remarks by a DOJ attorney as evidence that the Trump administration is already compiling a national voter list.

Trump’s recent executive order to restrict mail-in ballots directs the Department of Homeland Security to build lists of voting-age citizens in each state and then share those lists with state officials. Homeland Security operates a powerful computer system, called SAVE, that can verify citizenship by checking names against information in federal databases.

And at a federal court hearing in Rhode Island in late March, Justice Department Voting Section Acting Chief Eric Neff said his department intends to share voter lists with Homeland Security, according to a transcript. He said DOJ and DHS have already entered into a use agreement to govern the sharing of data, though he didn’t detail its requirements.

Mail ballot order an ‘iceberg’ to DOJ case

A DOJ attorney, James Tucker, has denied any effort to create a national voter file. 

“There is not going to be a national voter registration database,” Tucker said at a hearing in Maine on March 26 — less than a week before Trump signed the executive order.

But David Becker, executive director of the nonpartisan Center for Election Innovation & Research, likened the Justice Department’s litigation strategy to a legal Titanic and the executive order to an iceberg: The order effectively creating a nationwide voter list could sink a strategy that denies such a goal exists.

“The DOJ … has been trying to assure the courts that this data is not going to be used to create a national voter list,” Becker said during a press briefing this month.

The Justice Department didn’t respond to a request for comment Tuesday.

Civil Rights Act argued

The Justice Department has so far failed to persuade any federal judges that it’s entitled to state voter data. Judges have dismissed the DOJ’s lawsuits against California, Massachusetts, Michigan and Oregon. 

At least a dozen states, all Republican led, have voluntarily provided their voter lists. The Justice Department has also reached a settlement agreement with one state, Oklahoma, to obtain its data. 

When Jarbou, a Trump appointee, dismissed the Justice Department’s lawsuit for Michigan’s voter roll, she ruled that the Civil Rights Act doesn’t require the disclosure of the information. The law, signed by President Dwight Eisenhower, empowered federal officials to investigate state and local discrimination against Black voters.

The law requires states to preserve election records for at least 22 months after a federal election, including any documents that come into the possession of an election official. Jarbou wrote in her decision that the state’s voter registration list is created by election officials but isn’t a document, such as a voter registration application, that comes into their possession.

When the Justice Department filed its brief in March, it argued that Jarbou misinterpreted the Civil Rights Act. “The CRA’s text … does not exclude self-generated documents,” the department’s brief says.

The Justice Department’s appeal of the Michigan loss has advanced the furthest, with state officials filing their brief on Monday. The DOJ has pushed for quick timelines in the appeals, arguing that court rulings are needed ahead of the midterms to ensure the fairness of elections.

Local officials back states

Regardless, 18 local election officials from across the country, including seven in Michigan, on Monday filed a brief in the case arguing that the Justice Department hasn’t provided a legitimate basis to obtain election records under the Civil Rights Act.

As election misinformation has proliferated in recent years, local election officials face increasing requests for information, the group wrote. They are accustomed to providing public voter registration information, with steps in place to exclude sensitive, nonpublic data.

Courts act as a “backstop” to enforce bans on disclosing sensitive information in response to records requests from the public, the local election officials argue.

“Courts should perform that same function for requests for records under the CRA,” the group said.