This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.
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Michigan was one of several states that refused to share its voter rolls with the federal government. Now, it may be the most likely to have to defend that decision in higher courts — potentially even the U.S. Supreme Court.
The Justice Department has several appeals underway involving states that declined to share their voter rolls and initially prevailed in federal courts. Legal experts say the department may be seeking a ruling from the nation’s highest court before the November midterm elections — and Michigan’s case, because it is moving through a faster appellate circuit, could reach it first.
“In Michigan, [the DOJ] filed an appeal within two days of the order appearing on the docket,” compared to much slower responses to other states, said Derek Clinger, senior counsel with the State Democracy Research Initiative at the University of Wisconsin Law School. “There’s certainly evidence that they’re pushing the Michigan case the most.”
The Sixth Circuit Court of Appeals this week partially granted the DOJ’s request for an expedited briefing schedule in the government’s appeal of the Michigan voter roll case. The case won’t move quite as fast as the DOJ requested, but briefs will be due toward the end of the month and in mid-April.
This is just the latest legal battle after the DOJ sued Michigan and a number of other states in September over their refusal to share unredacted versions of their voter rolls. In Michigan, the state shared the information already publicly available but declined to include personal identifying information such as Social Security numbers. In its arguments, Michigan said it would violate several federal and state statutes by turning over the full dataset.
So far, the department has sued 29 states and the District of Columbia over their rolls.
A federal judge dismissed the suit against Michigan last month, writing that none of the laws the DOJ cited required the state to disclose the data.
Since then, the Justice Department has appealed similar rulings in Michigan, Oregon and California. Michigan, however, sits in a unique place that may make its case more likely to go the distance. Michigan is in the Sixth Circuit, where appeals tend to move more quickly than the Ninth Circuit, which oversees California and Oregon.
Barbara McQuade, a law professor at the University of Michigan, noted “75% of the judges on the Sixth Circuit were appointed by Republican presidents,” whereas the judges on the Ninth Circuit were mostly appointed by Democrats. That breakdown may suggest that the government is engaged in “forum shopping” — finding a court where the judges are more likely to agree.
“But in my view, it is wrong to assume that the deck is stacked in [the] DOJ’s favor. Just as the district court judge, a Trump appointee, applied the law faithfully to rule against Trump, I expect the same result in the Sixth Circuit,” she wrote in an email to Votebeat.
Clinger agreed that it appears likely that the DOJ is trying to get at least one of the cases to the Supreme Court and that Michigan’s is best positioned to be that case.
The DOJ’s legal strategy also appears to have shifted since the initial cases were filed, he said. Notably, the request for expedited briefing in all three appeals suggests greater urgency, given the government did not request the same timeline at the district court level and hasn’t done so in other pending cases.
The DOJ did not respond to requests for comment.
In its request to expedite the Michigan case, the department cited the midterms, arguing that “Michigan voters need to know that its elections are secure and that noncitizens, deceased [individuals] and voters with multiple records are not registered to vote in its elections” before the elections take place. It made nearly identical arguments in California and Oregon.
If that remains the goal, time is of the essence. Even if the DOJ were to win broader access to state voter rolls, there are restrictions that prevent the removal of voters from the rolls ahead of elections. The National Voter Registration Act, for instance, bans states from doing list maintenance within 90 days of an election. This year’s primary is Aug. 4. It also contains specific steps states and counties must undertake to ensure accuracy.
“Even if this case is decided in the summer, there’s still kind of a whole other process in place to remove voters,” Clinger said. “It seems like it’ll be difficult for them to get what they want in time for the midterms.”
If nothing else, Clinger said, the DOJ may be looking for a split among circuit courts, as the Supreme Court is typically more likely to take a case if different jurisdictions issue conflicting rulings.
A spokesperson for the Michigan Department of State directed Votebeat to a joint statement between Michigan Secretary of State Jocelyn Benson and Michigan Attorney General Dana Nessel issued after the case against the state was first dismissed in district court. Benson has called the Justice Department’s lawsuit, and its initial requests for voter role access, an “overreach.”
Nessel vowed to continue to “protect the personal data of Michiganders.”
“We will not be bullied into violating the privacy rights of residents,” she said.
Hayley Harding is a reporter for Votebeat based in Michigan. Contact Hayley at hharding@votebeat.org.
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