Two federal judges, presiding nearly 1,000 miles apart, issued conflicting rulings in recent days that left unclear whether states can legally abide by a Trump administration push to use federal data to confirm all voters are citizens. The competing court decisions come as pivotal midterm elections are months away and as President Donald Trump has been working to reshape voting procedures. Trump has claimed that large numbers of noncitizens cast ballots, despite evidence showing that is not the case. Some Republican-led states have sought to verify that everyone on their voter rolls is a citizen by gaining unfettered access to a federal database that is typically used by government officials to determine eligibility for benefits programs. Democrats and voting rights advocates have called the approach unacceptable, citing instances in which inaccurate data has led to eligible voters being kicked off the rolls.
The disagreement among judges adds a new layer of confusion for state and local election officials who are barreling toward November’s elections while contending with shifting policies, sweeping federal demands and persistent conspiracy theories Trump, who has for years falsely claimed he won the 2020 election, this week dismantled a bipartisan commission meant to help keep elections secure. He also refused to sign a bipartisan housing bill to protest lawmakers’ failure to pass legislation that would require people to provide proof of citizenship when they register to vote and show ID when they cast ballots. And his administration warned election officials that they could be charged with crimes if they knowingly allow noncitizens to vote.
The recent decisions from a pair of judges — one appointed by Trump, one by President Joe Biden — injected more uncertainty into this fall’s elections. They centered on state access to an enhanced version of a federal database stocked with citizenship information. The Systematic Alien Verification for Entitlements database is used by government agencies nationwide to help determine eligibility for health care benefits, ID cards and professional licenses, among other things. It is run through the Department of Homeland Security, and the administration recently expanded how states could use the database to more fully and easily check their voter rolls.
Last month, U.S. District Judge Sparkle L. Sooknanan in D.C. ruled that the use of the database violated privacy laws, noting it had been used to revoke eligible voters’ registrations. In response, DHS limited state election officials’ access to the database Soon afterward, though, four Republican-led states turned to U.S. District Judge T. Kent Wetherell II in northern Florida. Wetherell last year signed off on a settlement between those states and DHS that gave them expanded access to the database, and they argued that the department had now violated the terms of that agreement.
Wetherell on Tuesday agreed with them, concluding that the department had to make the enhanced database available to the four states. His decision conflicted with Sooknanan’s opinion, but he said he was discounting her ruling because he was not bound by it and disagreed with its conclusions. Sooknanan was appointed to the bench by Biden, while Wetherell was tapped by Trump during his first term. On Wednesday, Sooknanan stood by her previous ruling, writing in a new opinion that Wetherell had “erred in significant ways.” The divide between the courts left DHS officials with two sets of orders pointing in opposite directions, at least for the states covered by the settlement — Florida, Indiana, Iowa and Ohio “Where that leaves us, we’re not sure,” said David Becker, the executive director of the nonprofit Center for Election Innovation and Research, which assists election officials.
The legal thicket could soon get thornier. One appeal is underway and another could be filed soon. But those appeals would go to courts in separate circuits, and more contradictory opinions are possible. If appeals courts don’t resolve the issue, it could wind up before the Supreme Court. The Justice Department and DHS did not respond to requests for comment about the split decisions and how the Trump administration would respond, including which one they would follow. Officials from the four states did not say whether they had been granted full access to the database.
In a court filing Friday in D.C., Justice Department officials said the Trump administration was “now in the process of restoring some of the previously vacated SAVE functionality” for the four states involved in the Florida settlement. They wrote in a status report that the administration sought “to comply with all outstanding court-ordered obligations to the greatest extent possible.” But the groups that had sued to challenge the expanded use of the database wrote that the administration was acting unlawfully and violating the D.C. judge’s order by restoring any access.
The competing rulings have added to volatile disputes over how elections should run, with policies fluctuating ahead of elections that will decide which party controls Congress. “We like to have stable rules in advance of the election for voters and for election administrators, so anything that disrupts that stability is problematic,” said Derek Muller, an election-law professor at the University of Notre Dame. The issue may have to be resolved quickly. Federal law bars states from making systemic changes to their voter rolls 90 days before elections.
Fights over election rules have greatly escalated in the Trump era. The president this week removed members of the Election Assistance Commission, and the administration recently threatened to cut aid to states that don’t change their election policies. The Justice Department has sued 30 states for their voter rolls, but it has lost every case that has been decided so far. “States are custodians of a huge amount of voter data,” said Rebecca Green, law professor at William & Mary and co-director of the Election Law Program. The federal government’s intense push for this data “is a new phenomenon,” Green said, and threatens state and federal privacy laws.
Despite the Trump administration’s persistent focus on voting by noncitizens, this rarely happens, according to court reviews and independent studies. But noncitizens do sometimes wind up on voter rolls, and Trump and his allies have made scrubbing the rolls a top priority. To help states, the administration expanded the functionality of the database so they could check their voter rolls in bulk instead of one by one. It also allowed them to check voters using partial Social Security numbers and access data showing whether someone was a citizen when they were given a Social Security number. That information often is not updated if someone later becomes a citizen.
“This is an attack on people’s right to vote,” said Donald Sherman, executive director of Citizens for Responsibility and Ethics in Washington, which brought the lawsuit in D.C. over the database Election officials in Republican-led states have said full access to the database is essential. Florida Secretary of State Cord Byrd called the database “an important tool in maintaining accurate voter rolls,” and Ohio Secretary of State Frank LaRose said it helped make his state the “national gold standard” for election integrity.
But the misidentifications prompted Sooknanan in June to halt use of an expanded database that, she wrote, administration officials “knew to be unreliable.” She cited privacy concerns, writing that “Congress put protections in place to prevent precisely this type of centralized data bank.” In response, four of the states asked Wetherell to restore their full access to the database. He quickly sided with them, acknowledging in a 10-page order that the administration was “in a bind” because it was “subject to two contradictory orders.”
Wetherell wrote that this “conundrum” may have been avoided if the parties involved had alerted the judges sooner about the status of the other case dealing with the database. Still, Wetherell wrote, “one of the orders has to give,” and he concluded it should not be his. The next day, Sooknanan stood by her decision. She wrote in a 23-page opinion that the four states entered their settlement with the administration soon after the lawsuit before her was initiated, knowing that the same issues were in play and that they risked creating “self-inflicted” problems.
Sooknanan also cast a critical eye on Wetherell’s order, writing that her 75-page June opinion resulted from “thorough, adverse briefing on the merits,” while her peer in Florida “spent roughly one paragraph to reach differing conclusions.” In her latest ruling, she declined to stay her June ruling, pending appeal.
Harmeet K. Dhillon, the assistant attorney general who leads the Civil Rights Division at the Justice Department, on Tuesday sent letters to top state election officials warning them they could be charged with crimes if they knowingly allowed noncitizens to vote this fall. State officials were quick to say they follow all election laws, and many Democrats viewed the letters as an attempt to intimidate them. “The U.S. DOJ is knocking on our door again with more threats and no evidence to back up their fever dreams about non-existent voter fraud,” Oregon Secretary of State Tobias Read said in a statement.
NYC Wins When Everyone Can Vote! Michael H. Drucker
