In a recent court hearing, a Department of Justice (DOJ) attorney did not confirm to a federal judge that the Trump administration would refrain from using personal data to identify eligible voters prior to the midterm elections. Although the administration had previously stated it would not proceed with this plan, part of President Donald Trump’s executive order on voting, the DOJ's position appeared uncertain during the hearing. Voting and privacy advocacy groups have raised concerns that this initiative could breach federal privacy laws and further Trump's influence over electoral processes.
U.S. District Judge Paula Xinis expressed skepticism regarding the Department of Homeland Security (DHS) and the Social Security Administration’s (SSA) efforts to compile federal voter eligibility lists across all states. A recent Supreme Court ruling could impact the Electronic Privacy Information Center’s (EPIC) lawsuit, which challenges the lists as unconstitutional and potentially harmful to eligible voters.
During the hearing, Judge Xinis questioned DOJ attorney Joshua Schopf about the possibility of implementing an online portal and state citizenship lists for the midterms. She referred to a June memo from DHS that indicated a plan to create a portal for state election officials to access citizenship data by 60 days before the election. Despite the proximity of Election Day, Schopf did not dismiss the possibility of the portal being operational before the elections.
Xinis raised concerns about the implications of this uncertainty, questioning what actions might occur before November 3. The hearing was convened in response to EPIC’s request to declare the lists and the associated portal unlawful. The lists originated from Trump’s March executive order, which also included directives for the U.S. Postal Service regarding mail voting restrictions that faced legal challenges.
The Trump administration has not provided guidance to states on the use of these lists or the consequences of individuals being excluded from them. Advocacy groups warn that the lists could lead to voter-roll purges shortly before the elections. EPIC argues that the lists, referred to as the 'Confirmed Citizen Lists,' infringe upon states' rights to manage elections and voter eligibility, as outlined in the U.S. Constitution, and violate the Privacy Act of 1974.
The anti-authoritarian nonprofit Protect Democracy and the watchdog organization Citizens for Responsibility and Ethics in Washington (CREW) are representing EPIC in this legal matter. Prior to the lawsuit, DHS had launched a webpage for the online portal but removed it after EPIC raised concerns. Schopf claimed the portal does not exist, despite the ongoing legal scrutiny. Judge Xinis ordered the DOJ to inform her if DHS plans to activate the portal, to which Schopf objected, suggesting that such a notice would act as a formal injunction.
Xinis clarified that she was seeking information, not imposing an injunction. Legal representatives from EPIC, Protect Democracy, and CREW stated that Xinis’ order for notification is a crucial step in preventing the administration from hastily implementing a flawed program before the elections, emphasizing the risks to Americans' personal data and potential voter disenfranchisement. A key point of contention in the hearing was whether DHS and SSA had met the Privacy Act's requirement to publicly disclose the use of personal data for the voter eligibility lists.