Former civil rights attorney says the DOJ hasn’t complied with the Privacy Act

By James Neff, Oregon Journalism Project

Two weeks ago, President Donald Trump’s Department of Justice, in a first-of-its-kind lawsuit, sued Oregon and Secretary of State Tobias Read for failing to turn over full information about every Oregon voter, including date of birth and driver’s license number or partial Social Security number. That day, the DOJ also sued the state of Maine, alleging the same.

The Trump administration has been investigating unsubstantiated claims of widespread voter fraud, particularly regarding noncitizen voting. (Oregon may have come under the spotlight because Oregon’s Motor Voter program, which automatically registers most people to vote when they seek a new license or ID, was temporarily suspended last year after clerical errors led to the registration of more than 1,500 noncitizens.) Secretary Read has said he intends to contest the lawsuit, viewing the DOJ’s demands as an overreach of federal authority and a threat to voter privacy.

To get a bit more context, we reached out to David Becker, a former senior attorney in the U.S. Department of Justice’s Civil Rights Division. Becker is a national expert on voting rights and election systems and now runs the nonprofit Center for Election Innovation & Research. At OJP’s request, he analyzed DOJ’s recent lawsuit against Oregon. The interview has been lightly edited for brevity and clarity. 

OJP: What does the Trump administration want that the state of Oregon is unwilling to provide?

David Becker: The federal government is asking for our Social Security numbers, driver’s license numbers and dates of birth, which are the holy trinity of identity theft. This is why Oregon and pretty much every other state has very serious state laws to protect that information so that it never gets out and it cannot be used. The federal government doesn’t have this information. They might have the social, they might have the name, they might even have the date of birth, but they don’t know whether or not you’re registered or how often you voted.

And they definitely don’t have the driver’s license numbers. And those are very different pieces of information. To store them all in one place requires a lot of thought and effort into data security, which Oregon and all of the other states have done. 

Others may worry the Trump administration is trying to find out how people vote and target them.

Because of the secret ballot and the way Oregon and every other state operates, there is no way that the state of Oregon or the federal government knows how you voted. There’s no way for them to send that information because they don’t have that information. All they know is the totals of the secret ballots cast. 

The lawsuit tries to suggest that Oregon voting officials are doing something wrong or have something to hide by not sharing private information.

Oregon happens to have one of the most effective programs, for two reasons. One, all-mail voting means they get a lot of information on current addresses because there’s mail going back and forth between the Secretary of State’s Office, county election offices and voters.

And second, Oregon has very accurate voter lists. As the DOJ even acknowledges, Oregon has done a very good job of registering a very high percentage of its eligible voters.

The National Voter Registration Act, which was passed in 1993 and expands voters rights, does not entitle the federal government to collect data on voters or to do voter list maintenance for the states. Only the states have the authority to do that.

Interestingly, in the complaint, the DOJ basically admits that they haven’t complied with the Privacy Act — a 1974 federal law that makes it a crime for the federal government to collect data on individual Americans without informing Congress and the people exactly how it’s going to work. Where is this data going to be stored, who’s going to have access to it, is it going to be protected, what are they going to do with the data after they get it? The DOJ has been remarkably silent on all of those things. Which raises very serious questions, particularly because this administration has a particularly poor track record on protecting data.

And so Oregonians and citizens of all of the other states, both run by Republicans and Democrats, who entrust their data to their state election officials, should feel relieved that in almost every state, not all of them, but almost every state, the election officials have said, I can’t share this information with you.

Many Republican secretaries of state, as well as Democrats, have said, we’ll give you public data, but we’re not giving you the sensitive data. 

Even though the Oregon Secretary of State’s office has raised this issue with them, they basically admit they haven’t complied in any way with the Privacy Act.

The DOJ complaint seems to cast suspicion on Oregon because it registers 90-something percent of the state’s voting age adults. 

It’s not suspicious at all.

Georgia has very similar voter registration rates. It would be odd if a state with automatic voter registration like Oregon or Georgia didn’t have registration rates around 95%. Just realize the assumption here that there’s something fishy about a high voter registration rate.

And there is nothing in federal law or just logically that suggests a high voter registration rate is fishy. Oregon’s voter turnout rates are exactly where we would expect them to be. 

In fact, you would expect, if anything, the DOJ might go to Oregon and other states like Georgia, Michigan, states with automatic voter registration, high voter registration rates, and very accurate voter rolls. And instead of suing them, ask them, hey, can we get some tips so that we might be able to share them with other states?

The lawsuit also suggests Oregon’s low “removal rate,” the rate of ineligible voters removed from the voting rolls each year, is somehow suspect. It is 3.6%, which is less than half the national rate. At the same time, five states have the same or a lower rate, such as Utah. 

The complaint misconstrues what a lot of the data says. That rate is not unusual at all.

I think what, again, some of the allegations in the complaint might reflect is how significantly this administration has decimated the experience base and the capacity of the Justice Department and the Civil Rights Division. 

Why are they doing this?

I think it raises some serious questions. Is the federal government moving from being an enforcer of federal voting law, a resource in maintaining election security, to perhaps preparing to spread disinformation about elections for purely political purposes? That’s not what the Department of Justice is supposed to be doing. I make this point all the time as a former Department of Justice lawyer. The Department of Justice is not the president’s law firm. The president has his own lawyers. That’s why we have a White House Counsel’s Office. The Department of Justice is the law firm for the American people.

To have a president interfering with investigations, directing investigations, is something we’ve never seen before.

This story was produced by the Oregon Journalism Project, a nonprofit investigative newsroom for the state of Oregon. Learn more at oregonjournalismproject.org.

Ashland.news is a partner publication with the Oregon Journalism Project, a new, nonprofit investigative journalism newsroom for the state of Oregon. Email James Neff at [email protected].