WASHINGTON, D.C. — Senators Alex Padilla (D-Calif.), Ranking Member of the Senate Committee on Rules and Administration, and Gary Peters (D-Mich.), Ranking Member of the Senate Homeland Security and Governmental Affairs Committee, filed an amicus brief supporting a lawsuit opposing the Trump Administration’s illegal ongoing attempts to purge state voter rolls across the country by developing a massive interagency database of Americans’ sensitive personal data. Their amicus brief in League of Women Voters v. U.S. Department of Homeland Security endorses the plaintiffs’ motion for a stay and a preliminary injunction to stop the Administration’s widespread collection of Americans’ legally protected data. The Senators argue that the overhaul of the Department of Homeland Security’s or DHS Systematic Alien Verification for Entitlements or SAVE program to sift through voter rolls with no direct notice to Congress violates the Privacy Act and lacks legal authority.
The League of Women Voters, the Electronic Privacy Information Center, and other plaintiffs are represented by Democracy Forward Foundation, the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, and Fair Elections Center.
DHS and the Social Security Administration or SSA have dramatically expanded DHS’ SAVE program — originally meant to verify an individual’s immigration status for determining benefit eligibility — to examine the citizenship of voters on state voter rolls in response to false, unsubstantiated concerns of rampant noncitizen voting. Experts and officials have warned that the reconstructed SAVE program lacks essential safeguards and could lead to errors when applied to voter rolls, since it does not properly account for Americans born before 1978 or naturalized citizens.
Nevertheless, the information of more than 33 million voters has already been run through this new system with little to no transparency, further raising the alarm on how that information will be used. These concerns are especially urgent given that DOJ has sent letters to at least 38 states inquiring about state voter maintenance practices, while recently filing targeted lawsuits against eight states, including California and Michigan, for their refusal to hand over unfettered access to their state’s sensitive voter information and registration lists to the federal government.
In their amicus brief, the Senators argued that the secretive overhaul of the SAVE program to create a voter database violates the Privacy Act’s clear notification requirements to permit congressional oversight and the protection of Americans’ sensitive data. Congress would typically receive a System of Records Notification or SORN update upon a large restructuring of a program’s use like that made to SAVE to ensure they can uphold their oversight responsibilities; however, DHS did not provide Congress any notification. DHS would also issue an updated privacy impact assessment for SAVE assessing any risks to privacy and potential mitigations, which it has not done thus far.
The Senators warned that the requests for statewide voter registration files seek personally identifying and confidential information, including voting history, violating the Privacy Act and First Amendment freedoms. For example, the DOJ Civil Rights Division’s letter to Illinois requested information “including the registrant’s full name, date of birth, residential address, his or her state driver’s license number or the last four digits of the registrant’s social security number.”
Additionally, the Senators made clear that the executive branch lacks constitutional or statutory authority to create a national voter database, as Congress, not the President, can set voter registration laws and preempt state procedures. Congress has passed two laws, the National Voter Registration Act or NVRA and Help America Vote Act or HAVA, to make sure elections are administered freely and fairly with properly maintained voter rolls, but the DOJ has no statutory role influencing voter registration lists.
Details: Full text of the amicus brief is available here.