Tactic No. 2
The next 19 lawsuits used a different strategy.
They made no mention of Trump’s executive order and didn’t depend on federal voting laws. Instead, they cited a provision of the Civil Rights Act of 1960 called Title III, which requires the preservation of state and local election records.
The government lawyers claimed that Title III gave the attorney general “sweeping power” to obtain these records to curb noncitizen voting. In reality, the law allowed the federal government to access such records to protect the right to vote, for example, by enabling investigations into practices that disenfranchised Black voters in the South.
Judges rejected the government’s arguments, ruling that Title III applies only to voter registration documents, not records that states generate themselves, like voter rolls. They noted the government had also failed to give an explanation of why it needed the records, as the statute requires.
“Clearly, this demand is devoid of any factual basis.”
West Virginia federal Judge Thomas E. Johnston George W. Bush appointee
Several judges marveled at the audacity of the administration’s attempt to use an anti-discrimination law to keep people from voting and condemned the administration’s logic.
“Title III was the Department of Justice’s answer to two years of resistance and obstruction by state election officials who destroyed, failed to retain, or simply refused to disclose the voting records … that would prove that black voters were victims of disparate treatment and had been unlawfully excluded from the rolls based on nothing more than their race.”
D.C. federal Judge Randolph D. Moss Obama appointee
Judges also noted that there was a conflict between the DOJ’s claim to be enforcing election laws, which require voter lists to be continuously updated, and Title III, which bans any alteration of voter records.
“The United States’s proposed interpretation of the CRA would therefore criminalize the same conduct that the [voting laws] require. This Court will not read [Title III] to produce such an absurd result.”
Maryland Judge Stephanie A. Gallagher Trump appointee
The administration’s interpretation of Title III, wrote Bissoon, the Pennsylvania judge, “does violence” to the law’s meaning.
