On January 8, Texas turned over to the Justice Department a treasure trove of information about every voter in the Lone Star state. Names, addresses, voters’ party registrations, whether they had ever cast a preliminary ballot, and more, all of it to be provided in response to the Trump administration’s unprecedented demand for data on voters everywhere.
For a state that has long prided itself on its fierce independence and resistance to federal overreach, one might have expected it to put up a fight. But here, as in many other areas, partisan loyalty displaced state pride.
Officials in other states have already complied with the administration’s request.
As an article in Texas Monthly explains, “The Justice Department last fall began asking all 50 states for their voter rolls — massive lists containing significant identifying information on every registered voter in each state — and other election-related data.” It claimed that “the effort is central to its mission of enforcing election law requiring states to regularly maintain voter lists by searching for and removing ineligible voters.”
“Ineligible voters,” where have we heard that before? How would a search for ineligible voters be helped by gathering information about which party voters are affiliated with?
Asking for that information suggests that something else may be motivating the administration’s massive data mining effort. In the run-up to the 2026 elections, it may help it to precisely target Democratic voters and accuse them of election fraud or Democratic states for accusations of election irregularities.
But the plan doesn’t stop there. The Justice Department intends to share the data it gets with the Department of Homeland Security.
DHS will use it as part of its aggressive citizenship verification efforts. In addition, the department argues that “This collaboration with the DOJ will lawfully and critically enable DHS to prevent illegal aliens from corrupting our republic’s democratic process and further ensure the integrity of our elections nationwide.”
“Elections,” it insists, “exist for the American people to choose their leaders, not illegal aliens.”
All this effort would seem to be an example of a solution in search of a problem. Election fraud and non-citizen voting are not serious problems in terms of the conduct and integrity of American elections
The Brookings Institution rightly observes that election fraud is “minuscule.” Over the last twenty-five years, during which thirty-six elections were held, thirty-six cases of fraud were reported.
“The percentage of fraudulent,” it says, “was .0000845%, and no election outcome was altered by ballot fraud throughout that time period.” Noncitizen voting is equally rare. In the 2016 election prevalence of noncitizen voting was 0.0001% of the votes cast.
So, the administration’s desire to gather information to police those problems is a pretext for pursuing its political and electoral aims.
None of this is good for democracy. And states should not follow Texas's example by turning over the information the administration is seeking, as some have already done.
In response to such resistance, the administration is suing twenty-three states (Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maine, Maryland, Michigan, Massachusetts, Minnesota, Nevada, New Hampshire, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin) and the District of Columbia. It is seeking “unredacted copies of their voter rolls.”
The unredacted lists include “sensitive personal information, such as driver’s license and partial Social Security numbers.” Stateline’s Jonathan Shorman points out that “The administration’s lawsuits mostly target Democratic states, where election officials refused initial requests for voter data and allege the demand is unlawful….”
States have responded to the department’s lawsuits by pointing out that they are bound by existing privacy laws that prohibit them from providing the information the department seeks. They have offered to provide “publicly available versions that do not include more sensitive information.”
The administration argues that “the Attorney General is uniquely charged by Congress with the enforcement of the National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA), which were designed by Congress to ensure that states have proper and effective voter registration and voter list maintenance programs.”
“The Attorney General,” it continues, “also has the Civil Rights Act of 1960 (CRA) at her disposal to demand the production, inspection, and analysis of the statewide voter registration lists.”
While the lawsuits go on, the Department of Justice has sent “a confidential draft agreement to more than a dozen states that would require election officials to remove any alleged ineligible voters identified during a federal review of their voter rolls.”
According to the terms of that agreement, “After a state provides its voter roll, the federal department would agree to test, analyze, and assess the information. The department would then notify states of ‘any voter list maintenance issues, insufficiencies, inadequacies, deficiencies, anomalies, or concerns’…” States would remove ineligible voters, then share their voter data with the Department of Justice again.
The Democratic National Committee contends that any such agreement would be illegal.
Whatever the mechanism, what the Department of Justice is asking for would turn the Constitution, which assigns responsibility for administering elections, on its head. It would represent a dramatic undoing of our federal system.
That system offers a valuable safeguard against just the kind of election interference that the Trump Administration may be planning. As Matt Crane, executive director of the Colorado County Clerks Association, puts it, “The federal government has no role in list maintenance.”
In systems of what political scientists call “electoral authoritarianism,” elections are held. However, if the regime has its way, they are neither free nor fair
The government holds elections to legitimize its rule. At the same time, it uses various devices to ensure that they turn out right.
The president showed his hand in this regard in March when he signed an Executive Order asserting that the United States “now fails to enforce basic and necessary election protections employed by modern, developed nations…” It claimed, with no evidence of proof, that “States fail adequately to vet voters’ citizenship, and, in recent years, the Department of Justice has failed to prioritize and devote sufficient resources for enforcement of these provisions. Even worse, the prior administration actively prevented States from removing aliens from their voter lists.”
And it mandated, among other things, “documentary proof of United States citizenship….” From each voter, and “proof of eligibility to vote in elections in the State in which the voter is attempting to vote.”
Since then, President Trump has not been subtle in trying to change election rules. He “pressured Texas to pass a mid-decade redistricting plan last month that would add five more Republican seats in the US House.” He also wants to “get rid of MAIL-IN BALLOTS” and “Seriously Controversial VOTING MACHINES.”
Add to that the Justice Department’s ongoing effort to collect data on voters, and you get a sense of the dimensions of the threat posed to American democracy. Officials in Texas may not be disturbed by it, but officials and citizens in other places should be and should take action to protect our elections.
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
