Skip to content
An issue that most Americans only think about every two years – or perhaps only once, when they register to vote – is suddenly in the national spotlight: their voter data. With the recent news that Attorney General Pam Bondi sent a letter to Minnesota Governor Tim Walz asking for voter rolls, among other data sets, many of us are asking – what do you mean by voter rolls, and why would the Attorney General want a state’s information? More importantly – is it typical for a state to share that information with the federal government?
What are we talking about when we talk about “voter data”?
According to the Bipartisan Policy Center: “Voter registration lists are widely regarded as the backbone of election administration. To keep these lists up to date, election officials are responsible for identifying when voters move, die, or otherwise become ineligible to vote.”
These lists contain your name, age, and, in some cases, your address and your district or precinct. In some states, these lists would also include political party affiliation. The lists that the Department of Justice (DOJ) is seeking are the unredacted voter rolls, which typically include even more detailed information, such as Social Security numbers and driver’s license numbers.
The issue comes down to two key concerns: our American system of decentralized elections, and privacy. Let’s dive in.
States and Local Governments Run Elections, Not the Federal Government
One key fact about American elections is that states and counties, and in some cases towns, run their elections. Congress may regulate federal elections, and has enacted various legislation concerning elections – such as the Help America Vote Act (HAVA) – but the administration of each election is largely up to the state, county, and/or municipality, according to each state’s constitution and election laws. Executive branch authority over elections is limited to enforcement of federal elections laws enacted by Congress and providing funding, support (e.g., Cybersecurity and Infrastructure Security Agency election-related cyber protection), and non-binding guidance (e.g., via the Election Assistance Commission). This is why elections cannot be canceled by the President, and why the state of Minnesota and over 20 other states have refused to hand over unredacted voter rolls - essentially voter data - to the federal government.
Per the Bipartisan Policy Center:
[The] U.S. Constitution gives Congress the ultimate authority to set the “Times, Places and Manner” of federal elections. Congress does not have the authority to regulate state elections, but in practice, states typically run “unitary elections” – applying federal election law to state and local elections to avoid running separate elections under different legal frameworks.
Congress has authorized only limited federal executive branch access to certain voter roll data, and only to the extent necessary to carry out a legitimate statutory function. For example, in 2006 the DOJ Civil Rights Division sued the State of Georgia to access voter registration lists to confirm compliance under the National Voting Rights Act (NVRA) and HAVA. The District Court entered a consent decree that mandated Georgia provide “statewide voter registration list including each registered voters' full name, address, birth date and all additional voter identification information, including social security numbers or drivers license numbers as collected by the State for voter application and registration purposes”.¹ However, more recently this month, a District Court dismissed a DOJ action against California seeking similar information. The Court found that the DOJ’s stated purpose (compliance with NVRA and HAVA) was pretextual (the actual purpose being the creation of a national database), exceeded the Executive Branch’s authority, and warned disclosure could chill voter registration and turnout².
Privacy
When you register to vote, your address is mapped to determine your voting jurisdiction and other information is collected on your registration form, such as your birthday, driver’s license number or social security number. This data contains a lot of Personally Identifiable Information (PII), over which a patchwork of legal safeguards apply to prevent identity theft and other misuse of your data. Some states, including Minnesota, also have laws that expressly prohibit the disclosure transfer of private information. Multiple federal privacy laws restrict the federal government’s collection and use of private data. The Privacy Act of 1974 bars (with exceptions) federal agencies from maintaining records regarding Americans’ First Amendment activities. The E-Government Act requires a privacy impact assessment before initiating collection of PII. The Driver’s Privacy Protection Act prohibits states from disclosing personal information obtained from motor vehicle records, except in specifically enumerated circumstances.
Ok, but I thought the DoJ is just trying to ensure no non-citizens are on the voter rolls…
While the DoJ does have enforcement authority over non-citizens who attempt to vote and may review state procedures for voter list maintenance compliance under federal statute, the job of maintaining those lists falls to the states, who regularly update and review voter rolls. Audits of these rolls have shown that noncitizen voting happens with extremely low frequency. For example, in Utah just last week, Lieutenant Governor Diedra Henderson released an audit that found that 99.9 percent of more than two million voters in Utah were citizens and identified only one ineligible noncitizen who had registered (but did not cast a ballot). An interesting fact - Henderson was born in the Netherlands to parents stationed there with the U.S. Air Force. In 2022, while serving as Lieutenant Governor, a county clerk purged her from the voter rolls “simply because [she] was born overseas. This was not done maliciously; it was the result of a too-aggressive scrubbing of the county’s voter rolls that inappropriately purged eligible voters born outside the United States.”
One of the key reasons we want to keep state processes in the state is that it allows for easy correction if mistakes are made – which of course will happen, but our election officials all over the country are agile, adaptable, and able to respond and correct those mistakes quickly. See below for an example from the recent Utah audit:
“Prior to starting the current review, the Lieutenant Governor’s office last year found four people managed to register to vote when a state website inadvertently allowed people to proceed even if they acknowledged they were not U.S. citizens.
“As soon as we found out, we immediately got it reprogrammed, and every clerk was supposed to check, verify the citizenship anyway,” Henderson said in an interview. “But obviously, you know, some slipped through the cracks. Four slipped through the cracks that we were able to catch and remove.”
Additionally, election officials note that voter rolls are updated nearly daily as information is received about newly registered voters, deaths, and people moving around, making it nearly impossible for any federal database to be up-to-date on a given day:
Though registrars and other workers may appear to have heavier workloads on Election Day and the 45 days of early voting that leads up to it, registrars said the work of maintaining voter rolls is a year-round duty.
So, this is a question of states’ rights versus federal power?
Yes, in part. Each federal branch and the states have distinct roles to play in America’s elections. The Constitution and multiple overlapping federal and state statutes orchestrate this dance. While some states, such as Texas, are willing to share voter data, many states have said they will not, due to privacy concerns and in order to protect the decentralized nature of elections and states’ - and their citizens’ - rights in these regards.
What other questions do you have about voter rolls, data, privacy, and elections? Let us know in the comments or reach out to us on social media.
Notes:
- As a Consent Decree, the ruling did not test the merits, and does not create general precedent that courts must follow.
- As a District Court, the ruling is limited to this case, will not be binding nationally, and is subject to appeal.