‘That is very concerning’: Trump admin says it might release voter eligibility lists before midterms

In a key court hearing, a Department of Justice (DOJ) attorney refused to tell a federal judge that the Trump administration would not move forward with plans to use vast troves of Americans’ personal data to identify all eligible voters ahead of the upcoming midterms.

The administration had previously said publicly that it wouldn’t go ahead with the plan — part of President Donald Trump’s anti-voting executive order from earlier this year — in the 60 days before the election. But in Friday’s hearing, it appeared unwilling to stick to that pledge.

Voting and privacy groups have warned the plan would violate federal laws meant to safeguard Americans’ privacy and represent another escalation in President Donald Trump’s effort to exert control over elections.

During the hearing, U.S. District Judge Paula Xinis appeared deeply skeptical of the Department of Homeland Security (DHS) and the Social Security Administration’s (SSA) creation of federal voter eligibility lists for all 50 states.

However, the judge said a Supreme Court ruling just hours before the hearing could affect the Electronic Privacy Information Center’s (EPIC) lawsuit challenging the lists as an unconstitutional usurpation of states’ election powers that could lead to the disenfranchisement of large numbers of eligible voters.

Xinis repeatedly asked Joshua Schopf, an attorney for the DOJ, whether the agency still planned to implement an online portal and state citizenship lists for the midterms.

She referenced a June memo in which DHS said it approved a plan to create the new portal allowing state election officials to access citizenship-related data on people in their states “no later than 60 days before a federal election.”

Though Election Day is just 39 days away and voting has already begun, Schopf didn’t rule that out. He also objected to Xinis’ request that the government give her advance notice if the portal goes live.

“We might. It’s possible. I cannot say,” Schopf told Xinis. “I cannot say. I can’t tell you we won’t have a live portal before the midterms.”

“How can that be? You represent the defendant?” the judge responded. “That is very concerning. How can that be?”

“What’s going to happen between now and November 3?” she added.

Xinis held the hearing on EPIC’s request that she declare the lists — and the portal housing them — unlawful and block their implementation for the upcoming elections.

The lists stem from Trump’s March executive order, which included directives to the U.S. Postal Service to pursue new mail voting restrictions before the midterms, which were subsequently blocked by multiple courts.

Alongside his mail voting directives, Trump ordered DHS and SSA to create a list for each state of people who could be eligible to vote in an upcoming election based on citizenship, age, and state residency requirements.

The Trump administration has not given states guidance on what they are expected to do with the lists, nor has it said how a person’s absence from the lists could affect their ability to vote. Voting organizations have warned that states could use them to initiate voter-roll purges just weeks before voters head to the polls.

In its complaint, EPIC argued the lists, dubbed the “Confirmed Citizen Lists” by the Trump administration, unconstitutionally encroach upon states’ authority to administer elections and determine voter eligibility — powers enumerated in the U.S. Constitution.

The organization said that the order also violates several federal laws, including the Privacy Act of 1974, which Congress passed to prevent federal agencies from illegally gathering, sharing or misusing Americans’ personal information.

Before EPIC filed its lawsuit, DHS published a new webpage previewing the online portal through which states will access the lists. The department suddenly took down the website after the privacy group highlighted the site in its complaint and Democracy Docket reported on its existence.

However, though he refused to tell the judge whether DHS planned to release the lists and portal before the midterms, Schopf claimed the portal doesn’t exist.

The judge ordered the DOJ to notify her if DHS intends to launch the portal. Schopf, in turn, objected, claiming that the notice requirement functioned as a formal injunction against the government.

“If you want to enjoin us, enjoin us,” Schopf said.

“This is information. I’m not doing anything to enjoin you,” Xinis said. “I’m asking for information.”

A central issue in the hearing is whether DHS and SSA have fulfilled a requirement of the Privacy Act to publicly declare that Americans’ personal data will be used in the creation of the state citizenship lists and shared with state governments.

The Privacy Act requires federal agencies to provide the public and Congress with what’s known as a System of Records Notice (SORN) when they plan to use personal data in new ways.

Xinis, who was nominated by former President Barack Obama, also asked Schopf whether the agencies were obtaining data for the lists under SORNs released for other purposes.

Schopf couldn’t answer. He said he didn’t know, though he also said agencies have not issued new SORNs and have not modified existing ones related to the lists. He added that he also didn’t know whether new SORNs would be needed.

After questioning from Xinis, Schopf corrected himself, saying the State Department is preparing a new SORN.

Schopf’s correction refers to a court filing in a separate lawsuit this week in which the State Department said it plans to share passport records with unspecified federal agencies “for the purpose of verifying the identity or citizenship for users accessing government websites and applications, voter eligibility, and other governmental services.”

The State Department isn’t a defendant in EPIC’s suit. However, the judge said the notice is “highly relevant to the case,” because it’s evidence of an agency — albeit vaguely — informing Americans that their data will be used in the creation of the lists.

Xinis, at one point, asked Schopf directly why she shouldn’t declare the creation of the lists unlawful under the Privacy Act simply because other agencies, including SSA, haven’t provided similar public notices.

Schopf said the judge couldn’t rule in favor of EPIC because the portal does not yet exist. He added that SSA has not shared any data with DHS for the portal or citizenship list.

The judge appeared skeptical of that claim, as a recent whistleblower report and court declarations from the federal government in other cases have shown that DHS agents recently used SSA data for purposes unrelated to the Systematic Alien Verification for Entitlements (SAVE) system, a federal immigration database.

At the outset of the hearing, Xinis noted that the Supreme Court’s decision earlier Friday to let the Trump administration overhaul SAVE into a vast, centralized and deeply flawed database to initiate registration purges could affect EPIC’s lawsuit.

At least five of the Court’s Republican-appointed justices lifted a lower-court order that found that DHS’s modification of SAVE “threatened the sacred right to vote.”

Though SAVE is separate from the so-called “Confirmed Citizen Lists,” it is directly relevant to EPIC’s case: In modifying the SAVE database, DHS included Americans’ personal data from the SSA, the Department of State and other agencies across the federal government. Trump’s order also directed DHS and SSA to use SAVE when creating the citizen lists.

Representing EPIC, attorney John Hill conceded that the Supreme Court’s ruling may have weakened some of the privacy group’s claims. However, he stressed that there is a fundamental difference between the SAVE system — which is meant to be a tool for states — and the citizen lists, which the federal government is creating for no specified purpose.

The government is compiling the lists “on its own without any initial act from any state,” Hill explained.

Xinis said she needed more information from the Trump administration and EPIC to better understand how the Court’s ruling affects the lawsuit before her. She ordered both to file briefs by Oct. 2.