West Virginia Secretary of State Kris Warner
CHARLESTON – The U.S. Department of Justice has appealed a federal judge’s dismissal of its lawsuit seeking West Virginia’s unredacted voter registration records, sending the dispute to the 4th U.S. Circuit Court of Appeals.
The DOJ filed its notice of appeal September 9 in U.S. District Court for the Southern District of West Virginia. It seeks review of U.S. District Judge Thomas E. Johnston’s July 13 order granting West Virginia Secretary of State Kris Warner’s motion to dismiss and denying the federal government’s motion to compel production of the records.
The appeal notice does not state the DOJ’s arguments for reversing the decision. Such filings generally serve to formally begin the appellate process. The parties’ legal arguments are made later in appellate briefs.
The case stems from the DOJ’s effort to obtain a computerized statewide voter registration list containing voters’ names, birth dates, addresses and identifying information, including driver’s license numbers, the last four digits of Social Security numbers or unique Help America Vote Act identifiers.
The DOJ sued Warner in February after his office declined to provide the unredacted records. The DOJ said it was investigating whether West Virginia was complying with federal election laws, including the Civil Rights Act of 1960, the National Voter Registration Act and the Help America Vote Act. It argued that Title III of the Civil Rights Act required election officials to preserve and make available records related to voter registration and other acts required for voting.
Warner’s office offered a redacted voter list but said state law barred the release of confidential personal information absent a legal requirement to disclose it. Warner said at the time he would not turn over protected information about West Virginia voters.
“West Virginians entrust me with their sensitive personal information,” Warner told The West Virginia Record before the case was filed. “Turning it over to the federal government, which is contrary to State law, will simply not happen.”
In seeking dismissal, Warner’s attorneys claimed the federal request lacked a specific factual foundation and could violate state and federal privacy protections. They also argued the DOJ’s stated list maintenance purpose was inadequate and that the demand could be aimed at immigration enforcement rather than enforcement of voting rights laws.
Johnston dismissed the case July 13, finding the DOJ had not provided an adequate basis or purpose for demanding unredacted voter data. He said the government’s demand did not show West Virginia was suspected of violating voter list maintenance requirements or identify anomalies in the state’s voter registration data.
He also concluded the request lacked evidence of wrongdoing and said the attorney general could not use broad records demands as “fishing expeditions” unrelated to protecting individual voting rights.
“Because the demand letter did not include an adequate statement of its basis or purpose, as statutorily required, plaintiff has failed to state a claim,” Johnston wrote.
Warner called the decision a victory for voter privacy and state election officials.
“Today’s ruling confirms that our position was well-founded and consistent with both our statutory obligations and our responsibility to protect the personal information of West Virginia’s registered voters,” he said after the decision.
The appeal will be heard by the Richmond, Virginia-based 4th Circuit, which has jurisdiction over federal cases from West Virginia, Virginia, Maryland, North Carolina and South Carolina. The actual appeal has not been filed. The 4th Circuit will docket the case and enter a briefing order. The DOJ’s argument would be due sometime after that, likely in six weeks or so.
The notice of appeal was signed by Assistant U.S. Attorney General Harmeet K. Dhillon, Deputy Assistant AG Eric A. Sell, Acting Voting Section Chief Eric V. Neff and Voting Section attorneys James Thomas Tucker, Joseph W. Voiland and James T. Catania.
Warner is represented in the district court case by West Virginia Solicitor General Michael Williams and Assistant Solicitor General Caleb A. Seckman.
The DOJ had sued 30 states plus the District of Columbia over similar requests. Of those cases, 23 have been dismissed or otherwise lost on the merits, while eight remain pending. And in June, a three-judge panel of the 6th Circuit Court of Appeals affirmed a lower court ruling dismissing a similar lawsuit against Michigan Secretary of State Jocelyn Benson.
