Photo by Steven Allen Adams Attorneys for the West Virginia Secretary of State's Office asked a federal judge Wednesday to dismiss an attempt by federal officials to obtain unredacted voter registration records.

CHARLESTON – Attorneys for West Virginia Secretary of State Kris Warner asked a federal judge this week to dismiss an attempt by the U.S. Department of Justice to seize unredacted voter registration information.

In a legal memorandum filed Wednesday evening with the U.S. District Court for the Southern District of West Virginia, the Secretary of State’s Office – represented by the state Attorney General’s Office – argued that federal law enforcement officials do not have the legal authority to demand the unredacted registration information for the state’s nearly 1.2 million voters.

“The Government’s demand exceeds the agency’s statutory authority in multiple ways,” wrote Michael R. Williams, solicitor general for Attorney General J.B. McCuskey. “Because the Government demands more than what federal or state law allows, the Court should dismiss the Complaint.”

Harmeet K. Dhillon, a U.S. assistant attorney general with the DOJ’s Civil Rights Division, filed a lawsuit against the Secretary of State’s Office on Feb. 26 after Warner sent a written response to the DOJ denying its request.

The DOJ began sending letters to state election officials last summer requiring states to turn over voter registration databases to federal law enforcement officials. DOJ officials first contacted the Secretary of State’s Office last September seeking this data, with follow-up letters sent in December and January.

The Secretary of State’s Office argues that the DOJ failed to provide any factual basis for seeking the unredacted voter registration records and has not provided a stated purpose for the records. Williams said Title III of the Civil Rights Act of 1960 does not provide the federal government with an open door to seeking voter registration records.

“The Government’s demand is not valid under Title III,” Williams wrote. “It has not provided an adequate statement of the demand’s basis and purpose. It lacks a factual basis because the demand only superficially references the statute itself, and it lacks a proper purpose because the purpose alleged falls outside Title III’s scope.”

The responsibility for voter registration maintenance falls on the state’s 55 county clerks, and only county clerks can add or remove voters from the rolls. The Secretary of State’s Office only maintains a statewide voter registration database and online portal for residents to register or update registrations, which are then transmitted to the appropriate county clerk.

“The voter registration list is not a ‘paper’ or ‘record’ that the Secretary ‘comes into possession of,'” Williams explained. “It is an internally created database. Thus, Title III cannot compel its production.”

Williams said even if the DOJ request was proper, by seeking unredacted voter registration files, the DOJ was running afoul of state code, which only allows the release of redacted voter registration files. In its Feb. 11 message to the DOJ, the Secretary of State’s Office offered to release redacted voter registration data but the federal department refused that offer.

“The Constitution positions States as the default entities responsible for election regulations. Here, state law permits only the redacted voter registration list to be released. And no federal law – including Title III, the NVRA (National Voter Registration Act), and HAVA (Help America Vote Act) – preempts this redaction requirement,” Williams wrote. “So even if the demand was otherwise proper, the Government would still only be entitled to a redacted list.”

So far, the DOJ has requested similar data from 47 states. West Virginia is one of 29 states being sued for refusing to turn over voter registration data. Title III of the Civil Rights Act requires election officers to preserve and produce records relating to acts requisite to voting in federal elections in order to assess compliance with HAVA and NVRA.

President Donald Trump is pushing for a federal voter registration database to remove ineligible voters, such as illegal immigrants, from state voter rolls traditionally handled by state and local election officials. Trump signed an executive order last year instructing federal agencies to obtain state voter registration records, directing the Department of Homeland Security to cross-check publicly available voter registration information against NVRA records and federal immigration databases.

According to Williams, five other federal courts – including in California, Michigan and Oregon – have dismissed similar complaints. Williams also said the DOJ request violates several federal privacy laws.