The U.S. Department of Justice has sued the state of Hawai‘i for having failed to disclose voting records.
On Thursday, the Justice Department filed a lawsuit in U.S. District Court against Scott Nago, Hawai‘i's Chief Elections Officer, accusing him of violating the 1960 Civil Rights Act by refusing to provide state voter registration information when requested.
The lawsuit is one of 18 suits the DOJ has filed against other states over their voter files, and one of four filed on Thursday. The other three suits filed this week — against Colorado, Massachusetts and Nevada — are substantially similar to the Hawai‘i suit.
All four of the Thursday suits argue that the 1960 Civil Rights Act requires that all state election officers retain and preserve all records and papers pertaining to an election for at least 22 months. Any record preserved in this way must also be presented to the Attorney General for inspection upon request.
Throughout the year, the Justice Department has sent demands to 40 U.S. states for copies of their statewide voter registration files. Harmeet Dhillon, U.S. Assistant Attorney General sent such a demand to Hawai‘i’s Chief Elections Officer, Scott Nago, on Sept. 8.
That demand called for a copy of the state’s full voter registration list, including all registered voters’ full names, addresses, driver’s license numbers or the last four digits of their Social Security numbers.
Nago refused. On Sept. 22 — exactly on the day Dhillon’s 14-day deadline ended — Nago sent a response claiming that state law prevents him from complying with the DOJ’s request.
Nago cited Hawai‘i Revised Statutes 11-97, which states that a voter’s full name, their district or precinct and their voter status can be publicly disclosed, but all other personal information shall remain confidential save as provided by rules created by the Chief Election Officer.
Those rules, Nago’s letter continued, set forth a process by which a request for non-public voter registration information can be granted. That process requires a sworn certification describing the purpose for which the information is sought, affirming that the information will only be used for government purposes, and that the information will not be sold, released, distributed or used for commercial purposes.
While Dhillon’s letter included assurances that the data would be subject to federal privacy protections, those assurances were not sworn certifications.
Nago’s letter also challenged the idea that DOJ was authorized to request such data by federal law. Dhillon’s letter cited the 1993 National Voter Registration Act, the 2002 Help America Vote Act and the 1960 Civil Rights Act as the basis for the Attorney General’s right to inspect voter registration records.
However, Nago disagreed in his letter, concluding that neither the NVRA nor HAVA have anything in their text requiring a state to turn over personal information about voters. Meanwhile, the Civil Rights Act, he wrote, still requires the Attorney General to explain the purpose for requesting such personal data; Dhillon’s letter only states that the DOJ seeks the data to evaluate the state’s compliance with the terms of the NVRA.
Nago’s letter concludes with concerns about the ultimate purpose of this data.
“It has been reported that the Department of Justice intends to send requests like the one received by Hawai‘i to all fifty states as part of an ‘effort to essentially establish a national voting database,’” Nago’s wrote in September, quoting a New York Times article. “This raises additional privacy concerns and appears unrelated to the stated purpose of the request, which is to ensure Hawai‘i's compliance with the NVRA and HAVA.”
The Hawai‘i lawsuit urges the court to order Nago to comply with Dhillon’s September letter and provide the data requested.
“States have the statutory duty to preserve and protect their constituents from vote dilution,” Dhillon said in a statement Friday. “At this Department of Justice, we will not permit states to jeopardize the integrity and effectiveness of elections by refusing to abide by our federal elections laws. If states will not fulfill their duty to protect the integrity of the ballot, we will.”
As of Friday, only two states among the 40 that have received such a DOJ request — Indiana and Wyoming — are known to have turned over their full voter registration lists.
Aloha State Daily reached out to the Hawai‘i Office of Elections for comment.
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