The Justice Department and the Department of Homeland Security are close to finalizing an agreement that will allow the federal government to use sensitive voter registration data for immigration and criminal investigations, sources with direct knowledge of the plan told CBS News. The Justice Department’s controversial collection of voter roll data is being litigated in dozens of states, and the department has not disclosed its data-sharing plans to any of the courts.
The Justice Department will share voter roll data that its Civil Rights Division is collecting from states with Immigration and Customs Enforcement Homeland Security Investigations as part of an effort to determine whether non-citizens are unlawfully registered or have cast ballots in prior elections, the sources said.
CBS News could not determine the precise details of how the data-sharing arrangement will work, though the formal request for access to the data is expected to come from Todd Lyons, who is currently the senior official performing the duties of the acting director of ICE.
The arrangement could entail the creation of a system that would let officials submit queries to match voter registration data collected by the Justice Department with DHS alien databases, one of the sources added.
“This Department of Justice is devoting significant resources to ensure that elections are free, fair, and transparent. That includes litigation to ensure voter roll maintenance and a clear focus on ensuring that American elections are decided solely by American citizens,” a spokesperson for the Justice Department said.
A spokesperson for the Department of Homeland Security did not have any immediate comment.
While some government lawyers have advocated handing over large amounts of raw voter data to DHS, others have sought to narrow the request to specific kinds of information — such as voting history and documents to verify voter eligibility, the sources added.
The White House has also been involved in discussions with officials from both the Justice Department and the Department of Homeland Security about the data-sharing arrangement, the sources said.
CBS could not immediately determine why the White House is involved or what specific role it is playing. The White House previously issued an executive order tasking the government with enforcing laws which prevent non-citizens from voting.
A White House spokesperson did not immediately respond to a request for comment.
The tentative agreement comes as the Justice Department’s Civil Rights Division remains locked in litigation with 29 states and the District of Columbia, according to its most recent press release in late February, after they refused to hand over unredacted voter rolls with data such as Social Security numbers, due to privacy concerns.
In all 30 cases, the Civil Rights Division’s attorneys have not disclosed the pending data-sharing agreement with DHS and the Justice Department, claiming instead they need the information to ensure compliance with several other federal laws that require states to maintain clean voter registration lists.
The government has also not filed any formal notice in the Federal Register explicitly disclosing its plan to collect private voter registration data, even though the Privacy Act requires the government to provide public notice and comment before it collects records on individuals.
The Justice Department’s silence about its ongoing efforts with DHS to compile large amounts of voter registration data for immigration and criminal law enforcement in its court filings could potentially run afoul of the rules of professional conduct that licensed attorneys are required to follow, legal experts say.
The American Bar Association’s model rule 3.3, a version of which has been widely adopted by all state bar licensing offices, prohibits lawyers from knowingly making false statements to the court.
“If the lawyers know they are lying or know they are withholding information, … they are 100% in jeopardy of substantial sanctions either by the bar or by the court,” said Deborah Pearlstein, the director of the Princeton program in law and public policy at Princeton University School of Public and International Affairs.
She added that if the lawyers arguing the cases do not know about it and the court has any doubt, then the judges can order relevant government officials to come and testify.
CBS News could not determine whether all of the lawyers from the Civil Rights Division who are arguing the cases in court are aware of the ongoing negotiations between the Justice Department and DHS about the data-sharing arrangement.
However, at least a handful of senior attorneys from the Civil Rights Division have been privy to some discussions about the data-sharing plan, sources with knowledge say, in addition to multiple officials in other Justice Department offices, including the deputy attorney general.
Two civil rights lawyers who were involved in at least some of the past discussions — Andrew Braniff and Jesus Osete — are currently handling appeals in three separate cases, after federal judges denied the Justice Department’s request to hand over the voter rolls.
At least two others — Acting Voting Section Chief Eric Neff and Timothy Mellett — have also been involved in some discussions about coordinating with DHS to share voter roll data, according to sources with knowledge of the matter.
Osete, Braniff, Neff and Mellett did not respond to requests for comment.
Questions of accuracy
The Justice Department has filed 30 lawsuits against primarily blue states and the District of Columbia, after they balked over demands to share sensitive voter registration data such as partial Social Security numbers and driver’s license numbers.
In all of those civil complaints, attorneys from the Civil Rights Division have insisted that they are seeking voter roll data to ensure compliance with two federal laws — the Help America Vote Act and the National Voter Registration Act — which require states to establish programs for maintaining clean voting lists so people ineligible to vote, such as convicted felons or non-citizens, do not cast ballots.
The Civil Rights Division also claims it is entitled to the records under a provision in the Civil Rights Act, which requires states to retain voter registration records for up to 22 months after an election. The Justice Department can demand to inspect those records, but it must provide “a statement of the basis and the purpose” for the request.
The question of whether the data will be shared with other agencies for law enforcement or immigration purposes has come up on multiple occasions as the litigation proceeds.
In one court hearing in Minnesota on March 3, a federal judge explicitly asked Justice Department Civil Rights Division attorney James Tucker if the department had any “intention to use this data to conduct immigration enforcement.”
“Not to my knowledge, your honor,” Tucker said, according to a transcript.
He went on to say that some states are voluntarily providing the voter roll data to DHS so that it can run the names against its own databases to ensure that noncitizens are not registered. He added that media reports suggesting the government is building a national voter database are “conflating” different purposes.
During another hearing in Connecticut on March 19, Tucker was asked by a different judge if there was a plan to share the data with DHS.
“I don’t believe that’s a decision that’s been made,” he said. When pressed further, he conceded that he does not know about Attorney General Pam Bondi’s future plans.
“As of today, there has been no directive or instruction that the data — the non-publicly available data — is going to be transmitted to any other agency,” he said.
Tucker did not respond to requests for comment.
Similarly, the acting chief of the division’s voting section, Eric Neff, in a sworn declaration in federal court in Connecticut also denied media reports suggesting the department was compiling a national voter file.
“Contrary to what the defendants contend through third-party hearsay, the records the United States is seeking to compel…are not intended to create ‘a federal voter database,'” Neff wrote in a March 13 filing submitted to a federal court in Connecticut.
David Becker, the executive director of the Center for Election Innovation and Research and a CBS News contributor, said Neff’s declaration on its face appears problematic.
“At a minimum, there is a pretty sound basis for arguing that Neff excluded key facts from a declaration with the court,” he said.
So far, three federal courts in California’s Central District, Oregon and the Western District of Michigan have each dismissed the Justice Department’s lawsuits.
In two of those cases, judges have also openly questioned the department’s true motives for seeking the records.
“The Court does not take lightly DOJ’s obfuscation of its true motives in the present matter,” wrote U.S. District Judge David Carter for the Central District of California.
In Oregon, another judge raised similar concerns and suggested the Civil Rights Division’s requests were merely “pretextual.”
The judge went on to cite suspicious behavior by the department, including a letter Attorney General Pam Bondi sent to Minnesota Governor Tim Walz criticizing his state’s response to immigration enforcement, and suggesting he could help restore order in part by allowing the Civil Rights Division access to its voter rolls.
“The context of this demand within a letter about immigration enforcement casts serious doubt as to the true purposes for which Plaintiff is seeking voter registration lists in this and other cases, and what it intends to do with that data,” wrote U.S. District Judge Mustafa Kasubhai.