District judge does not rule on temporary injunction with secretary of state expected to share voter records Feb. 12
By Erin Bamer
Nebraska Examiner
LINCOLN — A public advocacy nonprofit argued Thursday that the federal government must comply with Nebraska statutes when requesting the state’s voter records.
Lancaster County District Court Judge Lori Maret heard arguments from Common Cause Nebraska and the state in the group’s legal challenge to the U.S. Department of Justice requesting voter registration data from all 50 states.
Common Cause seeks an injunction to prevent Nebraska Secretary of State Bob Evnen from sharing the data Feb. 12, which Evnen has stated his intention to do. In turn, the state has filed a motion to dismiss the case.
Maret issued no immediate ruling after Thursday’s hearing, saying she would take the arguments from both sides under advisement.
Federal officials have asked states for names, dates of birth, driver’s license numbers and the last four digits of voters’ Social Security numbers, saying they want the information to ensure accurate voter registration rolls.
Common Cause asked the court to find that the DOJ request violates Nebraska law protecting data privacy. Its lawsuit asks the court to prohibit the Secretary of State from providing the voter data or to limit the types of data shared with the DOJ.
The Justice Department has requested voter data from 44 states and Washington, D.C. so far, with plans to ask for that information from all 50 states. A few GOP states have declined or not responded, citing privacy concerns, and a majority of Democratic-run states have refused to do so.
Critics have questioned the safety of letting any presidential administration consolidate state voter data in one place. The federal government has sued more than 20 states and the District of Columbia for not complying.
Recently, the DOJ asked Minnesota to hand over its voter rolls as part of a federal offer to reduce the presence of thousands of immigrants in the state.
Solicitor General Cody Barnett, representing Nebraska in Thursday’s case, mentioned the federal lawsuits in arguing that the Common Cause lawsuit should be dismissed. He argued that all indispensable parties should be present, and the federal government qualifies as one because it has an “obvious stake” in the case.
“They have a seat at this table, and yet plaintiffs have not brought them into this lawsuit,” Barnett said.
Daniel Gutman, an attorney representing Common Cause, countered that Nebraska law offers federal officials no special rights when it comes to accessing private information, so he does not believe that the federal government is a necessary party.
The Justice Department initially sent a letter to Nebraska’s secretary of state last year and set a Sept. 22 deadline to provide the data. Evnen has not yet provided the data due to the lawsuit, but he has said he intends to release Nebraska’s voter file to the federal government Feb. 12 “unless the court orders otherwise.”
Common Cause filed paperwork seeking a temporary restraining order over concerns that the court might not rule before the secretary releases the data.
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Gutman said the federal government doesn’t have access to Nebraska’s voter information under the U.S. Constitution, which gives states the authority to administer elections. Because of this, he argued that to receive such information, federal officials must comply with Nebraska law, and they have not.
According to Nebraska’s election statutes, Gutman said, voter files are considered a public record, and thus can be inspected by members of the public. State officials can even get copies of the records under specific circumstances.
However, state law also says public voter information cannot include confidential information, including digital signatures, Gutman said. The DOJ has asked for an unredacted file of Nebraska’s voter rolls, which Gutman argued would violate state statute.
Barnett said though states administer elections, federal agencies still play a role. He said the federal government has a bevy of information and resources that can help states with their election systems.
Barnett argued Common Cause failed to prove a “concrete injury” to warrant an injunction, and said its requested relief was too broad. He argued the nonprofit could only request an injunction to prevent Evnen from releasing data pertaining to specific individuals — like the members of Common Cause itself — but not all voters in the state.
He further argued that there are multiple examples of federal law that prove the sharing of voter data is legally sound, particularly the Civil Rights Act of 1960. In it, Barnett said the U.S. Attorney General has the right to inspect records within 22 months of a federal election.
Barnett described several of the arguments Common Cause made in court documents as “speculative,” including allegations that the DOJ may share voter information to third parties. Siding with this argument would ignore the “presumption of good faith” that he said is usually afforded to government agencies throughout Nebraska’s legal history.
“The U.S. DOJ maintains that it will maintain the registry in accordance with all the privacy statutes that the federal government has enacted and that state law respects,” Barnett said. “And there’s no reason to doubt the government’s word on that point.”
This isn’t the first time President Donland Trump has asked for Nebraska’s voter rolls.
The Trump administration made a similar request to then-Secretary of State John Gale in 2017. Gale declined to turn over Nebraska’s full voter information, because he argued doing so wouldn’t comply with state law. He also expressed concerns about data privacy.
A public and more limited version of Nebraska’s voter file, including names and addresses, is available for a fee. Registered voters can request that the state withhold their phone numbers and email addresses.
Evnen’s intention to release the data led the Democratic National Committee to threaten to sue Nebraska over any potential agreement with the Justice Department requiring election officials to remove allegedly ineligible voters the federal government identifies during federal reviews of state voter rolls.
The letter, sent earlier this month, says the DNC wants to “ensure” the state and secretary of state are aware of federal constraints on voter registration list maintenance and wants the state not to pursue any “unlawful removals from its official list of eligible voters in elections for federal office.”
Evnen described the letter as “grandstanding.”
“I have always been proactive in securing our elections … we won’t be pressured by the DNC, Common Cause, or anyone else into compromising the integrity of our voter registration list maintenance process,” he said.
The latest DOJ move is another issue for Evnen to balance as he seeks reelection in 2026. He is trying to defend as secure the state’s elections that his office administers and respond to the concerns of some Republicans and Trump over election integrity since the 2020 presidential election, a national framing that some election experts have warned could undermine public trust.
Examiner political reporter Juan Salinas II contributed to this report.