The US Department of Justice (DOJ) on Wednesday appealed a lower federal court order, denying it access to Arizona’s statewide voter registration list (SVRL), in the US Court of Appeals for the Ninth Circuit. The list contains sensitive information of voters such as full name, date of birth, residential address, and driver’s license number or the last four digits of voters’ social security numbers.

This appeal comes after Judge Susan Brnovich of the US District Court for the District of Arizona dismissed with prejudice in April the DOJ case against Arizona Secretary of State Adrian Fontes holding that the Trump Administration has no right to Arizona’s SVRL. A dismissal with prejudice would mean that the DOJ may not refile the suit.

The DOJ initiated the suit after Fontes refused to produce the SVRL citing state and federal privacy laws that prohibits release of the list. In reaching her decision, Judge Brnovich looked to an identical lawsuit filed by the DOJ in Michigan for guidance. In that case, the court relied on the plain text of § 20701 of the National Voter Registration Act (NVRA), which states as follows:

Every officer of election shall retain and preserve, for a period of twenty-two months from the date of any general, special, or primary election of which candidates for the office of President, Vice President, presidential elector, Member of the Senate, Member of the House of Representatives, or Resident Commissioner from the Commonwealth of Puerto Rico are voted for, all records and papers which come into his possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election

Section 20703 of the NVRA requires production of “any record or paper” that is to be retained and preserved under § 20701 to be produced upon written demand by the Attorney General or his representative.

Following the Michigan court’s reasoning, Judge Brnovich concluded that the SVRL does not constitute a § 20701 document because it does not represent a record or papers that which “came into the possession” of a state representative. “Coming into possession” refers to a “process by which someone acquires an item from an external source” as opposed to being created by that person. The court acknowledged that much of the information in the SVRL comes from voter registration applications, which would mean that the state came into possession of such information. However, the court reminded that, as in the case with the Michigan suit, information in the SVRL are not mere raw data compiled from voter registration applications. Rather, such information is changed or modified to ensure the maintenance of an “accurate and current voter registration roll.”

For this reason, the SVRL is not a § 20701 document that merely came into the state’s possession. The court also noted the inherent conflict in recognizing the SVRL a § 20701 document, as doing so would prevent the operation of § 20702 which requires the state to update and amend the SVRL as necessary to “ensure that accurate and current voter registration rolls are maintained.”

This attempt to access state voter registration list is part of a broader effort on the part of the DOJ. In February, the DOJ sued Utah, Oklahoma, Kentucky, West Virginia and New Jersey for not providing voter registration records. Critics have pointed that these efforts are really aimed at exposing undocumented immigrants through the creation of a national voter database.

Fontes and Arizona AG Kris Mayes have vowed to defend the appeal stating that “it will take more than political threats and unfounded lawsuits” to deter them from working to protect Arizona voters and their personal information and called the appeal “legally futile.”

It is worth noting that Judge Brnovich was appointed to the bench by President Donald Trump in 2018. She was the sixth judge to dismiss a DOJ lawsuit seeking voter registration information, joining judges in California, Massachusetts, Michigan, Oregon, and Rhode Island.