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In fight with DOJ over voting roll access, Michigan may be poised to go the distance

In fight with DOJ over voting roll access, Michigan may be poised to go the distance

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Michigan was one of several states that refused to share its voter rolls with the federal government. Now, it may be the most likely to have to defend that decision in higher courts — potentially even the U.S. Supreme Court.

The Justice Department has several appeals underway involving states that declined to share their voter rolls and initially prevailed in federal courts. Legal experts say the department may be seeking a ruling from the nation’s highest court before the November midterm elections — and Michigan’s case, because it is moving through a faster appellate circuit, could reach it first.

“In Michigan, [the DOJ] filed an appeal within two days of the order appearing on the docket,” compared to much slower responses to other states, said Derek Clinger, senior counsel with the State Democracy Research Initiative at the University of Wisconsin Law School. “There’s certainly evidence that they’re pushing the Michigan case the most.”

The Sixth Circuit Court of Appeals this week partially granted the DOJ’s request for an expedited briefing schedule in the government’s appeal of the Michigan voter roll case. The case won’t move quite as fast as the DOJ requested, but briefs will be due toward the end of the month and in mid-April.

This is just the latest legal battle after the DOJ sued Michigan and a number of other states in September over their refusal to share unredacted versions of their voter rolls. In Michigan, the state shared the information already publicly available but declined to include personal identifying information such as Social Security numbers. In its arguments, Michigan said it would violate several federal and state statutes by turning over the full dataset.

So far, the department has sued 29 states and the District of Columbia over their rolls.

A federal judge dismissed the suit against Michigan last month, writing that none of the laws the DOJ cited required the state to disclose the data.

Since then, the Justice Department has appealed similar rulings in Michigan, Oregon and California. Michigan, however, sits in a unique place that may make its case more likely to go the distance. Michigan is in the Sixth Circuit, where appeals tend to move more quickly than the Ninth Circuit, which oversees California and Oregon.

Barbara McQuade, a law professor at the University of Michigan, noted “75% of the judges on the Sixth Circuit were appointed by Republican presidents,” whereas the judges on the Ninth Circuit were mostly appointed by Democrats. That breakdown may suggest that the government is engaged in “forum shopping” — finding a court where the judges are more likely to agree.