Supreme Court says states can use controversial citizenship data tool for voter audits in win for Trump

By Tierney Sneed, CNN

(CNN) — In a major win for President Donald Trump’s efforts to find non-citizen voters, the Supreme Court on Friday said states can use a controversial citizenship data collection tool for reviewing voter rolls.

The court’s unsigned opinion rejected arguments that the administration broke the law by making it easier for officials to use the data system to vet voters’ citizenship status.

But the opinion emphasized the use of the program for “individualized” checks of a voter’s citizenship as the election approaches, while suggesting federal law prohibits mass purges close to Election Day.

The order reverses a ruling that had blocked the use of the program known as Systematic Alien Verification for Entitlements, or SAVE, which is run by the Department of Homeland Security. US District Judge Sparkle Sooknanan had concluded that the administration violated federal privacy law in how it overhauled the data program so it could be used for sweeping reviews of state voter rolls.

Under federal law, the Supreme Court’s majority wrote Friday, “the federal government has an obligation to respond to requests from state and local election officials seeking to verify the citizenship of voters.” The lower court order, the Supreme Court said, “prevents the federal government from using the program it believes is best suited to the task.”

The three liberal justices publicly dissented from the ruling.

“The harm caused by burdening or disenfranchising even a few lawful voters outweighs the nonexistent harm that the government experiences when it is prevented from taking an action that it likely lacks the authority to take,” Justice Ketanji Brown Jackson wrote in a dissent joined by Justices Sonia Sotomayor and Elena Kagan.

The majority opinion referenced prohibitions in the National Voter Registration Act that ban “systematic” removals of voters within 90 days of an election and said the immediate impact of reviving the program was limited because of that “moratorium.”

However, the Trump administration has also argued that so-called 90-day ban on mass removals does not apply to purges targeting non-citizens, and in the coming months, the Supreme Court will review a case considering those arguments. A footnote in Friday’s opinion noted the case and said the court “did not need to decide” the question now.

It’s a win for Republicans on the high court’s emergency docket after two significant defeats in recent days: the court’s rejection of new mail ballot rules, and an effort by the GOP in Missouri to target a Kansas City-based House district held by a Democrat (the Supreme Court is now reviewing a third attempt to revive the Republican-friendly map).

Remarking on Friday’s ruling, DHS’ top lawyer, James Percival, said on social media, “Yes, you read that right. We had to file an emergency petition in the Supreme Court just so we could use government data to help states stop noncitizens from illegally voting.”

The administration’s opponents said in a statement the ruling was “profoundly disappointing” for how it “puts millions of Americans at risk of being unlawfully targeted by the administration’s unreliable voter purge database weeks before the midterm elections.”

State and local election officials have long used SAVE to verify the citizenship status of their voters on a case-by-case basis. But the administration’s expansion of the program invited legal challenges because the data tool can produce flawed results that wrongfully identify eligible voters as non-citizens, raising the risk of disenfranchisement for those whose registrations are cancelled because of the SAVE review. DHS has acknowledged that its results are not always accurate.

The legal challengers – voter advocacy groups, a data privacy group, and individual voters – put the blame on the federal government for “recklessly” creating “an error-laden master citizenship database that endangers millions of Americans’ privacy and voting rights.”

Still, the administration argued in its emergency appeal to the Supreme Court that states are the ones at fault if voters are wrongfully removed when election officials use the program, especially since DHS urges states to conduct additional investigation of the matches.

A tool touted by Trump

Some Republican election officials and conservative activists focused on stricter election rules have long pushed for SAVE – created as a verification program for public benefits – to be more widely used for auditing voter rolls. (The SAVE program is separate from the “SAVE America Act” legislation pushed by Trump to require proof of citizenship and voter ID.)

The effort to beef up the program early in Trump’s second term was cheered by GOP election chiefs. Among the changes, DHS expanded the federal data sets feeding into the tool, including from the Social Security Administration, and it retooled the program so that voter lists could be loaded into the program in bulk.

Sooknanan, an appointee of President Joe Biden, ruled that several of those changes violated federal laws that limit when and how data collected by the federal government could be repurposed for new uses.

Many Republican-led states that have embraced the program have criticized the lower court ruling for blocking their access to the tool. Some Republican officials have also defended the SAVE system in the court litigation. A handful of GOP-led states secured carveouts from Sooknanan’s ruling through litigation in Florida.

Before it was blocked, the administration took aggressive moves to promote the program, while making plans to use it internally to conduct its own reviews of voter registration files. (DHS has access to other immigration data tools to use in investigations into non-citizen voting.)

DHS sought to condition anti-terrorism grants for states on their willingness to use SAVE for voter audits. Homeland Security Secretary Markwayne Mullin has also used the program to make inflated claims about the number of non-citizens on voter rolls, citing the number of potential non-citizens the system has flagged in some states without caveating that those numbers would shrink once they were vetted by states.

In Utah, for instance, nearly 9,000 individuals were identified by SAVE as potential non-citizens. But further vetting by state officials of that pool and another pool of 2,500 registered voters who could not be run through the program found just 27 confirmed non-citizens and another 25 likely non-citizens. Utah election officials found records for nearly 5,700 of those people confirming their citizenship, and another 5,000 voters are being asked to confirm their citizenship, according to a May press release from the state’s elections chief.

This story has been updated with additional developments.

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