On May 12, the Justice Department issued a written opinion blessing the administration’s seizure of state voter rolls — six federal judges, three of them Trump appointees, have already said it cannot. With the 2026 midterms approaching, the Department of Justice is no longer arguing law. It is preparing a pretext.
In a republic, the Department of Justice is supposed to lose gracefully. When federal courts rule against the government’s interpretation of a statute, the government’s lawyers retreat, regroup, and either appeal or accept the verdict. They do not draft an internal memo declaring that the courts were wrong, the Constitution doesn’t mean what judges have said it means, and that the administration will press on regardless. Yet that is precisely what Attorney General Pam Bondi’s Justice Department did on May 12, 2026, when its Office of Legal Counsel released a 50-page opinion arguing that the federal government may demand every state’s unredacted voter rolls — including driver’s license numbers and partial Social Security numbers — over the documented objections of six federal courts.
The opinion, reported the following day by Reuters correspondent Luc Cohen, formalizes a posture that had previously been articulated only in scattered court filings and demand letters. It signals that the Department, having lost cases in California, Oregon, Michigan, Massachusetts, Rhode Island, and Arizona, intends to proceed as though those rulings did not happen. As the Hawaii Tribune-Herald reported, the rulings against the DOJ were not narrow procedural losses: they came from judges appointed by Democratic presidents and, notably, by Donald Trump himself during his first term. Three federal judges nominated by the very president whose administration is now suing the states have told that administration, in writing, that it does not have the authority it claims.
The Office of Legal Counsel knew this. It cited the rulings in footnotes and dismissed them. According to the opinion itself, the OLC concedes that even courts “that ha[ve] since disagreed with our advice” have addressed the question — and proceeds to advise the executive branch to disregard that disagreement. This is not legal advocacy. It is institutional defiance dressed in a Times New Roman font.
1. What the Department Is Actually Demanding
The scale of the request has, in our view, been undersold by much of the political press. Since 2025, the DOJ’s Civil Rights Division — under Assistant Attorney General Harmeet K. Dhillon — has sent demand letters to nearly every state in the union, asking for complete, unredacted statewide voter registration lists. Per the Brennan Center’s tracking, these requests cover full driver’s license numbers, partial Social Security numbers, dates of birth, and home addresses for tens of millions of American citizens. The Department has sued 30 states and the District of Columbia for refusing to comply.
The administration has offered shifting justifications. In court filings, it has invoked the Civil Rights Act of 1960, the National Voter Registration Act, and the Help America Vote Act. In demand letters, it has cited a statute it calls the “Driver’s License Protection Act” — a law, as Democracy Docket has documented, that does not exist. (The DOJ is presumably attempting to reference the Driver’s Privacy Protection Act, though it has misnamed the statute across multiple official filings.) In a March 2026 hearing, the Acting Chief of the Voting Section conceded what the Department had previously denied: the voter data is being run against the Department of Homeland Security’s SAVE database — a citizenship-verification system that, as documented by the Campaign Legal Center, was overhauled by Elon Musk’s DOGE in 2025 and now routinely flags naturalized U.S. citizens as ineligible.
“The taking of democracy does not occur in one fell swoop; it is chipped away piece-by-piece until there is nothing left.”
— U.S. District Judge David O. Carter, dismissing DOJ v. California (33-page order, January 2026)
2. What the Courts Have Said
Six federal courts have now ruled that the Department lacks the authority it claims, and the language those courts have used is not the cautious, technical prose of routine civil litigation. It is unusually direct. In a 33-page order dismissing the DOJ’s suit against California, Judge David O. Carter wrote the line quoted above and rejected the government’s claims under all three statutes it had invoked — the Civil Rights Act, the NVRA, and HAVA. Elias Law Group partner Lali Madduri, representing the plaintiffs alongside the NAACP, called the ruling “a landmark victory for voter privacy and the rule of law.”
In Oregon, U.S. District Judge Mustafa Kasubhai went further. He ruled that the Justice Department could “no longer” be presumed to act in good faith. Citing a letter from Attorney General Bondi to Minnesota that linked voter-roll demands to immigration enforcement, Judge Kasubhai wrote — in language reported by Democracy Docket — that the context of the demand “casts serious doubt as to the true purposes for which Plaintiff is seeking voter registration lists.” This is a federal judge stating, on the record, that the United States Department of Justice cannot be taken at its word.
The Michigan, Massachusetts, Rhode Island, and Arizona courts reached compatible conclusions on varying grounds. As the Brennan Center summarized, “the courts also documented how the context of these cases shows the department is not being honest about its intentions.” The California judge specifically wrote that the Department was attempting to “use civil rights legislation which was enacted for an entirely different purpose to amass and retain an unprecedented amount of confidential voter data.”
DOJ v. Weber — Dismissed
Judge David O. Carter rejects DOJ claims under three federal statutes in a 33-page order, finding privacy-law violations and no legal basis for the demand. ACLU release →
DOJ “Can No Longer Be Trusted”
Judge Mustafa Kasubhai dismisses the case and denies leave to amend, citing “ulterior motives” and “inconsistent arguments.” Refuses to extend the presumption of regularity. Democracy Docket →
Sensitive Data Demand Tossed
Federal court joins California and Oregon in rejecting Justice Department demands for unredacted personal voter information. Georgia Recorder →
“They’ve Already Lost the First Round”
Court rules federal law doesn’t require Michigan to disclose voters’ private data. Secretary of State Jocelyn Benson urges other states to “stand up to the federal government’s overreach.” Michigan Independent →
3. Why It Imperils the 2026 Midterms
The Department’s strategy, viewed in isolation, looks like ordinary federalism overreach. Viewed alongside President Trump’s March 31, 2026 executive order directing the Department of Homeland Security to compile its own “state citizenship lists” — and to provide them to election officials no fewer than 60 days before each federal election — the picture changes. The DOJ is not simply collecting data. It is building, in tandem with DHS, the infrastructure for the federal government to unilaterally determine who is and is not eligible to vote.
The reliability of that infrastructure is, in a word, disastrous. Judd Legum has reported that in St. Louis County, Missouri, when the state ran its voter list against SAVE in November 2025, the database flagged 691 registered voters as non-citizens; after cross-referencing with passport data, the list shrank to 133 — meaning at least 81 percent of the original results were wrong. Seventy Missouri county clerks, Republicans and Democrats alike, signed a letter warning that SAVE was repeatedly flagging “individuals we know to be U.S. citizens — our neighbors, colleagues and even voters we have personally registered at naturalization ceremonies.” Frank Phillips, the Republican elections administrator of Denton County, Texas, told ProPublica he believes his county’s voter rolls “may be more accurate than this database.”
The consequence is straightforward, and the administration’s own court filings hint at it. As Stateline reported in March, the DOJ has warned federal appellate courts that “absent a final Court determination on this matter there is no other process to ensure a fair election in 2026.” Translated: if courts continue to rule against us, we will declare the midterms illegitimate. UCLA election law professor Rick Hasen warned bluntly in PBS reporting: “Concerns about Trump interfering in 2026 are real; they’re not frivolous.” David Becker, a former DOJ voting rights attorney who now directs the Center for Election Innovation & Research, was even more direct: “What the DOJ is trying to do is something that should frighten everybody across the political spectrum.”
4. A Timeline of Constitutional Erosion
President Trump signs the first elections executive order, directing DHS to give state and local officials access to SAVE and ordering DOGE to “review voter rolls.” The Brennan Center and others sue; multiple provisions are subsequently blocked by federal courts.
Elon Musk’s DOGE “optimizes” the SAVE database over two weeks, importing full Social Security numbers and enabling bulk voter-roll uploads. Error rates climb sharply.
Judge David O. Carter dismisses DOJ v. California in a 33-page order rejecting all three statutory claims. The DOJ sues five additional states the following month.
Judge Mustafa Kasubhai rules that the DOJ can no longer be presumed to be acting in good faith. Michigan, Massachusetts, and Rhode Island courts dismiss parallel cases.
President Trump signs a second elections executive order directing DHS to compile federal “state citizenship lists” and instructing USPS to refuse delivery of ballots to anyone not on the list. The Brennan Center calls it “a car crash with a train wreck.”
CNN reports the DOJ has finalized an agreement to share voter-roll data with DHS. Attorney General Bondi deputizes former U.S. Attorney Dan Bishop — who questioned the 2020 result — to “examine” voter registration data.
Rep. Jamie Raskin, ranking Democrat on the House Judiciary Committee, demands a cognitive evaluation of the President and introduces legislation to establish a permanent Commission on Presidential Capacity under Section 4 of the 25th Amendment.
The DOJ’s Office of Legal Counsel issues a formal opinion backing the administration’s demands over the rulings of six federal courts. Reuters obtains it the following day.
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5. The Question of Leadership
It is worth stating plainly what kind of priority this represents. The Department of Justice is suing thirty states. The President has signed two executive orders attempting to seize federal control of voter registration, both of which legal scholars have called unconstitutional and at least one of which has already been permanently blocked in part. The DOJ has, by Democracy Docket’s count, misspelled its own attorneys’ names in court filings, misidentified the titles of officials leading the effort, and repeatedly cited a federal statute that does not exist. This is not the work of a serious law-enforcement agency pursuing a serious policy. It is the work of a Department whose senior leadership is being directed to manufacture a justification — any justification — for a result the President wants.
“Public trust in Donald Trump’s ability to meet the duties of his office has dropped to unprecedented lows. We are at a dangerous precipice, and it is now a matter of national security for Congress to fulfill its responsibilities under the 25th Amendment.”
— Rep. Jamie Raskin, Ranking Member, House Judiciary Committee · April 14, 2026
The result the President wants is not subtle. In remarks reported by CNN in early 2026, Trump called for the federal government to “take over” and “nationalize” voting in certain places. He has done so as Republicans face an unfavorable midterm map and a slim House majority that history suggests is likely to flip. Michigan Democratic Party chair Curtis Hertel Jr. put the political logic plainly: “By preemptively delegitimizing state-run elections, Trump is positioning himself to make voter fraud claims in the event that Republicans lose this fall.” Whether or not one accepts Hertel’s framing as partisan, the structural fact is undeniable — the administration is building, in advance, the documentary record it will need to dispute results it doesn’t like.
When a Department of Justice Defies Six Courts, Who Restrains the Executive?
The 25th Amendment was ratified in 1967 to address presidential incapacity. Section 4 — never invoked in American history — establishes a process by which the Vice President, together with a majority of the Cabinet or “such other body as Congress may by law provide,” may declare that the President is “unable to discharge the powers and duties of his office.” Congress has never created that alternative body, despite the amendment’s explicit invitation to do so.
On April 14, 2026, Rep. Jamie Raskin, Ranking Member of the House Judiciary Committee, formally introduced legislation to create one. His Commission on Presidential Capacity to Discharge the Powers and Duties of Office would be a permanent, bipartisan body of physicians and former executive officials empowered to evaluate the President alongside the Vice President. Four days earlier, Raskin had written directly to White House Physician Captain Sean Barbabella demanding a “comprehensive cognitive and neurological evaluation” of the President — a request that, as of this writing, has not been honored.
The constitutional argument Raskin advances is not narrowly about cognition. It is about capacity to faithfully execute the laws. A President whose Justice Department issues a written opinion contradicting six federal courts, whose Attorney General deputizes a prosecutor known for questioning a prior election result, and whose executive orders are repeatedly blocked as unconstitutional has, by his conduct, raised legitimate questions about whether the executive branch under his direction is meaningfully tethered to the Constitution it has sworn to defend. The framers gave us Section 4 precisely for moments when the President’s relationship to constitutional duty becomes untenable.
6. What Must Happen Now
Three things are required of the country between now and November. First, every state attorney general and secretary of state served with a DOJ demand letter or lawsuit should continue to refuse compliance, as Michigan’s Jocelyn Benson, Oregon’s Tobias Read, and California’s Shirley Weber have done. Six federal courts have already validated their position. The DOJ’s May 12 opinion does not change the law; it changes only the Department’s posture.
Second, Congress must act on Raskin’s Commission on Presidential Capacity legislation — or, at minimum, hold hearings on it. The 25th Amendment is not a partisan instrument; it is a continuity-of-government mechanism the framers ratified precisely to prevent the kind of cascading institutional crisis the country is now drifting toward. Establishing the Section 4 body Congress has neglected for nearly sixty years is not a coup. It is housekeeping.
Third, the press, the bar, and the voting public must refuse to accept the legitimacy of the administration’s documentary record. When the DOJ tells a court that without forced compliance “there is no other process to ensure a fair election in 2026,” that statement should be treated for what it is: an advance press release for a contested result. The midterms will be fair if they are conducted under existing state law — which is administered, as the Constitution dictates, by the states themselves.
Editorial Conclusion
The Justice Department of the United States has issued a written opinion instructing the executive branch to disregard six federal courts. That is not a policy dispute. That is the beginning of a constitutional rupture.
What is at stake in the voter-roll fight is not data. It is the principle, settled since 1789, that states administer elections — and the deeper principle, settled since Marbury, that courts say what the law is. To surrender either is to surrender the republic.
The country does not need a more aggressive Department of Justice. It needs a President capable of recognizing when the Department he commands has stopped enforcing the law and started waging a campaign against it. If he cannot recognize it, the 25th Amendment exists for a reason. Congress should build the body the framers told it to build, and the rest of us should stop pretending this is normal.
Sources & References
- Reuters / Hawaii Tribune-Herald — Justice Department drafts legal opinion backing demands for state voter rolls
- U.S. News & World Report — US Justice Department Drafts Legal Opinion Backing Demands for State Voter Rolls
- DOJ Office of Legal Counsel — Slip Opinion: Authority to Obtain and Share Statewide Voter Roll Data (May 12, 2026)
- Brennan Center for Justice — Tracker of Justice Department Requests for Voter Information
- Brennan Center for Justice — Federal Courts Reject Trump Administration’s Attempts to Obtain Private Voter Information
- Elias Law Group — Federal Court Dismisses DOJ Lawsuit Seeking Sensitive Data of 23 Million California Voters
- ACLU — Federal Court Dismisses DOJ Lawsuit Seeking California Voter Data
- Democracy Docket — Federal Judge Rules DOJ Can ‘No Longer’ Be Trusted in Voter Roll Crusade
- Democracy Docket — Trump DOJ’s Campaign for Voter Data is a Master Class in Incompetence
- Georgia Recorder — Federal judge tosses out DOJ lawsuit seeking Georgia voter rolls
- Stateline — In bid for voter data, Trump’s DOJ lays groundwork to undermine confidence in midterms
- CNN Politics — Trump is trying to build a massive voter database. Election officials are afraid of what he’ll do with it
- PBS NewsHour — Democrats are raising worries about Trump interfering in the midterms
- Michigan Independent — Michigan Democrats vow to challenge any federal interference in 2026 midterms
- Popular Information — The broken database that could upend the 2026 election
- NPR — Trump tries to create verified voter list with executive order
- Campaign Legal Center — What is the SAVE System?
- House Judiciary Democrats — Rep. Raskin Introduces Legislation Establishing Independent Commission on Presidential Capacity
- House Judiciary Democrats — Raskin Demands White House Physician Evaluate Trump’s Cognitive Fitness
- International Bar Association — Comment and analysis: President Trump and the 25th Amendment
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