As Midterms Near, Federal Government Challenges Voting Access, Data Privacy

By Selen Ozturk

As the midterms approach, the federal government is pushing to tighten voting requirements and demanding that nearly every state turn over election records.

Image via Canva.

As the midterms approach, the federal government is pushing to tighten voting requirements and demanding that nearly every state turn over election records.

The Justice Department has sued 23 states and Washington, DC for refusing to comply with the release of election records — including full statewide voter registration lists and, in some cases, ballots from prior elections or access to voting equipment. 

Meanwhile, Congress is advancing election legislation that would tighten voter identification requirements, mandate voter roll purges and restrict vote-by-mail.

This week alone, on Tuesday, February 10, the House of Representatives passed the SAVE America Act, which would require proof of citizenship and government photo identification to register to vote; one day prior, the House held a hearing on the Make Elections Great Again (MEGA) Act. Both bills, however, have far less certain chances of passing the Senate.

Video by ACoM | Justin Levitt — law professor at Loyola Law School, former White House senior advisor for democracy and voting rights and a former official at the Justice Department Civil Rights Division — says Trump has damaged faith in election security, but notes that when skeptics become election observers, the come away with faith in the system and their fears of fraud assuaged.

The MEGA Act would require voters to show photo identification, limit mail ballots to voters who request them and require mail ballots to be received by polls’ closing on Election Day. The bill would also require states to verify citizenship during voter registration, require auditable paper ballots, ban ranked-choice voting and end universal vote-by-mail systems.

Legal scholars and voting rights advocates say that despite the aggressive posture from House Republicans, the constitutional structure of U.S. elections prohibits federal overreach — like President Trump’s executive order last March that sought to require documentary proof of citizenship, like a passport, in federal voter registration.

“When I say that Trump doesn’t have power in that area or that he can’t do something, I mean legal constraints, yes, and those legal constraints are important. But just as importantly, I mean operational constraints,” said Justin Levitt, law professor at Loyola Law School. “In the elections context, he’s not in charge.”

Unlike other areas of federal authority, elections are decentralized, explained Levitt, a former White House senior advisor for democracy and voting rights and a former official at the Justice Department Civil Rights Division. “The easiest thing that state and local officials who are in charge are doing is simply ignoring him, or telling him that they don’t agree, and they’re the ones who control American elections.”

Video by ACoM | Danielle Lang, a voting rights attorney and vice president of voting rights at the Campaign Legal Center, explains the law regarding mail-in ballots and why Trump can’t end voting by mail.

This has already played out in court. 

Levitt pointed to the Trump administration’s attempt to collect statewide voter files from across the country: “He’s not authorized to do that, but the states are fighting back and winning.” Meanwhile, Trump’s executive order, which also directed federal officials to intervene in election processes, “has been blocked multiple times in the courts, and the states aren’t complying because they don’t have to.”

Danielle Lang, a voting rights attorney and vice president of voting rights at the Campaign Legal Center, agreed that litigation has been quick and effective.

“If you’ve been following the news generally, you may not have a positive view of how courts, or perhaps the Supreme Court, have been responding to abuses of executive power,” she said. “That is simply not the story when it comes to elections.”

Last January 15, for instance, in response to the Justice Department’s suing 23 states for not giving up full voter rolls, a federal court dismissed the suit seeking California’s full voter registration database. The ruling came one day after a federal judge tentatively ruled to dismiss a similar suit against Oregon.

Video by ACoM | Andrea Senteno, DC regional counsel at MALDEF, discusses the growth of the Latino population and notes that voter turnout has not kept pace.

“Uniformly so far, the courts that have ruled on this have ruled that the Department of Justice has no basis for hoovering up this amount of data,” Lang said.

As for Trump’s executive order, Lang’s own team secured a preliminary injunction blocking one of its central provisions: a directive that the Election Assistance Commission, an independent agency, change the federal voter registration form to add new identification requirements.

“That federal form was created by a 1993 law called the National Voter Registration Act, with the idea that it provides a backstop,” she said. It is especially crucial for national voter registration drives and communities with limited English proficiency, because it can be distributed in multiple languages.

In a 100-page opinion, the federal district court made it clear that “the president has no constitutional power over elections,” Lang said. “Every court order that has addressed that executive order since has parroted that language.”

“Americans support identifying voters and verifying them.” But she added that voters “do not support an act that would disenfranchise millions of Americans and make it so that, for example, married women have difficulty proving their eligibility to vote.”

Much of the issue, in other words, hinges on specificity. Voter identification may poll well, but in practice, strict proof-of-citizenship requirements can impose barriers that fall unevenly across communities, including mail-in by military and overseas voters.

“The fundamental premise of America is that voting is a right. It’s not a privilege,” said John C. Yang, president and executive director of Asian Americans Advancing Justice. “Unless someone can demonstrate that the benefit of a restriction absolutely outweighs the burden, it’s a done deal.”

He highlighted how documentation requirements can create challenges for naturalized citizens and immigrants whose names appear differently across records: “For Asian Americans who are naturalized, their names … could cause issues.” Different transliterations often mean a voter’s Social Security, birth certificate and passport do not match.

Video by ACoM | John C. Yang, president and executive director of Asian Americans Advancing Justice, discusses the long history of Asian voter suppression in the United States.

Mail voting is particularly important for Asian American communities because having a ballot at home “allows us additional time to translate, think through the issue in a way that you would feel pressured to do so at the ballot box,” he added.

In 2024, 46.5% of Asian Americans voted by mail.

Latino voters face similar barriers, said Andrea Senteno, DC regional counsel at MALDEF.

Latinos have been the largest U.S. racial or ethnic minority group for more than two decades, comprising 19% of the population and accounting for 51% of national growth between 2010 and 2020. 

An estimated 36.2 million Latinos were eligible to vote in 2024, up from 32.3 million in 2020 — representing 50% of the total growth in eligible voters during this time, per Pew.

Yet significant gaps remain in registration and turnout, said Senteno, pointing to “unlawful voter purges, restrictions on language assistance, restrictions on mail ballots and forms of registering,” as well as calls for proof of citizenship and ICE presence at polling sites.

Levitt added that his broader concern about this federal overreach is public trust.

“I am quite worried that (Trump) has succeeded substantially in spreading distrust where that distrust is not warranted,” he said, noting claims of fraud “without evidence in every election since 2015.”

Yet when skeptics engage by serving as poll workers or observers, “they come away with the most profound and deserved confidence in the election structure,” he said. “The minute that people get a view on the inside, it turns them around.”

With turnout expected to be quite high this year, Levitt said, “Voters have agency here. We’re in charge. The more you can communicate that we are the ones who are in charge here, that we get to decide our own destiny … The strongest pushback to restrictive laws comes through voters exercising their rights at the ballot box.