(File photo provided by Charleston County Board of Voter Registration and Elections)
COLUMBIA — South Carolina can begin giving voter information to the federal government, the state Supreme Court said in a Thursday opinion.
The six-page opinion overturned a circuit court judge’s decision last week that the state must hold onto its data on 3.3 million registered voters — including names, birthdays, addresses, drivers’ license numbers and final digits of Social Security numbers — while a lawsuit plays out over privacy concerns.
The U.S. Department of Justice asked for that information last month as part of a push by the Trump administration to get every state’s voter rolls.
Under the Supreme Court’s decision, the state Election Commission could hand over its voter information right away, said Senate Minority Leader Brad Hutto, who is representing a voter suing to stop the release of her personal information.
Whether the commission will do so is unclear. An agency spokesman did not immediately return a request for comment.
The agency began working to comply with the Trump administration’s request Aug. 27, three weeks after it sent the first of two letters asking for the information, spokesman John Michael Catalano said previously. The Department of Justice set a due date of Sept. 5, two days after the circuit court judge’s order barred the state from complying.
The Supreme Court’s order, which all five justices signed, didn’t get into the questions of privacy raised in the lawsuit. Instead, justices focused on procedural issues in the order barring the state from fulfilling the request.
Circuit Court Judge Diane Goodstein didn’t explain in her order what sort of damage Calhoun County voter Anne Crook, who filed the lawsuit, might face if the state gives her information to the federal government, according to the Supreme Court’s order. Goodstein also failed to explain whether she believed the lawsuit was likely to succeed, which is required for a court to intervene, the order reads.
Goodstein told the Election Commission not to comply with the request before the agency had even received notice of the lawsuit. That on its own violates longstanding court precedent, the state’s highest court said.
(The lawsuit was filed Aug. 29, just ahead of the Labor Day weekend. Goodstein’s order came the day after Labor Day.)
She scheduled a hearing for Wednesday morning in Aiken County but canceled it after the state Election Commission appealed to the Supreme Court.
The lawsuit will continue. Justices made it clear Crook can still ask for a hearing in her case. Where and when that might happen is still to be determined.
“We still are going to get our day in court,” said Hutto, D-Orangeburg.
Governor joins the lawsuit
Although the initial lawsuit didn’t name Gov. Henry McMaster as a defendant, he asked to join in defense of the state Election Commission.
The request “should not be a big deal,” McMaster’s attorney wrote last Thursday in response to the lawsuit.
Anyone can purchase partial voter records, including full names, addresses and birthdays. Also, federal agencies — including the IRS and Social Security Administration — already have most of the information requested, McMaster’s filing argued.
“The federal government already has Crook’s full Social Security number (as well as every other South Carolinian’s) because the federal government issues those Social Security numbers,” the governor’s attorney wrote. “It’s untenable (to put it mildly) to insist that the State cannot tell the federal government something that the federal government already knows.”
The governor’s office did not immediately respond Thursday to a request for comment on the high court’s decision.
While it’s true that some government agencies have access to personal information, the Department of Justice clearly isn’t among them, Hutto said. If it were, the agency wouldn’t be asking for states to provide that information, he said.
McMaster told reporters last week that he would like to enter a formal agreement with the Department of Justice making it clear that the agency will respect voters’ privacy rights.
However, those privacy rights don’t extend to voter registration information, his attorneys argued in a court filing. South Carolinians have a right to privacy only from electronic surveillance and in cases of bodily autonomy, McMaster’s filing reads.
Federal law gives government agencies the authority to get whatever data they need to fulfill their obligations, McMaster’s attorneys argued. That includes the Department of Justice, which is tasked with enforcing voter laws, his office wrote.
“Nothing is unreasonable about giving the federal government information it already has (Social Security numbers) or information that Congress has authorized it to obtain (driver’s license numbers),” the filing reads.
Those laws apply only if the agency has a good reason to get the information, which the Department of Justice hasn’t proven, Hutto argued.
If the Department of Justice said exactly what it planned to do with people’s personal information, voters like Crook might not be so concerned about violations to their privacy, Hutto said.
“Why do they need to know?” Hutto said. “That is the very data everyone says we need to safeguard from identity theft.”