Nebraska Supreme Court hears arguments over Secretary of State’s authority to disclose voter data to feds

The Nebraska Supreme Court heard arguments Tuesday in a lawsuit challenging Secretary of State Bob Evnen’s decision to release the state’s voter file to the U.S. Department of Justice.

Last September, the U.S. DOJ sent letters to secretaries of state across the country requesting a complete statewide voter registration list to “assess compliance” with federal law. That includes names, addresses, dates of birth and the last four digits of Social Security numbers. In some cases, it includes a person’s state driver’s license number.

Common Cause Nebraska, a pro-democracy nonprofit, and Nebraska voter Dawn Essink sued Evnen to prevent him from sharing the data. That lawsuit was later dismissed by a judge in Lancaster County, who found that neither Common Cause nor Essink had standing to challenge the release of information. The dismissal was appealed, and the Nebraska Supreme Court moved the case to its docket.

Evnen released the voter information to the DOJ on Feb. 12, after the state Supreme Court declined to issue an injunction to prevent him from doing so. In court filings, attorneys for Evnen said the decision to release the information was made, in part, “to spare Nebraska a potentially costly federal lawsuit.” The DOJ has filed at least two dozen lawsuits against states that have declined to share voter information.

Attorneys for Evnen argued in briefings to the court that the case is moot because the voter information at issue has already been released. But attorneys for Common Cause argued the court can – and should – rule on the underlying issue of the Secretary of State’s authority to release voter information to the federal government.

“It is exceedingly desirable for the Court to issue an authoritative adjudication for the guidance of the current and future secretaries of state,” Common Cause attorney Alexander Arkfeld wrote in a briefing. “This issue presented in 2017, when Secretary Evnen’s predecessor determined that state law did not permit him to comply with the federal government’s demand. Now in 2026, Secretary Evnen has determined the opposite. Nebraskans need the sort of clarity only this Court can provide.”

President Donald Trump made a similar attempt to request voter data from states during his first administration in 2017. Then-Secretary of State John Gale requested additional information from the President’s Advisory Committee on Election Integrity, including how the data would be shared and used. The committee was later disbanded, and Gale said his questions were never answered. No voter information was disclosed by his office.

During Tuesday’s arguments, many of the questions from justices centered on the standing of Essink and Common Cause to bring the lawsuit in the first place, and whether or not the case is moot. Deputy Solicitor General Cody Barnett, who argued on behalf of Evnen, said Essink’s data being released does not amount to an “injury” under law. He said Essink’s complaint was deficient because it did not identify particular concerns about how the federal government will use the disclosed information.

“All that [Essink] says in her complaint is, essentially, ‘I don’t want the secretary handing this information to the federal government because I don’t like the federal government,’” Barnett said. “That is the core of her complaint. What she is asking this court to do is to wade into a political controversy where she just simply disagrees with what the secretary is doing because she disagrees with the current administration in Washington.”

Daniel Gutman, who argued on behalf of Common Cause and Essink, said everyone in the case seems to agree that the public disclosure of voter information would constitute an injury under law. The dispute is whether or not releasing the information to the federal government amounts to releasing it to “the public,” which the lower court defined as the information being “accessible to many.”

“So if a large corporation, say a Walmart, requested the voter file and Secretary Evnen handed it over, he would be handing it over to ‘the public,’” Gutman said. “I think that’s ‘many.’ There’s no difference with the federal government.”

If the Nebraska Supreme Court finds that the case is moot, or that Essink and Common Cause do not have standing, it does not have to reach the merits of the case. But even with a mootness finding, the court could still rule on the merits if it finds that the case is subject to the public interest exception – meaning the legal questions presented involve significant public interest and are likely to recur.