United States of America v. JOCELYN BENSON, in her official capacity as Secretary of the State of Michigan; STATE OF MICHIGAN

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0233p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

JOCELYN BENSON, in her official capacity as Secretary
of the State of Michigan; STATE OF MICHIGAN,
Defendants-Appellees,

MICHIGAN ALLIANCE FOR RETIRED AMERICANS;
DONALD DUQUETTE; KEELY CRIMANDO,
Intervenors-Appellees.
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No. 26-1225

On Petition for Rehearing En Banc
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:25-cv-01148—Hala Y. Jarbou, Chief District Judge.

Argued: May 13, 2026
Decided and Filed: August 14, 2026
Before: COLE, NALBANDIAN, and MATHIS, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR REHEARING EN BANC and MOTION TO EXPEDITE
CONSIDERATION OF THE PETITION: Kelsey E. McGee, David N. Goldman, Andrew G.
Braniff, Jesus A. Osete, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellant. ON RESPONSE: Heather S. Meingast, Erik A. Grill, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Defendants-Appellees. Aria C.
Branch, Joshua C. Abbuhl, Branden D. Lewiston, Derek A. Zeigler, ELIAS LAW GROUP LLP,
Washington, D.C., Sarah Prescott, SALVATORE PRESCOTT PORTER & PORTER,
>

No. 26-1225 United States et al. v. Benson et al. Page 2

Northville, Michigan, for Intervenors-Appellees. ON BRIEF: Jason B. Torchinsky,
HOLTZMAN VOGEL BARAN TORCHINSKY & JOSEFIAK PLLC, Washington, D.C.,
Abhishek Kambli, HOLTZMAN VOGEL BARAN TORCHINSKY & JOSEFIAK PLLC, New
York, New York, Ronald D. Coleman, COLEMAN LAW FIRM, PC, Newark, New Jersey, for
Amici Curiae.
The court delivered an order denying the petition for rehearing en banc. MURPHY, J.
(pp. 3–11), delivered a separate statement concurring in the denial of the petition for rehearing en
banc, in which SUTTON, C.J., and LARSEN, J., concurred, and READLER, J., concurred in all
but Part II.C. GRIFFIN, J. (pp. 12–19), delivered a separate opinion dissenting from the denial
of the petition for rehearing en banc, in which BUSH, J., concurred. THAPAR, J. (pp. 20–30),
delivered a separate opinion dissenting from the denial of the petition for rehearing en banc, in
which GRIFFIN, BUSH, NALBANDIAN, and HERMANDORFER, JJ., concurred.
_________________
ORDER
_________________
The court received a petition for rehearing en banc and a motion to expedite
consideration of the petition. The motion to expedite is granted in part. The original panel has
reviewed the petition for rehearing and concludes that the issues raised in the petition were fully
considered upon the original submission and decision. Judge Nalbandian would grant the
petition for panel rehearing for the reasons stated in his dissent to the court’s opinion of June 24,
2026. The petition was also circulated to the full court. Less than a majority of the judges voted
in favor of rehearing en banc. Therefore, the petition is denied.

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_________________
CONCURRENCE
_________________
MURPHY, Circuit Judge, concurring in the denial of rehearing en banc. This case
involves important legal issues about the United States’ ability to obtain voting records from the
States under Title III of the Civil Rights Act of 1960. See United States v. Benson, 179 F.4th
470, 474 (6th Cir. 2026). And I likely would have agreed with much of Judge Nalbandian’s
dissent if I had sat on the panel. So the legal issues may well justify en banc review at some
point. But now is not the proper time. I read the panel opinion as denying relief to the United
States based on curable procedural problems—not incurable limits on the United States’ right to
voter records. In particular, the panel opinion and dissent primarily disagreed over how to
interpret the specific letters that the Department of Justice (DOJ) sent to Michigan’s Secretary of
State: Did the DOJ request only the statewide voter-registration list? Or did the DOJ’s request
impliedly include a demand for the underlying voter-by-voter records? The majority interpreted
the letters narrowly, while the dissent interpreted them broadly. Yet nothing in the majority
opinion prevents the DOJ from sending a fresh letter leaving no doubt that it demands the
“individual voter records used to create the voter list.” Id. at 482. That path strikes me as more
efficient than an en banc rehearing in which some 17 judges might spend more time parsing the
meaning of the letters than the meaning of the law. On this understanding, I concur in the denial
of rehearing en banc.
I
At the outset, I agree that two factors might well point in the direction of our full court’s
review. For one thing, the United States serves “a compelling interest” when it seeks to ensure
“the integrity” of federal elections. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (quoting Eu v. S.F.
Cnty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989)). “[I]nflated voter rolls” containing
individuals who are ineligible to vote increase the risk of voter fraud and decrease the public’s
confidence in an election’s validity. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,
196–97 (2008) (opinion of Stevens, J.). Congress recognized this concern when it passed the
National Voter Registration Act of 1993 (NVRA). See 52 U.S.C. § 20501(b)(3)–(4).

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The NVRA requires States to “conduct a general program that makes a reasonable effort to
remove the names of ineligible voters from the official lists” of voters. Id. § 20507(a)(4); see
Husted v. A. Philip Randolph Inst., 584 U.S. 756, 761–62 (2018). And Congress recognized the
concern again when it passed the Help America Vote Act of 2002 (HAVA). HAVA compelled
States to use “a single, uniform, official, centralized, interactive computerized statewide voter
registration list[.]” 52 U.S.C. § 21083(a)(1)(A). It added that the States must establish “[a]
system of file maintenance that makes a reasonable effort to remove registrants who are
ineligible to vote from” this list. Id. § 21083(a)(4)(A). So both caselaw and legislation support
the government’s position that this case touches issues of “exceptional importance” to the
country. Fed. R. App. P. 40(b)(2)(D).
For another thing, there is room for doubt over the panel opinion’s interpretation of the
phrase “come into his possession” in Title III. This title generally requires an “officer of
election” to “retain and preserve” records that “come into his possession” relating to any action
“requisite to voting in [a federal] election” for a period of twenty-two months “from the date of”
that election:
Every officer of election shall retain and preserve, for a period of twenty-two
months from the date of any general, special, or primary election of which
candidates for the office of President, Vice President, presidential elector,
Member of the Senate, Member of the House of Representatives, or Resident
Commissioner from the Commonwealth of Puerto Rico are voted for, all records
and papers which come into his possession relating to any application,
registration, payment of poll tax, or other act requisite to voting in such election,
except that, when required by law, such records and papers may be delivered to
another officer of election and except that, if a State or the Commonwealth of
Puerto Rico designates a custodian to retain and preserve these records and papers
at a specified place, then such records and papers may be deposited with such
custodian, and the duty to retain and preserve any record or paper so deposited
shall devolve upon such custodian.
52 U.S.C. § 20701. According to the panel, “[a]n ordinary English speaker would not say that
[Michigan’s Secretary of State] has come into possession of something that she created,
established, and maintained.” Benson, 179 F.4th at 479. I might agree—at least in the abstract if
the phrase has not developed a specialized legal meaning (as Judge Griffin suggests).

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From there, though, the panel makes an unexplained logical leap: it treats all “Michigan
officials” as a single “officer of election” and exempts records that any state actor creates even
when the actor transfers the records to other officers. Id. at 478–79. Yet, as Judge Nalbandian
explained, the language imposes a specific duty on an individual (each officer of election), not a
general duty on the entire State of Michigan. See id. at 486–87 (Nalbandian, J., dissenting).
That is, if a particular officer of election “come[s] into . . . possession” of a qualifying record,
this specific person must “retain and preserve” it unless state law allows the person to transfer
the record “to another officer of election” or the State has designated a “custodian” to keep all
these records. 52 U.S.C. § 20701. And an “ordinary English speaker” would say that the
Secretary of State “has come into possession” of records that (for example) a local official
creates when that local official places the records in the Secretary’s custody. Benson, 179 F.4th
at 479. At the least, the Secretary of State “came into possession” of the voter-registration list
when she assumed office in 2019. Cf. Kennedy v. Lynd, 306 F.2d 222, 230 (5th Cir. 1962).
Keep in mind, too, that the panel’s reading of “come into . . . possession” extends beyond
this case’s factual context: a request for voting records for list-maintenance purposes. 52 U.S.C.
§ 20701. That reading would also apply when the United States requests voting records to
investigate allegations of voter discrimination. In both contexts, the DOJ now may lack the
power to obtain “internally generated” records from the States. Benson, 179 F.4th at 479.
II
Despite my concerns with the panel’s reasoning, several other factors convince me that
this legal issue does not warrant en banc review at this time.
A
First, the difference between the panel opinion and Judge Nalbandian’s dissent may turn
out to be more semantic than real. As I read these opinions, their disagreement rests primarily on
the meaning of the three letters that the DOJ sent—not on the United States’ right to review
Michigan’s voter records. On the one hand, the panel nowhere disputes the dissent’s main claim:
that the United States is entitled to the “underlying individual records” that Michigan used to
create its statewide voter-registration list. Benson, 179 F.4th at 485 (Nalbandian, J., dissenting)

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(emphasis added). The problem for the United States, according to the panel, is that none of its
letters requested the “compilation of individual voter records used to create the voter list.” Id. at
482 (majority opinion). Noticeably absent from the majority’s response to the dissent? Any
claim that the United States could not seek these individual voter records. So the procedural
defect that the panel identified with the dissent’s reading of the letters has a simpler fix than en
banc review: the DOJ may send a new letter unambiguously requesting these individual records.
On the other hand, the dissent does not seem to dispute the majority’s main claim: that
“the aggregate” list does not qualify as a record that the Secretary must preserve under § 20701.
Id. at 485 (Nalbandian, J., dissenting). Indeed, all panel members reconcile Title III with the
NVRA and HAVA in similar ways. Title III punishes officers of election who “willfully” violate
its command to “retain and preserve” qualifying records, and it punishes “[a]ny person” who
“willfully” “alters” those records. 52 U.S.C. §§ 20701–02. These provisions ostensibly create a
problem if the entire statewide list qualifies as a record that election officers must preserve: the
NVRA and HAVA require those officials to “constantly change” the list whenever a voter moves
into the State, leaves it, changes an address, dies, or the like. Benson, 179 F.4th at 479. The
dissent viewed these changes as acceptable because the “current-eligibility snapshot” (the full list
as it exists at any moment) does not qualify as a record that officers must preserve under
§ 20701—only the “underlying individual records” do. Id. at 485 (Nalbandian, J., dissenting).
In short, neither the majority nor the dissent treated the item that the DOJ requested—the
“current snapshot of eligible voters” as of July 21, 2025—as subject to preservation under
§ 20701. Id. Rather, Judge Nalbandian disagreed with the majority over the meaning of the
letters. He read the United States’ formal request for “the aggregate file” to encompass a request
for the “individual records” that make up that file. Id. But again, this debate about the meaning
of letters has a simpler solution: the DOJ may send a new letter.
B
Second, while I also have my doubts about the majority’s second reason for affirming the
district court, that issue appears even less worthy of en banc review. Title III allows the
Attorney General to “demand” covered records from an officer of election, but it then says that
the written “demand shall contain a statement of the basis and the purpose therefor.” 52 U.S.C.

No. 26-1225 United States et al. v. Benson et al. Page 7

§ 20703. The panel read this text in a technical way as requiring a single letter to contain the
required statement of the “basis” and “purpose” for the request. Benson, 179 F.4th at 483. It
also read the word “basis” as requiring the letter to contain both a legal basis (Title III) and a
factual basis (perhaps a suspicion of violating the law?) for the demand. Id. As Judge
Nalbandian explained, however, the third letter likely included enough information. Id. at 488
(Nalbandian, J., dissenting). It made clear that the DOJ’s demand was based on “Title III”; it
referred to its earlier requests showing the factual concerns with Michigan’s voter-registration
lists; and it identified its purpose to “assess” the State’s “compliance” with the NVRA’s and
HAVA’s list-maintenance requirements. Ltr., R.39-4, PageID 500–01; cf. Lynd, 306 F.2d at 229
n.6.
At the same time, I would not overread the panel opinion. It nowhere disputed that the
three letters collectively contained enough information to identify the DOJ’s “basis” and
“purpose” for its records request. 52 U.S.C. § 20703. My colleagues also did not hold that the
DOJ lacks the authority to investigate NVRA and HAVA violations using Title III. They thus
did not follow those courts that have suggested that an investigation into voter discrimination
represents the only proper “purpose” for a Title III investigation. See United States v. Weber,
816 F. Supp. 3d 1168, 1182–83 (C.D. Cal. 2026). Although § 20703 requires the DOJ to identify
the “purpose” for its demand, I see nothing in the statute’s text that limits the purposes for which
the DOJ may request the records. So the district court’s reading in this case (that the DOJ may
investigate NVRA and HAVA violations using Title III) remains viable in this circuit. See
United States v. Benson, 819 F. Supp. 3d 753, 767–68 (W.D. Mich. 2026). Here too, then, the
panel’s holding does not prevent the DOJ from sending a new letter with all the information
contained across the three letters.
C
Third, the belated way in which Title III entered the picture in this controversy suggests
that further percolation in the courts (and additional clarification by the DOJ) could serve a
useful function. Because the DOJ was investigating Michigan’s general efforts to comply with
the NVRA’s and HAVA’s list-maintenance requirements, it initially identified the NVRA as the
source of authority to request the “current electronic copy” of Michigan’s voter-registration list

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as of July 21, 2025. Ltr., R.39-2, PageID 492 (citing 52 U.S.C. § 20507(i)); see Ltr., R.39-3,
PageID 497 (same). On appeal, however, it did not renew its arguments that the NVRA or
HAVA required this disclosure. And the DOJ did not identify Title III as a source of authority
for the request until it sent its third letter to the Secretary of State. Ltr., R.39-4, PageID 501. Yet
that letter did not change the scope of the DOJ’s demand: the voter-registration list as it existed
at that time.
This fact creates a potential mismatch. The NVRA and HAVA address the States’
general list-maintenance duties. Title III, by contrast, appears to have an election-specific focus.
Section 20701 seems to create a (recurring) retention duty covering only the “records and
papers” for a specific election on a specific date. 52 U.S.C. § 20701. The retention duty starts
“from the date of” that election. Id. And it runs “for a period of twenty-two months” after that
date. Id. The duty covers only those “records and papers . . . relating to any application,
registration, payment of poll tax, or other act requisite to voting in such election[.]” Id.
(emphasis added). I read the phrase “in such election” as likely modifying all the words that
proceed it—meaning that the statute covers only records about a specific election. Id.; see
Lockhart v. United States, 577 U.S. 347, 352, 355 (2016); id. at 362–68 (Kagan, J., dissenting);
United States v. Bass, 404 U.S. 336, 339–40 (1971). In legalese, the series-qualifier canon (not
the last-antecedent rule) applies. See Antonin Scalia & Brian A. Garner, Reading Law: The
Interpretation of Legal Texts 147–53 (2012).
Title III’s apparent election-specific nature leads me to conclude that this case does not
present the ideal vehicle for en banc review. Did the DOJ’s letters request records tied to any
election? If so, which one? It did not say. Even if an entire voter list could qualify as a “record”
in the abstract, it is not obvious that Michigan’s list as it existed on July 21, 2025, would relate to
any election under § 20701. And the Attorney General may request only a “record” “required by
section 20701 . . . to be retained and preserved,” not all voting records. 52 U.S.C. § 20703.
Perhaps the voter-registration list as it existed on July 21, 2025, relates to the future
November 2026 election? The Fifth Circuit once held that § 20701’s retention duty covered
records about “subsequent” “elections” and that a contrary view would read “the statute too
narrowly.” Kennedy v. Lewis, 325 F.2d 210, 212 (5th Cir. 1963) (per curiam). That reading

No. 26-1225 United States et al. v. Benson et al. Page 9

serves Title III’s purpose by barring States from destroying records (say, rejected applications to
register) before an election—as some state laws once permitted. See Rep. of the U.S. Comm’n
on Civil Rights, at 95 (1959). But how can the text support this result? The Fifth Circuit did not
explain. See Lewis, 325 F.2d at 212. And the retention duty seems to have a clear start date: it
runs “for a period of twenty-two months from the date of” an election. 52 U.S.C. § 20701
(emphasis added). The duty thus does not seem to apply before an election. If Congress had
instead written that election officials must retain records “[until] twenty-two months [after] the
date of” a federal election, then the statute might imply that the duty begins on the date the
officials first possess the records. Id. So if the date of possession came before the election
(under this hypothetical text), the official would have to preserve the records up until the election
and then for the following twenty-two months. But may we rewrite § 20701’s text in this way to
fulfill its purpose (even though Title III’s criminal sanctions might trigger the rule of lenity)?
See id. §§ 20701–02.
Or perhaps the voter-registration list as it existed on July 21, 2025, relates to a past
election (say, the one from November 2024)? Between those two dates, however, officials likely
would have updated this list countless times in preparation for the next election. Voters who
moved out of state or who died since November 2024 would have been removed. And voters
who moved in or registered for the first time would have been added. So if the entire statewide
list qualifies as one “record,” the list from July 2025 may well not “relat[e] to” the prior election.
Id. § 20701.
All that said, this interpretive conundrum also may represent only a case-specific
concern. Ostensibly, the concern would fall away as applied to a demand for a voter list used for
a specific election (say, the Michigan primary from last week). The prior version of the
statewide list that election officials used to distinguish eligible from ineligible voters for a
specific election might qualify as a record “in such election” because it “relat[es] to” the
“registration[s]” used then. Id. And this reading might reconcile Title III with the NVRA and
HAVA in a different way. Title III would make clear that officials must “retain and preserve”
for “twenty-two months from the date of” an election the official list that they used to determine
voter eligibility during that election. Id. They cannot “alter[]” this past record for those twenty-

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two months. Id. § 20702. But Title III would not prevent them from doing what the NVRA and
HAVA require: develop an updated list for the next election by adding newly eligible voters and
deleting newly ineligible ones.
Granted, the parties have not identified these interpretive issues. But they have raised the
general question whether §§ 20701 and 20703 allow the DOJ to seek a statewide voter list as it
existed in July 2025. So the issues could complicate our review at the en banc stage because
they touch on that general question. Parties also typically cannot force courts to adopt a
mistaken view of the law through their stipulations or waivers. See Alexander v. S.C. State Conf.
of the NAACP, 602 U.S. 1, 19 n.6 (2024); Students for Fair Admissions, Inc. v. President &
Fellows of Harvard Coll., 600 U.S. 181, 304 n.9 (2023) (Gorsuch, J., concurring). And even if
we found the legal argument forfeited on appeal, cf. Warner Chappell Music, Inc. v. Nealy, 601
U.S. 366, 371 (2024), it still could complicate matters down the road. This appeal arises at the
motion-to-dismiss stage. So Michigan may well be able to raise the issues at later stages. See
Cent. States, Se. & Sw. Areas Health & Welfare Fund v. First Agency, Inc., 756 F.3d 954, 959
(6th Cir. 2014). This fact too leads me to conclude that denying en banc review at this time
represents the better course.
D
Fourth, timing concerns do not justify immediate en banc review. At this point, I do not
see how the United States could get the relief that it seeks in time for that relief to matter for the
upcoming election in November 2026. One should keep in mind this case’s procedural posture.
The United States has appealed the grant of a motion to dismiss the case, not the denial of a
motion for a preliminary injunction. Although the United States alleges that Title III suits trigger
summary proceedings, it did not seek preliminary relief in the district court that would
immediately compel Michigan to turn over the requested records. Nor has it moved for any type
of emergency relief in this court or the Supreme Court. So even if we expedited an en banc
rehearing, ultimately agreed with the United States on these issues, and quickly rendered an
opinion to that effect, our decision would not entitle the United States to any records. It would
instead simply overturn the district court’s grant of the motion to dismiss and return this case to
that court for further proceedings. The United States would then have to file a motion requesting

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the production of the records. Yet Michigan’s Secretary of State and various intervenors have
stated that they would raise other arguments about why the Secretary should not have to comply.
See Appellee’s Br. 58–66; Intervenor’s Br. 51–53. Those proceedings might take even more
time.
Nor would the mere disclosure of the records immediately matter to the pending election.
Rather, once the DOJ got the records, it would still need to review them. If the DOJ found that
Michigan’s list-maintenance practices violated the NVRA or HAVA and Michigan’s Secretary
of State refused to cooperate (as she has to date), the United States would then have to bring a
separate enforcement action under those laws. See 52 U.S.C. §§ 20510(a), 21111. Even here,
the parties have debated how much these laws would allow Michigan to engage in any sort of
systematic list-maintenance practices this close to the election. Compare 52 U.S.C.
§ 20507(c)(2)(A), with Bell v. Marinko, 367 F.3d 588, 591–92 (6th Cir. 2004). And besides, the
Supreme Court’s cases have “repeatedly cautioned” against granting federal relief that changes a
state’s election framework close to an election. Allen v. Milligan, 146 S. Ct. 1377, 1381 (2026)
(per curiam); see Purcell, 549 U.S. at 4–5. In sum, given the panel’s narrow ruling, it is far from
obvious that rehearing this case en banc would promote any efficiency goals more than staying
our hand at this time.
* * *
The parties have suggested that there are dozens of other cases pending throughout the
country that raise similar issues under Title III. So these issues are not going away. And further
percolation will enhance our court’s—and ultimately the Supreme Court’s—ability to decide the
issues correctly. For these reasons, I have concurred in the denial of en banc rehearing.

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_________________
DISSENT
_________________
GRIFFIN, Circuit Judge, dissenting from the denial of rehearing en banc.
This is an exceptionally important case, Fed. R. App. P. 40(b)(2)(D), impacting the
integrity of federal elections in the State of Michigan. In refusing to disclose Michigan’s
Qualified Voter File, defendant Secretary of State Jocelyn Benson asserts two meritless,
technical defenses. First, Benson argues that she never came into possession of the Qualified
Voter File. Second, she asserts that the federal government’s repeated requests for the voting
record were deficient because the basis and need for the requests were contained in two separate
letters, not one. For the reasons stated below and in the dissenting statement by Judge Thapar, I
would grant the United States’ petition for rehearing en banc and therefore respectfully dissent.
The unredacted records that the federal government seeks contain voters’ unique
identifying numbers, which are “necessary to identify duplicate registration records, registrants
who have moved, and registrants who have died or otherwise are no longer eligible to vote in
federal elections.” United States v. Benson, 819 F. Supp. 3d 753, 768 (W.D. Mich. 2026)
(citation modified). In other words, without the unredacted records, the federal government
cannot effectively verify Michigan’s compliance with the National Voter Registration Act of
1993 (NVRA), 52 U.S.C. § 20501 et seq., and the Help America Vote Act of 2002 (HAVA),
52 U.S.C. § 20901 et seq.
The NVRA generally directs States to implement programs that “[(1)] increas[e] voter
registration and [(2)] remov[e] ineligible persons from the States’ voter registration rolls.”
Husted v. A. Philip Randolph Inst., 584 U.S. 756, 761 (2018) (citing 52 U.S.C. § 20501(b)).
HAVA, for its part, expands the NVRA’s framework and requires States to establish a “single,
uniform, official, centralized, interactive computerized statewide voter registration list” that
contains “the name and registration information of every legally registered voter in the
State.” 52 U.S.C. § 21083(a)(1)(A). It also requires designated election officials to regularly
maintain the list, which includes removing ineligible voters. Id. § 21083(a)(2).

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Against that backdrop, when construing a statute, our task is to identify the “single, best
meaning” of its text. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024). In so doing,
courts must give the text the meaning it bore at the time of its enactment. New Prime Inc. v.
Oliveira, 586 U.S. 105, 113 (2019). As explained, the single, best reading of Title III of the
Civil Rights Act of 1960, 52 U.S.C. § 20701 et seq., is that it covers all qualifying records in an
election official’s possession—including those self-created by an election official. At the very
least, it captures some government-created records, including the Qualified Voter File here. In
this regard, historical usage suggests “comes into possession” signals commencement of a duty
and had nothing to do with a record’s source of origin or who created it.
To begin, the panel majority’s interpretation assigns the phrase “come into his
possession” more legal significance than contemporaneous readers seemingly understood it to
bear. By 1960, “come into” possession or custody was a familiar legal expression. Courts and
legislatures regularly used it to describe when a person lawfully assumed possession of property
through an office, employment, or other legal authority. See, e.g., United States v. Northway,
120 U.S. 327, 330–31 (1887); Rife v. Ruble, 107 F.2d 84, 85–86 (6th Cir. 1939). The phrase
marked the commencement of lawful possession and the legal duties or liabilities that followed.
See Moore v. United States, 160 U.S. 268, 270–72 (1895). But it did not distinguish property
according to its source. And because no such distinction existed, here, records that come into an
official’s possession could include self-created records.
Early decisions construing Title III reinforce that understanding. See, e.g., Kennedy v.
Lynd, 306 F.2d 222, 227 (5th Cir. 1962); State of Ala. ex rel. Gallion v. Rogers, 187 F. Supp.
848, 855 (M.D. Ala. 1960), aff’d sub nom. Dinkens v. Att’y Gen. of U.S., 285 F.2d 430 (5th Cir.
1961). Although they did not directly interpret the phrase “come into his possession,” they are
significant because of how they naturally described the statute. Both Lynd and Gallion quoted or
referenced § 20701’s requirement that election officers retain records that “come into” their
possession. Yet, when describing the statute’s operation, both courts stated that the election
official’s duty to preserve and retain records applied to records “in” an election official’s
possession or “in” the official’s custody. Lynd, 306 F.2d at 227 (“Since the statute specifies ‘all
records and papers’ in the officer’s custody ‘relating to any application [. . .] or other act requisite

No. 26-1225 United States et al. v. Benson et al. Page 14

to voting [. . . ],’ in such elections held within twenty-two months, the custodians’ duty to retain
and preserve and the Attorney General’s right of inspection and copying extend as far back as the
earliest date of any such record or paper which bears on the eligibility of any currently listed
voter to vote in such election.” (emphasis added)); Gallion, 187 F. Supp. at 855 (“There is
nothing uncertain about that part of the Act requiring the preservation and production of all
records and papers which are in the possession of an election official . . . if those records and
papers relate to the acts requisite to voting.” (emphasis added)). That is, they moved among
those formulations without suggesting that “come into” and “in” possession of described a
different category of records.
That pattern is revealing. Had contemporaneous courts understood “come into his
possession” to impose the source-of-origin limitation the majority identifies, one would expect
them to preserve that distinction when describing the statute’s reach. Instead, they described the
statute as applying to records in an election official’s possession or custody without suggesting
that the phrase “come into” carried an additional limitation based on where a record originated.
The more natural inference is that they understood “come into possession” as a familiar legal
formulation identifying when the statutory duty attached, not as creating a separate substantive
limitation on the records covered.
Later judicial usage reflects the same understanding. In United States Department of
Justice v. Tax Analysts, for example, the Supreme Court explained that agency records include
records “created or obtained” by an agency and then described agency control as requiring that
the materials “have come into the agency’s possession in the legitimate conduct of its official
duties.” 492 U.S. 136, 144–45 (1989). To be sure, the Court was not interpreting § 20701, and
Tax Analysts does not resolve the question presented here. But its formulation is nonetheless
instructive. The Court used the phrase “come into the agency’s possession” while discussing a
category of records that expressly included agency-created documents, suggesting that the phrase
naturally describes the assumption of official custody regardless of whether the records were
created within or received from outside the agency. At bottom, the relevant distinction in Tax
Analysts was between official agency records and an employee’s personal papers—not between
internally created and externally received documents.

No. 26-1225 United States et al. v. Benson et al. Page 15

This understanding also answers the majority’s surplusage argument. The majority
reasons that if “come into possession” merely identifies possession, Congress could have
referred to records “in” an election official’s possession. But that reasoning assumes the phrase
was newly coined rather than an established legal formulation. We have recognized, however,
that the canon against surplusage does not require every component of a stock legal language to
perform independent substantive work. See Doe v. Boland, 698 F.3d 877, 882 (6th Cir. 2012).
In any event, the phrase still performs meaningful work by identifying the commencement of
official possession—that is, the point at which the statutory duty to retain and preserve attaches.
And the statutes that the district court cited to show that Congress often employs “come
into possession” when contemplating materials received from an external source do not change
the calculus. Benson, 819 F. Supp. 3d at 768. Some of those statutes expressly limit their reach
to materials received from outside the government. See, e.g., 44 U.S.C. § 3572 (covering
confidential information that comes into an employee’s possession after being submitted to the
agency). Yet § 20701’s text contains no comparable limitation. The remaining statutes fare no
better because their subject matter inherently involves materials originating outside the official’s
office, such as letters entrusted to the Postal Service, abandoned property, entrusted property,
and the effects of a deceased seaman. See 18 U.S.C. § 1703(a); 50 U.S.C. § 217; 18 U.S.C.
§ 654; 46 U.S.C. § 10705. So in those statutes, any external-source limitation flows from the
nature of what is being regulated—not from the phrase “come into possession.” By contrast,
§ 20701 applies broadly to “all records and papers which come into [an election official’s]
possession relating to any application, registration, payment of poll tax, or other act requisite to
voting.” 52 U.S.C. § 20701 (emphasis added). Nothing in that language inherently limits the
statute to records created by someone other than the election official.
In sum, the majority asks the phrase to do more work than contemporaneous legal usage
supports. It reads “come into his possession” as though Congress had written “come into his
possession from another” or “received from outside the office.” But Congress imposed no such
limitation. The proper reading is the one contemporaneous readers would have assigned the
phrase: “come into his possession” identifies the commencement of an election official’s lawful

No. 26-1225 United States et al. v. Benson et al. Page 16

official possession of a covered record and, with it, the beginning of the statutory duty to
preserve. It does not exclude records based on where they originated.
Even assuming the majority correctly interprets the phrase “come into possession” to
require that an election official acquired, obtained, or received the relevant record from another
person rather than having personally created it, the majority still erred in concluding that the
Qualified Voter File falls outside § 20701. United States v. Benson, 179 F.4th 470, 478 (6th Cir.
2026). True enough, under that understanding, an election officer who personally creates a
document does not ordinarily acquire, obtain, or receive it. To use the majority’s analogy, one
would not say that a baker acquired a cake she baked when she removed it from the oven, even if
she first acquired the ingredients. Id. at 479.
But the majority extends that premise one step too far. It transforms a limitation on who
creates the record into a limitation on where the record originates. The majority reasons that
Benson never “acquire[d], obtain[ed], or receive[d]” the Qualified Voter File because “Michigan
officials created it themselves.” Id. at 478–79. Under that reasoning, a record cannot “come
into” an election officer’s possession unless it first crosses an organizational boundary.
Returning to the majority’s analogy, the rule becomes that a baker comes into possession of a
cake delivered from another bakery but not of a cake handed to her by another baker working in
the same bakery.
Yet nothing in § 20701 draws that distinction. Even accepting the majority’s
understanding of the phrase “come into possession,” the statute asks only whether the particular
election officer acquired, obtained, or received the record. It does not ask whether the record
originated outside that officer’s office. That distinction matters because § 20701 regulates
individual election officers, not election offices as institutions; its preservation duty applies to
“[e]very officer of election.” 52 U.S.C. § 20701.
Under the majority’s premise, then, the relevant question is whether Benson acquired the
Qualified Voter File from someone other than herself—not whether the Qualified Voter File
crossed an organizational boundary before reaching her. Michigan law makes clear that Benson
does not personally create, maintain, or update the Qualified Voter File. Rather, she is tasked

No. 26-1225 United States et al. v. Benson et al. Page 17

with directing and supervising its establishment and maintenance. Mich. Comp. Laws
§ 168.509o(1). The Qualified Voter File is created and maintained through the work of
subordinate election officials and employees acting under her supervision.
The fact that those employees act under Benson’s supervision does not mean that she
personally creates every record they prepare. Public officials routinely acquire reports,
databases, memoranda, and other work product generated by subordinate officials even though
those employees act on behalf of the office. Thus, even under the majority’s understanding of
“come into possession,” when the completed work product comes under Benson’s official
custody and control through the actions of those subordinates, it comes into her possession. Put
simply, directing the creation and maintenance of a record is not the same as personally creating
or maintaining it.
And this reading does not render the phrase “come into” superfluous. Even under the
majority’s interpretation, those words distinguish possession from the transition into possession.
They identify the point at which the statutory preservation duty attaches to the particular election
officer.
Finally, HAVA and the NVRA do not compel a different result. The majority reasons
that those statutes require election officials to update statewide voter-registration lists, while
§ 20702 makes it a crime to willfully “alter” records covered by § 20701. But that conflict
depends on reading “alter” too broadly. Under § 20702, a person who “willfully steals, destroys,
conceals, mutilates, or alters” a covered record is subject to criminal penalties. As the
government argues, applying the canon of noscitur a sociis, “alter” takes meaning from its
surrounding terms. Fischer v. United States, 603 U.S. 480, 487 (2024). “Steals,” “destroys,”
“conceals,” and “mutilates” describe varying degrees of interference with the availability and
integrity of a record. Id. at 489–90 (noting that “by their nature,” the terms “alter[], destroy[],
mutilate[], [and] conceal[]” are acts that “impair the integrity or availability of records,
documents, or objects”). Read in that company, then, “alters” likewise refers to any minor
tampering with or corruption of the document’s integrity—not routine updates necessary to
maintain an accurate voter list. Properly read, the statutes work together. HAVA and the NVRA
require election officials to keep voter rolls accurate and current; § 20702 prohibits one from

No. 26-1225 United States et al. v. Benson et al. Page 18

willfully interfering with the integrity or availability of covered records. Thus, by giving “alter”
a breadth its statutory context does not support, the majority creates a conflict that does not exist.
In the end, even accepting the majority’s understanding of the phrase “come into
possession,” the Qualified Voter File falls within § 20701. The statute at most requires only that
the relevant election officer acquire, obtain, or receive the record; it does not require that the
record originate outside the officer’s own office. Benson did not personally create the Qualified
Voter File. She assumed official custody of a record created and maintained by subordinate
election officials acting under her supervision. That is enough to satisfy even the majority’s
flawed textual premise.
* * *
Benson’s second ground for refusing to disclose the unredacted voter file is likewise
meritless. Title III requires that “upon demand in writing by the Attorney General or his
representative,” requested voting records must be disclosed so long as the Attorney General
specifies a “basis and purpose.” 52 U.S.C. § 20703. The statute thus imposes two substantive
requirements: (1) the Attorney General must proceed by written demand, and (2) such demands
must state both their basis and their purpose. It imposes no third requirement that both appear
within a single document.
The text confirms as much. The operative clause begins with the indefinite phrase “upon
demand in writing,” not “upon the demand” or “upon a single demand.” The following
sentence—“[t]his demand shall contain a statement of the basis and the purpose therefor”—
simply refers to written demands described in the preceding sentence. It does not transform an
otherwise open-ended course of written correspondence into a single-document requirement.
When Congress intends to require a single document containing specified information, it knows
how to say so. See Niz-Chavez v. Garland, 593 U.S. 155, 163–68 (2021) (holding that a statute
requiring “a notice” containing specified information could not be satisfied through multiple
documents). Congress chose no comparable language here.
Neither does the statute authorize courts to add procedural requirements Congress
omitted. See Dean v. United States, 556 U.S. 568, 572 (2009) (“[W]e ordinarily resist reading

No. 26-1225 United States et al. v. Benson et al. Page 19

words or elements into a statute that do not appear on its face.” (citation modified)). It specifies
the information the Attorney General must provide. It says nothing about how that information
must be organized or whether it must appear within the four corners of a single writing.
Even if § 20703 required a single written demand, the government’s August 14 letter
satisfied that requirement. The letter stated the purpose of the government’s request—to assess
Michigan’s compliance with the NVRA and HAVA—and explained that it was clarifying the
government’s existing demand. Although it did not expressly refer to the July 21 letter, it
necessarily referred to that demand. A clarification presupposes the request it clarifies. Read in
that context, the August 14 letter incorporated the earlier correspondence, which supplied the
factual basis for the government’s request by identifying irregularities in Michigan’s Election
Assistance Commission’s Election Administration and Voting Survey submissions and a
complaint alleging noncompliance with HAVA. Benson’s own correspondence confirms that
understanding, describing the August 14 letter as “supplement[ing]” the July 21 request. Read
together, the government’s written demand stated both its basis and its purpose.
In short, the majority’s contrary interpretation adds a procedural requirement Congress
did not enact. The statute requires only that the government communicate the basis and purpose
of its demand in writing. It does not require that both appear in a single document. Because the
federal government satisfied those requirements, it complied with § 20703.
For these reasons and those stated by Judge Thapar, I would grant the United States’
petition for rehearing en banc and therefore respectfully dissent.

No. 26-1225 United States et al. v. Benson et al. Page 20

_________________
DISSENT
_________________
THAPAR, Circuit Judge, dissenting from the denial of rehearing en banc. It should be
common ground that fair elections—with rules ensuring all “citizens” eligible to vote can “cast
ballots that carry appropriate weight”—are worth protecting. Brnovich v. Democratic Nat’l
Comm., 594 U.S. 647, 672 (2021). But it wasn’t always that way. During the heyday of voter
disenfranchisement, African American residents of Tuskegee, Alabama turned to the U.S.
Commission on Civil Rights for help securing their fundamental right to vote. U.S. Comm’n on
Civ. Rts., Report of the United States Commission on Civil Rights, 1959, at 69 (1959)
[hereinafter CCR Rep.]. Teachers, students, farmers, and public servants had all tried to exercise
that right but were “denied registration because of their race or color.” Id. at 69–70. So the
Commission started an investigation and traveled to Alabama to examine the state’s voter-
registration records. Id. But when the Commission’s investigator arrived at the courthouse, the
local election official refused to hand over those records. Id. at 70. Meanwhile, a state-court
judge impounded the voter-registration records of other counties. Id. at 70–71. That judge told
the press, “They are not going to get the records. And if any agent of the Civil Rights
Commission comes down here to get them, they will be locked up.” Id. at 71.
A few years earlier, Congress had given the federal government the power to enforce
“statutes relating to election frauds.” Id. at 128; see also Civil Rights Act of 1957, Pub. L. No.
85-315, § 131, 71 Stat. 634, 637–38. So what was the problem? The Civil Rights Act of 1957
didn’t empower the federal government to examine states’ election records. States like Alabama
seized on that silence to resist the federal government’s attempts to uphold voting rights. See,
e.g., CCR Rep., supra, at 69–70; In re George C. Wallace, 170 F. Supp. 63, 66–67 (M.D. Ala.
1959). And that resistance kneecapped the federal government’s enforcement of election laws.
CCR Rep., supra, at 137. After all, the federal government couldn’t know whether or how states
were violating those laws without examining their records. See id. As a result, the federal
government’s enforcement of election laws was so underwhelming that the 1957 Act didn’t seem
to have made much of a difference. Id. at 131.

No. 26-1225 United States et al. v. Benson et al. Page 21

What did the government need to fix its dismal record? The power to “require the
production for inspection of records and papers relating to any general, special, or primary
election involving candidates for Federal office.” Hearings Before the Subcomm. on Const. Rts.
of the S. Comm. on the Judiciary, 86th Cong. 191 (1959) (statement of William P. Rogers, Att’y
Gen. of the U.S.). So Congress gave the Attorney General the sweeping power he needed in
Title III of the Civil Rights Act of 1960. Congress began by tagging every election official with
the personal duty to preserve all federal election records that come into her possession. Civil
Rights Act of 1960, Pub. L. No. 86-449, § 301, 74 Stat. 86, 88. Then, it gave the Attorney
General the power to demand those records and ask a court to compel their production if officials
ignored his demand. Id. §§ 303, 305, 74 Stat. 86, 88.
With time, these new powers helped the federal government sweep the widespread voter
disenfranchisement of the Jim Crow era into the ash heap of history. But concerns surrounding
the integrity of our elections remain today. Just this summer, we learned that a software glitch at
a state’s department of motor vehicles added thousands of aliens to that state’s voter registry.
1

As a result, aliens illegally voted in our elections.
2
Another state discovered tens of thousands of
dead people on its voter rolls.
3
And a Homeland Security review found hundreds of thousands
of potentially ineligible registrants in other states.
4

Given these concerns of voter fraud, the Attorney General broke out an old tool: Title III.
Relying on the powers in that statute, the Attorney General requested Michigan’s voter file,
which includes the list of registered voters and their personally identifiable information.
5
But
Secretary of State Jocelyn Benson refused to comply. So the Attorney General turned to the

1
Joey Fox & Daniel Han, Thousands of Non-Citizens Registered to Vote in NJ Due to Software Error,
Governor Says, Politico (July 21, 2026).
2
Id.
3
State Board Identifies Deceased Individuals on Voter Rolls Through Federal Database Comparison, N.C.
State Bd. of Elections (Apr. 27, 2026).
4
DHS Secretary Markwayne Mullin Sends Letters to Secretaries of State Warning About Non-Citizens on
Voter Rolls, U.S. Dep’t of Homeland Sec. (July 17, 2026).
5
The Attorney General requested “Michigan’s computerized statewide voter registration list.” R. 39-2, Pg.
ID 492. Under Michigan law, this document is called the qualified voter file. Mich. Comp. Laws §§ 168.509q,
168.509r. So I use the terms voter file and voter list interchangeably.

No. 26-1225 United States et al. v. Benson et al. Page 22

courts for help. Yet the panel majority concluded that Michigan’s voter-registration list fell
outside the Attorney General’s powers to obtain voter-registration records. Under the panel’s
opinion, the Attorney General can get the underlying voting records, but he can’t get the list of
registered voters. So he will have no way of knowing whether ineligible individuals are on the
state’s voter rolls. That gap will, in turn, hamper efforts to enforce federal laws aimed at limiting
voter fraud and protecting the rights of eligible voters in our elections.
We’re already seeing the ripple effects of the panel’s error. Since the panel’s decision,
district courts in our circuit have been forced to bless other states’ defiance of Title III’s plain
command. See, e.g., United States v. Adams, No. 3:26-CV-19 (CHB), 2026 WL 2123871 (E.D.
Ky. July 23, 2026). We should have reheard this case en banc to correct our court’s error. I
respectfully dissent from our decision not to do so.
I.
The law is clear, and the facts are undisputed. So this should have been a straightforward
case of statutory interpretation.
Title III requires every election official in the country to “retain and preserve” all federal
election records “which come into his possession” for almost two years following every such
election. 52 U.S.C. § 20701. And it gives the United States, through the Attorney General, the
power to request and inspect those records upon stating “the basis and the purpose” for its
demand. Id. § 20703.
Relying on those provisions, the Attorney General asked Benson for Michigan’s voter
file. United States v. Benson, 179 F.4th 470, 477 (6th Cir. 2026). Why? To ensure the state was
complying with federal election laws. For example, Michigan was required to “make[] a
reasonable effort to remove the names of ineligible voters,” such as those who had passed away
or moved to another state. 52 U.S.C. § 20507(a)(4). To verify Michigan had done so, the
Attorney General requested Michigan’s unredacted voter file, which—like many other states’—
included the list of registered voters as well as their dates of birth, addresses, driver’s license
numbers, and partial social security numbers. Benson, 179 F.4th at 477, 481 n.1. The Attorney
General then planned to compare the voter file to federal databases to ensure that only eligible

No. 26-1225 United States et al. v. Benson et al. Page 23

voters were voting in our elections. See Exec. Order No. 14248, § 2(e), 90 Fed. Reg. 14005,
14007 (Mar. 25, 2025). And the request to Michigan wasn’t unique. The Attorney General
made this same request of nearly every other state—many of which happily complied and
worked with the Attorney General to protect the voter rolls.
6
That’s not surprising. After all,
everyone—states included—should want to protect the integrity of our elections.
But instead of cooperating to achieve that goal, Benson refused to comply with the
Attorney General’s reasonable demand. Instead, she handed over only a redacted version of the
state’s file with voters’ personally identifiable information removed. Benson, 179 F.4th at 477.
So the Attorney General sued, seeking a declaratory judgment and an injunction to compel
Benson’s compliance with Title III. Benson moved to dismiss, the district court granted that
motion, and a divided panel of this court affirmed. Id. at 478, 483.
II.
“Confidence in the integrity of our electoral processes is essential to the functioning of
our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). When there’s a risk
that a state’s voter rolls may contain ineligible voters, this essential confidence is eroded. That’s
because voter fraud waters down every citizen’s right to vote by diluting legitimate ballots with
illegitimate ones. And the Supreme Court has warned that diluting votes can “just as effectively”
deny citizens’ voting rights as “wholly prohibiting the free exercise of the franchise.” Reynolds
v. Sims, 377 U.S. 533, 555 (1964).
The majority’s opinion risks turning these grave concerns into reality. How? By gutting
one of the federal government’s most important tools to inspect states’ election records, ensure
they comply with federal law, and thus protect the integrity of our elections.
To see how the majority’s opinion crippled Title III, begin with how the statute is
supposed to work. Title III gives the Attorney General the power to demand from any election
official in the country every record relevant to federal elections. 52 U.S.C. § 20703. All the
Attorney General needs to do is send a written demand, stating the basis and purpose for his

6
Kaylie Martinez-Ochoa, Eileen O’Connor & Patrick Berry, Tracker of Justice Department Requests for
Voter Information, Brennan Ctr. for Just. (Aug. 6, 2026).

No. 26-1225 United States et al. v. Benson et al. Page 24

request. Id. But that power wouldn’t mean much if election officials could just discard or
destroy their records before the Attorney General could request them. So Title III also requires
every election official to preserve federal election records that have come into her possession for
nearly two years following any federal election. Id. § 20701. Any election official who
“willfully fails to comply” with that provision faces a fine and jail time. Id.
The majority’s opinion defanged that statutory scheme in at least two critical ways. First,
it excluded from Title III’s coverage any document that a state agency “internally generate[s]”
and thus imposed an “external-source limitation” on the statute that has no basis in its text.
Benson, 179 F.4th at 479; id. at 485 n.3 (Nalbandian, J., dissenting). Second, it flyspecked the
Attorney General’s demand for Michigan’s records even though Title III doesn’t impose any
judicially reviewable limits on the form that the request must take. Id. at 483 (majority opinion).
We should have reheard this case en banc to correct those errors.
A.
First, the panel majority shrank Benson’s duty to comply with the Attorney General’s
demand for election records that “c[a]me into [her] possession.” 52 U.S.C. § 20701. According
to the panel majority, the unredacted voter file never came into Benson’s possession because her
office created it. Benson, 179 F.4th at 478–79. But we can’t read “come into . . . possession” in
a vacuum. That phrase is tied to the underlying voting records: “all records and
papers . . . relating to any application, registration, payment of poll tax, or other act requisite to
voting in [an] election.” 52 U.S.C. § 20701. And no one disputes that the records used to create
the voter file came into Benson’s possession. See Benson, 179 F.4th at 480–81 (conceding this
point). True, Benson’s office did some work by matching and aggregating the data it received to
create the voter file. But that file reflects the individual, Title III-covered records that Benson
received from other sources. See id. at 484–85 (Nalbandian, J., dissenting). In other words, the
aggregate file, by definition, comprises records that have separately come into Benson’s
possession. So the aggregate file seemingly satisfies the panel majority’s external-source
requirement on that basis alone.

No. 26-1225 United States et al. v. Benson et al. Page 25

Even if the voter file were a new, separate record, Benson would still have to turn it over.
Plainly, a list of registered voters and the basis for their registration “relat[es] to” an
“application,” “registration,” or an “act requisite to voting in [an] election.” 52 U.S.C. § 20701.
And in Benson’s case, the voter file also satisfies the statute’s “possession” requirement. Id.
That’s because Title III applies individually to “every officer of election” and requires the
preservation of records that “come into his possession.” Id. (emphasis added). Likewise, “any
person” who “perform[s] any function” related to voter applications and registrations for federal
elections is an “officer of election.” Id. § 20706 (emphasis added). Congress’s choice to speak
in the singular matters. It imposes an officer-specific duty to preserve election records. As
secretary of state, Benson oversees more than 1,500 employees. Mich. Civ. Serv. Comm’n,
Forty-Sixth Annual Workforce Report: Fiscal Year 2024–25, at 1-6 (2025). Her responsibilities
range from elections to motor-vehicle registration to driver’s licenses to notaries. See Secretary
of State Jocelyn Benson, Mich. Dep’t of State (2026). Given all her duties, Benson surely didn’t
create the voter file herself. Instead, her subordinates likely created that file and passed it on to
her. The panel majority conceded as much. Benson, 179 F.4th at 478–79 (“Michigan officials
created [the voter file] themselves.”). So Benson “c[a]me into . . . possession” of the voter file
when her employees sent it to her. 52 U.S.C. § 20701. And that means the plain text of Title III
requires her to hand it over to the Attorney General.
7

In response, Benson argues that she doesn’t have a duty to preserve or produce the voter
file because it’s a “living database that hundreds if not thousands of people simultaneously have
access to.” Resp. to En Banc Pet. at 12. In essence, Benson contends that because many people
can access the voter file, no one possesses it. But she’s wrong. Today, documents are often
shared through platforms like Google Drive and Dropbox with many other people who can view
and edit them. And no one doubts that these documents come into the possession of everyone

7
The panel majority argues that this interpretation of Title III runs headfirst into other federal election
statutes. Benson, 179 F.4th at 479–80. Those statutes require state election officials to continually update the voter
file to remove ineligible voters. Id. Yet Title III criminalizes the alteration of any record it covers. Id. Hence the
majority’s concern: If Michigan’s voter file falls under Title III, Benson could be subject to prosecution every time
she updates the voter file to remove ineligible individuals. Id. But the statutes aren’t in conflict. Title III is tied to
each federal election and requires state officials to maintain that election’s records for 22 months. See 52 U.S.C.
§ 20701. This requirement prohibits Benson from going back and altering the voter file used in a past federal
election. But if she updates the voter file to remove ineligible voters—as other federal statutes require—in
preparation for a future election, she isn’t violating Title III. That means there’s no tension among the statutes.

No. 26-1225 United States et al. v. Benson et al. Page 26

with access. See, e.g., Heidi Grp., Inc. v. Tex. Health & Hum. Servs. Comm’n, 138 F.4th 920,
935 (5th Cir. 2025) (explaining that an entity “can assert ‘ownership’ and ‘possession’ in its
documents on Dropbox”). Michigan’s voter file is no different. In short, the meaning of “comes
into . . . possession” doesn’t change just because technology allows that term to now encompass
many more people and records than when it was first enacted into law.
Benson then falls back on policy concerns about divulging voters’ private information.
See Defendants-Appellees’ Br. at 38. But those concerns are misplaced because all agree that
the Attorney General is entitled to the underlying records containing that same private
information. And to the extent the voter list reflects information about registered voters who
lack underlying registration records, those people shouldn’t be on the voter list in the first place.
So, rather than fighting the Attorney General, Benson should be cooperating with him to ensure
the accuracy of Michigan’s voter list. And at the end of the day, Benson’s mistaken policy
concerns can’t displace the clear statutory command of Title III.
To recap, Benson must hand over Michigan’s voter file because it’s an aggregation of
records that came into her office’s possession. What’s more, Benson personally came into
possession of the voter file from her subordinates. So no matter how you slice it, Title III
requires Benson to give the Attorney General the state’s voter file.
B.
Second, the panel majority held that the Attorney General hadn’t properly stated the
demand’s basis and purpose because that information was spread across two letters instead of
one. Benson, 179 F.4th at 483. Yet nothing in Title III says the demand needs to be made in one
letter. Id. at 488 (Nalbandian, J., dissenting). And nothing in Title III gives courts a judicially
manageable standard to apply in reviewing the demand’s format. That means the panel
majority’s quibbling with the Attorney General’s demand exceeded the proper scope of review
under the statute. See Kennedy v. Lynd, 306 F.2d 222, 226 (5th Cir. 1962); see also Coleman v.
Kennedy, 313 F.2d 867, 868 (5th Cir. 1963) (per curiam).

No. 26-1225 United States et al. v. Benson et al. Page 27

The panel majority justified its granular second-guessing by asserting that a Title III
demand is a “civil investigative demand,” which is reviewable. Benson, 179 F.4th at 483 n.2
(citing United States v. Markwood, 48 F.3d 969 (6th Cir. 1995)). But these demands are
different.
A “civil investigative demand” (CID) is a term of art, and a Title III demand simply
doesn’t fit the bill. Every time Congress authorizes CIDs, it does two things. First, it uses that
precise term in its entirety; it doesn’t use “demand” as shorthand. Second, it gives district courts
broad jurisdiction to “hear and determine the matter . . . presented, and to enter such order or
orders as may be required to carry out the provisions of this section.” 31 U.S.C. § 3733(j)(5); see
also 18 U.S.C. § 1968(j) (same); 15 U.S.C. § 57b-1(h) (same); 12 U.S.C. § 5562(h)(1) (same).
Congress didn’t do either of these things in Title III. It didn’t use the words “civil investigative
demand.” And it didn’t give district courts sweeping jurisdiction. Instead, it gave them only a
sliver of jurisdiction “to compel the production of such record or paper” as the Attorney General
demands. 52 U.S.C. § 20705. Such cabined language doesn’t permit the nitpicking that the
panel majority engaged in here.
The panel majority resists this conclusion by relying on a case in which the Supreme
Court reviewed the adequacy of an Internal Revenue Service summons. United States v. Powell,
379 U.S. 48, 58 (1964). But that case isn’t on point because an IRS summons is meaningfully
different from a Title III demand.
First, a summons is directed at a private party with constitutional rights, not at a state
official in her official capacity. Second, a summons can demand everything from the recipient’s
personal appearance and testimony to all his papers and records. See 26 U.S.C. § 7604(a).
That’s far more intrusive than a demand for federal election records. And third, a summons is
self-executing, so it triggers criminal contempt liability if the recipient ignores or disobeys it.
See id. § 7604(b). By contrast, a Title III demand has no teeth of its own. If the Attorney
General’s demand is ignored, he must seek a court order compelling the election official to
produce the records. Only a violation of that order triggers contempt. Given the critical
differences between an IRS summons and a Title III demand, Powell doesn’t apply here.

No. 26-1225 United States et al. v. Benson et al. Page 28

So without any authority or judicially manageable standards to guide its review, the panel
majority rejected the adequacy of the Attorney General’s demand. But that’s not the scheme
Congress envisioned. When it wanted to empower more sweeping judicial review, it knew how
to do so. Congress didn’t do so here, yet our court disregarded that choice.
III.
Going forward, the Attorney General is left with no way to verify the accuracy of
Michigan’s voter list. It’s true he can send Benson a new demand letter that states the basis and
purpose for his request. And even under the panel majority’s reading, he can demand all the
underlying voting records.
8
See Benson, 179 F.4th at 482. But without Michigan’s voter file,
the Attorney General will have nothing to compare the underlying records with. So he can’t tell
whether ineligible individuals have, in fact, made it onto Michigan’s voter rolls. That means,
without en banc review, the Attorney General will have no ability to ensure the integrity of our
elections.
To see why, consider a simple example. Imagine someone applies to vote, but provides a
false name, address, driver’s license number, and social security number. That fraudulent
application is a record the Attorney General can demand. But did that voter make it onto the
state’s voter list? The Attorney General can’t know without having the list.
Now change things up a bit. Imagine an alien goes to the department of motor vehicles
and applies for a driver’s license. On his application, he truthfully declares that he isn’t a U.S.
citizen. A coding bug marks him down as a citizen and automatically registers him to vote,
adding him to the state’s voter list. If that sounds too far-fetched, it isn’t. That’s exactly what
happened in New Jersey. And it took an entire year before anyone caught on.
9
What would the
underlying records show about this incident? That an alien said on a form that he was an alien.
Without the voter list, the Attorney General couldn’t know whether the state properly screened
that incoming application and blocked the alien from being added to the voter list.

8
Title III covers records of all acts “requisite to voting” in a “primary election” for a “Member of the
Senate.” 52 U.S.C. § 20701. Michigan had primary elections for the U.S. Senate last week. So Title III entitles the
Attorney General to all the state’s voter records as of last week.
9
See Fox & Han, supra n.1.

No. 26-1225 United States et al. v. Benson et al. Page 29

Handicapping the Attorney General like this also hurts states in two ways. First, he can’t
identify those states that are fulfilling their list-maintenance obligations and thus spare them
from further federal investigations. Second, the Attorney General can’t help states find blind
spots in how they maintain their voter lists.
In sum, the panel majority’s reading of Title III leaves the Attorney General with a futile
system that Congress never designed. Title III’s text and history show that Congress sought to
give the federal government broad power to inspect election records and neutralize states’
resistance. But now, the Attorney General has practically no ability to ensure states’ voter lists
contain the names of only eligible voters, a necessary step to protecting the integrity of our
elections. If that isn’t an issue of exceptional importance worthy of en banc review, I don’t
know what is.
* * *
In the leadup to Title III’s passage, southern officials “resisted turning over election
records to prevent fishing expeditions by the Federal authorities.” Hearings Before the
Subcomm. on Const. Rts. of the S. Comm. on the Judiciary, 86th Cong. 454 (1959) (statement of
Ernest F. Hollings, Gov. of S.C.); see id. at 620 (statement of John M. Patterson, Gov. of Ala.).
Taking a page from that timeworn manual, Benson decries the Attorney General’s request for her
state’s voter file as a “fishing expedition[].” Defendants-Appellees’ Br. at 42, 45. But Congress
enacted Title III to ensure that recalcitrant state officials weren’t compromising the integrity of
federal elections.
Over six decades later, the panel majority unwound Congress’s solution. Congress never
said the Attorney General couldn’t demand records compiled by an election official’s
subordinates. And it never invited courts to nitpick the Attorney General’s demand. Yet the
panel majority now imposes both of these newfound, extratextual limitations on the Attorney
General. In doing so, it rewards states for the very obstruction that Title III was meant to break
through.
I respectfully dissent.

No. 26-1225 United States et al. v. Benson et al. Page 30

ENTERED BY ORDER OF THE COURT

___________________________________
Kelly L. Stephens, Clerk