Title III “Demand” Formalities and “Come Into Possession” Limits (for Now): Sixth Circuit Denies En Banc Rehearing in United States v. Benson

I. Introduction

Case: United States v. Jocelyn Benson, in her official capacity as Michigan Secretary of State, and the State of Michigan.
Court & posture: Sixth Circuit, order denying the United States’ petition for rehearing en banc following a divided panel decision addressing the federal government’s ability to obtain Michigan voting records under Title III of the Civil Rights Act of 1960, 52 U.S.C. §§ 20701–20706.
Core dispute: The Department of Justice sought an unredacted version of Michigan’s statewide voter-registration data (described as the “Qualified Voter File” in the dissents) to assess compliance with the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA). Michigan provided a redacted version omitting personally identifying information. DOJ sued under Title III to compel production. The district court dismissed; the panel affirmed; DOJ sought en banc rehearing.

Key issues framed by the rehearing papers and separate opinions:

  • Whether a statewide voter-registration list/database is a Title III “record” that an election officer must “retain and preserve” if it did not “come into his possession” within the meaning of 52 U.S.C. § 20701.
  • Whether DOJ’s written “demand” satisfied 52 U.S.C. § 20703’s requirement that the demand “contain a statement of the basis and the purpose therefor,” including whether that information may be supplied across multiple letters and whether “basis” requires a factual predicate.
  • How Title III interacts with NVRA/HAVA list-maintenance obligations and the election-administration timing concerns reflected in Purcell v. Gonzalez.

II. Summary of the Opinion (Order and Separate Writings)

The Sixth Circuit denied rehearing en banc. No merits opinion for the court accompanied the denial, but three substantial separate writings illuminate the stakes and competing readings of Title III:

  • Judge Murphy (concurring in denial) read the panel decision as narrow and curable: the United States lost primarily because of procedural/clarity defects in DOJ’s letters (scope of records demanded; basis/purpose articulation), not because Title III categorically forecloses access to the underlying voter-by-voter records. He emphasized efficiency and “percolation,” suggesting DOJ can send a new letter “leaving no doubt” it demands “individual voter records used to create the voter list.”
  • Judge Griffin (dissenting from denial) argued the panel’s approach imposes technical defenses inconsistent with text and historical usage: (i) “come into possession” is a stock legal phrase marking commencement of a duty and does not exclude “self-created” records; and (ii) § 20703 does not impose a “single-document” requirement for basis and purpose.
  • Judge Thapar (dissenting from denial) stressed Title III’s historic function as a broad federal tool to inspect state election records and argued the panel “defanged” it by (i) importing an “external-source limitation” into “come into possession,” and (ii) inviting judicial “nitpicking” of the demand format despite § 20705’s narrow remedial authorization to “compel the production” of covered records.

The immediate doctrinal consequence is negative but important: the panel decision remains controlling circuit law, while the separate opinions preview arguments likely to recur in subsequent Title III disputes.

III. Analysis

A. Precedents Cited

1. Election integrity, state election administration, and timing cautions

  • Purcell v. Gonzalez (and the quotation it contains from Eu v. S.F. Cnty. Democratic Cent. Comm.): Judge Murphy used these cases to underscore that the United States pursues a “compelling interest” in election integrity, while also noting that courts “repeatedly cautioned” against disruptive relief close to elections—reinforced later by Allen v. Milligan. This backdrop supported Murphy’s view that en banc review was not time-sensitive and that a renewed, clearer demand would be more efficient than immediate full-court intervention.
  • Crawford v. Marion Cnty. Election Bd.: Cited for the proposition that “inflated voter rolls” can undermine confidence and increase fraud risk, bolstering the “exceptional importance” of the controversy without dictating Title III’s meaning.

2. NVRA/HAVA and list-maintenance structure

  • Husted v. A. Philip Randolph Inst.: Referenced as the Supreme Court’s framing of NVRA’s list-maintenance obligations. The separate opinions treated NVRA/HAVA as contextual statutes that shape the practical consequences of reading Title III to cover (or not cover) a mutable statewide “snapshot” list.
  • Bell v. Marinko: Appears in Judge Murphy’s timing discussion to highlight constraints on systematic list-maintenance near elections and to show that, even if DOJ obtained records, downstream enforcement relief may be practically limited.

3. Early Title III decisions and the “come into possession” debate

  • Kennedy v. Lynd: Central in the separate writings. Judge Murphy invoked it to suggest that a Secretary “came into possession” of records upon assuming office and to note Lynd as an early interpretive anchor for Title III practice. Judge Griffin relied on it to show contemporaneous courts paraphrased § 20701 as reaching records “in” custody without implying an origin-based limitation.
  • Kennedy v. Lewis: Judge Murphy cited it to expose a textual tension: the Fifth Circuit suggested Title III could cover records relevant to “subsequent” elections, but (Murphy observed) did not explain how that fits § 20701’s “twenty-two months from the date of” an election language.
  • State of Ala. ex rel. Gallion v. Rogers and Dinkens v. Att'y Gen. of U.S.: Judge Griffin used these to reinforce that early Title III decisions described the retention duty broadly as applying to records “in the possession” or “custody” of election officials, again undermining an “external-source” gloss on “come into possession.”
  • Coleman v. Kennedy: Cited by Judge Thapar for the proposition that courts historically treated Title III demands as not inviting intrusive judicial review of demand adequacy.

4. Statutory interpretation canons and modern interpretive methodology

  • Loper Bright Enters. v. Raimondo and New Prime Inc. v. Oliveira: Judge Griffin cited these to frame the interpretive inquiry as the “single, best meaning” of statutory text at enactment and to emphasize contemporaneous meaning.
  • Lockhart v. United States and United States v. Bass: Judge Murphy used these in discussing whether § 20701 is election-specific (the “series-qualifier canon” vs. last-antecedent impulses), suggesting the phrase “in such election” may modify the entire preceding series and thus constrain Title III to records tied to a particular election.
  • Doe v. Boland: Judge Griffin cited it to explain why the canon against surplusage does not require “stock legal language” to do independent substantive work beyond its conventional function.

5. Demand sufficiency, judicial review, and “CID” analogies

  • United States v. Markwood and United States v. Powell: Judge Thapar distinguished these (CID and IRS summons contexts) to argue Title III’s demand is not a “civil investigative demand” regime and should not invite the same level of judicial scrutiny over form and adequacy.
  • Niz-Chavez v. Garland and Dean v. United States: Judge Griffin invoked these to argue against reading a single-document requirement into § 20703 and against adding procedural elements not in the statute’s text.

6. Record-control/possession analogies

  • United States Department of Justice v. Tax Analysts: Judge Griffin used this as linguistic evidence that “come into … possession” comfortably describes records that are “created” by an entity as well as “obtained,” undercutting an internal/external dichotomy.
  • United States v. Northway, Rife v. Ruble, and Moore v. United States: Judge Griffin used these to establish historical usage in which “come into possession” signaled lawful assumption of custody through office or authority rather than the record’s provenance.
  • Heidi Grp., Inc. v. Tex. Health & Hum. Servs. Comm'n: Judge Thapar cited this to rebut the idea that widespread shared access negates possession; shared cloud access can still entail possession/control.

7. Litigation posture, waiver/forfeiture, and party control of legal questions

  • Alexander v. S.C. State Conf. of the NAACP and Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.: Judge Murphy cited these for the proposition that parties cannot force courts into legal error by stipulation or waiver—relevant to his point that unbriefed interpretive issues about Title III’s election-specificity might surface later.
  • Warner Chappell Music, Inc. v. Nealy and Cent. States, Se. & Sw. Areas Health & Welfare Fund v. First Agency, Inc.: Used by Judge Murphy to explain potential forfeiture and to emphasize that, because the case is at the motion-to-dismiss stage, interpretive defenses might be raised later.

B. Legal Reasoning

1. The concurrence’s “vehicle” and “curability” framing

Judge Murphy’s concurrence offers a distinctive, practical reading: the panel decision should be understood as turning on the specific letters DOJ sent and the scope/clarity of what DOJ demanded, rather than establishing a broad, irreparable limit on federal authority to obtain “underlying individual records.” On that view, en banc review would be an inefficient exercise in parsing correspondence, because DOJ can issue a new demand that unambiguously requests “individual voter records used to create the voter list.”

Murphy nonetheless flagged two substantive concerns that could justify future en banc (or Supreme Court) review:

  • The panel’s reading of “come into his possession” and its move from an observation about self-creation to a broader exemption for “internally generated” state records—especially given Title III’s officer-by-officer structure.
  • The possibility that § 20701 is election-specific in a way that complicates demands for a “current snapshot” list on a non-election date (here, July 21, 2025), potentially raising questions about which election a demanded record “relat[es] to.”

2. The dissents’ textualist rebuttal

Judges Griffin and Thapar took the view that the panel’s interpretation (left in place by the denial) risks rewriting Title III in two ways:

  • “Come into possession”: Griffin argued that historical legal usage treats the phrase as marking when duties attach to lawful custody, not as a provenance-based filter; Thapar argued that, even if some acquisition concept is relevant, Benson as an individual officer plausibly “came into possession” via subordinates and office mechanics.
  • “Demand … shall contain” basis/purpose: Griffin argued nothing in § 20703 requires all information in a single letter and that multi-letter correspondence can satisfy the statute; Thapar argued Title III does not resemble a CID regime and § 20705’s remedy (“to compel the production”) suggests limited judicial policing of demand formalities.

Both dissents also confronted the perceived Title III–NVRA/HAVA “conflict”:

  • Griffin argued the panel’s conflict depends on reading “alter” in § 20702 too broadly and invoked Fischer v. United States and noscitur a sociis to confine “alter” to tampering that impairs integrity/availability, not routine statutory updates.
  • Thapar proposed a temporal reconciliation: Title III’s 22-month preservation duty protects the record as used for a past election, while NVRA/HAVA updates prepare for future elections, so ordinary maintenance does not necessarily violate § 20702.

C. Impact

1. Immediate doctrinal effect within the Sixth Circuit

The en banc denial leaves intact a panel-driven regime in which Title III access to statewide voter-registration data may turn on (i) whether the item is treated as an “internally generated” compilation versus “underlying individual records,” and (ii) the adequacy/structure of DOJ’s written demand under § 20703. Judge Murphy’s concurrence signals a litigation roadmap: re-draft and re-serve demands with explicit scope and explicit statutory “basis” and “purpose.”

2. Practical enforcement consequences

The dissents emphasize a concrete enforcement gap: without the unredacted statewide list, DOJ may be limited in its ability to test whether ineligible registrants are present and to compare state rolls against federal databases. Judge Murphy, by contrast, suggests that at least part of this gap could be addressed through a demand for “individual” records if properly requested, while also warning that timing and downstream litigation steps make near-term election effects uncertain.

3. Percolation and emerging splits

The writings anticipate continued nationwide litigation about Title III’s scope and purpose. Judge Murphy cited United States v. Weber as an example of courts suggesting Title III’s “purpose” might be limited to discrimination investigations; he disagreed that the text imposes such a limit and noted the district court’s broader view in United States v. Benson (W.D. Mich.). Judge Thapar noted post-panel “ripple effects” in-circuit, citing United States v. Adams.

4. Doctrinal questions likely to recur

  • Whether § 20701 is election-specific in a way that restricts “snapshot” demands not anchored to a particular election date (Murphy’s Part II.C).
  • Whether “come into possession” distinguishes source/provenance or simply triggers duties upon lawful custody (Griffin’s historical-usage approach).
  • Whether § 20703 invites judicial scrutiny of “basis” and “purpose” beyond clear notice, and whether multi-letter demands suffice (Griffin/Thapar vs. panel approach).
  • How to harmonize Title III’s anti-alteration provision (§ 20702) with NVRA/HAVA maintenance without negating either scheme (all three separate opinions, with different harmonizations).

IV. Complex Concepts Simplified

  • Rehearing en banc: A request that the full circuit (not a three-judge panel) rehear the case. Denial does not necessarily mean agreement with every panel rationale; it leaves the panel decision in place.
  • “Come into … possession” (52 U.S.C. § 20701): The disputed phrase defining which election records an official must preserve. The debate is whether it excludes “self-created” or “internally generated” compilations, or instead refers broadly to lawful custody/control (including records created within an office).
  • “Demand … shall contain” (52 U.S.C. § 20703): Title III requires DOJ to make a written demand that states its “basis” and “purpose.” The dispute is whether all required information must be in one letter and whether “basis” includes a factual predicate.
  • Series-qualifier canon: A grammar rule used in statutory interpretation. Judge Murphy suggests “in such election” may modify the entire preceding list (“application, registration, … or other act”), potentially making Title III election-specific.
  • Noscitur a sociis: A context canon: a word’s meaning is informed by its neighbors. Judge Griffin used it to argue “alter” in § 20702 should mean tampering akin to “steals” or “destroys,” not routine maintenance updates.
  • Purcell principle: A judicial caution against altering election rules too close to an election because it can confuse voters and administrators; invoked in timing/expedition analysis.
  • Motion to dismiss posture: The case was dismissed at the pleading stage. Even a government win on appeal might only restart district-court litigation rather than immediately compel production.

V. Conclusion

The Sixth Circuit’s denial of rehearing en banc in United States v. Benson preserves a contested panel framework for Title III demands while publishing unusually candid separate writings that map the next battlefield. Judge Murphy’s concurrence portrays the dispute as largely procedural and fixable through a clearer, election-anchored demand for “individual voter records,” and he identifies unresolved interpretive tensions (especially Title III’s election-specific structure). Judges Griffin and Thapar, by contrast, argue the panel’s approach adds atextual limitations—an “external-source” gloss on “come into possession” and a judicially enforced formalism for § 20703 demands—potentially diminishing Title III’s historic role as a robust federal inspection tool.

The opinion’s practical takeaway is immediate: within the Sixth Circuit, DOJ and litigants should expect Title III disputes to turn on precision in the written demand, the characterization of the requested materials (list vs. underlying records), and a developing debate over whether Title III is best read as election-specific rather than a general list-maintenance audit tool.