Supreme Court Upholds Ohio Voter Registration List Maintenance Procedure

This morning, the Supreme Court decided Husted v. Philip Randolph Institute, overturning 5 to 4 the Sixth Circuit decision that invalidated one of Ohio's voter registration list maintenance procedures.  Justice Alito wrote for the Court, starting by clearing stating the facts at issue, which have been politicized into slogans like "Ohio's voter purge" by the left throughout this case:

At issue in today’s case is an Ohio law that aims to keep the State’s voting lists up to date by removing the names of those who have moved out of the district where they are registered. Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed, postage prepaid card to these individuals asking them to verify that they still reside at the same address. Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls. We are asked to decide whether this program complies with federal law.

The Court found that Ohio's practice is in compliance with the National Voter Registration Act (NVRA) (internal citations omitted): 

Respondents argue (and the Sixth Circuit held) that, even if Ohio’s process complies with subsection (d), it nevertheless violates the Failure-to-Vote Clause—the clause that generally prohibits States from removing people from the rolls “by reason of [a] person’s failure to vote.” Respondents point out that Ohio’s Supplemental Process uses a person’s failure to vote twice: once as the trigger for sending return cards and again as one of the requirements for removal. Respondents conclude that this use of nonvoting is illegal.  

We reject this argument because the Failure-to-Vote Clause, both as originally enacted in the NVRA and as amended by HAVA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. Instead, as permitted by subsection (d), Ohio removes registrants only if they have failed to vote and have failed to respond to a notice.

While the decision is largely one of statutory construction, it is also one that respects the proper role of the court and defers to the lawful policy judgments made by legislatures (internal citations omitted):

Requiring additional evidence not only second-guesses the congressional judgment embodied in subsection (d)’s removal process, but it also second-guesses the judgment of the Ohio Legislature as expressed in the State’s Supplemental Process. The Constitution gives States the authority to set the qualifications for voting in congressional elections,  as well as the authority to set the “Times, Places and Manner” to conduct such elections in the absence of contrary congressional direction. We have no authority to dismiss the considered judgment of Congress and the Ohio Legislature regarding the probative value of a registrant’s failure to send back a return card. . . .

It is not our prerogative to judge the reasonableness of that congressional judgment . . . . The dissents have a policy disagreement, not just with Ohio, but with Congress. But this case presents a question of statutory interpretation, not a question of policy. We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date. The only question before us is whether it violates federal law. It does not.

Justice Thomas wrote a concurrence to raise constitutional concerns with the respondents' view of the NVRA (internal citations omitted):

I join the Court’s opinion in full.  I write separately to add that respondents’ proposed interpretation of the National Voter Registration Act (NVRA) should also be rejected because it would raise significant constitutional concerns. . . . As I have previously explained, constitutional text and history both “confirm that States have the exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied.” . . . Respondents’ reading of the NVRA would seriously interfere with the States’ constitutional authority to set and enforce voter qualifications.

While the left will hyperbolically decry this decision as promoting voter suppression, Ohio's process has many protections to prevent voters who still live in the state and wish to remain on the voter registration rolls from being removed.  That is why the Court correctly upheld the practice under the NVRA.  As Justice Alito noted, difficult policy judgments about the best ways to administer elections, protect the integrity of elections, and ensure that every eligible voter is able to vote should be made by legislatures, not by unelected judges.

After Non-Citizen Voter Registration Scandal, PA SOS Resigns Abruptly

In a surprise move, Pennsylvania Secretary of State Pedro Cortes resigned late Wednesday.  The reasons for his resignation are mysterious, but many speculate that the registration of non-citizens through the "motor voter" system is to blame:

Cortes’ departure was announced in a 349-word “personnel update” emailed from Gov. Wolf’s office that offered no reason and focused almost entirely on his replacement, interim Secretary of State Robert Torres. . . . J.J. Abbott, a spokesman for Wolf, said he could not offer an explanation for Cortes’ departure. 

As secretary of state, Cortes served as the state’s top election official. His departure comes a week after State Rep. Daryl Metcalfe, chairman of the House State Government Committee, and 15 of his colleagues sent Cortes a letter “to express our dire concerns” about the disclosure three weeks ago that legal resident noncitizens in Pennsylvania had been offered the chance to register to vote while applying for or renewing drivers’ licenses at PennDot service centers. . . .

Unfortunately, it is not uncommon for non-citizens to be placed on the voter registration rolls through the "motor voter" program, an NVRA requirement that requires the DMV (or similar agency) to offer the opportunity to register to vote.  What is striking in Pennsylvania is that the problem derived from the structure of the DMV process, and large numbers of the registered non-citizens had voted:

The Department of State then said it had records of 1,160 canceled voter registrations listing ineligibility as a reason and said the issue was under review. . . . [Philadelphia City Commissioner Al] Schmidt said his staff traced the problem for 168 of the 220 documented cases to PennDot centers, where they produced immigration documents  to show they were in this country legally and eligible for a driver’s license. 

Later in the process, the applicants were asked to check a box on an electronic kiosk if they also wanted to register to vote. . . . The Department of State last month said it started changing the order of questions on the PennDot kiosks in August 2016 to address the problem.

While it is commendable that Pennsylvania has finally taken steps to resolve what Gov. Wolf's office calls a "glitch," it is remarkable that a system that allowed people to register to vote after they had proven their ineligibility lasted for so many years. 

This may just be the tip of the iceberg.  The cases that have been reported and investigated are from people who requested to be removed from the voter rolls due to ineligibility.  There may be many more non-citizens who were registered through the "motor voter" process who remain on the rolls and are still voting.

And two days later, the mystery surrounding Secretary Cortes' resignation remains, leaving us to wonder what more will come out about non-citizen registration and voting in Pennsylvania in the coming weeks.

DOJ Supports Ohio's Efforts to Clean Voter Rolls

In a welcome change from the Obama Justice Department's opposition to states' efforts to protect the integrity of their elections, the Trump Department of Justice filed an amicus brief with the Supreme Court earlier this week in support of Ohio's process of removing inactive voters from the voter registration rolls:

Ohio and several other States have long used a registrant’s failure to vote for a specified period of years as grounds for sending an address-verification notice under 52 U.S.C. 20507(d)(2). That practice does not violate the NVRA. 

A. It is undisputed that Section 20507(d) itself does not restrict the grounds on which States may send address-verification notices. Instead, the court of ap- peals held that sending notices based on nonvoting violates Section 20507(b)(2)’s prohibition on removing a registrant “by reason of the person’s failure to vote.” That is not the best reading of Section 20507(b)(2) as originally enacted, and it is foreclosed by the clarifying clause that Congress added in HAVA. . . .

C. The NVRA’s history and purpose reinforce the conclusion that States may send Section 20507(d)(2) notices based on nonvoting. Before the NVRA, most States removed registrants who had failed to vote for specified periods. Most of those States notified registrants and allowed them to avoid removal or re-register, but the notice procedures could be burdensome—and a few States failed to provide any notice at all. The NVRA eliminated the practice of removing nonvoters without notice and required States to use more protective notice procedures. But the legislative history indicates that Congress did not require States to abandon entirely the widespread practice of treating nonvoting as an indication that a registrant may have become ineligible. 

Allowing States to send Section 20507(d)(2) notices based on nonvoting is also consistent with Congress’s objective of ensuring accurate voter rolls while leaving the States substantial flexibility. Ohio and other States have determined that the most appropriate way to maintain accurate voting lists is to use nonvoting as an indication that a registrant may have moved, and to seek to verify the registrant’s continued residence using the procedure in Section 20507(d). Under the flexible structure Congress adopted in the NVRA and clarified in HAVA, that judgment is left to the States.

The new attorneys at the Department of Justice are doing excellent work evaluating the law and reversing the politicized positions of the Obama DOJ when necessary.  It is imperative the Senate swiftly confirm Trump's DOJ nominees so that this important work can continue.

California Warned to Clean Up Voter Rolls or Face Lawsuit

Last week, Judicial Watch sent a letter to California Secretary of State Alex Padilla pointing out some of the evidence that California's voter registration rolls were filled with errors and demanding that California election authorities improve the accuracy of the rolls, as required by the National Voter Registration Act (NVRA) and Help America Vote Act (HAVA), or face a lawsuit:

In the letter, Judicial Watch noted that public records obtained on the Election Assistance Commission’s 2016 Election Administration Voting Survey and through verbal accounts from various county agencies show 11 California counties have more registered voters than voting-age citizens: Imperial (102%), Lassen (102%), Los Angeles (112%), Monterey (104%), San Diego (138%), San Francisco (114%), San Mateo (111%), Santa Cruz (109%), Solano (111%), Stanislaus (102%), and Yolo (110%). 

In the letter, Judicial Watch noted that Los Angeles County officials “informed us that the total number of registered voters now stands at a number that is a whopping 144% of the total number of resident citizens of voting age.” . . . 

There is “strong circumstantial evidence that California municipalities are not conducting reasonable voter registration list maintenance as mandated under the NVRA,” Judicial Watch wrote in the notice letter sent to California Secretary of State Alex Padilla. . . . 

“California’s voting rolls are an absolute mess that undermines the very idea of clean elections,” Judicial Watch President Tom Fitton said. “It is urgent that California take reasonable steps to clean up its rolls. We will sue if state officials fail to act.”

The letter also requested various records regarding voter registration list maintenance that states and localities are required by the NVRA to keep and make publicly available upon request.  Unfortunately, many localities have resisted turning over this information to organizations like Judicial Watch and Public Interest Legal Foundation that are doing the important work of holding election officials accountable for keeping their voting lists accurate, as required by law.  We trust that this letter is the first step of a much-needed movement to improve the accuracy of voter registration records in California.   

Christian Adams an Excellent Choice for Election Integrity Commission

President Trump announced additional members for his Presidential Advisory Commission on Election Integrity yesterday: Christian Adams and Alan King, a Democrat from Alabama. These experts will greatly aid the commission in its work and bring a wealth of real-world experience and expertise to the commission.  

Christian Adams has experience in election administration at the state and federal levels.  Adams served as General Counsel to the South Carolina Secretary of State, advising on election law and administration, and served in the Voting Section at the U.S. Department of Justice.  He has litigated election cases all over the country.

Currently, Adams is doing the important work of enforcing liberals’ favorite voting law, the National Voter Registration Act (NVRA or “motor voter”). The NVRA requires local election officials to take steps to ensure their voter registration rolls are accurate, including removing dead and ineligible persons. Many local election officials have not been following the law’s requirements, some from fear of litigation from liberal groups who oppose such efforts to keep the voter registration records accurate. Adams and his organization, Public Interest Legal Foundation, have been requesting information about the voter registration records from local officials, publicizing the errors in them and lack of efforts to keep them accurate, and in certain cases, filing suit to require the local official to follow the law.

Adams has something his critics sorely lack, experience with elections from both a federal and state government perspective. The importance of this cannot be overstated and is a key component for any federal commission in our state-based election system. This is in strong contrast to some of the harshest critics of the Commission on Election Integrity who base their views on biased partisan studies or spend their time in academia far removed from the nuts and bolts of elections. 

More Allegations of Vote Fraud, This Time at the Nevada DMV

While the left continues to bash the Trump Administration for daring to find that instances of voter fraud occurred in the 2016 November Election, the state of Nevada has reasons to believe that illegal immigrants have voted at the hand of the Nevada Department of Motor Vehicles.

Nevada Secretary of State Barbara Cegavske voiced her concerns in a letter to the DMV Director by stating:

It has come to our attention that when offering voter registration opportunities to customers, DMV’s employees offer voter registration materials to DMV customers whom they know to be non-citizens based upon their presentation of a Green Card for identification purposes... 

More specifically, it is our understanding that some DMV employees have been instructed to accept registration materials from all customers, including those who present a Green Card for identification purposes…This practice must cease immediately. Please take appropriate actions, as we have reason to believe that non-citizens have unlawfully registered to vote in Nevada as a direct result of DMV’s practices. Moreover, we now have confirmed that some non-citizens illegally cast votes in the 2016 election.

Cegavske said in a statement that her office "received verifiable evidence of potential illegal votes cast," and also stated that "the integrity of the entire election process, from voter registration to the casting of ballots, is always my number one concern."

The RNLA not only thanks Governor Brian Sandoval for vetoing a bill that would have allowed for automatic voter registration at the DMV which would have only perpetuated this type of fraud, but also Secretary of State Barbara Cegavske for taking appropriate measures to ensure that vote fraud will be stopped in Nevada.

Lawsuit Finds Non-citizen Voters in VA; Democrats Try to Cover Up

The Public Interest Legal Foundation has discovered that hundreds of non-citizens were removed from the voter registration rolls in Alexandria, Virginia.  The city refuses to disclose whether any of those non-citizens voted in any elections and it is unclear whether the city has forwarded the names to law enforcement authorities:

[T]he Virginia Voters Alliance and a Virginia voter (David Norcross) filed a lawsuit against the city of Alexandria, Va., claiming that the general registrar, Anna Leider, was violating the National Voter Registration Act (NVRA).  The lawsuit charged that Leider failed to make her records related to the city’s voter-list maintenance procedures available for public inspection, which would obviously include all information about the removal of ineligible voters. . . . As a result of the lawsuit, the Alliance was finally able to get into Leider’s office and inspect the voter registration records. Among the items they discovered was a list containing several hundred registrants who had been removed from the voter rolls because they were not U.S. citizens. . . . 

The Alliance was not able to determine exactly how many of those non-citizens had illegally voted before being dropped from the voter list. In a letter to the Public Interest Legal Foundation, the city’s attorney subsequently claimed that the voter history of non-citizens who are removed from the voter rolls is not subject to the public records inspection provision of the NVRA. In other words, they are trying to hide whether non-citizens illegally voted. 

Whether Alexandria notified law-enforcement officials is unclear. The city’s attorney says there were some “communications to and from the Commonwealth’s Attorney’s office,” but no records concerning those communications have been released. That response indicates that the city did not turn over any records to federal authorities.

This is a problem throughout Virginia, but perhaps the most disturbing part of this story is that Virginia's election officials seem not to care that hundreds of non-citizens are registered to vote and may have voted:

Numerous other Virginia counties have refused to provide this information to the Public Interest Legal Foundation, apparently based on instructions from the State Board of Elections and individuals working for the state Department of Elections, which the Board supervises. This is what a cover-up directed by state election officials looks like. They are trying to hide hundreds, if not thousands, of instances of voter fraud that occurred on their watch. . . . 

So the next time someone tells you that we shouldn’t be concerned about voter fraud, think about the hundreds of non-citizens who have apparently illegally registered and who may have even voted in elections in the Commonwealth of Virginia. They may have been removed from the voter rolls but so far none of them has been prosecuted for violating the law. Worse, these aliens were only detected because they sought to renew their driver’s licenses and told the truth the second time when they admitted to the Virginia Department of Motor Vehicles that they were not citizens. 

We have no idea how many other non-citizens remain undetected in the voter rolls of Virginia, a purple state where the outcome of the November election is still in doubt, and where the state takes no steps of any kind to verify the citizenship status of voter registrants. It is a state where the controlling members of the State Board of Elections obviously see nothing wrong with violating federal public records law, attempting to conceal illegal registration and voting, and seem to have no interest in taking any steps to prosecute those who have violated some of our most fundamental protections intended to preserve the integrity of our election process.

We applaud the Virginia Voters Alliance and the Public Interest Legal Foundation for endeavoring to protect the integrity of Virginia's elections and ensure that election officials follow the law.

Illinois Governor Rauner Vetoes Mandatory Voter Registration Bill

Last week, Illinois Governor Bruce Rauner vetoed a bill that would establish mandatory, or automatic, voter registration in Illinois:  

Gov. Bruce Rauner vetoed a bill aimed at making voter registration automatic in Illinois, citing concerns about potential voting fraud and conflicts with federal law. 

The first-term Republican governor said he wanted to continue negotiations with supporters to work out those issues, but groups backing the measure accused him of playing politics with his veto and said they would seek an override. . . . 

Under the legislation, starting in January 2018 people seeking a new or updated driver's license — or other state services — would automatically be registered to vote or have their registration updated unless they opted out. Currently in Illinois, motorists seeking services at secretary of state driver's facilities are asked if they want to register to vote or update their registration — an opt-in form of voter registration.

The bill was hastily passed at the end of session, and, in addition to being an unnecessary expense to a financially distressed state, the governor found that it would open the door to fraud and violate the NVRA:

"I strongly support efforts to encourage greater voter participation in our democracy and share the goals of this legislation," Rauner said in a statement. 

"Unfortunately, as currently drafted, the bill would inadvertently open the door to voter fraud and run afoul of federal election law. We will continue working with the legislature and key stakeholders on language that meets our shared goals while complying with federal law and preventing voter fraud," he said. 

In addition, Rauner said the measure does not follow federal law, which requires a voting applicant to "attest to meeting the qualifications to vote" or to sign an application. He said the measure also relies on the Illinois State Board of Elections to then screen out individuals who are not eligible to vote, even though it may not have access to needed information.

We thank Gov. Rauner for wisely recognizing that mandatory voter registration threatens election integrity and the accuracy of voter registration rolls and does not accomplish the goal of increased voter engagement and turnout.

Lawsuit Filed to Allow Inspection of Philadelphia Voter Rolls; Possible Ineligible Voters

The American Civil Rights Union, represented by the Public Interest Legal Foundation and RNLA Advisory Council Member Linda Kerns, has filed a lawsuit against the city of Philadelphia for failure to allow public inspecting of its voter registration rolls as required by the NVRA.  For years, the number of registered voters in Philadelphia has far exceeded the percentage of eligible voters that could reasonably be expected to be registered:

For years in Philadelphia, the numbers of registered voters has nearly exceeded the number of citizen residents eligible to vote, among the highest in Pennsylvania. In response to these unusual circumstances, the plaintiff utilized protections in the National Voter Registration Act that require Philadelphia to allow physical inspection of election records related to voter registration and list maintenance programs. The plaintiff requested information from Philadelphia about tools used to ensure that non-citizens are not registering to vote, as well as other records.  

Philadelphia failed even to respond to the request, and thus the lawsuit followed.

The plaintiff in the case is the American Civil Rights Union. The plaintiff originally sent the defendant a notice letter in January 2016 describing potential violations of federal election law, asking to review election records, and seeking to discuss a cure. Philadelphia never replied.  

“Corrupted voter rolls provide the perfect environment for voter fraud. Failure to clean the rolls aggravates longstanding problems of voter fraud in Philadelphia,” said J. Christian Adams, President and General Counsel of the Public Interest Legal Foundation. “Philadelphia may not be using all the available tools to prevent non-citizens from registering and voting. Concealing list maintenance records from the public isn’t good government, and it violates Federal election law.”

Local election officials have an important duty to ensure that federal and state election laws are followed, including the laws regarding voter eligibility.  If a locality is refusing to follow federal law regarding inspection of its voter records, it may be failing to follow other important laws.  Ensuring that only eligible voters are registered to vote is key to the integrity of elections and public confidence in the electoral process.