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We reject this argument because the Failure-to-Vote Clause, both as originally enacted in the NVRA and as amended by HAVA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way.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.

Election Administration Issues for Key 2018 Primary Elections

Eight states voted on Tuesday in their primary elections, and at least two of them had significant problems in voting. In the South Dakota primaries, a Republican voter was told by an election supervisor to use an incorrect ballot.

Wrong place, wrong ballot. Voters contacted KELOLAND News about receiving the wrong ballots on election day. That includes Mark Millage, who lives in Sioux Falls. 

On their ballot, Republican voters in district nine got to choose between state senate candidates Lora Hubbel and Wayne H. Steinhauer. When Millage went to vote, polling place workers gave him a District 9 ballot. The problem is he is a District 11 voter. 

He says he told the polling place supervisor, who called county auditor Bob Litz's office. Millage, the former news director for KELOLAND News, says they told him to use the wrong ballot anyway.

Incorrect ballots were not the only problem for South Dakota’s Tuesday Primaries as a computer glitch in Sioux Falls led to chaos at a number of polling locations.

More than half the voting sites, 16 in all, extended the closing time on Tuesday’s election day to accommodate a late start to ballot-casting thanks to a computer problem: The county-issued Dell Computers that navigated the new e-poll book service were not connecting to the secure hot spots provided by a separate router for each device. 

Julie Pearson, Pennington County auditor, said she had no idea of how many voters were turned away at polling places, but the clunky equipment failure dogged many precincts. The laptops started up, but the election software connecting officials to the Secretary of State's voter registration. 

There was no paper back-up on hand, and without voter registration lists, poll workers couldn’t verify a voter’s identification and protect the integrity of the election process.

In California, voting issues were also rampant Tuesday as over 100,000 voters were left off voting rosters in Los Angeles County.

Los Angeles County Registrar-Recorder Dean Logan told CBS Los Angeles voters whose names did not appear on the roster at their polling place would be given provisional ballots, after a printing issue affected the voter rolls of more than one in four precincts. A total of 118,522 names were omitted.

Another controversy in California dealt with questions of impropriety as the Dianne Feinstein Elementary School in San Francisco was used as a polling location for the California Senate Primary which featured Senator Dianne Feinstein.

These problems show the importance of poll watchers and lawyer observers to ensure open, fair and honest elections. Not just to stop vote fraud.

Recent Vermont Court Decision Shows Importance of Good Election Administration

RNLA member and 2016 Vermont Republican Attorney General candidate Deborah Bucknam describes the importance of good election administration practices and how poor election administration and poor advice from state election officials disenfranchise voters:

Secretary [of State Jim] Condos’ directives concerning voter eligibility allow non-residents to vote in Vermont elections, thereby suppressing Vermont residents’ voting power. . . . Dilution of the weight of a citizen’s vote . . . can occur when those not eligible to vote are allowed to vote, thereby diluting the weight of eligible voters’ franchise. 

Recent decisions by Essex County Superior Court illustrate this dilution starkly: As a result of a complaint filed by Victory town resident Tracey Martel, Judge Thomas J. Devine ordered seven voters removed from the Town of Victory voter checklist, reversing the Victory Board of Civil Authority’s decisions that those individuals were eligible to vote. Four other nonresident voters were removed from the checklist as a result of Ms. Martel’s complaint, totaling an astonishing 13% of voters removed from the town voter checklist. The reason for their removal: Not one of them was a resident of the Town of Victory. 

Those non-residents’ votes were the deciding factor in the four-time defeat of the local town budget in 2017. How do we know this? Because some of the non-residents voiced their opposition to the town budget, and, more tellingly, a town official allied with the nonresidents, in calculating the results of the last budget vote, actually wrote on the checklist how people voted—and all the non-residents voted against the budget. . . . Town residents’ votes have been diluted—and therefore suppressed—by the voting power of non-residents.

She also describes how, contrary to the direct and website advice of the Democratic Secretary of State, recent court decisions have established objective evidentiary standards for proving residency in Vermont:

That is not what the law provides. Judge Devine stated in his decisions: “…expressed intent must be viewed in light of the other objective evidence”. Thus, the Secretary of State is incorrect when he states that the law “creates a subjective standard.” . . . The court’s decisions directly impact another erroneous directive of the Secretary of State. The Secretary’s website states that any college student from out of state may vote in Vermont “as long as the voter considers Vermont to be his or her primary residence.” Again, the Secretary of State’s interpretation of the law is erroneous, because what the voter “considers” is insufficient. Judge Devine ruled that domicile requires residency “coupled with an intention of remaining there indefinitely,” and, as indicated above, that “intent” also requires objective evidence to support the stated intent.

While election administration procedures and voter eligibility requirements may seem arcane, they are fundamentally important.  Ms. Bucknam's description of recent events in Victory, Vermont, make this abundantly clear, as non-resident voters changed the outcome of local decision making, which directly affects the actual residents of Victory on a daily basis.  And while the examples are most obvious on the local level, the detrimental effect of poor election administration can be multiplied in larger state and national races.

At Issue in Husted Case: How Are States Supposed to Keep Clean Voter Rolls?

The Supreme Court heard oral arguments Wednesday in a case on voter registration list maintenance, Husted v. A. Philip Randolph Institute.  At issue is Ohio's procedure for removing voters from the voter registration list:

In that process, in place since 1994, the state regularly identifies those on the voter list who haven’t voted in the previous two years (including at least one federal general election), and sends them a “confirmation notice.” If the voter does not respond to the notice (and the majority do not), the voter is kept on the voter list but moved to “inactive” status, where they can still vote. If such a voter does not vote or engage in any other voter activity during the next four years, they are removed from the voter list. The primary legal question is whether this constitutes “removal … from the official list of voters … by reason of the person’s failure to vote,“ as prohibited by Sec. 8 of the NVRA.

The justices questioned what states would be able to do to maintain the accuracy of their voter registration lists if the plaintiffs were successful.  As David Becker of the Center for Election Innovation and Research explains:

Justice Breyer asked plaintiffs’ counsel, Paul Smith, “what are they [the state] supposed to do? That is, every year a certain number of people die and every year a certain number move…. All right. We don’t want them on the voter roll.” He went on to say: 

“Look, the reason I’m asking these questions is because I don’t believe Congress would have passed a statute that would prevent a state from purging a voting roll of people who have died or have moved out of the state. So I’m trying to reconcile the two. And, therefore, I ask you what the state’s supposed to do for that latter objective.” 

This is really the crux of the whole case, and the challenge with maintaining voter lists. The plaintiffs are quite right in that they don’t want anyone removed from the list who shouldn’t be, if they’re still eligible to vote and have simply chosen not to vote in some previous elections. I don’t know anyone who wants that. But the state is also right, as Justice Breyer recognizes, that accurate voter lists are essential to a functioning democracy, and that the state needs to figure out who’s moved within the state, moved out-of-state, or died, since the last election.

State and local election officials have difficult but important work to do maintaining accurate voter registration lists.  As Mr. Becker points out, interstate voter registration data sharing is one of the best ways for states to identify errors in their lists.  But states also need the ability to use other tools, such as the notice and waiting procedure used in Ohio.  Stay tuned for the release of this opinion, which will have major implications for election administration, later this term.

More Non-Citizens May Be Registered to Vote in Pennsylvania Than Initial Reports Indicated

The latest from the non-citizen voter registration problems in Pennsylvania is that the problem could be much larger than initially thought.  Back in September, Philadelphia City Commissioner Al Schmidt reported that 220 non-citizens registered to vote in Philadelphia through a "glitch" at the DMV that allowed persons to register to vote after they had proven that they were non-citizens.  41% had voted at least once.

Then in October, Pennsylvania's Democratic Secretary of State, Pedro Cortes, resigned abruptly and with no explanation.  No official explanation has been given to date, though it was revealed in November that Democratic Governor Tom Wolf forced the resignation, but rumors abound that the resignation was related to the non-citizen registration debacle.

But now it appears after some initial investigation that the problem is greater than the early estimates:

Philadelphia election Commissioner Al Schmidt told state lawmakers this past week that there may be tens of thousands of non-US citizens who have registered to vote in Pennsylvania…and that for their sake, state officials should try to contact them. 

Commissioner Al Schmidt told a Senate committee that many of the non-US citizens who registered to vote in Philadelphia, perhaps unwittingly, did so through a glitch in the state’s motor voter system. While the known cases number only several hundred, he says they are all self-reported. Schmidt says more than 100,000 PA driver’s license numbers with Immigration and Naturalization Service indicators match with voter registration records. . . . "We’re not talking about an insignificant number here,” said Schmidt. “We’re talking about a potentially very significant number of thousands and tens of thousands.”

While not all of these license number hits are non-citizens registered to vote, certainly a significant number are.  As Commissioner Schmidt points out, the victims of non-citizen voter registration and voting are not only the citizens whose votes are cancelled out but the non-citizens themselves, as voter registration as a non-citizen can hinder any future naturalization process:

Schmidt says those people should be contacted. Besides the issue of election integrity, he says registering to vote – even unintentionally – will derail an immigrant’s path to US citizenship.

We will continue to follow this story and investigation.  It demonstrates the immense importance of proper election procedures and testing of election systems to ensure that there are no "glitches," whether technical or substantive, that threaten the integrity of voter registration or elections.

Accurate Voter Registration Lists Are Essential To Election Integrity

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about yesterday's House Committee on Administration hearing on state voter registration list maintenance and the importance of accurate voter registration records:

Enabling fraud is not the only problem with messy voter registration rolls.  Inaccurate rolls also create the opportunity for honest mistakes that negatively impact the voting process.  They contribute to long lines and congestion at the polling place. Voters are also frustrated when they show up at the polling place not properly registered in the correct precinct.  Logistically, inaccurate rolls require states and localities to waste money on ballots, poll workers, and other Election Day resources for ghost voters who do not exist or moved years ago.  As Indiana Secretary of State Connie Lawson pointed out in the hearing yesterday, the money that is spent unnecessarily on preparing for non-existent voters is desperately needed elsewhere, such as updating technology and security in voting machines. 

Inaccurate rolls also distort turnout numbers, making it seem like a state or county had lower turnout than it actually did.  Lawson described how Indiana completed a voter registration list clean-up process statewide, removing inaccurate records from the rolls, after the 2016 election.  Because of legal provisions regarding timing of maintenance procedures, the process could not be completed before the presidential election.  If it had been, Indiana would have had 65% voter turnout in 2016, instead of the 55% it actually reported.  That is a massive difference, and it would make a tremendous difference in voter perception of the election and the level of civic engagement as well. 

This is why accurate voter registration lists enjoy bipartisan support.  Every bipartisan presidential election commission in the last 20 years has recommended procedures to help states better maintain their lists.

While there is broad support in theory for voter registration list maintenance, liberals oppose most efforts to clean up the rolls:

While liberals pay lip service to accurate voter lists, when it comes down to the painstaking work of actually maintaining accurate official rolls, liberals and Democrats fight to ban nearly every tool that hardworking election officials have at their disposal. . . . Lawson bemoaned the fact that when a state seeks to clean up its voter rolls, activist organizations always sue the state for its attempt to follow the law.  A prime example — a challenge to Ohio’s voter registration record clean-up program, let by the ACLU and other liberal organizations, is currently pending before the Supreme Court, which will hear oral argument on the important case on November 8.

Mr. Thielen concludes by pointing to recent news stories about messy voter rolls in Rhode Island and Pennsylvania, lamenting that liberals have turned this into a controversial issue, and thanking the Committee on House Administration for looking into state voter registration list maintenance.

House Admin Hearing Tomorrow on Voter Registration List Maintenance

Tomorrow at 11:00 AM, the Committee on House Administration is holding an important hearing on "State Voter Registration List Maintenance."  RNLA sent a letter in support of accurate voter registration lists to the Committee today:

While many issues divide along party lines, the need for accurate voter registration lists enjoys bipartisan support . . . . President Barack Obama’s Presidential Commission on Election Administration (PCEA) strongly endorsed state voter registration list maintenance as a way to both help election officials and make the process smoother for voters. In our response to the PCEA’s report, we agreed, pointing out that accurate voter registration lists are essential to ensuring the integrity of election processes and results. 

While there is bipartisan support for the concept of accurate voter registration lists, much work remains to be done in the states. As election administration expert and former state election official Don Palmer testified last month before the Presidential Advisory Commission on Election Integrity: 

A series of national level commissions have pointed out the wide scope of the problem concerning the inaccuracies of the voting rolls, and the negative impact on election administration and voter confidence. They have also pointed out the vulnerability of our system to voter fraud and irregularities that result from the inability to maintain accurate voter rolls. 

Maintaining accurate voter registration lists requires resources and consistent effort by local election officials and any assistance or insight that House Administration could provide would be indispensible. Again, thank you for using the Committee’s valuable time and expertise to examine state voter registration list maintenance . . . .

The witnesses are Indiana Secretary of State and current National Association of Secretaries of State (NASS) President Connie Lawson and Dale Ho, Director of the Voting Rights Project at the ACLU.  RNLA will be live-tweeting the hearing tomorrow, which will be live-streamed on the Committee website.

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.

Why Are College Students’ Votes Worth More Than Everyone Else’s?

In the Daily Caller today, Executive Director Michael Thielen discussed the complicated issues around registering out-of-state college students to vote in battleground states. The article highlight how this issue raises gray legal and ethical issues, which are often disregarded in favor of political advantages.

[W]hy aren’t we upset when students do the same thing? Would we really accept the fact that adult commuters who work in New York and Boston and leave for their true homes on the weekends can vote in the city if it is in the strategic interest of a political party? Would we accept adults who are periodically working in a state or city voting there even when they have no real intent to live there? The answer is a resounding no. Worse, why aren’t we troubled that a political party uses students as political pawns on a regular basis?

. . . 

Legal definitions about eligibility to vote in a state vary from state to state, but state residence, domicile, inhabitance, or similar requirements usually contain the intent to live there for the foreseeable, or undetermined, future. A person who enters a state with no intent to remain usually does not meet this standard, and many college students have no intention to remain in the place they go to college. But some students do meet the legal standard, and this is why student voting location is so tricky. There is no set rule or answer for students, but the needs of a political party is not an ethical or acceptable way for a student to figure out where he or she should vote.

Americans would not be pleased if a multimillionaire politician, who owns several homes opted to register to vote in one property which happens to be in a battleground state, over his actual residence in another non-battleground state--solely based on a political factor. However, this is exactly what has happened in the past with students (and we blogged about this in 2014):

In 2008, then-Senator Obama’s campaign started a program nicknamed “float the vote”. This program involved telling students to vote where it was most politically advantageous for the Obama campaign and not where the student felt they “resided” or where they met the legal definition of residency or domicile for purposes of voter registration. This program unfortunately encouraged white lies for short-term political gain by encouraging students to state under oath that their college town was their permanent home and they intended to stay and vote. The program also undermined federal law that authorized and encouraged students who were away to vote by absentee ballot in their hometown. 

. . .

Float the vote demeaned voting from a patriotic right and duty to something strategic that included a bit of lying about where students really lived. There used to be safeguards in some states, such as Virginia, whereby students would be asked a series of simple questions when registering to see if they really resided in Virginia. This matters, in part, because there many more elections than just the Presidential election. However, Democratic Virginia Governors Tim Kaine and Terry McAuliffe appointed Democrats to the Virginia Board of Elections that eliminated these questions. McAuliffe also attempted to effectively eliminate voter registration questions on citizenship and felonies by saying those who did not answer would be automatically registered. The reason why they did so was quite simply the perception, backed up by polls, that felons, non-citizens, and students overwhelmingly vote Democrat.

The article closes on this point:

To be clear, liberals’ rhetoric about student voting has nothing to do with defending “poor students” or whether students have a right to vote and everything to do with obtaining more votes in close races. . . The Democratic Party encourages this tactic because polls show students tend to vote Democrat. It should not be contentious or controversial to say that students should have the same right to vote as everyone else, nothing more and nothing less.

Work needs to be done to reign in this behavior. It is unethical to target these students--from non-battleground states attending college in battleground states--just because their vote would have a greater impact while away at school and irrespective of where they intend to be after college. This should be a undebatable, nonpartisan issue, but sadly is not.

Need for Accurate Voter Registration Lists Highlighted at Election Integrity Commission Meeting

Don Palmer, a Fellow at the Bipartisan Policy Center, former Secretary of the Virginia Board of Elections, and former Florida Director of Elections, testified before the Presidential Advisory Commission on Election Integrity today about problems of errors in voter registration lists, the recommendations of previous bipartisan presidential election commissions, and the need for accurate voter rolls:

A series of national level commissions have pointed out the wide scope of the problem concerning the inaccuracies of the voting rolls, and the negative impact on election administration and voter confidence. They have also pointed out the vulnerability of our system to voter fraud and irregularities that result from the inability to maintain accurate voter rolls.

Each of these commissions identified the problem and provided recommendations, yet here we are again, facing the same issue and still searching for answers and the will to do something about it. The Help America Vote Act (HAVA) after the 2000 election required counties to work with new statewide voter registration systems to share data for list maintenance purposes and to maintain an official voter registration list. This reform required the states to interact with individual counties because the increasing mobility of our citizens demanded a system where county election officials could receive eligibility and registration information on individuals when they move from jurisdiction to jurisdiction to resolve duplicates. However, the mobility of voters across state lines is almost as significant as within a state, thus requiring the states work together in coordination with each other to resolve the problem. . . .

The voter registration systems in the states desperately need to be upgraded to add capability and made more functionally accurate, secure, and to better facilitate the sharing of registration data between states. Investment in the newest technologies would also allow better matching processes at the state level that improve list maintenance and interact more efficiently with local election officials. Bad matches, false positives, or lack of matching capability is often the result of older systems and software that doesn’t provide the ability to overcome errors in the registration.

Investment in the latest technology will also provide additional security for state and local voter registration systems. While most states already have robust hygiene programs to protect our voter registration systems, new technology would assist in these enhancements.

In addition to these recommendations, Mr. Palmer made a variety of other practical recommendations to the commission that would help states maintain more accurate voter registration lists.  We thank Mr. Palmer, and the other experts who took the time to testify before the commission today, for sharing his expertise and experiential wisdom.

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.

Another Maryland City Considers Allowing Non-Citizens to Vote

Several Maryland cities currently allow non-citizens to vote in local elections, and College Park is considering such a proposal:

The Prince George’s County city, home of the flagship University of Maryland campus and some 30,000 residents, is considering a measure to let noncitizens cast ballots for mayor and City Council — making it the latest target in a movement that has had more success in Maryland than anywhere else in the United States. . . . 

Supporters of the College Park measure say local elections center on trash collection, snow removal and other municipal services that affect people regardless of their citizenship status. The proposal, like those already approved in other small Maryland cities and towns, would not allow undocumented immigrants to vote for president, senator, congressman or governor. . . . 

Opponents say immigrants — even those in the country legally, such as green-card holders — should not be able to have a say in the direction of the community until they complete the process of becoming a citizen. . . . Jeff Werner, who advocates tighter restrictions on immigration with the group Help Save Maryland, said people who are in the country legally should have a voice in their communities, but if they are not citizens, their participation should not extend as far as voting.

Federal law controls who is eligible to vote in federal elections (U.S. citizens), but by state law in Maryland (and many other states), localities can determine eligibility requirements for local elections.  So while allowing non-citizens to vote in Maryland is completely legal (though perhaps surprising for many citizens), it is a bad policy decision.  Allowing non-citizens on the local voting rolls increases the likelihood that they will mistakenly be allowed to vote in state and federal elections.  States that allow 16- and 17-year-olds to pre-register to vote find with alarming frequency that if those underage citizens show up at the polls, they are allowed to vote.  The College Park proposal does not distinguish between legal residents and illegal immigrants, meaning that if someone has broken the law in his or her manner of entering the country, their vote would carry equal weight in local elections with a taxpaying citizen (and remember, local races are often won by very small margins).  Non-citizens are often transient and not as invested in the community as citizens.

It is unfortunate to see cities in Maryland bowing to liberal pressure to embrace this so-called "diversity" and "inclusiveness" at the expense of their citizens and at great risk to the integrity of their elections and to see increasing calls for similar laws in California and other liberal enclaves.

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.   

Hearing Today in Lawsuit Against Election Integrity Commission's Request for Public Voter Data

On Monday, the Electronic Privacy Information Center (EPIC) filed a motion for a temporary restraining order in the U.S. District Court for the District of Columbia to prevent the Presidential Advisory Commission on Election Integrity from collecting publicly available voter registration data from the states, claiming that the "collection and aggregation of state voter roll data by a federal commission is without precedent" and would threaten voters' privacy (even though the data to be collected is already publicly available).  

On Wednesday, the Department of Justice responded, strongly opposing the granting of a TRO:

As a threshold matter, the Court lacks jurisdiction to issue a temporary restraining order because EPIC failed to establish its standing. EPIC alleged no facts that the organization itself has suffered any injury, nor did it identify a single member who is suffering injury. In any event, EPIC’s members could not possibly be injured by the transfer of public information from one sovereign to another. Its concerns about a possible data breach at some point in the future by unknown third parties fall well short of an imminent and concrete injury that is traceable to the Commission and redressable by this Court. 

Even assuming the Court has jurisdiction, EPIC has not established its entitlement to emergency injunctive relief. EPIC has not shown that it will suffer any harm – much less irreparable harm – in the absence of a temporary restraining order. The voter data that EPIC seeks to enjoin the Commission from collecting is already made publicly available by the states. . . .  

Nor has EPIC established a substantial likelihood of success on the merits because it has no viable claims. Both the Administrative Procedure Act (“APA”) and the E-Government Act of 2002 apply only to “agencies,” but the Commission is not an “agency” within the meaning of these statutes because its sole purpose is to provide advice to the President. EPIC’s claim that the voluntary collection of publicly available voter information violates a constitutional right to informational privacy is meritless. Neither the Supreme Court nor the D.C. Circuit has held that such a right even exists. Even if such a right did exist, it would not apply to information that is already publicly available.

Finally, the public interest weighs against emergency injunctive relief. The President established the Commission “in order to promote fair and honest Federal elections.” Executive Order No. 13,799, 82 Fed. Reg. 22,389, 22,389 (May 11, 2017). By collecting voter data from the states, the Commission seeks to “enhance the American people’s confidence in the integrity of the voting processes used in Federal elections.” Id. EPIC seeks to halt this important work with meritless claims and a baseless fear about the states voluntarily submitting publicly available voter data to the federal government. Accordingly, EPIC’s motion for a temporary restraining order should be denied. 

Judge Colleen Kollar-Kotelly ordered a hearing for 4:00 today, outlining seven specific issues the parties should be prepared to address and ordering supplemental briefing on the issue of informational standing to be filed today as well.  During the hearing (which lasted over an hour), Judge Kollar-Kotelly announced she would not rule from the bench, and following the hearing, EPIC filed an amended complaint naming the Department of Defense as an additional defendant.

This story is obviously developing, and RNLA will be following it closely and posting updates here and on its Facebook page and Twitter feed.  The outcome of this suit could halt some of the Election Integrity Commission's important work before it has really even started, and at the very least, the litigation could be a distraction.

Promising Start to Protecting Freedom Through Election Integrity

RNLA Vice President for Communications Ron Hicks wrote today about how important election integrity is to securing our freedom through the ballot box and how the Presidential Advisory Commission on Election Integrity is beginning its important work to help states better administer their elections:

Last week, Commission Vice Chair and Kansas Secretary of State Kris Kobach sent a letter to chief election officials in every state that set off another round of manufactured, faux outrage and misleading headlines.  What was in this letter that had everyone up in arms? A request for input from the states on a variety of election administration questions and suggestions about how the Commission could best help the states, and a request that the states provide already publicly available voter data. 

Unlike previous presidential election commissions, this Commission is taking the unprecedented step of not only recognizing states’ primary role in administering and protecting the integrity of elections, but in also asking states how the Commission can be of help to them.  Instead of taking a top-down (federal-to-state) approach, the Commission has given the states the opportunity to participate in the process and has asked for their input in recommending goals for the Commission. . . . The second part of the letter asks each state to provide “publicly available voter roll data for [your state], including, if publicly available under the laws of your state,” personal data typically recorded as part of a voter’s voter registration record.  As stated twice in that short portion of the request, the Commission is requesting only publicly available voter registration data. . . . 

Sadly—as has been far too common in recent months—the mainstream media’s reporting has twisted the letter into a threat by the Trump administration to gather and publish confidential information about every voter in the country.  Headlines tout the states’ non-compliance with the letter, claiming that some 44 states plus the District of Columbia are refusing to provide the information requested by the Commission. 

The truth is that 29 states are providing publicly available voter registration information, as determined by their state’s law, and just 18 states are not providing the data.  This is hardly the massive, overwhelming resistance to the Commission portrayed in the media.  And this is only part of the whole picture.  State laws in Tennessee and North Dakota do not allow release of voter registration data to the Commission. Yet, these states are being portrayed by media as being non-compliant when, in fact, their hands are just tied by their own laws.

The RNLA will highlight the Presidential Advisory Commission on Election Integrity's actions here and in our weekly Daily Caller column.

Election Integrity Commission Seeks Input from States

After Vice President Pence announced that the Presidential Advisory Commission on Election Integrity would hold its first meeting on July 19 and that all meetings of the commission will be open to the public, Commission Vice Chair Kris Kobach sent a letter to state election officials asking how the Commission can best help the states:

As the Commission begins it work, I invite you to contribute your views and recommendations throughout this process. In particular: 

1. What changes, if any, to federal election laws would you recommend to enhance the integrity of federal elections? 

2. How can the Commission support state and local election administrators with regard to information technology security and vulnerabilities? 

3. What laws, policies, or other issues hinder your ability to ensure the integrity of elections you administer? 

4. What evidence or information do you have regarding instances of voter fraud or registration fraud in your state?  

5. What convictions for election-related crimes have occurred in your state since the November 2000 federal election? 

6. What recommendations do you have for preventing voter intimidation or disenfranchisement? 

7. What other issues do you believe the Commission should consider? . . .

On behalf of my fellow commissioners, I also want to acknowledge your important leadership role in administering the elections within your state and the importance of state-level authority in our federalist system. It is crucial for the Commission to consider your input as it collects data and identifies areas of opportunity to increase the integrity of our election systems.

This Commission, recognizing the unique role and power of the states in our federalist election system, has given the states the unprecedented opportunity to have input in the Commission's focus and goals.  With the past two presidential election commissions, the chairmen determined the focus and goals.  But the left has responded with its tired refrain of voter suppression and Democrat secretaries of state have already declared they are going to resist any requests from the commission to help make their voting systems better.  

These questions are mostly non-controversial.  They ask for information and opinions and are not partisan or political on their face.   Question two even provides an opportunity for Democrat state officials to opine on the threat that Russian interference posed to last year's election, one of the left's current favorite narratives.  For the questions that are controversial such as those on vote fraud, this provides an opportunity for election officials to make their case denying it is a problem.   

Further, question seven gives an open-ended opportunity for an official who thinks elections are anything less than perfect.  

This shows the political and disingenuous nature of those opposing the report, for they literally have the opportunity to influence what both what the Commission studies and the recommendations it makes. If Democrats aren't willing to provide their opinion on election issues when asked, they will have very little credibility to criticize the Commission's report when it is released.    

Instead of engaging in a bipartisan, federal-state dialogue about how to make American elections better, they are sadly and reflexively resisting the Commission and missing the opportunity to have their voices heard to make elections more open, fair, and honest.

Election Integrity Commission Seeks Public Voter Registration Information from States

On Wednesday, Presidential Advisory Commission on Election Integrity Vice Chair Kris Kobach sent a letter to state election officials requesting publicly available voter registration information to help the Commission do its work:

In addition, in order for the Commission to fully analyze vulnerabilities and issues related to voter registration and voting, I am requesting that you provide to the Commission the publicly available voter roll data for [your state], including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.

Despite this request being limited to existing and only publicly available information, the left has decried this as a witch hunt, voter suppression tool, intrusive into voters' privacy, and federal overreach.

Liberals and Democrats admit that the voter registration rolls are messy and that this is a problem, but they resist local election officials' attempts to clean them or determine what systems would help them be more accurate.  

Rhode Island recently announced that it has found 150,000 inaccurate voter registration records in a state with a voting age population of 842,321.  Shouldn't states be welcoming the opportunity to prevent such inaccuracies from occurring?  This is a problem that the left and right agree exists.  If the left won't participate in even studying an issue that they admit is a problem, that begs the question if the left cares about fixing any part of our election process.    

Left's Fear of Opposing Speech

RNLA Executive Director Michael Thielen wrote today citing examples of how the liberal establishment fears and tries to stifle speech by its opponents:

In 2017, in an effort led by Hillary’s former lawyer Marc Elias, establishment Democrats are now attacking Democrats on the Presidential Advisory Commission on Election Integrity for having the temerity to try to bring bipartisan balance to the investigation of the electoral system.  Elias implied that long-serving Democrat Secretary of State, Bill Gardner of New Hampshire, is not a real Democrat because he accepted an appointment to serve on the commission. 

Next, Elias’ ally Rick Hasen wrote an op-ed calling on another Democrat, Maine Secretary of State Matthew Dunlap, to resign from the commission because Hasen, like other liberals, has pre-determined that what the commission will do and say will be offensive and wrong before the commission has even begun its work.  Instead of wanting Democrats to have a seat at the table on President Trump’s commission — to hopefully represent the Democrats’ perspective and engage in an intellectual discussion for the benefit of the country as a whole — Hasen declares that Dunlap’s speech and participation would serve no purpose.  The speech of the commission must be opposed before it even occurs, because of its association with President Trump. These lions of the law, known for their skills of argument, are apparently fearful they will be unable to counter the findings if they allow the commission to do its work. . . .  

In New York, for example, liberals have declared war on 501(c)(3) nonprofit charities, requiring them to disclose their donors if the organization gives donations or in-kind support to 501(c)(4) groups that are lobbying in New York.  Disclosure of the 501(c)(3) organization’s donors is required even if its grant was to be used specifically for non-lobbying purposes.

Partisan Democrats like Marc Elias are naturally opposed to anything involving Republicans, but it is disappointing that Prof. Hasen has pre-judged the report of a commission that has not even begun its work, when he has been willing to point out the shortcomings of a flawed report that supports his policy preferences.  There is likely to be something in the Election Integrity Commission's report and findings that even liberals can agree with, but they are not willing to wait for the commission to do its work and see what it finds.  The commission is going to examine improper voter registrations, which is something even liberals and Democrats agree is a problem.

Instead of welcoming robust debate so that the best ideas are honed and prevail, a concept that is at the very core of our American system of government, modern liberals want to silence speakers who don't share their views.  This is a frightening impulse that should disturb both liberals and conservatives, especially when backed with the power of government as in New York.

NC Election Worker Indicted for Altering Voter Registrations

A former temporary election worker in North Carolina has been indicted for altering voter registration records:

The State Bureau of Elections said in a news release on Tuesday that says 41-year-old Joy Yvette Wilkerson of Henderson faces charges of unlawful voter registration and unlawful altering of voter registrations. Wilkerson was indicted by a Granville County grand jury on Tuesday. . . . 

In June 2016, county elections director Tonya Burnette found in a review that voter registration records were changed without authorization. Burnette told the elections board, which investigated the matter and sent a full report to the district attorney's office.

The former worker attempted to alter as many as 250 registrations to allow ineligible felons to vote:

Joy Yvette Wilkerson, 41, of Henderson is facing multiple counts of fraudulently altering voter registrations, which is a felony charge. 

According to a Granville County Sheriff’s Department report, the county’s Board of Elections discovered the fraudulent activity last June and contacted law enforcement. The report says Wilkerson accessed the county’s voter registration database and restored – or tried to restore – active voting status to 250 convicted felons who had been removed from voter rolls while they served their sentence. 

North Carolina law bans convicted felons from voting while serving an active sentence – in prison or on probation – but their rights are restored after their sentence is complete.

This story illustrates how important it is for states to properly vet and train election officials, even temporary ones, and have procedures in place to protect against tampering with voter registration records or ballots (as temporary election workers did in Florida last year) and how susceptible the election system is to manipulation by a person with bad intent.  But the diligence of the North Carolina officials in catching and investigating this fraud should be commended.

New Report: Thousands of Non-Citizens Voting in Virginia

Today, the Public Interest Legal Foundation released a disturbing report about non-citizens registered to vote and actually voting in Virginia:

After three lawsuits, scores of record requests, and reviews voter history files across 133 Virginia jurisdictions, the Public Interest Legal Foundation has uncovered the following:

• Virginia election officials quietly removed 5,556 voters for non-citizenship between 2011 and May 2017;

• 1,852 of those removed as noncitizens cast ballots;

• A total of 7,474 illegal ballots were cast from the pool of removed noncitizens;

• Some records of illegal voting date back to the 1980s before their respective removals;

• Virginia election officials routinely fail to alert law enforcement about these illegal votes or registrations.

“At the instruction of Governor McAuliffe’s political appointees, local election officials spent countless resources to prevent this information from spilling into the open,” PILF President and General Counsel J. Christian Adams said. “Virginia hid critical information that would have improved election integrity while a political operative-turned-governor vetoed numerous proposals that would’ve prevented alien registration and voting. From NoVa to Norfolk and all urban and rural points in between, alien voters are casting ballots with practically no legal consequences in response. 

“In this election year, aliens must not cast illegal ballots, and if they do they must be prosecuted. Let’s pray that Gov. McAuliffe’s veto pen did not invite a close election tainted by fraud,” Adams added. 

In the absence of regular data-sharing arrangements between federal officials and the Commonwealth, the ability of election officials to identify aliens on the voter rolls is almost nonexistent. The most that happens in Virginia is that an alien on the voter rolls will sometimes tell the state DMV they are not a citizen. Without those leads, counties and municipalities must accept false claims of citizenship on their face.

This report gives lie to those who claim that there is no problem with ineligible voters voting and determining the outcomes of elections.  In addition to other close races detailed in the full report (page 12), the winner of the 2013 attorney general election was determined by just 907 votes statewide.  As PILF noted, the methods for removing non-citizens from the voter registration rolls are far from effective or complete and the existing methods are rarely followed.  So there are likely far more non-citizens registered to vote and additional votes by non-citizens that PILF was unable to identify through their data review.  

This problem is duplicated in nearly every state across the country but has largely not been studied because it requires a tremendous amount of time and resources.  Sadly, PILF had to litigate against local election officials who refused to disclose voter registration data as required by the NVRA.  We can only hope that President Trump's Presidential Advisory Commission on Election Integrity can conduct or prompt similar studies in a number of states and that state and local officials will cooperate, as required by law, in efforts to improve the accuracy of voter registration rolls.