WASHINGTON — On its face, the notice sent to 248 county election officials asked only that they do what Congress has ordered: Prune their rolls of voters who have died, moved or lost their eligibility — or face a federal lawsuit.
The notice, delivered in September by a conservative advocacy group, is at the heart of an increasingly bitter argument over the seemingly mundane task of keeping accuratelists of voters — an issue that will be a marquee argument before the Supreme Court in January.
At a time when gaming the rules of elections has become standard political strategy, the task raises a high-stakes question: Is scrubbing ineligible voters from the rolls worth the effort if it means mistakenly bumping legitimate voters as well?
The political ramifications are as close as a history book. Florida’s Legislature ordered the voter rolls scrubbed of dead registrants and ineligible felons before the 2000 presidential election. The resulting purge, based on a broad name-matching exercise, misidentified thousands of legitimate voters as criminals, and prevented at least 1,100 of them — some say thousands more — from casting ballots.
That was the election in which George W. Bush’s 537-vote margin in Florida secured his place in the White House. Controlling the rules of elections — including who is on or off the rolls — has been both a crucial part of political strategy and a legal battleground ever since.
Conservative groups and Republican election officials in some states say the poorly maintained rolls invite fraud and meddling by hackers, sap public confidence in elections and make election workers’ jobs harder. Voting rights advocates and most Democratic election officials, in turn, say that the benefits are mostly imaginary, and that the purges are intended to reduce the number of minority, poor and young voters, who are disproportionately Democrats.
“The goal here is not election integrity,” Stuart Naifeh, the senior counsel at the voting rights group Demos, said. “It’s intimidation and suppression of voters.”
On Wednesday, Demos and two other advocacy groups, the Lawyers’ Committee for Civil Rights Under Law and the Brennan Center for Justice at the New York University Law School, offered legal help to any of the 248 county election officials who tried to oppose the notice.
The author of the notice to county officials, the Public Interest Legal Foundation, responded quickly. “It seems like we’ve arrived to the point where asking election officials to do what the law requires makes PILF subversive,” the group’s president, J. Christian Adams, said in a statement.
Adams is among several conservatives appointed by President Donald Trump to the White House’s Advisory Commission on Voter Integrity, the voter fraud panel mired in a partisan feud over its operations and political intentions.
The Public Interest Legal Foundation is one of four conservative advocacy groups that have pursued often-overlapping campaigns to purge voter rolls. Three of the groups — the foundation, Judicial Watch and the American Civil Rights Union — rely on former lawyers in the Justice Department’s civil rights division during the George W. Bush administration. The fourth, True the Vote, is an offshoot of a Tea Party group based in Houston.
The groups argue that election officials are ignoring a requirement in the National Voter Registration Act of 1993 that a “reasonable effort” be made to cull ineligible voters — the dead, people who have moved, noncitizens and felons whose voting rights are restricted.
A spokesman for the Public Interest Legal Foundation, Logan Churchwell, said election officials were hobbled by a lack of money and “a failure of imagination.” The law sets few boundaries on tending lists, largely requiring that officials keep voters on the rolls for up to two general elections if they cannot confirm that they have moved. The most explicit prohibitions outlaw striking voters simply because they have not cast ballots and ban delistings within 90 days of elections.
Churchwell said that too many election officials rely on the mail to determine whether people have moved, depending on voters to return postage-paid confirmation requests sent to their last known address. Voters who lose or fail to return them — or sometimes, never get them — are left on the rolls. The 1993 law, he said, did not anticipate a digital world in which the dead and other ineligible voters can be identified more quickly and perhaps more cheaply.
Example one, he said, is Broward County, Florida, where arguments in a federal lawsuit against the county election supervisor ended this summer. Churchwell said the foundation discovered three people on the rolls who were alive when Grover Cleveland was president in the 1890s. Election officials “wait for a death certificate to show up and drop in their laps,” he said.
Brenda Snipes, the Broward elections supervisor, said the county followed the same procedures as Florida’s other 66 counties in managing voter rolls. “The court record shows thousands and thousands of people that were purged during the time they expressed concern,” she said.
Broward has a regimen for verifying the status of centenarians, she said, “but you can’t just suspect that a person may be dead or moved away and remove them from the rolls.”
Election officials routinely cull their rolls, but delisting is an exercise fraught with error. Registrants who die in other states — say, New Yorkers who winter in Florida — may pass unnoticed in the states where they are registered.
Officials do tap databases kept by state vital records agencies, the Social Security Administration and the Postal Service, which has a change-of-address list. But the databases cannot assure matches; some jurisdictions do not collect personal information like Social Security or driver’s license numbers that could make a positive ID easier.
And the databases themselves have flaws and anomalies. Voters with similar or identical names compound the odds of accidental delisting. A University of Pennsylvania study of 125 million voter registration files from 2012 found that some 3 million registrants shared a common first name, last name and date of birth. And registrants from groups where a few surnames are commonly used are especially vulnerable to being mistakenly struck from the rolls.
Add to that the vagaries of human error and habit. Clerks make mistakes while typing registration information into computers.
“Elected officials, both Democratic and Republican, recognize the value of good list maintenance,” said David J. Becker, the director of the Center for Election Innovation and Research, which tackles election administration problems. “But being absolutely sure that person on the list of deceased you were given is the same person on your voter list? That becomes very difficult.”
Voting rights groups say the question is not what constitutes a reasonable effort, but what sorts of efforts are unreasonable. And they point to a case now before the Supreme Court as proof of what aggressive purges really accomplish.
In that suit, Ohio officials disenfranchised thousands of eligible voters by requiring all voters who skipped a single election to return a postage-paid form stating whether they had moved. Those who failed to return the form were delisted if they did not vote in the next two elections, even if they were legally still eligible.
The Supreme Court, which will hear the case in January, will decide whether the purge violated the Voter Registration Act’s near-total ban on removing registrants because they do not vote. Three of the four conservative advocacy groups have filed briefs supporting Ohio’s purging methods.
“The right to vote is too important to treat as a use-it-or-lose-it right,” said Naifeh of Demos, which represents the plaintiffs in the suit.
A federal appeals court struck down the Ohio rule last year. That the Supreme Court decided to rehear the case, some experts say, suggests the justices may be inclined to reverse the lower court ruling. It also underscores the significance of the Republican Senate’s decision to hold open a vacant seat on the court until a Trump administration nominee, a new justice, Neil M. Gorsuch, was able to give conservatives a majority.
That said, any ruling is likely to have a fairly limited reach because the debate involves only a technical interpretation of a single clause in the law, said Edward B. Foley, an elections expert at Ohio State University’s law school.
Other examples of the consequences of aggressive purges are not hard to find: in Florida again, in 2004 and 2012, and in Georgia, which ended a program in September that had canceled or marked for purging roughly 35,000 registered voters, two-thirds of them African-American. That purge was based on a data-matching program that had flagged registrations for errors as niggling as a missing apostrophe or misplaced hyphen.
Voting rights advocates say the purge efforts fall in partisan line with their other court battles over voting restrictions imposed by Republican governments: amicus briefs supporting partisan gerrymandering in Wisconsin; North Carolina voter restrictions later found to have violated the 14th Amendment and the Voting Rights Act; and a Kansas rule that imposed proof-of-citizenship requirements on new registrations for state elections.
The groups’ record in courts and public opinion has been mixed. While they have reached settlements with election officials in a handful of largely rural counties, other lawsuits have been thrown out, and fact-checkers have frequently questioned the groups’ claims.
Critics also note that the defendants of lawsuits filed by the groups tend to fit a partisan mold. “In a nutshell, they target minority areas and heavily Democratic areas,” said Snipes of Broward, which is Florida’s bluest county.
Churchwell countered that many of the counties that received notices in September were “blood-red counties that are never going to turn Democrat.”
“We’re doing a pretty terrible job toiling away in Iowa and Nebraska,” he said, jokingly.
Robert Popper, a former Justice Department lawyer now at Judicial Watch, suggested that the groups’ critics are the ones playing politics. The Voter Registration Act both expands voter registration opportunities and requires that the rolls be culled, he said. While the Obama administration’s Justice Department vigorously enforced the voter registration requirements, he said, the last lawsuit enforcing the culling mandate was litigated in 2007 — by him.
The Trump administration’s Justice Department is changing that. It already has backed away from lawsuits against restrictive voting practices. It has asked state election officials for information on what they are doing to keep their rolls up to date.
And in August, it filed an amicus brief in the Ohio case before the Supreme Court supporting Ohio’s delisting process — and reversing the Obama Justice Department’s opposition to it.
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