The NVRA also had other provisions and timelines for updating voter rolls, which become bloated after people move or die. The bottom line in 2020 is that people who have not voted since the 2012 presidential election could be removed if they have had no subsequent contact with election officials. The law envisions that contact as responding to postcard mailings -- which many people ignore -- or showing up and voting.
In 2017, when Wisconsin's election board sent various public databases to ERIC for data mining, or using redundant records to update the voter files, it ran into an unexpected problem. Because the state DMV did not manage addresses for voter registration purposes, its files did not have some voters' actual home addresses. (Voter registration must have actual addresses for voters to get a correct ballot.)
"In these situations, the voters may have provided an address in their transaction with the DMV that was different from their voting address, even though DMV asked for their residential address on their forms," the March 2019 WEC memo said. "These voters were likely unaware that the information provided to the DMV would affect their voter registration status."
The reason for the incongruity has nothing to do with elections. It was because people who had registered cars for others -- such as a family member who lives elsewhere -- used their addresses to avoid paying a county car tax. That tax-evading move was what was behind most of the voters who were removed in 2017 but showed up to vote in 2018, said Kevin Kennedy, the former director of Wisconsin's Government Accountability Board (which preceded the WEC) and who worked in Wisconsin elections for nearly four decades. The ERIC algorithms used to verify the voter rolls could not tie the same address to that individual. Being exempt from the NVRA's requirement to register voters at its DMVs hid this address snafu.
Instead, Wisconsin had an older state law on its books for voter list maintenance. That law required removing voters "upon receipt of reliable information" within a month. That deadline and ERIC's list of 209,000 infrequent voters (most of whom had moved or died) was cited in the Wisconsin Institute for Law and Liberty suit. In suburban Ozaukee County north of Milwaukee, a GOP stronghold, Circuit Court Judge Paul Malloy cited that state law as he repeatedly ordered the mass purge to proceed. Malloy has since held the WEC in contempt for not acting, including issuing penalties and additional fines for its three Democratic members. (An appeals court stayed his rulings.)
WILL's argument is typical of right-wing lawsuits targeting voter registration lists. It alleges that various vague harms that "impair" or "threaten" the legal rights and privileges" of its plaintiffs. On the other side of this partisan lens are voting rights activists who say that no list maintenance process can ever be error-free, and cite errors made by ERIC in Wisconsin and Maryland. (ERIC's defenders say these problems come with managing any large and fluid list, and note that ERIC has helped to identify and to register more than 5 million new voters nationally.)
Broad swipes, local remedies
But all of these arguments and details -- which come from a conflicting mix of laws, bureaucracy and porous data -- obscure some bigger points, said Justin Levitt, a professor of constitutional law at Loyola Law School and former staff attorney with the U.S. Department of Justice's Voting Section.
"There are only a few states where nonvoting is still used to trigger the NVRA removal procedure, and they tend to be [citing] legacy laws from decades ago when ham-handed approaches to list maintenance were more common," he said. "The vast majority of states only start the NVRA process when there's some affirmative evidence of ineligibility, which is a little more like using a scalpel rather than a chainsaw to do surgery."
In other words, activist right-wing law groups are targeting an imperfect landscape surrounding the way voter rolls are updated. And the most likely impact -- should they prevail in court -- could be disrupting or discrediting the 2020 voting process in swing states. But it is hard to estimate the magnitude of their impact apart from noting thousands of voters could be affected in states with close elections.
"We don't have great data on how many of the registrations at issue in these battles correspond to voters who are still eligible," said Levitt, who added that the remedy for voters was checking their registration status two months before Election Day. "Purges unquestionably affect voters. But this is an area where voters have more control than other aspects of election administration."
Kevin Kennedy noted that any incorrectly purged Wisconsin voter could re-register on Election Day, when people have to present proof of residency and a photo ID. While unsuspecting voters might not have all those documents with them, he said that the state does accept emailed bills as proof of one's addresses.
"If anything, it's actually gotten better because you can do it electronically," said Kennedy. "You can show your electronic bills. [But] they are not always the best for students, because sometimes their bills are at their parents' house."
Stepping back, the former state election director said the fray over voter rolls was a sign of how hard-fought 2020's election cycle would likely be in his state.
"In Wisconsin in 2020, the big thing besides the voter purge issue will be a voter turnout issue," Kennedy said. "The Democrats are saying they need to mobilize voters. They can look back to last April and see they were clearly out-mobilized in the state Supreme Court race. It was supposed to be a non-partisan race, but clearly had partisan motivations going on there. You're not going to see Republicans sit back. They will redouble their efforts."
This article was produced by Voting Booth, a project of the Independent Media Institute.