Posted on July 25, 2008, Printed on July 25, 2008
Election officials in a handful of states appear to be ignoring the federal law dictating the way registered voters may be purged from voter rolls, civil rights attorneys say.
National voting rights groups have contacted officials in Kansas, Michigan and Louisiana in recent weeks because those states appear to be purging registered voters after election officials found duplicate names and birthdays of people on their voter lists and in out-of-state databases, such as driver's license records.
The states are assuming that a more recent driver's license or voter registration in another state indicates that the voter has relocated, meaning the voter registration tied to their prior address is no longer valid. While purging voters who move, die or are imprisoned is a routine part of managing elections, the federal law governing purges -- the National Voter Registration Act -- lays out a multiyear process of trying to contact voters to confirm a change of address before deleting them from voter rolls.
The election attorneys say the NVRA process seeks to err on the side of protecting voting rights and cannot be circumvented by what appears to be a duplicate voter registration.
"The National Voter Registration Act (NVRA) limits the circumstances in which a state may cancel a voter's registration," the Fair Elections Legal Network, a Washington-based voting rights consortium, said in a June 24 letter to Kansas Secretary of State Ron Thornburgh. "The NVRA does not permit cancellation based on a match alone."
"We are looking at several statewide purge issues," said Bradley Heard, a senior attorney with Advancement Project, a voting rights law firm. He said that in Michigan, both data matching and mailings by local officials to verify a voter's registration information were of concern. "We are also looking at a state law that calls for purging a bunch of voter registration records that are otherwise eligible."
But state election officials in these three states disagree with the voting rights groups, offering different explanations that suggest existing state laws or election management practices pre-empt the NVRA.
"We follow the state law that was adopted by our state Legislature," said Jacques Berry, press secretary for Louisiana Secretary of State Jay Dardenne, a Republican. "It supersedes the NVRA."
"There is a section of the NVRA that they (the voting rights lawyers) interpret differently than we do," said Brad Bryant, Kansas deputy secretary of state. "It has been this way for 15 years."
Kelly Chesney, spokeswoman for Michigan Secretary of State Terri Lynn Land, did not reply to requests to comment.
Voting Rights Groups Target Purges
Last week, Project Vote, which is working in two dozen states to register voters in 2008, sent a letter to Dardenne saying his state appeared to be ignoring sections of the NVRA that require that voters be notified by mail over two federal election cycles before being removed. Project Vote's attorney said Louisiana Commissioner of Elections Angie LaPlace was treating apparently duplicate database listings as "cases of suspected fraud or some other irregularity."
Last year, the NAACP Legal Defense Fund sued Louisiana over the purging of registrations of refugees from Hurricanes Katrina and Rita. Many people who applied for a driver's license in a neighboring state -- to quickly acquire an ID after losing their belongings in the storms -- also were registered to vote without their knowledge, NAACP attorneys said. Those new voter registrations resulted in 21,000 voters being removed from Louisiana voter rolls last August, the group said. While the NAACP suit was dismissed, Project Vote's recent letter suggests the state's voter list maintenance practices have not changed. Project Vote also wrote to the U.S. Department of Justice about the matter, as the agency oversees federal elections in most Southern states as a result of the Voting Rights Act of 1965.
Louisiana election officials disagreed with Project Vote's assessment, saying the state has its own voter purge process that "supersedes" the federal law. Berry, the secretary of state's spokesman, explained that Louisiana updates its voter roll annually with multiple mailings to voters so the lists are accurate in state elections -- not just federal contests. He said that process is more rigorous than that outlined in the federal NVRA, requiring, for instance, that voters reaffirm their Louisiana voter registrations in person after receiving a final state notice. Berry said the process was approved by the Department of Justice.
"What we find is in the vast majority of cases the voter has moved out of Louisiana and registered in another state, not realizing that they will not automatically cancel their voter registration," he said.
The issue of whether states are heeding the National Voter Registration Act reveals how the implementation of the nation's election laws often turns on a patchwork of local or state policies. In the absence of litigation, whether a state or election jurisdiction is following the NVRA often remains a question of local interpretation.
In Madison County, Mississippi, county supervisors this week rescinded a plan to send a mass mailing to voters, where returned postcards were to be used to purge voters over a two-year period. In this instance, Project Vote notified county officials that its timetable would violate the NVRA, and, according to local news reports, the county's supervisors decided to abandon the plan and instead prepare for a high-turnout election in the fall.
"The mildest things confuse people and can ultimately disenfranchise people during elections," Madison County Supervisor Karl Banks said in a Clarion Ledger report. "Here we are willing to disenfranchise people because they don't send a card back?"
In Kansas, Bryant, the deputy assistant secretary of state, said his state has an established practice of comparing its voter rolls with databases from neighboring states to identify people who have moved. He said Kansas has a "memorandum of understanding" with 11 states to share databases that can be used to clean up voter files. Those states are Missouri, Nebraska, Iowa, Minnesota, South Dakota, Texas, Arkansas, Ohio, Colorado, New Mexico and Arizona.
Bryant said statewide election data has improved in recent years, facilitating the job of updating voter rolls. The federal Help America Vote Act, passed in 2002 after Florida's presidential election debacle, required states to consolidate county or municipal voter rolls into statewide lists. Bryant said the new statewide lists have created "certain data elements" that can be compared with other states, such as driver's license data.
"All the comparisons do is create a list of possible matches in each state," Bryant said, adding that it is then up to each state to decide how it treats that information for purge purposes.
The attorneys for the voting rights groups agree to a point, saying vote list maintenance in itself is an important and necessary goal. However, the attorneys and states disagree about what should come after the matches are discovered -- whether to immediately purge voters or to follow the NVRA process of sending postcards to voters over two federal election cycles to verify their residence and registration information.
Bryant said he did not know how many registered voters had been removed in 2008 using his state's data-matching process.
Michigan's Secretive Approach
In Michigan, the issues are more complex. Advancement Project's Heard said there has been an overall lack of "transparency" regarding several aspects of the state's voter purge process. In 2006, he said, Michigan election officials did a statewide mailing to all voters that did not mention the mailing would be used to verify voter registration information. Still, Heard said the returned postcards were used to remove 230,000 registered voters from voter rolls within 90 days of that year's general election, which also violates the NVRA, he said.
Jan BenDor, statewide coordinator for the Michigan Election Defense Alliance, a local voting rights group, said state officials cited an April 2007 letter from the Department of Justice pressuring the state to do more to clean up its voter roll for the statewide mailing and August 2006 purge. Ten states received those letters, which critics said was a political move because the claims of sloppy voter rolls was based on outdated data, notably U.S. Census population estimates.
Since the 2006 purge, Michigan has used driver's license databases from other states to identify another 280,000 names as apparent duplicate voter registrations, Heard said. This month, staffers for Michigan Secretary of State Land, a Republican, canceled a meeting with Heard and Michigan activists to discuss purge issues.
"We have been trying to get a meeting with election officials to talk about the issues and get their explanation," Heard said. "It's hard to say what happened with the 280,000 supposed out-of-state movers, since we can't get the info from the state."
Land's spokeswoman, Chesney, did not respond to requests to comment. However, newspapers in Michigan have quoted Chesney as saying the meeting was canceled when an information session appeared to be a precursor to litigation. Heard said Advancement Project has not ruled out filing a lawsuit.
"We have to evaluate all of our options," he said. "We are hoping the secretary of state's staff will sit down and talk about it."
Purge Issues Not Going Away
The purge issue is only going to rise in profile in the coming weeks. Several voting rights groups are studying the process in a number of swing states and hope to issue reports later this summer. Among the issues being studied is the accuracy of the database matches used to purge voters. When California first implemented a data-matching program in 2006, some counties had error rates as high as 40 percent, meaning a registered voter who appeared to have moved would have been incorrectly purged without further efforts to confirm their residency and voter registration status.
Steven Rosenfeld is a senior fellow at Alternet and co-author of What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election, with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).© 2008 Independent Media Institute. All rights reserved.
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