Election '18

Here Comes the Next Big Right-Wing Attack on Our Voting Systems

Right-wingers are using bad data and shoddy methodology to push localities to purge infrequent voters.

Photo Credit: Rena Schild / Shutterstock

The nation’s leading law groups defending expanded voting rights Wednesday warned hundreds of election officials across the nation not to be intimidated by right-wing threats to more aggressively purge voter rolls, saying they would defend them in court if necessary.

“There’s no rhyme or reason to the 248 jurisdictions that have been identified” by the Public Interest Legal Foundation (PILF), said Kristen Clarke, president and executive director of Lawyers’ Committee for Civil Rights Under Law. “They include communities both large and small. They include communities with substantial numbers of African-American and Latino and other minority voters. But what we do observe is there has been a renewed focus on purge programs as a tool for suppressing the rights of voters.”

The Public Interest Legal Foundation is led by J. Christian Adams, a former Justice Department Voting Section attorney who joined the DOJ in 2005 to help implement the Bush administration’s national crusade against so-called voter impersonation fraud—a thoroughly debunked partisan crusade to disenfranchise blue voters. The Trump campaign in 2016 and his administration have revived this discredited narrative as a ruse for red-run states to impose additional barriers to likely Democratic voters. That partisan playbook includes purging legally registered voters, especially those who tend to vote only in presidential years.

“This summer the Justice Department issued a letter to election officials across the country, soliciting information on their, quote, [registered voter] list maintenance procedures,” Clarke said. “That letter was issued on the same day as the President’s Election Integrity Commission [where Adams is a member] issued a letter to state election officials seeking data on virtually every American voter across the country, among other things. So this appears to be part of a pattern that we are seeing across the country of using purge programs, and so-called list maintenance procedures, as a tool for restricting the rights of legitimately registered voters.”

The Lawyers’ Committee, Brennan Center for Justice at New York University Law School and Demos—all legal advocates that have defended the right to vote for years and fought voter suppression tactics in court—said Wednesday that they would be sending letters to the local offices targeted by PILF. Their letters will urge local election officials to not be intimidated by PILF’s threat of suits unless they proved, to PILF’s satisfaction, that they had purged sufficient numbers of legally registered voters.

PILF’s threats fit a pattern established by GOP vote suppressors to intentionally use dubious statistics and legal threats to remove otherwise legal voters, the lawyers said.

“Oftentimes the same groups or individuals that are asserting the need for purge programs are coupling that with misleading or inaccurate claims about potentially ineligible voters,” Jonathan Brater, Brennan Center Democracy Program counsel, said. “Whether that takes the form of this flawed methodology that is based on a crude comparison of Census data and registration lists, or shoddy claims about potential non-citizens or others who may be registered to vote.”

Top state election regulators in states like Florida, Georgia, Ohio, North Carolina and Kansas, all of whom are Republicans, have deliberately used shoddy data, or intentionally sloppy data mining producing false positives, to claim that their states’ voter rolls are overflowing with ineligible or illegal voters, and then removed thousands of perfectly legal voters. The Public Interest Legal Foundation follows this same script.

PILF’s latest letter to local election officials reads, “Federal law requires election officials to conduct a reasonable effort to maintain voter registration lists free of dead voters, ineligible voters, and voters who have moved away... Based on our comparison of publicly available information published by the U.S. Census Bureau and the federal Election Assistance Commission, it appears that your jurisdiction is failing to comply with these federal law requirements.”

The problem with PILF’s claim is that the Census data it cites, gathered once a decade, does not track the latest yearly demographic changes, such as people moving, the voting rights attorneys said. Thus, comparing old Census data to more recent voter registration lists is an apples-and-oranges comparison that creates inaccurate impressions that there might be error-plagued voter rolls. The Lawyers’ Committee’s Clarke said PILF uses this dubious methodology to accuse local officials of mismanaging voter lists—which are in a constant state of flux because people register, move and die—and thus bully local officials into purging otherwise legal voters.

“This action by PILF is a clear attempt to incite and bully election officials to institute voter purge programs in their respective jurisdiction,” Clarke said. “We will not stand by idly and wait for the fallout from PILF’s dangerous national campaign.”

She said the voting rights groups were concerned some local election officials had been successfully bullied by PILF. Some who opted to avoid a legal fight had entered into settlements with PILF. In those agreements, the right-wingers required the localities to use other problematic federal databases to screen and purge voter lists, such as a Department of Homeland Security’s SAVE system. The SAVE database provides immigration and citizenship status, but it is not complete, as there is no authoritative federal citizenship database. When Florida’s GOP election director tried to force county officials to use SAVE a few years ago, the local officials vigorously protested, objecting to the flawed data. That very rare display by election officials prompted Florida Republicans to back down and let the local officials do their jobs according to protocols established under the National Voter Registration Act of 1993.

More recently, some localities targeted by PILF have buckled, the attorneys said. But others haven’t, forcing PILF to back off.

“They [local election officials] entered into consent decrees on behalf of supposed local election integrity groups, in Mississippi mainly, and a few in Texas,” Stuart Naifeh, Demos counsel, said. “And what they [PILF] have sought is things like we see in Ohio. They ask states to agree to purge people based on [recent] non-voting, and occasionally to use the SAVE database in certain places. And what we’ve seen is when these jurisdictions fight back, those things are not part of the settlements.”

“There’s really no basis" for PILF's claims of sloppy voter rolls, Naifeh said. “It’s only when they get a sweetheart consent decree that we see the worst elements of these kinds of [voter purge] programs coming into play.”

But under the Trump administration, PILF—led by J. Christian Adams—has been targeting electoral districts in swing states.

“They have more recently targeted larger jurisdictions, such as Wake County, North Carolina; Broward County, Florida; and Alexandria, Virginia,” Naifeh said. “Though none of the larger jurisdictions they targeted have entered into consent decrees that contain these problematic practices. Alexandria, Virginia, got the case dismissed and the judge admonished them for not doing an adequate investigation and bringing the case solely on the basis of shoddy registration rate calculations. Wake County agreed to a settlement that essentially just required them to do what they already are doing. And Broward County, Florida, the case went to trial and there’s still no decision yet.”        

The voting rights groups said they would be sending letters to the 248 localities targeted by PILF, reminding them about the legal process for removing voters and offering to help if sued by PILF.

“We’re issuing letters that essentially do three things,” said Clarke. “One, we impart an accurate overview of the National Voter Registration Act and caution that any premature attempt to purge voters from the rolls may run afoul of the NVRA. Two, we include a request for data and documents from the jurisdictions, to ensure transparency with respect to any actions that they may have already taken in response to the letters from the Public Interest Legal Foundation… And then finally we let them know that we are available to provide support and counsel to them, should it be necessary if the Public Interest Legal Foundation takes legal action, as they’ve threatened to do in their letter.”

“We know that there are election officials who share our consternation about the Public Interest Legal Foundation’s actions,” she said. “Alex Pedilla, Secretary of State for California, has been dismissive of the foundation’s request, and noted that it is request based on bad data and a flawed methodology. Part of the end goal here is to ensure that jurisdictions can know they can turn to us for legal support, should they face action at the hands of the Public Interest Legal Foundation.”             

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Steven Rosenfeld is a senior writing fellow of the Independent Media Institute, where he covers national political issues. He is the author of several books on elections, most recently Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election (March 2018, Hot Books).