Initiated Under Obama, A Plan for Cleaning Voter Rolls Is Now “Radical”

COMMENTARY Election Integrity

Initiated Under Obama, A Plan for Cleaning Voter Rolls Is Now “Radical”

Aug 15, 2017 4 min read

Commentary By

Tiffany Bates @TiffanyHBates

Former Legal Policy Analyst at The Heritage Foundation

Hans A. von Spakovsky @HvonSpakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

The Supreme Court should reverse the Sixth Circuit and let states do the job they are tasked with doing: maintaining and ensuring the integrity of the American election process. iStock

Can a state ensure that its voter rolls aren’t filled with non-residents and dead people who shouldn’t be registered to vote? The Left doesn’t think so, but the U.S. Department of Justice answered yes recently when it filed an amicus brief in Husted v. A. Philip Randolph Institute. The Supreme Court will hear arguments in the case when it starts its new term this fall.

The Department of Justice is supporting Ohio in its attempts to keep its voter rolls accurate and up to date. Federal law requires states to do so under the National Voter Registration Act (NVRA). Over at the Washington Post, Sari Horwitz highlights the supposedly “radical change in philosophy from the previous Justice Department.” But look at the history of federal enforcement of the NVRA: It was under Obama that the Justice Department changed its position on the law, something you would never know from reading the Post story.

This case involves Ohio’s unremarkable process for removing ineligible voters from the rolls. To individuals who haven’t voted in two years, the state will send a confirmation notice, asking if they still live at their registered address. If the individual doesn’t return the notice and doesn’t vote for an additional four years, Ohio will remove them from the rolls.

Seems pretty sensible and straightforward. But in a sad example of statutory misinterpretation (including using a canon of construction that at least one Supreme Court justice has called “made up”), the Sixth Circuit Court of Appeals struck down Ohio’s process, claiming that it violated the NVRA. The court also managed to ignore the DOJ’s long history of enforcing the law.

To point out this major flaw, a group of lawyers (including Hans von Spakovsky, one of the authors of this article) who enforced the NVRA when they were with the Civil Rights Division of the Justice Department filed an amicus brief urging the Supreme Court to reverse the Sixth Circuit’s decision because it “directly contradicts the history of federal enforcement.” They wrote that the DOJ, which is charged with enforcing the NVRA, had “long interpreted the statute oppositely, and they helped the Justice Department negotiate settlements that would be illegal under the Sixth Circuit’s view.”

As DOJ lawyers, they negotiated settlements in Arkansas, Indiana, and Pennsylvania that “required a notice procedure indistinguishable” from Ohio’s process. For example, in 2007, the DOJ sued Philadelphia when it failed to put in place a process that made a “reasonable effort to remove the names of ineligible voters.” As part of a settlement agreement, Philadelphia agreed to “send a forwardable confirmation notice to any registered elector who has not voted or appeared to vote during any election” and to remove them “after the second federal general election following the date of the confirmation notice.”

That’s exactly the same procedure Ohio follows. Yet under the Sixth Circuit’s ill-conceived theory, the federal government forced Philadelphia and other localities to break federal law. The Philadelphia settlement was specifically mentioned in the Justice Department’s brief, on page 14. So was the fact that prior to the Obama administration, the DOJ had never “taken enforcement action against Ohio or the other States” that have the same type of procedures being challenged in this case.

Vanita Gupta, head of the Leadership Conference on Civil and Human Rights, said that the DOJ’s position “signals the broader agenda of the administration to roll back voter rights in this country.” But we have yet to learn how anyone’s rights are rolled back through clean registration rolls that include only eligible voters. In fact, it’s clean voter rolls that help make elections fair and help ensure their integrity. (Gupta, by the way, the former head of the DOJ’s Civil Rights Division during the Obama administration, was never confirmed and held her position illegally, in violation of the Federal Vacancies Reform Act.)

How important is all of this? In a new report, the Government Accountability Institute obtained and compared voter-history and registration data from 21 states, representing 17 percent of the possible state-to-state comparison combinations. The comparison included names, birth dates, and Social Security numbers. It found 8,471 “highly likely” duplicate voters in the 2016 election — individuals who illegally voted in more than one state.

GAI estimated that using its very conservative matching method in all 50 states would show a minimum of 45,000 duplicate voters. GAI also identified more than 15,000 voters registered at prohibited addresses, including “post office boxes, UPS stores, federal post offices, and public buildings.” The registered home addresses of other voters were gas stations, vacant lots, abandoned mill buildings, basketball courts, parks, warehouses, and office buildings. This report did not account for other types of fraud such as absentee-ballot fraud or voting by non-citizens and felons.

To put this number of fraudulent votes in perspective: Hillary Clinton won New Hampshire by fewer than 3,000 votes out of more than 700,000 cast. Duplicate voters alone have the power to swing state results and, in turn, elections.

“Accurate voter rolls are vital in the effort to combat voter fraud,” the former DOJ lawyers write in their amicus brief. In its own brief, the Justice Department, asserts the same interpretation of that nearly all prior administrations had made of the applicable law since its inception. It was the Obama administration that tried to stake out a new “radical” position supposedly unsupported by the text or history of the NVRA.

The Supreme Court should reverse the Sixth Circuit and let states do the job they are tasked with doing: maintaining and ensuring the integrity of the American election process.

This piece originally appeared in National Review