Testimony before Committee on House Administration
United States House of Representatives
April 27, 2023
Hans A. von Spakovsky
Senior Legal Fellow and Manager, Election Law Reform Initiative
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation
My name is Hans A. von Spakovsky. I appreciate the invitation to be here today.
I am a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Prior to joining The Heritage Foundation, I was a Commissioner on the U.S. Federal Election Commission for two years (2006-2007), where I was one of six commissioners responsible for enforcing the Federal Election Campaign Act.
Before that, I spent four years at the U.S. Department of Justice as a career civil service lawyer in the Civil Rights Division, where I received three Meritorious Service Awards (2003, 2004, and 2005). I began my tenure at the Justice Department as a trial attorney in 2001 and was promoted to be Counsel to the Assistant Attorney General for Civil Rights (2002-2005), where I helped coordinate the enforcement of federal voting rights laws, including the Voting Rights Act, the National Voter Registration Act (“NVRA”), the Help America Vote Act (“HAVA”), and the Uniformed and Overseas Citizens Absentee Voting Act.
One point that everyone should agree on, and that the public certainly believes, is that we ought to have both access and security in our elections. Contrary to what some mistakenly claim, it is possible to provide both access and security to fully protect the voting process – one does not cancel out the other. Furthermore, political speech and political activity are protected by the First Amendment, and neither the federal government nor state governments should attempt to restrict such speech or such activity even if it is not popular or voices sentiments that offend some and are not in accord with the political orthodoxy of the moment.
Maintaining Accurate Voter Registration Rolls
In addition to state laws that require state election officials to maintain accurate voter registration rolls, federal law imposes the same requirement for federal elections. The HAVA contains detailed “provisions to ensure that voter registration records in the State are accurate and are updated regularly.” Similarly, the NVRA requires states to “protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for election for federal office” by removing “the names of ineligible voters from the official lists of eligible voters.”
As the HAVA directs, such maintenance can be conducted by comparing and coordinating the statewide voter registration list with other “agency databases within the State” such as department of motor vehicles drivers’ license records. Federal databases are also important, which is why the HAVA directs states, for example, to coordinate with the Social Security Administration in order to verify the accuracy of registration information provided by applicants.
There are many other tools and databases available, however, that states should also use to ensure the accuracy of their voter rolls. In 2021, the Heritage Foundation published a Fact Sheet—attached as Exhibit 1—that outlined the best practices for states to follow in order to verify and maintain the accuracy of their voter registration lists.
As this publication explains, states should conduct frequent comparisons between their statewide voter list and the databases maintained by their departments of motor vehicles, vital records, corrections, and public welfare and assistance to find information relevant to registration such as address changes, deaths, citizenship status, and other factors affecting eligibility to vote. States should also be using the U.S. Postal Service’s “National Change of Address” system on a regular basis to find voters who have moved to ensure that they are not registered to vote in more than one state.
States should also be using their county tax records to ensure that, as required by state law, individuals are registering to vote at an actual residence, and not at locations where they do not really live, such as industrial or commercial properties. States should be utilizing commercial databases as well such as credit agency records to verify registration information and find other pertinent information such as address changes by registered voters.
It should be noted that no state automatically removes a registered voter based solely on information received through these types of database comparisons. Rather, election officials use that information to conduct a follow-up individual investigation to see whether that voter is no longer eligible to vote in their particular state or jurisdiction. That is exactly the way it should be.
Moreover, getting up-to-date information on address changes by registered voters from other state, federal, and commercial databases in our highly mobile society can help ensure that voters are registered in the correct location and will not lose their ability to vote because of an old registration that they failed to update or a change in eligibility that would cause them to violate the law if they remain registered. Moreover, on those rare occasions that a voter is removed in error, that individual will not lose his or her ability to vote. The HAVA mandates that states provide a provisional ballot to any voter who “declares that such individual is a registered voter in the jurisdiction” and “eligible to vote,” even if that individual’s name is not on the registration list. Election officials are also required to investigate the circumstances, and if they mistakenly removed the registered voter from the rolls, they must count that vote. This is a federal failsafe provision that works very effectively.
The criteria outlined in the Heritage Fact Sheet for maintaining accurate voter rolls were incorporated into the Election Integrity Scorecard that the Foundation launched in 2021. The Scorecard compares these best practice recommendations to the election laws and regulations of every state and the District of Columbia. The Scorecard not only reviews the voter roll maintenance procedures of states and the District, but also reviews many other factors such as their management of absentee ballots and the transparency of the entire voter registration and election process to outside observers, which is an essential element of fair and honest elections.
A perfect score under the best practices recommended by the Heritage Foundation in the Scorecard is 100. No state in the country has achieved that score. As of the end of March 2023, the top ten states are:
- Tennessee (84)
- Georgia (83)
- Alabama (82) and Missouri (82)
- South Carolina (79)
- Arkansas (78), Florida (78), and Louisiana (78)
- Ohio (76) and Texas (76)
And as of that date, the ten states with the least effective rules for protecting the sanctity of voters’ ballots are:
- Nebraska (47)
- New York (46)
- Massachusetts (45)
- New Jersey (42) and Washington (42)
- Vermont (39)
- Oregon (38)
- California (30)
- Nevada (28)
- Hawaii (26).
An important caveat to keep in mind, as the introduction to the Scorecard explains, is that “even the best laws are not worth much if responsible officials do not enforce them rigorously. It is up to the citizens of each state to make sure that their elected and appointed public officials do just that.” That is the reason that the Scorecard includes a rating on whether “Residents of the state have standing to sue election officials who do not abide by state election laws” in the same way that citizens are able to sue under the Voting Rights Act to stop discriminatory voting practices.
Additionally, while these are the current rankings and scores for these states, the Scorecard is updated monthly as state legislatures amend their relevant laws or implement new requirements and as chief election officials or state election boards amend or issue new election administration regulations and procedures.
Federal Cooperation and Alien Voting
Under both state and federal laws, the maintenance of voter registration records is almost entirely a state responsibility. It is, however, an area where federal cooperation is required. That includes giving state election officials access to Social Security Administration records as required by the HAVA, as well as other relevant federal databases such as the alien records contained in the U.S. Department of Homeland Security’s databases.
Since citizenship is a requirement for voting in all federal and state elections (with the exception of local elections in some states), states should be given unfettered access to these DHS databases, something that DHS has made very difficult according to numerous state election officials with whom I have discussed this particular issue.
The NVRA currently requires all U.S. attorneys to notify the chief state election official of the state of a federal criminal defendant’s residence when that defendant is convicted in federal court. The U.S. attorney is directed to provide whatever information state officials need “for determining the effect that a conviction may have on an offender’s qualification to vote.” The NVRA should be amended to require the clerks of all federal district courts and all U.S. attorneys in all federal districts to provide relevant information about voter ineligibility gained from jury selection to state election officials.
Federal courts obtain their lists of potential jurors from state voter registration rolls and, in some states, from the department of motor vehicles. Potential jurors who have been summoned for federal jury service must fill out a “jury qualification questionnaire” under oath. That includes providing current address information and certifying that the individual is a U.S. citizen and has “never been convicted of a felony (unless civil rights have been legally restored).” Such information is potentially relevant to a registered voter’s eligibility, and all federal courts should be required to transmit that information back to state election officials who maintain state voter rolls.
Congress should further amend the NVRA, which has been misinterpreted by courts, to make it clear that the NVRA does not prohibit states from requiring voting registration applicants to provide proof that they are U.S. citizens. The federal government itself requires such proof in order to be employed in this country, and the right to work and earn a living to support one’s family is just as important as the right to vote.
As the U.S. Citizenship and Immigration Services explains in the use of the federal I-9, “Employment Eligibility Verification” form, all potential employees “must attest to their employment authorization” and present “acceptable documents as evidence of identity and employment authorization” as either a citizen or a legally admitted alien with a work authorization. Barring states from requiring the same proof as to citizenship when it comes to voting makes no sense and deprives states of information essential to determining voter eligibility.
The move by some local jurisdictions, such as the District of Columbia and New York City, to allow aliens to vote in local elections is fundamentally unfair to citizens, effectively disenfranchising them by diluting their votes, something we passed the Voting Rights Act in 1965 to prevent. Moreover, by allowing any adult who has resided in the nation’s capital for 30 days to vote, there is nothing to prevent illegal aliens or employees of foreign embassies from voting in local elections, including diplomats from foreign governments that are openly hostile to the United States, as well as reporters and journalists at propaganda organs of such governments such as Pravda and The People’s Daily. Such a distortion of our democratic process is a recipe for foreign interference in our elections—and our governance—and should not be allowed.
Voter Identification Requirements
One of the important best practices contained in the Heritage Scorecard is requiring a photo identification (“ID”) for both in-person and absentee voting, including providing a free photo ID to any eligible voter who cannot afford one, a benefit provided by every state that has implemented a voter ID requirement. While a majority of states has implemented some form of voter ID requirement to increase the security of the voting process, the rest should follow suit.
Congress itself imposed a voter ID requirement in 2002 in the HAVA. That requirement mandates that all individuals registering to vote by mail for the first time in a federal election in a particular state provide “a current and valid photo identification” or “a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.” Congress made it clear, though, that this ID requirement is a “minimum” requirement and “nothing in this title shall be construed to prevent a State from establishing…requirements that are more strict.”
Turnout data and other evidence show very clearly that claims that voter ID requirements prevent eligible individuals from voting are simply untrue. As outlined in a recently published Heritage study—attached as Exhibit 2—the latest data from the 2022 election demonstrate that commonsense reforms of the sort passed by states such as Georgia, Florida, and Texas, to, among other things, extend their voter ID requirements for in-person voting to absentee ballots do not “suppress” votes. This is just the most recent evidence that reinforces other long-term analyses of this issue. As summarized succinctly in a 2019 study, based on turnout data from all 50 states from 2008 to 2018, by the National Bureau of Economic Research, voter ID “laws have no significant negative effect on registration or turnout, overall or for any subgroup defined by age, gender, race, or party affiliation.”
Although harshly criticized for implementing its voter ID requirement, Georgia had turnout of its voting eligible population (“VEP”) in 2022 that was six percentage points above the national turnout rate (54.1 percent vs. 46.6 percent), according to the U.S. Election Project. In fact, Georgia had a higher VEP turnout than Delaware, New York, and California, the home states of Pres. Joe Biden, Sen. Chuck Schumer (D), and Rep. Nancy Pelosi (D), all of whom unfairly criticized Georgia’s election reforms including its ID requirement.
Another recent study published in the Proceedings of the National Academy of Sciences concluded that voter ID laws today do not provide any political party’s candidates an advantage in winning elections, as some opponents have mistakenly claimed. Moreover, according to the study, such ID requirements seem to increase turnout since they “motivate and mobilize supporters of both parties.”
Voter ID requirements are also immensely popular with the public. A 2021 Rasmussen poll shows that 74 percent of whites, 69 percent of blacks, and 82 percent of other minorities say that voters “should be required to show photo identification before being allowed to vote.” And Gallup found similar results in 2022 with 80 percent of whites and 74 percent of “people of color” supporting voter ID.
Voter ID is a basic security measure no different than similar requirements for entering federal buildings, traveling on airplanes, cashing a check, buying alcohol or cigarettes, applying for many types of government benefits, obtaining a marriage license, buying certain prescription drugs, being treated by a doctor or hospital, or being hired by an employer.
Every state should implement voter ID for both in-person and absentee voting.
Some states are finally beginning to implement another requirement that should be a standard practice in all states: election audits. In-depth financial and accounting audits are a standard practice (and legal requirement) for publicly traded companies and most privately held businesses, for nonprofits from schools to churches to other charities, and for financial institutions.
Yet audits of election agencies and election procedures and systems following public elections are almost nonexistent except for very limited audits in limited instances. The very concept of comprehensive audits has been met with unfair criticism and unjustified opposition by some election officials. But for the same reasons that auditing is ubiquitous in the business world at large, audits should also be a customary requirement in the election world.
In a report last year, The Heritage Foundation published a Legal Memorandum—attached as Exhibit 3—outlining the best practices and standards for conducting comprehensive election audits. Such an audit should confirm that:
- The election was administered honestly, accurately, and fairly, and in full compliance with all applicable laws and regulations;
- Only eligible U.S. citizens participated in the election, and only individuals duly registered under state law were allowed to vote;
- No fraud, errors, or omissions occurred and, if they did occur, they have been identified and steps have been taken to rectify them;
- All election and voting equipment and computers functioned properly and as designed to correctly tabulate and report the results without any unauthorized interference or tampering; and
- All results have been verified and reconciled, i.e., the number of ballots cast match the number of voters who participated in the election, all ballots are accounted for, and reports from election officials reflect the corrected numbers.
Implementing such an auditing requirement would not only help guarantee the honesty and effectiveness of the election process, but it would help assure the public, candidates, political parties, and the media that they can be confident in the security and integrity of our elections.
As I said at the beginning of this testimony, we should provide both access and security in the election process. We want to ensure that every eligible citizen is able to vote and that those votes are not diluted, voided, or stolen due to errors, mistakes, fraud, or other problems in the election system. Commonsense measures like voter ID, election audits, clean voter rolls, secure absentee ballot management, and transparency in the registration, voting, and tabulating process will not only provide us with fair and honest elections, but also guarantee public confidence in their outcomes.
That is essential in convincing the public that they can and should turn out to exercise the franchise and actively and meaningfully participate in the governance of our nation.
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