The Trump Administration wants to know a whole lot about how states keep track of their voting lists. With most attention focused on President Trump’s commission on supposed voter fraud, which is gearing up for hearings (and also requesting extraordinarily detailed and individualized data on voters), the Department of Justice quietly dispatched a series of letters to states as well. The missives, demanding to know state procedures for maintaining voter registration lists, could be the first step in a move to force them to conduct voter purges: large-scale removals of names from the voter rolls. The programs could open up a new front in an ongoing war on voting. But, with apologies to fans of dystopian action horror films, we’ve seen this movie before, and the sequel won’t be much different.
Back in in the mid-2000’s, the political leadership of the Bush Department of Justice (one of whom was just added to Trump’s fraud commission) launched a massive effort to find and prosecute election crimes. After years of investigation and millions of dollars spent, the probe turned up no evidence of widespread voter fraud. Yet, in 2006, the DOJ still tried to pressure states to purge their voter rolls based on flimsy legal claims. It was only the second time DOJ had used its enforcement powers under federal voting laws — designed primarily to protect voters against disenfranchisement — to force states to instead put eligible voters at risk.
They failed, but not without inflicting serious collateral damage. During the leadup to a contested midterm Senate election, DOJ political appointees pressured U.S. Attorney Todd Graves to sue Missouri for not purging its voter rolls — even though only four years earlier, in a different settlement with DOJ, St. Louis had acknowledged it purged 50,000 names form the voter rolls improperly. After Graves refused to file the suit, he was fired. His replacement then brought the suit — and lost. The Court found DOJ had taken inconsistent positions on federal law requirements and, unsurprisingly, had turned up no evidence of voter fraud that would necessitate voter purges.
Fast forward ten years, and things are playing out much the same way, but on a compressed time table. The same day Kris Kobach, the Vice Chair of President Trump’s “Election Integrity” Commission, announced the panel would be asking for state voter registration information, the DOJ sent a letter to some states demanding a laundry list of information about how the states maintain their lists of eligible voters. The correspondence, purportedly part of an effort to enforce federal law, could be a precursor to litigation seeking to impose a dangerous new regimen of voter removal programs.
Why is this a problem? It comes down to how states keep track of their voters, and what can go wrong when they do it improperly. In almost every state, voters must get on a registration list in order to vote. States routinely conduct voter list maintenance to remove the names of voters who move, die, or otherwise become ineligible. Done properly, this is appropriate — and necessary. Everyone is better off when people who have died or moved out of state do not keep popping up on the rolls.
But, when states initiate large-scale removals without the appropriate protections, eligible voters could be kicked off the rolls and disenfranchised on Election Day. Unfortunately, we have lots of examples of bad purges. Most notorious were those in Florida in 2000, when eligible voters were confused with ineligible individuals. And mistakes are more common than one might think. For example, states might be looking at unreliable lists when they are trying to identify ineligible people, which Virginia did in 2013. These errors can be minimized as long as voter list maintenance is done responsibly and in compliance with federal law. When undertaken as a hasty response to legal threats, however, there is a greater chance that something will go wrong.
Regardless of what the Department of Justice, Trump’s fraud commission, or anyone else says, election officials should always be careful when cleaning their voter lists. Being careful would include not removing people right before an election, giving voters targeted for removal notice before they are removed, being very sure that two different people with similar names are not confused for each other, and ensuring that voters have an easy way to get back on the rolls on Election Day if they are mistakenly purged.
With the Trump Administration taking aim at state voter registration procedures, it is pivotal that state and local election officials follow all appropriate and legally mandated procedures before taking voters off their lists. It is particularly important to strike a balance in favor of protecting against disenfranchisement — because there is no evidence of widespread illegal voting, but plenty of examples of eligible voters being blocked. Regardless of the rhetoric, massive voter fraud is pure fiction. The threats to voters, however, are very real. It is on state and local election officials to give voters the protections they deserve.