How Trump’s DOJ will try to purge voter rolls.

How Trump’s DOJ Will Try to Purge Voter Rolls, and What States Can Do to Fight Back

How Trump’s DOJ Will Try to Purge Voter Rolls, and What States Can Do to Fight Back

The law, lawyers, and the court.
July 11 2017 4:04 PM

How Trump’s DOJ Will Try to Purge Voter Rolls

And what states can do to fight back.

38143701carn_20010628_26796.jpg
Jean Carnahan, widow of the late Senate candidate Mel Carnahan, votes along with her daughter Robin, future Missouri secretary of state, in Rolla, Missouri, on Nov. 7, 2000.

Bill Greenblatt/Liaison via Getty Images

On June 28, Donald Trump’s Department of Justice sent letters to state election officials asking them to demonstrate their commitment to maintaining accurate voter rolls. The DOJ noted that, according to federal law, states are responsible for regularly pruning their lists of registered voters to remove people who’ve died, moved away, or become ineligible to vote for other reasons.

Leon Neyfakh Leon Neyfakh

Leon Neyfakh is a Slate staff writer.

Taken in isolation, the DOJ’s request might seem innocuous—who doesn’t want clean, well-maintained voter rolls? Against the backdrop of the president’s obsession with voter fraud, however, these letters look like something more ominous: a first step toward bringing back a George W. Bush–era strategy of forcing states to aggressively purge their voter rolls under threat of litigation. According to voting rights advocates, such purges frequently result in large numbers of eligible voters being removed from the rolls by mistake.

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A campaign by Trump’s Department of Justice to pressure states into conducting such purges would be waged using the National Voter Registration Act, or NVRA, a law passed in 1993 in hopes of making it easier for low-income people and minorities to become registered voters. The law, which called for agencies such as DMVs to offer opportunities for voter registration, had previously been vetoed by George H.W. Bush, who called it an “open invitation to fraud and corruption.” More than a decade later, government attorneys working for his son’s administration found a creative use for the NVRA, focusing on the one part of the law that pertains to taking names off the rolls as opposed to getting more of them on.

Section 8 of the NVRA mandates that states “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists.” As David Becker, a former senior attorney in the voting section at DOJ who is now the executive director of the Center for Election Innovation and Research, noted in a recent op-ed, it’s telling that the letters sent out by the DOJ last month asked states about their compliance with only this part of the NVRA. “If the DOJ is going to enforce the NVRA, as it should, it would seem appropriate to enforce ALL of the NVRA, and not just select sections,” Becker wrote.

Under the Bush administration, the DOJ accused at least 14 states of not complying with the NVRA’s voter list maintenance provisions. The department ultimately filed civil complaints against four states (and one city) on this basis. The first to be targeted was Missouri. According to the November 2005 complaint submitted to the court by the DOJ’s Civil Rights Division, the state was home to at least 29 counties in which the number of registered voters exceeded the entire voting-age population.

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The court battle over Missouri’s voter rolls dragged on for more than three years before the Obama administration took over and dropped the suit. Nearly a decade later, the case offers a glimpse of what may lie ahead as the Trump team ramps up its efforts to convince Americans that widespread voter fraud exists and that bloated voter rolls are evidence of it.

The story of how Missouri came to be in the DOJ’s crosshairs begins on the night of the 2000 election, when the future attorney general of the United States, John Ashcroft, lost his Senate seat to Mel Carnahan, a Democrat who had died in a plane crash three weeks earlier. Because Carnahan’s death came so close to Election Day, his name could not be taken off the ballot; after he won, his widow, Jean Carnahan, was appointed to fill the Senate seat in his place. For Ashcroft, it was a historically humiliating defeat. But while the candidate himself accepted that he had lost, some of his fellow Missouri Republicans were unwilling to give up so easily. Citing polling place chaos in St. Louis on election night, which had led voting hours in the city to be extended via emergency court order, these officials asserted that Ashcroft had been the victim of widespread voter fraud.

Sen. Christopher “Kit” Bond reportedly gave a fiery speech after the results came in during which he pounded on a podium and screamed, “This is an outrage!” Later, in Bond would speak frequently of a dog named Ritzy Mekler who had apparently been registered to vote in St. Louis as a practical joke. In July 2001, after public hearings in which Rep. Todd “Legitimate Rape” Akin spoke out about ineligible voters in St. Louis being granted ballots by crooked judges, Missouri’s then–Secretary of State Matt Blunt issued a report alleging that votes had been cast in St. Louis County by 14 people who were listed as dead and 79 whose addresses corresponded to vacant lots.

“[C]ontroversy surrounding the vote in St. Louis thrust our state into the national spotlight, undermined public trust throughout the state, and presented troubling questions about the soundness of Missouri’s voting system,” Blunt wrote.

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Though the allegations Blunt made in his report were overblownaccording to Mother Jones’ Kevin Drum, “no evidence ever surfaced of intentional fraud, only of confusion and bad management”—it nevertheless proved to be a consequential document, attracting media coverage and lending legitimacy to the idea that voter fraud was a common and insidious problem. In this way, the Republican backlash to Ashcroft’s defeat in 2000 helped lay the groundwork for a prolonged and multifaceted effort to undermine public confidence in Missouri’s electoral system.

That effort didn’t produce results right away. On the contrary, the problems that plagued St. Louis on election night in 2000 first led to a policy victory for progressives, after career civil rights attorneys at DOJ threatened to sue the St. Louis Board of Election Commissioners in 2002 on the grounds that the city had been too aggressive in removing names from its rolls. The action resulted in a settlement agreement known as a consent decree, with St. Louis election officials acknowledging that roughly 50,000 people had been improperly removed from lists of registered voters in the years leading up to the 2000 election and pledging to make the system work better in the future.

Crucially, the St. Louis complaint was filed in the early days of the Bush administration—before voter fraud activists like Hans von Spakovsky, J. Christian Adams, and Bradley Schlozman became influential figures within the DOJ’s Civil Rights Division and started to use Section 8 of the NVRA to advance their own goals.

It’s unclear why they targeted Missouri first. Some speculate it was partly a function of vengeance, pointing out that one of the defendants named in the DOJ’s complaint was Missouri’s recently elected secretary of state, Robin Carnahan, the daughter of the Democrat who had posthumously defeated Ashcroft. Others say there was a more strategic political calculation at work: In the run-up to the 2006 midterms, Missouri was seen as a key battleground state, and its closely watched Senate race, between Republican incumbent Jim Talent and Democratic challenger Claire McCaskill, was expected to be close. (McCaskill ended up winning by two points.) “I think the issue was that the Missouri suburbs, which were once reliably Republican, were turning Democratic,” said Lorraine Minnite, a political scientist at Rutgers University and the author of the book The Myth of Voter Fraud. “Towns like Ferguson were becoming more African American in population.”

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Embedded in this interpretation of Republican strategy is a belief that voter roll purges, when done aggressively and without enough precision, cause disproportionate harm to minorities and low-income voters—that is, people who tend to vote for Democratic candidates. The data on this aren’t decisive, but voting rights advocates point out that poor people tend to participate less consistently in elections and are therefore more likely to be flagged as “inactive voters.” They’re also more likely to have unstable housing situations, which makes it harder for government officials to reach them by mail when trying to confirm where they live. (In AlterNet, Steven Rosenfeld cited a 1991 Yale Law Review article that “found postal delivery rates for federal tax and census mailings was 15 percent lower in African-American than in white communities.”)

Voter fraud activists reject the notion that their efforts are motivated by a desire to specifically disenfranchise minorities, poor people, or Democrats. To hear them tell it, they just want the damn rolls to be accurate. Regardless, it’s clear the goal of the “bloated voter rolls” movement is bigger than just picking off individual voters who are unlikely to support Republicans. It’s about convincing the American public that voter fraud is possible, even inevitable.

The problem for progressives is that, on the surface, it sounds like a compelling argument: If the voter rolls really are full of dead people, that means those names are just sitting there waiting to be hijacked by bad actors. What if someone shows up to vote multiple times, providing names of ineligible or even nonexistent people with each pull of the lever? What if someone who is registered in two states travels to both on Election Day so he can vote twice?

In its complaint against Missouri, the DOJ didn’t have to produce any evidence that such activity was actually taking place—it just had to demonstrate that it could and that Missouri officials weren’t doing enough to protect against the possibility. This was lucky for the government, because one study after another has shown that voter fraud of any kind is vanishingly rare and that cases of fraudsters impersonating other people in the voting booth are almost nonexistent. Loyola Law School professor Justin Levitt identified 31 credible cases of alleged voter fraud between 2010 and 2014, a period during which more than 1 billion votes were cast.

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Even if you believe fraud obsessives are acting in bad faith, it should theoretically be possible to clean up the rolls in such a way that eligible voters don’t get purged. According to voting rights advocates, the devil is in the details, and done poorly, efforts to “clean” voter rolls lead to disenfranchisement. For example, a New York Times investigation published in 2008 found that 18,000 people were dropped from Louisiana’s rolls over the course of five weeks. A spokesman for the Louisiana secretary of state told the Times “that about half of the numbers of the voters removed from the rolls were people who moved within the state or who died” but the other 11,000 were “removed by local officials for other reasons that were not clear.”

Voter purges conducted under pressure are particularly vulnerable to error, according to Myrna Pérez, who works on voting rights and election law at the Brennan Center for Justice and wrote a 2008 report on voter purges. “ ‘Do this or else’ is not a good way to encourage thoughtful measures,” Pérez said.

Brenda Wright, a lawyer at the left-leaning advocacy organization Demos, emphasizes that progressives want voter rolls to be accurate. What her group opposes, she said, are purging practices that are known to sweep up eligible voters. She points to the example of Ohio, where people are flagged for possible removal from the voter rolls simply because they haven’t voted during a two-year period. Demos is currently locked in litigation with Ohio over the state’s approach to purging; the case is set to go before the Supreme Court next year.

“It’s important to understand the choice isn’t between no list maintenance and totally indiscriminate voter purges,” Wright said. “The choice is between the surgical, reasonable, accurate process that the NVRA contemplates … and what certain states do that goes too far.”

In defending Missouri against the federal government back in 2005, lawyers argued the state’s election officials were going just far enough. All the law required was that states make a “reasonable” effort to comply with the NVRA, they wrote in a reply to the government’s complaint, and Missouri had done so. What’s more, the lawyers went on, state officials can’t be held responsible for the conduct of local election officials anyway.

It was a spirited rebuttal, especially in comparison with how other jurisdictions reacted when the Justice Department threatened to sue them under Section 8 of the NVRA. Indiana, Maine, New Jersey, and the city of Philadelphia all settled with the DOJ and entered into agreements in which they committed to making changes. In 2006, the Fort Wayne Journal Gazette reported on the Indiana settlement:

Everyone declared victory Friday as Republicans and Democrats ended a battle over the accuracy of the state’s voter rolls and signed a federal consent decree to avoid being sued by the U.S. Department of Justice. … The plan was prompted by disturbing statistics uncovered when the state’s first fully integrated statewide voter file went online in January. That system has identified 290,522 potential duplicates and 28,845 potential dead people. At least 19 Indiana counties have more registrants listed in the system than 100 percent of the total citizen voting-age population for the county.

The consent decree stated that the Indiana Election Division would atone for its sins by sending a mailer to every registered voter in the state. Any mailer that came back undeliverable would trigger a second “confirmation” mailer sent to the same address. If that also came back undeliverable, the person at that address would be placed on an “inactive list,” at which point the person could be struck from Indiana’s voter rolls if he or she did not vote in any of the three subsequent elections.

About six weeks after the consent decree was entered, a local man wrote a letter to the editor of the Journal Gazette saying that he and his neighbors had all received the second mailing but not the first. “I would take the secretary of state’s report on the number of ‘inactive voter registrations’ with a grain of salt,” he said.

The Missouri suit had been in front of District Court Judge Nanette Laughrey for about a year and a half when she ruled in Missouri’s favor in April 2007. In her order, Laughrey held that Missouri was indeed making a reasonable effort to comply with the NVRA. Among the policies the judge gave Missouri credit for:

  • maintaining a centralized voter database that automatically updated with death reports from Missouri’s Bureau of Vital Statistics
  • providing training on list maintenance to local election officials and surveying them to make sure they were complying
  • contacting every local election official who had reported there being more registered voters in their jurisdiction than voting-age adults

Laughrey made three more significant arguments. First, she wrote that Missouri was right in saying that state officials couldn’t be held responsible for the failure of local election officials to comply with the NVRA if the state officials themselves had made a reasonable effort to comply. Second, she noted that it was “telling” that the government hadn’t been able to point to a single example of voter fraud that had taken place in Missouri. Third, she pointed out that one reason some counties may seem to have more registered voters than voting-age adults is that the NVRA requires states to wait a certain amount of time before they can strike an “inactive voter” from their rolls. Given this lag time, she noted, it was natural that the total number of registered voters—which includes “inactive” voters—would seem inflated.

The DOJ appealed the decision, sending the case to the 8th U.S. Circuit Court of Appeals, where a panel of judges disagreed with Laughrey about the degree to which state bureaucrats were answerable under the NVRA for the noncompliance of local election officials. In July 2008, the 8th Circuit remanded the case back to the district court, noting that while Laughrey might have been correct in her determination that Missouri was in compliance with the NVRA, she needed to go back and evaluate the extent to which noncompliance at the local level might affect her calculus.

A few months after the circuit court’s ruling, Barack Obama’s administration put a swift end to the practice of using Section 8 of the NVRA to compel states to conduct voter purges. In March 2009, the Obama DOJ dropped the case, provoking Hans von Spakovsky—by then no longer working in government—to speculate in National Review that Missouri had been given a pass because Robin Carnahan, the secretary of state, was running for the Senate. (As if to put a bow on things, Carnahan’s opponent in that race, and the eventual victor, was Roy Blunt, the father of the Missouri official who had authored that blistering report on voter fraud in St. Louis after the 2000 election.)

It’s tempting to say that Missouri’s success in fighting off the DOJ provides a road map for officials who might find themselves as defendants in a new wave of vote fraud litigation. The reality is that things could have gone very differently for Missouri if the case had gone before a different district judge, or if the Obama administration hadn’t made the decision to stop prosecuting states under Section 8 of the NVRA.

The only truly generalizable takeaway here seems to be that surrender is not the only option—that as long as states have policies in place that show they’re trying to keep their voter rolls updated and accurate, they have a shot at beating the federal government in court.

Missouri’s former secretary of state, Robin Carnahan, did not respond to interview requests, but I did speak to her then–chief of staff, Mindy Mazur. I asked Mazur what lessons she thinks future Section 8 targets should draw from Missouri’s experience.

“Don’t let the federal government bully you into doing something that hurts voters,” she replied. “Stand up for voters and their rights and defend them in court if necessary.”

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