The historic African American turnout that propelled Democrat Doug Jones to victory in Alabama’s Senate special election overcame decades of voter suppression in that state and around the country.
But GOP-authored voter restrictions continue to pile up, and increasingly Republicans are branching beyond such familiar tools as voter ID rules to an even more aggressive suppression tactic: Voter purges that wipe voters from the rolls altogether. Done in the name of combating fraud, such purges have stripped hundreds of thousands of voters from the rolls in Indiana, Ohio, Michigan, New York, and elsewhere, prompting a rash of lawsuits by voting rights advocates who say eligible voters are being disenfranchised.
In January, the Supreme Court will hear oral arguments in a case that challenges Ohio’s practice of initiating the voter purge process for voters who have simply failed to show up to vote over a single election cycle. The case, Husted v. A. Philip Randolph Institute, hinges on whether Ohio’s law violates the 1993 National Voter Registration Act, which bars the removal of a voter from the rolls “by reason of the person’s failure to vote.”
“I am deeply concerned that if the Supreme Court sides with Ohio in this case, we will see states taking a copy-cat approach, and taking steps to gut the NVRA and gut the voter rolls across the country,” says Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights Under Law. In October, a lawsuit initiated by the Lawyers’ Committee forced the New York City Board of Elections to admit that it had broken state and federal laws by removing more than 200,000 voters from the city rolls before last year’s presidential primary.
Voter purges are nothing new, but the practice is drawing fresh notice for several reasons. The Ohio case asks the Supreme Court for the first time to closely scrutinize the voter removal language in the NVRA, which election lawyers say is not crystal clear. Kicking voters off the rolls in the name of combating fraud is also emerging as a key Trump Administration priority.
Kansas Secretary of State Kris Kobach, the de facto head of the president’s election “integrity” commission, sought to require proof of citizenship for voter registration in his home state, and may be trying to replicate that effort across the nation. The commission has demanded exhaustive voter data from the states, triggering several lawsuits, and possibly signaling a national effort to match state lists with federal databases.
On the same day as the commission’s June data request, the Justice Department demanded details from 44 states on how they are complying with the NVRA, prompting speculation that the administration plans to fish for an opening to sue states with messy voter rolls. The Justice Department has also reversed course in the Ohio case before the Supreme Court. Under President Obama, Justice sided with civil rights advocates challenging the Ohio law. Trump’s Justice Department is now backing Ohio, arguing that the state’s voter law is needed to keep the rolls accurate and promote the integrity of elections.
This reversal is highly unusual, says Justin Levitt, a Loyola Law School professor who served in the department’s Civil Rights Division, which at the time opposed the Ohio law. The NVRA permits states to initiate removing voters from the rolls if election officials have evidence that the voter has moved, says Levitt. But the Ohio law allows the state to initiate action on the basis of non-voting alone, raising the “significant concern,” he argues, “that states will be free to toss people off the rolls without any evidence that they have become ineligible.”
The nation’s voter lists are notoriously error-riddled, and Levitt acknowledges that maintaining accurate rolls is in everyone’s interests. But cleanup efforts must be careful and precise, says Levitt, who likened the process to surgery. The multi-state “Crosscheck” program championed by Kobach, for example, matches up state voter lists without adequate controls, and misidentifies large numbers of voters as registered in more than one state. A more reputable data sharing project known as the Electronic Registration Information Center allows states to check their records against numerous government databases, resulting in fewer errors.
“It’s the difference between surgery in an operating room with a best-of-class surgeon, and surgery by your neighbor with a chain saw,” says Levitt of the difference between ERIC and Crosscheck. Indiana, one of 30 states to participate in Crosscheck, enacted a law that clears election officials to remove from the rolls anyone flagged by Crosscheck as registered in more than one state, prompting Common Cause Indiana and the ACLU to sue.
Civil rights advocates have also pushed back hard against an intimidation campaign by the Public Interest Legal Foundation, a conservative group headed by anti-fraud activist J. Christian Adams, who serves on the Kobach commission. His group has sent threatening letters to state election officials, demanding the right to inspect voter rolls that it claims are inaccurate. A coalition of civil rights groups last month set out to counter what it called “an alarming voter purge campaign,” urging election officials to reject the group’s efforts and offering guidance.
This month, Adams told members of American Legislative Exchange Council, which has helped states write voter restriction laws: “Voter ID is an important thing, but it’s yesterday’s fight.” The bigger threat today, Adams told ALEC conferees, is “aliens who are getting on the rolls and aliens who are voting.” Registration, required in every state except North Dakota, is “the gateway” to voting, notes Levitt. Republicans appear bent on closing that gate.