On March 20, 2020, the Texas Democratic Party filed this lawsuit in the Travis County Texas State Court. The plaintiffs sued Ruth Hughs in her capacity as Texas Secretary of State and the Travis County Clerk under state law. Represented by private counsel, the plaintiffs sought injunctive and declaratory relief that allows all eligible voters, regardless of age and physical condition, to cast their ballot by mail, if they believe their health is in danger under the threat of COVID-19 and they need to practice social distancing.
In March of 2020, Pooja Shivaprasad and Amanda Miller, law students at the University of California at Berkeley, produced a legal memorandum examining voter protection rights in Ohio in light of rising voter suppression concerns in this state.
The memo includes an introduction to federal voter protections as well as a brief summary of state laws relevant to Ohio. We hope that this document provides a roadmap by which others can analyze the strength or weaknesses of voter protection laws in their states.
Shivaprasad and Miller found that there is no clear path to legally challenging many voter purging practices, which makes the work of the Voter Purge Project and our partners even more critical.
The report also found that:
The National Voter Registration Act (“NVRA”) was enacted under the Elections Clause of the Constitution and signed into law in 1993, and prohibits removal from voter registration lists solely because of a failure to vote.
Ohio’s voter purge practices were litigated in Husted v. A. Phillip Randolph, a 2018 case in which the Supreme Court ruled that Ohio’s practices of clearing the state’s voter rolls of individuals who had died or relocated did not violate the NVRA or the Help American Vote Act of 2002 (HAVA). Advocates found that Husted’s holding has disproportionately affected low-income communities, communities of color, and the housing insecure.
Section 8 of the NVRA prohibits states from removing registrants from voter registration lists solely for failure to vote, but states can implement “supplemental” processes to get around this prohibition.
HAVA requires state election offices to develop clear procedures for accepting, verifying, updating, and canceling voter registrations across the state.
Each state is responsible for ensuring its practices are in compliance with the NVRA.
State laws provide little guidance to local election officials and do not specify what identifying characteristics should be verified after a potential duplicate record has been flagged or what degree of approximation is permitted when comparing potentially duplicative entries. Despite these vague laws local election officials report increased pressure from state officials to “clean” the voter registration list of duplicate records.
There are no federal legal remedies in place that allow for voter list maintenance transparency.
Purging practices vary widely from jurisdiction to jurisdiction and offer few protections for affected voters.
As of September 2017, the Public Interest Legal Foundation had brought nine suits in six states in the previous two years alleging lax vigilance of voter rolls
We are extremely grateful to Berkeley Law, Pooja Shivaprasad, and Amanda Miller for their work and expertise in producing this report.
As the Voter Purge Project moves forward, we are now analyzing the voter files on more than a dozen states on our way to double that number in coming weeks. Many of them include the hotly contested “battleground” states like Pennsylvania, Florida, Michigan, and North Carolina. The VPP is processing these lists with our database team assure that any voter suppression efforts are prevented from purging legitimate voters or purging voters in a discriminating way based on race, ethnicity, income or any other reason.
Early results have been encouraging, with some important results in terms of voters saved and purges forestalled, but the project continues to wrestle with huge questions and concerns.
One of the most puzzling is determining the difference between purges for death or address changes as opposed to unexplained “drops” or voter disappearances. Another is whether in states like Ohio and Georgia, where a piece of mail can trigger a purge if there has not been a recent voting history, the purge is legitimate.
I spent time with former ACORN organizers in person and on the phone while in Columbus trying to puzzle out a field test that would combine our database analysis and questions with on-the-ground door knocking to determine either the answers or the legitimacy of these actions by the government.
In Columbus, we decided to look at four zip codes in the heart of our historic low-and-moderate income, African-American constituency in Ohio. We analyze the Ohio voter file on a weekly basis when it is posted on the Secretary of State’s website, so we can tell who the “disappeared” are in almost real time.
The plan would be to pull the names that are deleted in these zip codes from week to week and then to deploy organizers on the ground to visit the last known address of the voter that was in our database before they were either purged or dropped. By keeping rigorous records of whether or not the actions were valid or not, we estimate that we would be able to determine the accuracy of the government’s actions and calculate a percentage of validity in the list. In Ohio and other states where on-line registration is possible, we might be able to re-register them on the spot or work out a verification system with the authorities so that they were put back on the list. If this works, we would do identical field tests in Atlanta, Georgia, Charlotte, North Carolina, and Pittsburgh, Pennsylvania.
The notion for this kind of field test occurred to me as I visited Barbara Clark, a former ACORN organizer in the childcare center where she was working part-time. She and some other former ACORN members were involved in circulating petitions for various initiatives in Columbus and were often paid by the signature. She was complaining about the problems her team would have in collecting their money when the signature verifiers would claim that signatures were invalid when the people signing had sworn to them that they were registered. In thinking with her about a way to use our voter list access to keep her team from being ripped off, it seemed like there might be a way to reverse engineer her negative experience and find a way to “clean” the list in the street and build a firewall and prevention program around these purges and voter disappearances preemptively.