Presidential Advisory Commission on Election Integrity Testimony September 12, 2017
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TIME START ENFORCING THE NATIONAL VOTER REGISTRATION ACT 1993 Testimony before the Presidential Advisory Commission Election Integrity September 12, 2017 Robert Popper Director, Election Integrity Project Judicial Watch, Inc. Background and Experience name Robert Popper. Senior Attorney and the Director the Election Integrity Project Judicial Watch, Inc. Judicial Watch Washington, D.C.-based public interest nonprofit dedicated promoting transparency, accountability, and integrity government, politics, and the law. was admitted the Bar New York 1990, and have been practicing litigator for years. have special knowledge and expertise the area voting law. 1995, solo practitioner, represented plaintiffs successful constitutional challenge alleging racial segregation the design New York 12th Congressional District.1 2005, joined the Voting Section the Civil Rights Division the U.S. Department Justice, where worked for eight years. time there, managed voting rights investigations, litigations, consent decrees, and settlements dozens states. spoke about voting rights issues professional conferences and state and local officials. 2008, was promoted Deputy Chief the Voting Section. 2013, joined Judicial Watch Director the Election Integrity Project. time here, have litigated voting rights cases several states and have filed numerous friend-of-thecourt briefs before the U.S. Supreme Court and various courts appeal. have testified before state legislatures voting reform measures. the course career, have published popular pieces and scholarly articles the subject voting law.2 Diaz Silver, 978 Supp. (E.D.N.Y. 1997) (three-judge court), aff mem., 521 U.S. 801 (1997). See The Voter Suppression Myth Takes Another Hit, WALL ST. J., December 28, 2014; Florida Gets Another Chance Appeal for the Right Clean Voter Rolls, They Should Take It, THE DAILY CALLER, December 11, 2014; Political Fraud About Voter Fraud, WALL ST. J., April 27, 2014; Little-Noticed Provision Would Dramatically Expand DOJ Authority the Polls, THE DAILY CALLER, March 28, 2014; and, with Professor Daniel Polsby, Guinier Theory Political Market Failure, SOC. SCI. (1996); Racial Lines, NAT. REV. 53, February 20, 1995; Ugly: Inquiry into the Problem Racial Gerrymandering Under the Voting Rights Act, MICH. REV. 652 (1993); The Third Criterion: Compactness Procedural Safeguard particularly familiar with the National Voter Registration Act 1993 (NVRA), the subject testimony. From 2005 2008, had primary responsibility the Department Justice for enforcing that statute. 2008, received Special Commendation Award for efforts enforcing Section the NVRA, which requires state offices providing public assistance offer those receiving the opportunity register vote. During that same period, also litigated several cases for the Department enforce the voter roll list maintenance provisions Section the Act, and obtained consent decrees with the states Maine, Indiana, and New Jersey, and settlement agreement with the City Philadelphia, which they agreed abide Section provisions.3 will explain, these were the last cases the Department ever brought enforce the voter list maintenance provisions the NVRA. Judicial Watch has been actively involved private litigant enforcing Section the NVRA, suing Ohio and Indiana 2012 for their failure comply.4 After moved Judicial Watch 2013, concluded settlement agreement resolving litigation against the State Ohio5 and voluntarily dismissed our lawsuit against Indiana after the State restructured its election administration and undertook remedial measures. This year, based our analysis available census and voter registration data, Judicial Watch sent letters twelve states, and 113 counties those states, providing them statutory notice that they were failing comply with their list maintenance obligations under Section the NVRA.6 The letters warned those jurisdictions that they would subject private lawsuit they did not undertake the list maintenance required the statute. Judicial Watch expects that will bring such lawsuits against noncomplying jurisdictions. Further, July this year, Judicial Watch commenced lawsuit against the State Maryland for refusing grant access election-related documents that the State was required the NVRA keep and make publicly available.7 Against Partisan Gerrymandering, YALE POL REV. 301 (1991); Gerrymandering: Harms and New Solution, Heartland Institute Monograph (1990). For summaries the relevant cases, see https://www.justice.gov/crt/cases-raising-claimsunder-national-voter-registration-act#philadelphia. Judicial Watch, Inc. King, 993 Supp. 919 (S.D. Ind. 2012); Judicial Watch Husted, Civil Action No. 12-792 (S.D. Ohio 2012). This agreement available http://www.judicialwatch.org/document-archive/01-14ohio-voter-rolls-settlement/. See http://www.judicialwatch.org/press-room/press-releases/judicial-watch-warns-11states-clean-voter-registration-lists-face-federal-lawsuit/; http://www.judicialwatch.org/pressroom/press-releases/judicial-watch-warns-california-clean-voter-registration-lists-face-federallawsuit/. Judicial Watch Lamone, No. 1:17-cv-02006 (D. Md. 2017); see http://www.judicialwatch.org/press-room/press-releases/judicial-watch-sues-voter-registrationdata-national-voter-registration-act/. Americans Not Trust the Integrity Our Electoral System The American people have come believe that there are serious problems with our electoral system. One study from last year showed that Americans have little faith the integrity their elections and postulated that this partly explains low voter turnout.8 Rasmussen poll from 2016 reported that only 41% those polled believe American elections are fair voters. Washington Post-ABC News poll from 2016 found that 46% those polled believed that voter fraud happens either somewhat very often.10 Particularly revealing Gallup poll that compares American attitudes with those other countries. poll taken 2016 before the parties national conventions that summer Americans were asked they had confidence the honesty elections. record-low 30% said that they did, while astonishing 69% said that they did not.11 This trend has become significantly worse recent years, and the United States now significant outlier among the nations polled. Gallup reports that [g]lobally, the U.S. ranks 90th out 112 countries that Gallup has asked this question far this year, and among countries that are true electoral democracies, only Mexico (19%) ranks lower than the U.S. Unfortunately, poor list maintenance practices lend credence the public perception that our nation electoral system not functioning properly. The Voter List Maintenance Goals the NVRA Are Not Being Met the NVRA itself makes clear its Findings and Purposes, was enacted order achieve two different goals. was intended, first, increase the number eligible citizens who register vote, enhancing their participation elections for Federal office and, second, protect the integrity the electoral process, ensuring that accurate and current voter rolls are maintained. The first goal increasing eligible registrants was intended met increasing the number state offices where citizens are offered the opportunity register vote. The most significant NVRA provision supporting this goal the requirement that every application for state driver license must serve well voter registration application, unless applicant See, e.g., Pippa Norris, Holly Ann Garnett and Max mping, Why Don More Americans Vote? Maybe Because They Don Trust U.S. Elections, Wash. Post, December 26, 2016. http://www.rasmussenreports.com/public_content/politics/general_politics/january_2016/are_u_s _elections_fair. https://www.washingtonpost.com/page/2010-2019/WashingtonPost/2016/09/15/NationalPolitics/Polling/release_444.xml?tid=a_inl. http://www.gallup.com/poll/196976/update-americans-confidence-voting-election.aspx. Id. U.S.C. 20501(b). does not wish register already registered.14 this provision that has afforded the NVRA its popular designation the Motor Voter law. There good evidence that the first goal the NVRA has been largely realized. For example, the twenty-year period starting 1992, year before the NVRA was enacted, through 2012, the registration rate increased nationally more than 11%.15 The second goal protecting electoral integrity ensuring accurate and current voter rolls was supposed achieved the NVRA requirement that states conduct general program that makes reasonable effort remove the names ineligible voters from the rolls they have died moved elsewhere.16 This second goal has not been met. Five years ago, this fact was brought forcefully national attention study noting that million one every eight voter registrations the United States are longer valid are significantly inaccurate that 1.8 million deceased individuals are listed voters, and that 2.75 million people have registrations more than one state. Based Judicial Watch research this year, there every reason believe that these problems have gotten worse. This past July, the Election Assistance Commission publicly released the responses provided its most recent election administration survey. law, the Commission required submit report Congress every two years assessing the impact the NVRA the administration elections for Federal office during the preceding 2-year period. States are required provide the information requested the Commission.19 Judicial Watch hired political scientist and demographer compare the registration information contained the Commission report with the latest census data.20 also contacted particular counties directly obtain confirm certain data. Our study indicates pervasive failure state and county officials fulfill the voter list maintenance obligations imposed the NVRA. begin with, the EAC survey includes question about the number NVRA address confirmation notices sent during two-year U.S.C. 20504(a). Royce Crocker, The National Voter Registration Act 1993: History, Implementation, and Effects, Appendix CONG. RES. SERV., Sept. 18, 2013. U.S.C. 20507(a)(4). Inaccurate, Costly, and Inefficient: Evidence That America Voter Registration System Needs Upgrade, PEW RES. CTR. THE STATES, Feb. 14, 2012, U.S.C. 20508(a)(3). See C.F.R. 9428.7. See The Election Administration Voting Survey: 2016 Comprehensive Report, ELECTION ASSISTANCE COMM June 29, 2017, available, along with the relevant datasets, https://www.eac.gov/research-and-data/election-administration-voting-survey/, and the latest American Community Survey population and demographic data, available https://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml. reporting period.21 Jurisdictions are required send these notices those who are believed have moved prior placing them inactive status for statutory waiting period two general federal elections.22 failure send such notices shows that jurisdiction not endeavoring determine who may have moved elsewhere. There are over 2,800 counties states covered the NVRA. these, 415, about 15% all covered counties, did not report sending any confirmation notices during the two-year period from 2014 2016. This fact suggests widespread failure comply with the NVRA. Moreover, the counties that did report sending confirmation notices, another 581, about 20% the total, reported sending notices during the last two-year period fewer than their registered voters. Given that the Census Bureau reports that about 11% Americans move every year,23 these low rates also suggest that these counties are not diligently conducting voter list maintenance. Counties overall registration rates also reveal compliance issues. Our study showed that, 462 U.S. counties, the number voter registrations exceeded the number citizens over the age who resided those counties. other words, those counties registration rates exceeded 100% the population eligible register.24 Federal courts have repeatedly held that such imbalance between registrations and age-eligible citizens grounds for believing that jurisdiction not living its list maintenance obligations.25 These 462 counties, moreover, constitute about 17% all U.S. counties covered the NVRA where have enough data make these calculations. These facts show widespread noncompliance with the NVRA. The problem, moreover, worse than was even few years ago. When Judicial Watch conducted similar registration analysis 2015, found that 312 counties covered the NVRA had more registered voters than voting-age citizen population, which was about 11% all counties where had the data necessary make this comparison. State and county officials confronted with improbably high registration rates often try talk past the data predictable ways. For example, such officials tell that registration rates are high precisely because the NVRA requires officials wait for two general elections before removing the registrations those who have not responded confirmation notices. this reasoning high registration rate shows, not lack compliance with the NVRA, but diligent effort send out confirmation notices and move registrations the inactive list. Election Administration Voting Survey, supra note 19, 188 (question A10a). U.S.C. 20507(d)(2). https://www.census.gov/newsroom/blogs/random-samplings/2017/01/mover-rate.html. Remarkably, there also were counties reporting more voter registrations than their total populations, including minors and noncitizens. See Voter Integrity Project NC, Inc. Wake Cnty. Bd. Elections, 2017 U.S. Dist. Lexis 23565 *17-18 (W.D.N.C. Feb. 21, 2017); Bellitto Snipes, 2017 U.S. Dist. Lexis 107355 *52-53 (S.D. Fla. July 11, 2017); Am. Civ. Rights Union Martinez-Rivera, 166 Supp. 779, 793-94 (W.D. Tex. Mar. 30, 2015). experience, such claims are almost always belied the facts. often the case that county with high registration rate also sent relatively few confirmation notices during the reporting period. Such facts contradict any claim that high registration rates are due voters being moved the inactive list. And while conceivable that bump total registrations will occur after sudden, significant effort remove invalid registrations, this effect should temporary and should decline over time. examination the age inactive registrations enough settle this kind dispute. one investigation, found thousands registrations that had been inactive for more than decade. These cannot explained ordinary list maintenance procedures the need wait for two elections before cancelling registration. States with high registration rates also implausibly contend that inactive registrations should not considered all determining registration rates. subtracting these out, these states hope show lower and more reasonable-looking registration rates. The reasons for conducting this special arithmetical operation are rarely elaborated any detail, but have heard the argument that such inactive registrations are irrelevant because they are awaiting cancellation, because the registrants are probably living elsewhere. Note the outset that the factual premises these assertions are wrong. Registrations may moved the inactive list for any number reasons under various state laws, and not just because the registrant failed return confirmation notice. Further, have discovered, registrations often sit state inactive lists for many years beyond the NVRA statutory waiting period without being cancelled. But there far more basic problem with the argument that inactive registrations ought not count. The NVRA plainly provides that inactive registrations may still voted.26 This voting can take place late Election Day, which point affirmation confirmation the registrant address may required. But the voter need not vote provisional ballot endure any other impediment voting.28 The simple fact that long registration may voted the next Election Day, should treated part state voter registration list. That why, when worked the Voting Section the Department Justice, invariably considered inactive registrations when analyzing the NVRA programs covered states and counties. For the same reason, when concluded NVRA settlement decree agreement insisted receiving information and reports about inactive registrations.29 U.S.C. 20507(d)(2)(A). Id. (emphasis added). See Philip Randolph Inst. Husted, 838 F.3d 699, 716 (6th Cir. 2016) (Siler, J., concurring part, dissenting part), cert. granted 137 Ct. 2188 (2017) inactive voter has all the rights cast regular ballot any election, and the registrant has any voting activity during those four years, she returns active voter status Common Cause Kemp, 2017 U.S. Dist. Lexis 93417 (N.D. Ga. Mar. 17, 2017) Voters the inactive list can still vote. See, e.g., United States Indiana, 2006 U.S. Dist. LEXIS 45640 *4-5, *9-10 (S.D. Ind. July 2006) (consent decree requiring initial report and annual reports including information inactive voters). final point, worth remembering that every U.S. county covered the NVRA must abide the same rules, and must respect and accommodate the same statutory waiting period. Yet 83% these counties had registration rates including active and inactive voters that were less than 100%. federal courts have acknowledged, the fact that county has registration rate exceeding 100% strong circumstantial evidence that that county not conducting reasonable program voter list maintenance. The Department Justice Has Failed Enforce the NVRA List Maintenance Provisions and Has Impaired States Efforts Maintain Their Voter Rolls From 2005 2007, Section list maintenance claims were included federal complaints filed the Department Justice against Missouri, Maine, New Jersey, Indiana, and the City Philadelphia. The Department ultimately obtained court-ordered consent decrees with Maine, New Jersey, and Indiana, and concluded settlement agreement with the City Philadelphia.30 managed each those litigations for the Department. The last the NVRArelated consent decrees expired 2009. was present meeting November 2009 which the Deputy Assistant Attorney General charge the Voting Section told the staff that Section cases were not priority.31 From that time until the present, the Department Justice has not filed single complaint involving claim under the voter list maintenance provisions Section the NVRA. knowledge, the Department has not sent any state county notice letter indicating that intended sue enforce those provisions. know, moreover, that there were many states that the Department could have targeted for enforcement action during the intervening years. The Department during the last administration appears have completely abandoned all efforts enforce the list maintenance provisions Section the NVRA. Even worse, the Department engaged litigation specifically intended limit the ability states remove ineligible registrations from the rolls. will cite few examples. 2012, Florida sought conduct list maintenance program designed remove noncitizens from its voter rolls. The Department Justice and, separate action, group left-leaning advocacy organizations sued enjoin Florida program. The NVRA requires that any program cancel the registrations those who have moved must stop during the days right before election.32 Both the Department and the private litigants argued that this provision prevented Florida from attempting remove noncitizens from the voter rolls during that 90-day period. The argument extraordinary, considering that noncitizens were never These cases are described the Department website, https://www.justice.gov/crt/cases-raising-claims-under-national-voter-registrationact#philadelphia. See Review the Operations the Voting Section the Civil Rights Division, OFFICE THE INSPECTOR GENERAL, OVERSIGHT AND REVIEW DIVISION 100-101, March 2013, available https://oig.justice.gov/reports/2013/s1303.pdf. U.S.C. 20507(c)(2)(A). eligible register vote, and, consequently, that they only could listed the voter rolls because error, means fraudulent registration. Each the district courts that heard this argument rejected it.33 But the private plaintiffs appealed, and, surprise 2-1 ruling, 11th Circuit panel accepted their argument and reversed the lower court decision.34 Just surprising, the administration Governor Rick Scott refused appeal that ruling the Supreme Court. result, now the law the 11th Circuit that noncitizens may not systematically removed from the voter rolls the days before election. point not merely that the result wrong, even outrageous, but that the U.S. Department Justice actively sought this result. two other cases, the Department provided amicus support private plaintiffs seeking restrict states ability monitor and remove ineligible registrations. The NVRA specifies that voters may not removed merely for failing vote.35 The electoral laws Georgia and Ohio provide that address confirmation notices must sent voters who have had voting-related activity for certain period time three years under Georgia law and two years Ohio. the registrants whom those notices are sent respond, they are designated active voters. they fail respond, they are put inactive status and, they not contact the state appear vote during the NVRA statutory waiting period two general federal elections, they are removed from the rolls. Private plaintiffs each state sued enjoin those state laws, arguing that they were, effect, removing voters merely for failing vote, which proscribed the NVRA. The obvious rejoinder this argument that one being removed for failing vote. Registrants are merely being sent address confirmation letters. What happens after that depends how they respond. Both district courts dismissed these lawsuits. The Georgia decision appeal the 11th Circuit.36 The Ohio decision was reversed divided panel the 6th Circuit, and currently appeal the Supreme Court, which granted the appellants petition for writ certiorari.37 believe that the plaintiffs claims are clearly meritless. But again, main point that the U.S. Department Justice filed briefs supporting the plaintiffs their efforts restrict the power states remove ineligible registrants from the voter rolls. More recently, August this year, the Department filed amicus brief the Supreme Court the Ohio case reversing its prior position and supporting the State U.S. Detzner, 870 Supp. 1346 (N.D. Fla. 2012); Arcia Detzner, 908 Supp. 1276 (S.D. Fla. 2012). Arcia Detzner, 746 F.3d 1273 (11th Cir. 2014). U.S.C. 20507(b)(2). Common Cause Kemp, 2017 U.S. Dist. Lexis 93417 (N.D. Ga. Mar. 17, 2017), appeal docketed, No. 17-11315 (11th Cir. Mar. 23, 2017). Philip Randolph Institute Husted, 2016 U.S. Dist. LEXIS 84519 (S.D. Ohio June 29, 2016), rev 838 F.3d 699 (6th Cir. 2016), cert. granted sub nom. Husted Philip Randolph Institute, No. 16-980, 2017 U.S. LEXIS 3506 (May 30, 2017). interpretation the NVRA. commend the Department for this decision. The position takes this brief clearly supported the plain text the NVRA and existing law. Beyond the issues raised this one case, however, trust that this action signals that the Department abandoning the approach adopted during the prior administration, which not only failed enforce the list maintenance provisions the NVRA, but sued states that were trying comply with the statute. also urge the Department investigate states and counties voter list maintenance programs, and notify and then sue those jurisdictions that fail comply with the obligations imposed Section the NVRA. With 462 counties showing registration rates greater than 100%, there are large number potential targets for enforcement. Judicial Watch proud its efforts enforce Section the NVRA. But the Department Justice should leading this work. The Department has far greater resources its disposal than private nonprofits like Judicial Watch, and far more likely obtain the voluntary cooperation states and counties when notifies them potential violation. The NVRA Should Enforced There are sound policy and legal reasons for enforcing the voter list maintenance provisions the NVRA and requiring states clean their voter rolls. Yet, engaging this discussion, find important not confuse this matter with the debate over state voter identification laws. While believe, with majority Americans, that there are persuasive reasons for requiring reliable photo identification the polls Election Day, the enforcement the NVRA broader topic and raises number different concerns. begin with, the NVRA already federal law. Congress already engaged the weighing factors and the deliberation necessary justify that law. ought not choose which federal laws, which provisions those laws, will enforce. This particularly with compromise legislation like the NVRA. the statute Findings and Purposes makes clear, the NVRA sought accommodate both those who hoped for greater registration and access voting, and those who hoped ensure election integrity and guarantee accurate voter rolls. contrary congressional intent, and, frankly, dishonest, enforce only half compromise bill. addition, accurate voter lists prevent more kinds fraud than voter requirement. For example, accurate voter list prevents double voting, which most commonly occurs where recently moved voters vote the electoral precincts associated both with their new and their old addresses. Requiring does not prevent this, because double voters are who they say they are. Regular maintenance the voter rolls also diminishes the opportunities for absentee mail-in ballot fraud, which most experts agree more common than impersonation fraud. Every week Judicial Watch gets emails like the one received just few days ago: the mail today, letter came from the State California Department Motor Vehicles. The letter was addressed mother who has been deceased since 2009. the latter was renewal form for her Disabled parking and Voter Registration Form that just needed filled out and sent in. these letters are being sent large people who are deceased, would extremely easy for anyone fill out the voter registration form requesting vote mail and one would know that was fraudulent vote. Our correspondent correct, and the voter rolls were better maintained, the possibility she alludes would not arise. Maintaining accurate voter rolls required the NVRA also has other benefits that have nothing with preventing fraud. For example, accurate voter rolls prevent honest mistakes, such where those who are not aware that they are ineligible vote because they are listed the rolls, where voters cast ballot the wrong location, possibly the wrong election, because the rolls are not current. addition, inaccurate voter rolls hamper legitimate voter education and get-out-the-vote efforts. the extent that these efforts rely voter rolls determine whom contact and where they may reached, inaccurate voter rolls increase the expense such efforts. costs money send thousands pieces mail wrong addresses persons who longer reside the state. final point, would like make few observations about voter fraud, topic much discussed today. know that voter fraud, whether impersonation fraud, absentee ballot fraud, registration fraud, double voting, noncitizen voting, voting those ineligible under state law, occurs and is, some form, feature every election, and have suggestive, but not conclusive, evidence about the extent such fraud. also know that voter fraud hard detect and prove, especially where the law requires showing specific intent. know that many states not even bother track voter fraud.38 also know that this probably expected, given that voter fraud often lightly penalized. preparing statement, happened research some the voter fraud laws neighboring Vermont. Its election law provides that the penalty for casting more than one ballot maximum fine $1,000 for primary general election, $100 for local election, and incarceration either case.39 the same time, Vermont law provides that the penalty for selling maple syrup without license maximum fine $5,000 and year prison.40 any case, discussions about the precise extent and effect voter fraud risk obscuring more important point: Elections, like kitchens, must look clean. was managing election monitoring team Philadelphia November 2008 when two men, one them armed with club, took position outside local polling station.41 Four years later, was back Philadelphia when received report that one polling place had floor-to-ceiling mural President Obama, along with his campaign logo and quote from one his speeches.42 See Robert Popper, Political Fraud About Voter Fraud, WALL ST. J., April 27, 2014. V.S.A. 1971. V.S.A. 483, 498. https://www.youtube.com/watch?v=neGbKHyGuHU. http://www.nbcphiladelphia.com/news/local/Obamas-Face-Covered-at-Polling-PlaceAfter-Court-Order-177511541.html. one would dismiss the need for legislation forbidding weapons polling place because violence rare, because one was frightened away from the polls, because the incident did not sway the outcome election. People should able rely the fact that they will physically safe polling stations. Similarly, one would deny the value laws against electioneering partisan displays inside polling places the ground that these displays did not change anyone mind determine election. Such displays suggest the voters that the election officials are not impartial. Even never changes influences single vote, this behavior sends bad message the public. suggests that election officials are not going fair. For the same reasons, the law should incorporate and enforce elementary protections against voter fraud. Indeed, part the absence such protections that has led astonishing 69% Americans say that they not have confidence the honesty our elections. These elementary protections include the voter list maintenance provisions Section the NVRA. Along with all the other advantages derived from the statute, diligent enforcement the NVRA will help convince the public that American elections are clean.