Conservatives insist counties purge voter lists

Advocacy group threatens lawsuit if rolls include ineligible citizens

“The right to vote is too important to treat as a use-it-or-lose-it right.” Stuart Naifeh, senior counsel for Democrats

WASHINGTON — On its face, the notice sent to 248 county election officials asked only that they do what Congress has ordered: Prune their rolls of voters who have died, moved or lost their eligibility — or face a federal lawsuit.

The notice, delivered in September by a conservative advocacy group, is at the heart of an increasingly bitter argument over the seemingly mundane task of keeping accurate lists of voters — an issue that will be a marquee argument before the Supreme Court in January.

At a time when gaming the rules of elections has become standard political strategy, the task raises a high-stakes question: Is scrubbing ineligible voters from the rolls worth the effort if it means mistakenly bumping legitimate voters as well?

The political ramifications are as close as a history book. Florida’s Legislature ordered the voter rolls scrubbed of dead registrants and ineligible felons before the 2000 presidential election. The resulting purge, based on a broad name-matching exercise, misidentified thousands of legitimate voters as criminals, and prevented at least 1,100 of them — some say thousands more — from casting ballots.

That was the election in which George W. Bush’s 537-vote margin in Florida secured his place in the White House. Controlling the rules of elections — including who is on or off the rolls — has been both a crucial part of political strategy and a legal battleground ever since.

‘Suppression of voters’

Conservative groups and Republican election officials in some states say the poorly maintained rolls invite fraud and meddling by hackers, sap public confidence in elections and make election workers’ jobs harder.

Voting rights advocates and most Democratic election officials, in turn, say that the benefits are mostly imaginary, and that the purges are intended to reduce the number of minority, poor and young voters, who are disproportionately Democrats.

“The goal here is not election integrity,” Stuart Naifeh, the senior counsel at the voting rights group Demos, said. “It’s intimidation and suppression of voters.”

On Wednesday, Demos and two other advocacy groups, the Lawyers’ Committee for Civil Rights Under Law and the Brennan Center for Justice at the New York University Law School, offered legal help to any of the 248 county election officials who tried to oppose the notice.

The author of the notice to county officials, the Public Interest Legal Foundation, responded quickly. “It seems like we’ve arrived to the point where asking election officials to do what the law requires makes PILF subversive,” the group’s president, J. Christian Adams, said in a statement.

Adams is among several conservatives appointed by President Donald Trump to the White House’s Advisory Commission on Voter Integrity, the voter fraud panel mired in a partisan feud over its operations and political intentions.

The Public Interest Legal Foundation is one of four conservative advocacy groups that have pursued often-overlapping campaigns to purge voter rolls.

Three of the groups — the foundation, Judicial Watch and the American Civil Rights Union — rely on former lawyers in the Justice Department’s civil rights division during the George W. Bush administration. The fourth, True the Vote, is an offshoot of a tea party group based in Houston.

The groups argue that election officials are ignoring a requirement in the National Voter Registration Act of 1993 that a “reasonable effort” be made to cull ineligible voters — the dead, people who have moved, noncitizens and felons whose voting rights are restricted.

A spokesman for the Public Interest Legal Foundation, Logan Churchwell, said election officials were hobbled by a lack of money and “a failure of imagination.”

The law sets few boundaries on tending lists, largely requiring that officials keep voters on the rolls for up to two general elections if they cannot confirm that they have moved.

The most explicit prohibitions outlaw striking voters simply because they have not cast ballots and ban delistings within 90 days of elections.

‘Too important’

Voting rights groups say the question is not what constitutes a reasonable effort, but what sorts of efforts are unreasonable. And they point to a case now before the Supreme Court as proof of what aggressive purges really accomplish.

In that suit, Ohio officials disenfranchised thousands of eligible voters by requiring all voters who skipped a single election to return a postagepaid form stating whether they had moved. Those who failed to return the form were delisted if they did not vote in the next two elections, even if they were legally still eligible.

The Supreme Court, which will hear the case in January, will decide whether the purge violated the Voter Registration Act’s near-total ban on removing registrants because they do not vote. Three of the four conservative advocacy groups have filed briefs supporting Ohio’s purging methods.

“The right to vote is too important to treat as a use-it-or-lose-it right,” said Naifeh of Demos, which represents the plaintiffs in the suit.

A federal appeals court struck down the Ohio rule last year. That the Supreme Court decided to rehear the case, some experts say, suggests the justices may be inclined to reverse the lower court ruling.

It also underscores the significance of the Republican Senate’s decision to hold open a vacant seat on the court until a Trump administration nominee, a new justice, Neil M. Gorsuch, was able to give conservatives a majority.

That said, any ruling is likely to have a fairly limited reach because the debate involves only a technical interpretation of a single clause in the law, said Edward B. Foley, an elections expert at Ohio State University’s law school.