By Witold Walczak, Legal Director, ACLU of Pennsylvania
If something appears suspicious, and you inquire and the response is, “we refuse to tell you anything,” the natural impulse is to become even more suspicious. And that’s for normal people. But it’s heightened for ACLUers, who must have additional skepticism bred in. And when the concern is purging of voter rolls or other voter-suppression measures, alarm bells blare. That’s why we sent a letter today to Secretary of State Carol Aichele asking for an explanation and governmental transparency. Here’s the background.
Late last summer, Pennsylvania signed onto a program commonly referred to as the Interstate Voter Crosscheck Program. It was begun in 2005 and is administered by the Kansas Secretary of State. Multiple states have signed on to participate. According to the agreement signed by the Commonwealth, participants agree to “share voter registration information for the purposes of cross checking and identifying duplicate registrations and instances of multiple votes by the same individuals.”
In theory, this is not a problem and could be helpful in cleaning up duplicate registrations. But unless done right, it could also be a pretext for wrongly purging voters from registration rolls. As the saying goes, the devil is in the details.
After our inquiry to the Department of State (DOS) for information about the program was refused in mid-February, a formal Right to Know Act request produced 81 pages of documents a month later. While these documents include the agreement itself and some information about program operations, the letter accompanying the documents stated that the most important information being sought, about the ‘the purging of voter records,” was being “denied.” True to their word, the 81 pages share with the ACLU did not indicate when and how Pennsylvania planned to purge voter registrations identified by the Crosscheck Program as duplicates.
Beyond the basic withholding of documents, equally troubling was what the 81 pages did show. They do more to raise than allay our concerns about Pennsylvania’s voter-purging process under the new Crosscheck Program. The documents we received acknowledge that Pennsylvania is changing its process for handling information about duplicate registrations, but those documents do not explain the changes or include a copy of the revised “Duplicate Voter Notice” form.
The documents show that Pennsylvania will be applying a relaxed standard to identify potential duplicate voter records in other states under the Interstate Crosscheck Program, requiring just a match on first name, last name and date of birth. The system does not require a match of middle initial or Social Security number, even though in many instances that information is available. Such a low standard will yield a large number of matches. Indeed, in states slightly smaller than Pennsylvania, like Michigan, Ohio and Georgia, in 2013 the Program identified about 385,000 to 610,000 voters who might have duplicate records in other states.
But the same materials, produced by the Kansas Secretary of State’s Office, candidly acknowledge that many of those potential duplicates are false positives: “Experience in the crosscheck program indicates that a significant number of apparent double votes are false positives and not double votes. Many are the result of errors voters sign the wrong line in the poll book, election clerks scan the wrong line with a barcode scanner, or there is confusion over the father/son voters (Sr. and Jr.).” The program thus flags a huge number of voters as potential duplicates, but admits a high error rate, elevating the ACLU’s concerns about how precisely Pennsylvania will handle voter-registration cancellations.
The danger posed by voter purges, especially purges carried out right before an election, is that duly registered voters are surprised on Election Day that they are no longer listed as a registered voter at their polling place, causing them to have to vote by provisional ballot. In Pennsylvania, less than 50% of provisional ballots are counted, meaning it’s a poor substitute for a regular ballot and is more likely than not to lead to disenfranchisement. Now-notorious voter purges in Florida in 2000 may well have tilted the election. Under the guise of purging felons, non-citizens or outdated and allegedly deficient registrations, states like Florida, Ohio and others have been able to play games with people’s voting rights. The brunt of these unfair purges has fallen on poor and minority voters.
The National Voter Registration Act (NVRA) is a federal statute passed in the ‘90s to, among other things, regulate the removal of voters from the rolls and prevent improper purges. The Act provides for specific safeguards, including for voters being removed from the rolls for possibly having moved, which is what the Crosscheck Program supposedly flags.
Under the NVRA, written notice must be given to people whose registrations are being considered for cancelation, and absent confirmation of the move by the voter him or herself, there is a mandatory waiting period of two federal elections. And no purges under any system of removing names can occur within 90 days of a federal election.
Returning to the Pennsylvania situation, contained in the 81 pages of documents is advice about how and when voter records can be purged, and that advice violates the NVRA. The advice comes from the Kansas Secretary of State, Kris Kobach.
I know Kobach from another life: he was opposing counsel in our 2007 trial over Hazleton’s anti-immigrant ordinances, a case we finally won last month when the Supreme Court refused to review our Third Circuit victory. We saw that Kobach played fast and loose with immigration laws in misguided zeal to drive out undocumented immigrants in a way that threatened the well-being of lawful immigrants in Hazleton, Arizona and elsewhere.
Since Kobach’s ascension to the top election post in Kansas, voting-rights advocates have been concerned that, like with immigration, he may misuse election laws in dangerous ways. Now the concern is that he is misusing the Crosscheck Program, which he inherited from his predecessor, ostensibly to address alleged fraud but doing so in a way that could lead to purges of lawful voters.
The flaw is the same in both Kobach’s immigration and election work: the ends of addressing one problem, be it undocumented immigrants living in our midst or voters registered in two states, justifies a poorly designed cure that threatens the rights of innocent people, either lawfully present immigrants or, in this case, duly registered voters. And important legal protections to prevent errors, i.e., due process, are minimized or ignored completely.
The 81-page document production contains the most recent directions from the Kansas Secretary of State to Crosscheck Program participants, titled “2014 Participation Guide” and dated December 2013. It advises that states may “cancel” a duplicate record “if the following conditions are met”:
“a. the records match on first name, last name, and date of birth, and
b. One of both of the following data elements match:
-last four digits of Social Security number and
-signature and
c. Data in the middle name field either matches or is not a mismatch.”or
“The jurisdiction poseessing the record with the older registration date may mail a confirmation notice, pursuant to the National Voter Registration Act of 1993, Sec. 8(d)(2), if the three fields match as specified in item 1.a. above. These registrants’ names are added to the state’s Inactive list pending cancellation after two federal general elections, assuming there has been not voting activity during that period.”
Unless my reading skills fail me, this tells states receiving Interstate Crosscheck data that there is an alternative to following the NVRA. Indeed, the second option outlined is the method required by the NVRA, which suggests states can avoid this legal obligation by using the first option. Nothing in federal law provides for such an alternative.
Another paragraph in the same 2014 instructions contains more legally suspect advice. Under a heading entitled, Cancellations by Confirmation Between Jurisdictions, it reads as follows:
“Pursuant to NVRA Sec. 8(d)(1)(A), the jurisdiction possessing the record with the older registration data may cancel the record (and send a cancellation notice if state law or regulations require it), if another jurisdiction confirms that the registrant has registered to vote in the new jurisdiction and has indicated on the voter registration application form an address in the former jurisdiction.”
But this would violate the NVRA because it fails to comply with the requirement that states have to notify voters in writing. Unless they receive written confirmation of the address change from the voter they have to wait two federal elections where the voter does not cast a ballot before canceling their registration.
It’s possible that there is an explanation for all this, and that the Pennsylvania Department of State intends to and will comply with federal law regarding registration cancellations, but what they’ve shared thus far certainly isn’t reassuring.
On March 12, I asked DOS officials for a meeting to discuss how Pennsylvania plans to purge voter registrations under the new Crosscheck program. Other than a nice email from the recently departed DOS chief counsel telling me he had moved on, they haven’t favored me with the courtesy of a reply.
So today we have sent a letter to Secretary Aichele again asking for a meeting to discuss when and how Pennsylvania plans to purge voter records under the Crosscheck Program. Please join us in asking Secretary of State Aichele and Governor Corbett to explain exactly how the commonwealth plans to implement the Crosscheck system, specifically in regards to purging voters from the registration rolls.