In December of last year and March of this year, I wrote about the suggestions from many that the National Voter Registration Act (NVRA), passed in 1993, disallows removals from the voter file based on a match within the statewide voter registration file created by the Help America Vote Act (HAVA), passed in 2002.  It’s a weak argument, that to date has been pushed mostly by voter registration reform groups.  Now, however, the United States Department of Justice is jumping on this bandwagon as detailed in this undated and unsigned memo that appears on their website (to which I was pointed by the electionline newsletter in early June).  Adherence to the shaky legal interpretations of the memo would eviscerate any fraud protection passed by Congress in 2002.

The first thing that should be mentioned about the latest DOJ memo is the last item in the memo.

46. How can I contact the Department of Justice about the NVRA’s voter registration requirements?
As a general matter, the Department of Justice does not issue advisory opinions concerning the statutes that it enforces.

The 45 items before this, however, are nothing but an advisory opinion.  As an advisory opinion though, it is short on analysis and hardly fit for any legal department, especially the chief law enforcement agency in our country.

It is hard to avoid the notion that DOJ is offering up a shallow legal opinion to prop up the overall agenda of many people, which is to worry less about the integrity of our voter registration rolls and more about making sure that everyone is on them, no matter how many times.

The list maintenance section of the DOJ memo starts at number 26.  Sections 30, 31, 34, 35 and 36 are all flawed and largely ignore the list maintenance provisions in the Help America to Vote Act.  For example, item 31 of the DOJ memo states that new applications in another jurisdiction only trigger a removal in the former jurisdiction if the registrant provides information about the fact of registration in the former jurisdiction.  That’s not what happens in practice, nor was it what was intended with HAVA.  In fact, the statewide voter registration file was established precisely to eliminate the problem of voters not informing the former jurisdiction of their address change.  The 18 page DOJ memo mentions the HAVA required statewide voter file just once and that is only regarding deaths and felony convictions.  It is as if Congress had done nothing.

However, over the last five years, DOJ has entered into a number of memoranda of understanding regarding list maintenance.  I detailed some of them in a post in December.  As an example, here is the procedure for removing duplicate registrations in California.

§20108.60. Duplicate Registration Records. (a) Beginning January 1, 2006, the Secretary of State shall conduct weekly checks within the Calvoter statewide registration list to identify potential duplicate registrations for the same voter within that list, based on established rotating criteria. Upon identification of potential duplicate registration records, the Secretary of State shall automatically send an electronic notice to the county with the record that has the oldest date of registration.
(b) Within five (5) business days of receipt of a notice of potential duplicate registration the elections official shall take all necessary steps to determine whether or not the registration record is a duplicate of an existing newer registration, and if a duplicate registration is confirmed, shall cancel the older duplicate registration and submit a registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40.

If list maintenance procedures for election officials are to be based solely on NVRA, there was essentially no reason for Congress to mandate the statewide voter file.  I doubt that a single state administers their statewide voter file in a way that meets the standards laid out by DOJ in this recent memo.  Following DOJ’s guidelines would raise costs dramatically and probably inflate the voter rolls by millions.  In Illinois, over 200,000 voters have been removed through the statewide voter file.  Without the statewide voter file, those nonvoters would still be on the voter rolls at a cost to taxpayers and with a potential risk for fraud.

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