See this press release from the Lawyers’ Committee about this ruling from a federal district court partially denying the state’s motion to dismiss.
Category Archives: NVRA (motor voter)
The OC Case Gets Weirder
I blogged on Wednesday about the DOJ’s lawsuit against the Orange County registrar for access to voting records, and noted that the suit seemed like a weird one from DOJ. DOJ wanted information, but the stakes for DOJ seemed fairly small, the information they were seeking really wouldn’t be useful for evaluating compliance with the laws they cited, it didn’t seem like their legal arguments entitle them to the relief they’re seeking, and these sorts of things normally just get worked out in informal correspondence without a lawsuit.
Two other things that (to their credit) the OC Register was on top of Wednesday night actually make the case even weirder.
First, there was informal correspondence, including an offer to give the DOJ exactly what they wanted (access to unredacted information, albeit pursuant to a confidentiality agreement that would make sure they’re only using the info for proper governmental purposes) the night before the case was filed. (The letters are here, from the registrar’s LinkedIn page: 1, 2, 3, 4, 5. And boy, seeing typos in the official communications from Main Justice is a new and different look.) That is, the night before the suit, the registrar offered DOJ a mechanism to give them what they wanted, as long as it was for a proper purpose. DOJ’s response was a lawsuit. That’s weird.
Second, the OC Register noted that Michael Gates posted on X in October of last year a ballot that he said he was presented, and which certainly seems to fit the origin story in the suit’s complaint itself of the predicate for this case. Gates was at that point the City Attorney for Huntington Beach (in Orange County), and is the now the Deputy Assistant Attorney General in the Civil Rights Division (a role with which I’m familiar). I thought it was odd that Gates personally signed the complaint – there’s nothing at all inherently improper about that, but it’s almost always the career line attorney who’d sign a case like this for the Civil Rights Division. (I can’t remember ever signing the filed paperwork on behalf of the Division while I was in the DAAG role.) But if this is the same ballot, I think that also makes Gates a witness in the matter – and at least to me, a no-brainer candidate for recusal from any lawyering work on the case while at DOJ, much less a signature line that indicates primary responsibility. To be clear, that’s an ”if.” But the plot thicks.
“Justice Department sues Orange County registrar for access to noncitizen voting records”
The L.A. Times and O.C. Register have coverage of the latest from the Civil Rights Division, in a very odd (but also comparatively low-impact?) lawsuit. The complaint is here.
The fuss is apparently over 17 records of non-citizens removed from the voter rolls over 5 years (16 apparently based on self-reporting by the individuals themselves), in which DOJ asked for records (older than the period required under federal law for local offices to keep records), and Orange County provided them. The records had – pursuant to state law – driver’s license numbers, SSN digits, and signatures redacted. DOJ demanded the unredacted records.
But the redacted information isn’t actually all that useful in evaluating whether Orange County was complying with law that DOJ says it was investigating: whether Orange County was complying with HAVA in removing noncitizens from the rolls. And it’s not at all clear that the other law under which DOJ is suing – the right to public voter registration records from just the last two years – actually requires the public disclosure of unredacted SSN digits or signatures.
Normally, these sorts of requests would all be worked out in normal government-to-government communication, or (if in the service of particular criminal investigations) a subpoena, but not civil litigation. And Orange County in particular has a record of excellence in election administration stretching back a few decades now. Given the oddities, I don’t think it hurts to have a judge reviewing the request for this sort of information. This suit just seems weird.
9th Circuit affirms limits on AZ proof of citizenship laws
Justin here. A 9th Circuit panel is out with 156 pages’ worth of opinion in Mi Familia Vota v. Fontes, the latest in the battles revolving around Arizona’s laws requiring documentary proof of citizenship to vote. There’s (obviously) quite a lot going on in an opinion this size, but it’s a pretty clear win for plaintiffs across the board, affirming most of the trial court’s May 2024 decision. To distill:
- Voters using the federal voter registration form have to be registered for federal elections when they swear to their citizenship even without additional documentary proof (that’s Arizona v. Inter-Tribal Council of Arizona). The panel here held that’s true for voters voting by mail and voters voting for President as well.
- Voters using the state voter registration form have a legal right, subject for the moment to a SCOTUS stay, to be registered for federal elections when they swear to their citizenship even without additional documentary proof (that’s a consent decree in LULAC v. Reagan, which today’s panel held valid – but on this point the decision is still subject to a SCOTUS stay). If voters (using the state or federal forms) submit documentary proof or have their citizenship confirmed through a check of DMV systems, those voters have to be registered for state elections too.
- Voters using the state voter registration form have to be registered for federal elections when they swear to their residency even without additional documentary proof.
- Naturalized citizens can’t be singled out (distinct from natural-born citizens) for citizenship checks using the SAVE database, because such a screen would not be uniform.
- Arizona can’t conduct systematic list maintenance to remove records of alleged noncitizens within the NVRA’s “pencils-down period” 90 days before an election (but can conduct such maintenance outside of the 90-day period).
- Voters who provide documentary proof of their citizenship can’t be disenfranchised if they don’t check a box on the state form affirming their citizenship (this is due to the Civil Rights Act’s materiality provision, and full disclosure – I submitted an amicus brief on this point)
- Voters can’t be disenfranchised based on their birthplace or their failure to list a birthplace (also under the materiality provision, with the same amicus brief caveat)
And the court remanded for the district court to reconsider the issue of whether the proof-of-citizenship laws were passed with discriminatory intent.
UPDATE: Foolishly forgot the obvious tie-in: the opinion should make for an even more interesting discussion at Rick’s March 4 SDP conversation w/ Adrian Fontes, Walter Olson, and Nina Perales…
“U.S. seeks to drop case against Virginia over voter-roll cleanup before election”
The U.S. Justice Department sought Tuesday to pull out of an ongoing voting rights case against Virginia over the state’s removal of names from voter rolls shortly before the November election.
The department’s motion for dismissal, filed in U.S. District Court for the Eastern District of Virginia, doesn’t end the case, because there are also private plaintiffs, including voting rights groups, challenging Virginia’s action.
The motion came soon after the Justice Department, now under the Trump administration, reversed the Biden administration’s position in a case involving Louisiana’s congressional maps, and amid a reported reconsideration of the department’s approach to civil rights cases. Some voting rights watchdogs fear that the department’s priorities will shift under the new leadership.
The department did not immediately respond to a request for comment on the filing.
Danielle Lang, senior director of voting rights at the Campaign Legal Center, represents the other organizations bringing the lawsuit, including the League of Women Voters of Virginia. She said the department’s withdrawal means that ongoing disputes over whether those organizations have legal standing to sue are now more critical, because private plaintiffs face a higher burden than the federal government in establishing their right to sue.
So far, Lang said, courts have found that her clients do have standing to bring the case….
“Preliminary Injunction Entered in Justice Department Suit to Stop Alabama’s Systematic Removal of Voters from Registration Rolls”
“Travis County sues top Texas officials, accusing them of violating National Voter Registration Act”
Travis County officials sued Attorney General Ken Paxton and Secretary of State Jane Nelson on Tuesday over the state’s attempt to block voter registration efforts ahead of a hotly contested presidential election.
The new federal lawsuit escalates a pre-election war between Republican state officials and Democratic urban county leaders over voter registration efforts and accuses Texas officials of violating the National Voter Registration Act. Developments in the ongoing battle continue unfolding as the Oct. 7 deadline to sign up to vote looms….
The federal suit is in response to Paxton turning to state courts to try and block the county from mailing out voter registration applications to people identified as eligible voters who aren’t currently on the rolls. Travis County is home to Austin and has long been a Democratic stronghold in the state.
Paxton’s lawsuit argued that the Texas Election Code did not grant a county officials the ability to collect information about private citizens to convince them to vote and claimed that such an effort is illegal. But Democrats, local leaders and election experts disagree with Paxton’s interpretation of state law.
Federal District Court Dismisses PILF NVRA Lawsuit Against the State of Louisiana on Standing Grounds
The conservative group PILF claimed it could get access to Louisiana’s list of voters removed from the registration rolls under the NVRA. Today a federal district court dismissed the case on grounds that PILF had no standing.
Voting Groups File Brief in Ninth Circuit in AZ Documentary Proof of Citizenship for Registration Case (as Emergency Motion is Pending in SCOTUS in Case as Well)
The brief addresses Congress’s power to regulate presidential, and not just congressional, elections.
“Republicans Ask US Supreme Court To Reinstate Arizona Voter Suppression Laws”
The Democracy Docket: The Republican National Committee and Arizona Republicans applied to the Supreme Court for emergency relief to reinstate Arizona’s strict proof of citizenship law.
“Republicans ask the Supreme Court to reject state voter registration forms if the voter did not provide documentary proof of citizenship with their application and block voters who have not provided documentary proof of citizenship from voting by mail or casting votes for president.”
Currently, because the law which governs state forms is blocked, “Arizona voters who register using a state voter registration form and have documentary proof of citizenship on file at the DMV will be fully registered,” even if they did not provide provide citizenship proof with their application to register. Meanwhile, the lower court has ensured that Arizona voters, who register using the state form, will not be barred from voting in federal elections even if they are have not provided documentary proof of citizenship because such proof is not required by federal law.
The Michigan Trump/RNC complaint is a mess
Justin here. Here’s the complaint for the RNC/Trump Michigan lawsuit Dan flagged earlier today. It’s a mess.
I think this may be the second lawsuit that the 2024 Trump campaign has filed directly as a plaintiff, behind the Nevada case from May about the timing of receiving mail ballots. (I’d welcome the correction if that’s not true.)
The Michigan complaint correctly notes that Michigan designated local SBA and VA offices as voter registration agencies under the NVRA. (Disclosure: I played a part in helping to encourage SBA and VA to receive such designations.)
But the complaint goes off the rails pretty quickly thereafter:
- It was brought in federal court, but It alleges that the designation was improperly effectuated under Michigan law, which isn’t a thing federal courts have any say over. (Federal courts can’t order state officials to obey state law.)
- It’s not at all clear how the plaintiffs are injured by the allegedly improper designation. (There’s one election official involved as a plaintiff, and in an apparent bid to manufacture standing, the attorneys have stolen an out-of-context 2012 quote from a trial court in Texas about officials being the right defendants in election cases.)
- As Dan guessed even before seeing the complaint, even if the plaintiffs are right about what Michigan law requires (and I’m not at all sure they’re right about that), it’s not clear how the federal agencies even allegedly violated any provision of any federal law in saying “OK” when Michigan officials reached out. Indeed, saying OK when state officials reach out is exactly what federal officials are required by federal law to do.
So this should be thrown out of federal court pretty quickly. (Remember: we’re accustomed to thinking that lawsuits get filed when there are serious problems, and sometimes that’s true. But not always. To reprise a lesson of the 2020 cycle: a lawsuit without provable facts showing a statutory or constitutional violation is just a “tweet” with a filing fee. Or a “post.” Or whatever we’re calling them now.)
But my questions don’t stop with the legal merits. In March, the same RNC sued Michigan based on claims that the state had failed to keep its voter rolls clean and accurate. (I’ve previously noted the flaws in their primary methodology.) Offering voters the chance to register while they’re doing other government paperwork — when the information gets reviewed by agency officials and when we know that it’s current — is among the cheapest, most reliable ways to make sure the information on the rolls is clean and accurate. What the SBA and VA are doing here (for any voter, of whatever partisan preference or none) isn’t any different from the process to offer registration at the DMV, as a one-stop procedure, when someone walks in to update their driver’s license with a new address. (And Michigan was widely recognized as the model for that DMV procedure before the federal government took it up in the NVRA, so it’s got decades of experience with the benefits of good info.)
Why does the RNC have an interest in making sure that veterans and small business owners can’t readily get registered at the same time they’re filling out other paperwork? If they want the Michigan rolls clean and accurate — a goal we share — why not seek high-quality registration information to update the rolls while the government is collecting the same info for other purposes anyway? Those questions may sound rhetorical, but I promise that the bewilderment is real: I understand knee-jerk partisan skepticism, but I’ve never understood even the ostensible underlying policy objection here. The plaintiffs complain that they have to deploy their resources to prevent fraud … but I honestly don’t get why the policy they’re suing to block doesn’t reduce the practical opportunity for fraud, while facilitating the accurate registration of groups they claim as supporters.
“Republicans are turning Biden’s voter registration order into a partisan flash point”
Hansi Lo Wang for NPR:
In these final months before this fall’s election, Republican officials are ramping up attacks on a three-year-old executive order President Biden issued to try to get more eligible voters signed up to cast ballots.
The order calls for federal agencies to promote voter registration and participation in ways that are “consistent with applicable law.” Many election experts see the effort as a worthwhile attempt to take advantage of the regular interactions eligible voters have with the government and address long-standing barriers to the ballot, including those facing people of color, those with disabilities, those in federal custody and those serving overseas in the U.S. military.
“It is our duty to ensure that registering to vote and the act of voting be made simple and easy for all those eligible to do so,” the 2021 order says.
But now, as the Democratic president faces reelection, his order has sparked growing pushback from the right, most recently congressional subpoenas to agency directors from the GOP-controlled House Administration Committee and an attempt by a group of Republican state lawmakers in Pennsylvania to get the U.S. Supreme Court to take up a dismissed lawsuit over the order.
Backed with no substantial evidence, GOP lawmakers and state election officials, along with right-wing activists, have launched a barrage of claims that the Biden administration is using this order to overstep the federal government’s role in elections, garner more Democratic voters and register non-U.S. citizens, who cannot legally vote in federal elections.
“This Executive Order is another attempt by the Biden Administration to tilt the scales ahead of 2024,” Republican Rep. Bryan Steil of Wisconsin, chair of the House Administration Committee, said this month in a press release referencing “Bidenbucks,” what has become shorthand for unsubstantiated allegations that the administration is misusing federal tax dollars to benefit Biden’s reelection campaign.
What the order has actually done, however, has not fully satisfied its supporters.
A few federal agencies have started new partnerships with states to help with voter registration, and others have released guides, mailers and updated websites. But it’s unclear how many new voter registration applications the order has yielded so far.
“WV will NOT accept voter registrations collected by Biden Administration”
Justin here. The title of this post is the header of the email version of a press release issued earlier this week by the office of WV Secretary of State “Mac” Warner, currently running for governor.
I’m pretty sure the title’s not true. But we’ll get there in a sec. (It’s not the only piece of inaccurate information in the release.)
The press release is a broadside against a fictional version of Executive Order 14019, the President’s directive that federal agencies review their authorities to “consider ways to expand citizens’ opportunities to register to vote and to obtain information about, and participate in, the electoral process.” (Disclaimer: I had no part in drafting the EO, but in my role as a federal official, I had a hand in helping to implement it, including listening to state election officials — Secretary Warner among them — during consultative conversations that Secretary Warner asserts didn’t exist.)
The release claims that the EO is an unconstitutional direction to federal agencies to “take over voter registration processes from states.” It cites, as support, half of the constitutional foundation for the EO, in noting that “Article 1 Section 4 of the U.S. Constitution says the times, places, and manner of holding elections, shall be left to the state legislatures.”
There are other words after that snippet, of course: Congress may at any time change that default. And Congress has. The NVRA directs states to designate specific government offices as one-stop voter registration agencies — including federal recruitment offices for the armed forces, as a means to facilitate electoral participation by servicemembers. Those recruitment offices are part of the Biden Administration. And contrary to the Secretary’s email header, it’s hard to imagine that Secretary Warner, himself a veteran, plans to refuse the servicemembers’ voter registrations collected there.
The NVRA also permits states to designate as one-stop registration agencies other state offices, and offices of federal agencies with the agreement of those offices. And it requires, to the greatest extent practicable, federal executive agencies to cooperate with states in effectuating those designations.
The heart of the EO is just carrying out this congressional demand. (There are other bits too, like explaining the proper and improper uses of agency funds, but the heart is effectuating the NVRA’s mandate.)
Nobody’s taking over voter registration processes from the states. Several states not attempting to turn customer service into conspiracy theory have worked with agencies to help constituents get registered to vote while they’re doing other government paperwork. In 30 years of the NVRA’s existence, the first state to designate a federal entity’s office as a voter registration site was Kansas, when it designated Haskell Indian Nations University (operated by the Department of the Interior) in May 2022. The second was New Mexico, designating the Southwestern Indian Polytechnic Institute (also operated by DOI), two months later. Kentucky and Michigan and Pennsylvania have announced partnerships with the Department of Veterans Affairs to let veterans more efficiently register to vote. Those federal agencies are ready to partner with red states and blue states and purple states in part because the executive order told them to be.
VA sites can only be designated as one-stop voter registration agencies if states step forward: without West Virginia’s blessing, no VA site in West Virginia will be acting as a designated site. I think it’s great that veterans in Kentucky will have more opportunities to smoothly register to vote while they’re already filling out paperwork, and a shame that there’s resistance just over the border to offering other veterans the same — but no matter how politically convenient it may be to conjure into rhetorical existence a strawman federal takeover, EO 14019 in no way limits West Virginia’s continuing choices about how best to serve its would-be voters. If the press release portends a fight, it’s a fight with nobody on the other side.
Weinstein-Tull on Federal Election Administration
Justin Weinstein-Tull, Federal Election Administration Laws (forthcoming, Oxford Handbook of American Election Law):
Although states and local governments administer elections in the United States, the federal government has also enacted laws that regulate election administration. Most prominent among these laws are the National Voter Registration Act, the Uniformed and Overseas Citizens Absentee Voting Act, and the Help America Vote Act. With its recent attempt to enact the For the People Act, Congress has demonstrated an interest in more aggressively regulating election administration.
This chapter discusses both the promise and the challenges of federal election administration laws. It discusses the good that these laws can accomplish, but also the difficulties enforcing them. It explains how federal election administration laws fit into voting rights scholarship, and suggests avenues for future research. Building on these insights, it concludes by suggesting novel ways that the federal government could effectively administer elections while retaining the benefits of local election administration.