Category Archives: voter registration

NC elections, due process, and a friendly (?) amendment

absentee ballots, chicanery, election law and constitutional law, election subversion risk, voter registration

Hi. Justin here. Rick Pildes just posted here about the significant federal due process problems with Friday’s state appellate opinion on the North Carolina state supreme court race.

I’ll go further: I think that the appellate decision raises a number of additional federal issues, all stemming from the fact that the only ballots challenged were early or mail ballots, despite the fact that the principal challenge (60,273 out of the 61,949 challenged ballots) has nothing to do with any invalidity in the method of voting. Instead, the challenges are based on allegedly missing voter registration data (more on that in a sec) also likely missing from unchallenged voters who went to the polls on election day. Because for purposes of whether their registrations are valid or invalid, the challenged voters and unchallenged voters are similarly situated, I don’t know why this isn’t an equal protection concern and a problem under 52 U.S.C. 10101(a)(2)(A). (There are other problems beyond these, as well – I don’t mean to be listing them all.)

But I agree with Rick that the federal due process problems are unmistakably front and center. Indeed, I think it may be even worse than he suggests.

Much of the reporting that has ventured into the weeds of these allegations says that the 60,273 challenged ballots were cast by voters who didn’t provide their driver’s license number or social security digits when registering. As Rick P. points out, that’s in part because the state registration form in the relevant period didn’t ask the voters for that info. Voters did what they were told to do, were told they were registered, and some had been voting for years. (There’s no indication anywhere in the case that any of these 60,273 voters are substantively ineligible under NC’s constitution.)

But there’s a further problem: in a passage wholly unrebutted by the majority, the dissenting opinion says that the description above just isn’t true. It’s not that 60,273 challenged ballots were cast by voters who didn’t provide their driver’s license or social security digits when registering. It’s that 60,273 challenged ballots don’t have those digits listed in the state database. Those things are NOT the same.

The dissent notes that, among other reasons, digits that are supplied but not matched to other systems aren’t kept in the state database. There are many reasons why the numbers for eligible voters may not match up, including typos by temps doing data entry, and discrepancies in how different databases store naming patterns. (All of these voters must show documentation of their identity before they vote for the first time, pursuant to both state law and HAVA.)

Put differently: some portion of these voters now presumptively disenfranchised by the appellate court’s opinion likely complied perfectly with state law. Judge Griffin apparently produced no evidence about how many voters are in this category, and how many are in the category Rick notes, in which the failure was the state’s fault and the voters did everything the state asked them to do. (On p. 32 of the dissent, Judge Hampson notes that the Board produced “evidence tending to show” that almost half of the voters likely did provide digits that aren’t now reflected in the database.)

I think that makes the due process problem that Rick P. highlighted even worse. If the dissent’s characterization of the evidence is accurate, for a set of the challenged voters, it’s not just that the rules have changed with respect to the notion that they might now, in rules shifting after the election, be held responsible for the state’s mistake. It’s that the rules have changed such that the court of appeals has ordered their ballots to be invalidated, after the election, without proof of any violation of North Carolina law.

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Wyoming Governor lets proof of voter residency bill become law without his signature

election administration, voter registration

Wyoming Public Radio:

Gov. Mark Gordon let HB 156 go into law without his signature. The new law requires proof of U.S. citizenship and Wyoming residency to register to vote in the state. You must have lived in the state for 30 days for residency. It also says a county clerk can reject someone’s registration due to “any indication” that the person is not a U.S. citizen or Wyoming resident. The law will go into effect on July 1st.

Proof of U.S. citizenship can include a valid Wyoming driver’s license or ID, valid tribal ID, Real ID driver’s license or ID issued by any other state. It will be up to the secretary of state to decide what documents or other proof establishes Wyoming residency.

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9th Circuit will go en banc to reconsider Arizona voter registration decision

court decisions, voter registration

Back in September, I noted the sharply divided panel decision in Arizona Alliance for Retired Americans v. Mayes on whether the plaintiffs had standing to challenge parts of an Arizona voter registration law. The majority concluded that the plaintiff organization could not allege a “diversion of resources” theory after the Supreme Court’s June decision in FDA v. AHM as a basis for claiming an injury that would allow the plaintiff to sue and challenge the law. In doing so, the majority brushed aside a stretch of Ninth Circuit precedent it deemed inconsistent with the Supreme Court’s recent decision.

Back then, I wrote, “It would not surprise me, given Judge Nguyen’s dissent, to see this case go en banc or some effort to get the Supreme Court’s attention.” My prediction was right, as the Ninth Circuit just announced it would go en banc to reconsider the case.

Let me go one step further. This case already starts to resemble Brnovich v. DNC (although, of course, there are material differences!). There, a Ninth Circuit decision found against the plaintiffs in an election law case. There, the case when en banc, and the panel decision was reversed–reversed in such a fashion to capture the Supreme Court’s attention. The Supreme Court, in turn, swept aside the lower court decision in a fairly significant way, significant enough to truncate similar claims in the future. That’s how this case is starting to feel in the aftermath of FDA v. AHM.

Of course, there are other plaintiffs who could establish standing in cases like these–but the decision of the Ninth Circuit threatens a kind of plaintiff who might bring such cases, and there is an interest in that kind of plaintiff trying to preserve the opportunity to sue. That has resulted in an en banc petition strategy that focuses on standing for groups like the plaintiffs here to bring the challenge.

But in doing so–if the Ninth Circuit is interested (perhaps it is not!) in bucking the Supreme Court’s very clear messaging in FDA v. AHM about the standing that organizational plaintiffs have in cases like these–the plaintiffs risk attracting, once again, the Supreme Court’s attention.

Perhaps I’m wrong, and perhaps after more fulsome briefing the case is entirely distinguishable from what was pushed aside in FDA v. AHM. Or perhaps the 9th Circuit decision does not attract Supreme Court review. We shall see how this case plays out in the months ahead. But let me say, my June prediction of fallout of FDA v. AHM in election law cases was right, as was my prediction in September about this case attracting en banc attention, so we’ll see how long my streak holds….

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Federal court finds several Texas election provisions from SB1 in 2021 run afoul of federal statutes

absentee ballots, court decisions, voter registration

A long opinion from the district court in La Unión Del Pueblo Entero v. Abbott is here. Several portions of SB1 relating to mail-in voting and voter assistance were found to violate the Americans with Disabilities Act and the Rehabilitation Act. (There have been other legal issues previously adjudicated in this complicated case.) There are a lot of parties, a lot of sections of the bill in dispute, and a lot of subtlety in which parts are or are not enjoined, but it is mostly a win for the plaintiffs–for more, dig into the opinion.

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Consent decree entered in Montana voter registration dispute

voter registration

After much litigation, Montana Public Interest Research Group v. Jacobsen (the RNC intervened in the case) has been resolved.

Two provisions of a subsection of a voter registration statute will not be enforced, consistent with a preliminary injunction subsequently affirmed by the Ninth Circuit: “A person or elector may not purposefully remain registered to vote in more than one place in this state or another state any time, unless related to involvement in special district elections. A person or elector previously registered to vote in another county or another state shall provide the previous registration information on the Montana voter registration application provided for in 13-2-110.”

Other portions of the statute, including “An elector may not vote more than once at an election,” and “A person or elector may not vote in this state more than once at any election held in this state or vote in both this state and another state or territory in the same or equivalent elections, except in a special district election in which a person or elector is entitled to vote,” will remain in effect (and were not challenged in this litigation).

For more on the background of this lawsuit and HB 892 in Montana, see this story from 2024.

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“U.S. Department of Justice Dismisses Biden-Era Lawsuit Against Alabama in order to have more Secure Elections”

Department of Justice, voter registration

Press release from the Department of Justice:

Today, the U.S. Department of Justice’s Civil Rights Division filed a dismissal of the complaint in United States v. Alabama. The previous administration had filed the action in 2024 after the Secretary of State in Alabama had taken steps to remove ineligible alien voters from their voter rolls in the run-up to the 2024 presidential election.   

“States are required to maintain accurate voting rolls and remove ineligible voters,” said Acting Assistant Attorney General Mac Warner of the Justice Department’s Civil Rights Division. “This Administration supports the efforts of states like Alabama that engage in voting security measures that ensure only citizens are voting in our elections. We are dismissing this case from the prior Administration to permit Alabama the time and space to develop a legal, efficient, and effective process to remove noncitizens from their voting roll and secure the vote for their citizens in upcoming elections.”

In mid-August 2025, Alabama Secretary of State Wes Allen announced a “process to remove non-citizens registered to vote in Alabama,” citing over 3,200 people who he said registered to vote and were not U.S. citizens. The stipulated notice of dismissal filed today ends the lawsuit brought by the prior administration challenging that procedure. Because of that lawsuit, Alabama was forced to cease its process in 2024.

By ending the Department of Justice’s action against them, Alabama should now have the opportunity develop a new process to ensure that ineligible voters are removed from its voter rolls, as it is required to do under Section 8 of the NVRA.

Earlier coverage of the DOJ’s action again Alabama in September 2024 is here.

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9th Circuit affirms limits on AZ proof of citizenship laws

absentee ballots, election administration, NVRA (motor voter), The Voting Wars, voter registration

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…

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“Georgia Republicans advance a plan to leave a bipartisan voter data group, despite warnings”

election administration, The Voting Wars, voter registration

AP:

For years, Republicans echoing President Donald Trump’s false claims that the 2020 presidential election was ridden with voter fraud have pushed for states to leave a bipartisan group that lets officials share data to keep voter rolls accurate. Nine have, but none since October 2023.

A new bill advanced Tuesday by House Republicans in a Georgia committee could make Georgia the 10th.

Twenty-four states and Washington, D.C., are currently members of the Electronic Registration Information Center, or ERIC, which Republicans have questioned over its funding and motives. Officials use state and federal data from the group to identify and remove from voting rolls people who have died, moved to other states or registered somewhere else.

Rep. Martin Momtahan, the Dallas Republican who introduced the bill, said states leaving the group, including many that border Georgia, have made the data and its network “totally ineffective.”

But Georgia Republican Secretary of State Brad Raffensperger has credited the system for helping him maintain accurate voter data, which officials say provides more robust information than states can gather on their own.

“ERIC is, in my opinion, the most secure and efficient mass voter list maintenance tool that is available,” Blake Evans, who works for Raffensperger and is the chair of ERIC’s executive committee, said during a Tuesday hearing on the bill.

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Weiser and Garber: “The SAVE Act Would Undermine Voter Registration for all Americans”

election administration, voter registration

The following is a guest post from Wendy Weiser & Andrew Garber:

Last month, congressional Republicans pledged to fast-track the SAVE Act (H.R. 22), a bill that would require all Americans to provide a birth certificate, passport, or one of a few other citizenship documents every time they register or re-register to vote. If enacted, the bill would devastate voter registration while disenfranchising tens of millions of eligible American citizens.   

More than 21 million American citizens don’t have documentary proof of citizenship readily available, according to previously-published survey data. But the SAVE Act would likely adversely affect many, many more Americans than these data suggest. Many might not have noticed how broadly the bill could apply; its show-your-papers requirement is not just limited to new registrations but rather applies to every “application to register to vote,” which may not exclude re-registrations and changes of address. Tens of millions of Americans register or re-register between every federal election.

The SAVE Act Would Upend Most Methods of Voter Registration

What is more, the bill would obliterate or upend longstanding and popular methods of voter registration – including registration by mail, voter registration drives, online voter registration, and automatic voter registration. This would apply to all voters, regardless of whether they have the required documentation.

Here is the relevant bill text:

  • Section 2(b)(3) mandates that states “shall not accept and process an application to register to vote . . . unless the applicant presents documentary proof of United States citizenship with the application.” Sections 2(c)(4) and 2(e)(1)(B) make clear that this requirement applies to registration at DMVs and voter registration agencies.
  • Section 2(f)(3) similarly provides that states “may not register an individual to vote . . . unless at the time the individual applies to register to vote, the individual provides documentary proof of United States citizenship.”
  • Section 2(a) defines “documentary proof of United States citizenship” but is silent on whether photocopies or electronic records of those documents would comply. For reasons cited below, there is a significant risk that they would not be accepted.
  • For people registering to vote using the national mail voter registration form, section 2(d)(4) expressly requires them to present documentary proof of citizenship “in person to the office of the appropriate election official.” That must be done “not later than the deadline provided by State law for the receipt of a completed voter registration application for the election.” In other words, every individual registering by mail would be required to show up in person at an election official’s office with satisfactory documents before the registration deadline.
  • Section 2(j)(3) creates criminal penalties for election officials who register “an applicant to vote in an election for Federal office who fails to present documentary proof of United States citizenship.” This would undoubtedly deter election officials from adopting a flexible or liberal reading of the documentation requirements (including whether to accept a registration or re-registration from someone who has not produced the documents in person or whether to allow alternative methods of proving citizenship under section 2(f) beyond the “documentary proof” required by this provision).

Taken together, these provisions would upend or undermine almost every method of voter registration. They would functionally eliminate mail registration by requiring mail registrants to produce citizenship documents in person to an election official before the registration deadline.  They would also abolish many or all voter registration drives and online voter registration systems – which are typically treated like mail registration. And they would severely hamper automatic voter registration, as many of those transactions don’t occur in person while someone has citizenship documents with them. Address changes could be significantly impacted, too: instead of your registration automatically updating when, for instance, you change your driver’s license address online, you might have to bring your passport or birth certificate to an election agency office to update your voter registration.

Nothing we have found in the SAVE Act addresses these concerns. The bill consistently cuts in favor of in-person registration at a select few places for your registration to count. And that would likely be the case every time you need to update your registration.

The SAVE Act’s Documentation Requirement Could Exclude Tens of Millions of Americans

Beyond the impact on voter registration methods, the SAVE Act would exclude millions of eligible American citizens who do not have ready access to the documentation it requires. According to a survey conducted by the Brennan Center and several partners, more than 9 percent of American voting-age citizens, or 21.3 million people, don’t have a passport, birth certificate, or naturalization papers readily available. Voters of color (11% of whom lacked access to citizenship documents as compared to 8% of white Americans), voters who change their names (most notably, married women), and lower income voters would be most significantly affected.

In addition, as our colleagues Owen Bacskai and Eliza Sweren-Becker catalogued, proof of citizenship requirements in Arizona and Kansas blocked tens of thousands of citizens from registering. Kansas’s show-your-papers policy was struck down as unconstitutional, and recently prompted criticism even from Kansas’s Republican secretary of state. Those state policies are generally less onerous than the SAVE ACT. (In Arizona, for instance, most voters do not have to produce citizenship documents because the state accepts driver’s license numbers from most voters as proof of citizenship—something that would not be allowed under the SAVE Act.)

Contrary to what some have suggested, the SAVE Act does not contain a meaningful failsafe provision that would allow those without physical documentation to register. While the bill includes a provision (Section 2(f)) requiring states to establish a failsafe process for those without citizenship documents to demonstrate their citizenship through “other evidence” and swear an affidavit, that option is vague and severely undercut by the provision (Section 2(j)(3)) making it a crime for election officials to register any applicant who does not “present documentary proof of United States citizenship.” Many election officials would be wary of risking criminal prosecution for running afoul of this provision.

In short, the potential disenfranchising consequences of the SAVE Act are substantial.

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“GOP laws aimed at very rare noncitizen voting could hit eligible voters”

election administration, fraudulent fraud squad, voter registration

WaPo:

In the months before last year’s election, Alabama removed valid voters from the rolls after wrongly tagging them as noncitizens. Tennessee’s secretary of state told 14,000 voters they had to prove their citizenship. And officials debatedwhetherhundreds of thousands of Arizonans could vote in state races after they discovered they were missing citizenship documentation.

More episodes like those are likely to lie ahead throughout the country.

Republicans in Congress and state legislatures are charging forward with plans to require Americans to prove they are citizens as they say they seek to crack down on noncitizen voting — an almost nonexistent problem.

Voting by noncitizens is already illegal in all state and federal elections, and requiring voters to provide proof of citizenship could make it harder for millions of legitimate voters to cast ballots. Driver’s licenses and other state IDs can be used only for people who provided proof of citizenship to get those IDs, so some people will need to track down other documents.

Many people do not have ready access to birth certificates or passports, including women who changed their names when they got married, rural residents who live far from government offices where birth records are kept, and people who lost documents in fires or floods….

Noncitizen voting is extremely rare, with academic studies finding just a handful of examples out of tens of millions of ballots cast over many years.

This year, laws took effect in Louisiana and New Hampshire requiring people to provide proof of citizenship when they register to vote. The laws are modeled on one in Arizona, where officials continue to struggle with administering a measure voters approved 20 years ago.

The Wyoming House last month passed a bill requiring proof of citizenship, and lawmakers in 13 other states have introduced similar legislation, according to the nonpartisan Voting Rights Lab. Republicans control the legislatures and governor’s office in eight of those states, boosting the legislation’s prospects.

Critics warn that longtime voters — including those who ardently support Trump — could find it harder to vote as more measures are passed and they discover they can’t track down their birth certificate or other documents proving their citizenship….

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February 13 Safeguarding Democracy Project Webinar: “Finding Common Ground on Modernizing Voter Registration”

election administration, voter registration

Very much looking forward to moderating this online event on February 13 at 12:15 pm PT. Free registration required.

Christina Adkins, Director of Elections, Texas Secretary of State’s Office, 
Judd Choate, Director of Elections in Colorado, and 
Charles H. Stewart III, MIT.R
ichard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)
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Will Mitch McConnell Save America from the SAVE Act?

election administration, fraudulent fraud squad, The Voting Wars, voter registration

Votebeat:

Lane, one of four congressional staff members on the panel, said the SAVE Act will be a priority for the House this time. He acknowledged a push to consider what a voter identification requirement would look like and potentially revisit at least parts of other voting laws. Among them is a provision in the National Voter Registration Act that requires states to stop systematic cleaning of voter rolls 90 days before a federal election, a sticking point in ongoing litigation against Virginia.

It is far less clear what legislation might be able to draw the 60 votes necessary to overcome a filibuster in the Senate, where Republicans have 53 seats. Tiffany Ge, the majority staff director for the Senate Rules Committee, chaired by Sen. Mitch McConnell, R-Ky., stressed during the panel that federalism is fundamental to election administration, and said it’s important for states and localities to have the flexibility to do things in ways that make sense for them.

During the last Congress, McConnell was an original co-sponsor of Senate legislation that would have let states include a requirement on mail voter registration forms that applicants provide proof of citizenship, though the bill didn’t pass. That could suggest a legislative route he, at least, might support.

Speaking from the audience, Arizona Secretary of State Adrian Fontes, a Democrat, raised several concerns about the SAVE Act, pointing out that not everyone has documents showing proof of citizenship, and said he objected to the part of the legislation that establishes criminal penalties for an election administrator who registers someone lacking the documentation. “They’re doing their best out there,” he said.

Arizona is currently the only state enforcing a requirement for voters to provide documented proof of citizenship. Other states, including New Hampshire and Louisiana, have now passed legislation requiring it, and several state legislatures are considering it or intend to do so, including in Texas and Michigan. Arizona voters who don’t provide it cannot vote in state and local elections….

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