Category Archives: voter registration

““Modernizing Voter List Maintenance: An Evidence-Based Framework for Access and Integrity”

voter registration

Michael Morse, Rachel Orey, and Joann Bautista have published a Bipartisan Policy Center report on list maintenance, based on Morse’s earlier article. Here’s an excerpt of the executive summary:

Voter registration lists are widely regarded as the backbone of election administration. To keep these lists up to date, election officials are responsible for identifying when voters move, die, or otherwise become ineligible to vote. The bureaucratic process known as “list maintenance” has long been a quiet feature of election administration, but has come under increasing scrutiny in recent years. Some advocacy groups equate the removal of voter registrations with disenfranchisement, labeling it voter purging; others maintain that voter lists are plagued by errors, characterizing them as “dirty,” and argue that registrations aren’t being canceled often enough.

In reality, list maintenance doesn’t need to be a trade-off between access and integrity. Rather, well-crafted, evidence-based policies can advance both goals simultaneously. This report discusses two of the most salient topics in list maintenance policy discussions today:mobility and citizenship.

Mobility and citizenship present fundamentally different types of problems for election officials. Although voters move frequently, audits have found that very few registered voters are not citizens. Nonetheless, identifying when voters move and verifying citizenship present similar types of administrative challenges for election officials, who must coordinate with other officials in their state, between states, and in the federal government to gather the most up-to-date information.

Drawing on Michael Morse’s 2023 law review article, this report first addresses the recurring problem of voter mobility for list maintenance and suggests targeted reforms. It then turns to nascent efforts to verify the citizenship of voters, highlighting emerging challenges and urging caution to avoid premature policymaking.

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DOJ increases pressure to vacuum up voter files

Department of Justice, election administration, voter registration

A month ago, I noted that the DOJ’s Civil Rights Division had sent demands to a bunch of states for copies of the voter files.  These letters were pretty unusual.  I didn’t think DOJ’s ostensible rationale for demanding the files made much sense.  I didn’t think the statutes DOJ cited entitled them to the information they were demanding.  Indeed, I thought federal law precluded DOJ from amassing this information (at least until they do some more homework).

Now the Civil Rights Division is out with a new letter (as before, it’s not clear how many states were recipients, but it seems to be widespread, and perhaps national).  The new letter is from the head of the Civil Rights Division, Assistant AG Harmeet Dhillon (previous iterations were from the acting chief of the Voting Section).  It cites some different statutes.  But it’s not ultimately more persuasive on any of the points above.

It sure looks like the Civil Rights Division is trying to do what the Pence-Kobach Commission failed to do eight years ago: assemble a national voter file.  (Why?  I’m not sure.  And that’s part of the problem.  I’ve got guesses, but federal law says I don’t have to guess.  Before the federal government does something like this, it has to explain itself.)  I thought that was likely illegal then, and I think it’s still likely illegal now.

What follows takes a closer look at these new letters. (It’s a longer analysis, so I’ve tucked the good stuff away under the headers below.)

The ostensible rationale for the files (the NVRA/HAVA).

The NVRA and HAVA each require states to conduct general programs of list maintenance that make reasonable efforts to clean the rolls.  (Here’s the NVRA version, here’s the HAVA version.)  There are more specific provisions in each statute protecting against inaccurate overcleaning: list maintenance comes with a thumb on the scales for not tossing potentially eligible voters if you’re not sure.  But the main point is that both statutes put list maintenance firmly in the hands of the states, and in that endeavor, both require reasonable maintenance procedures, not record-by-record assurance that every ineligible voter is removed.

The new letters offer a very different vision.  “In charging the Attorney General with enforcement of the voter registration list requirements in HAVA and in the NVRA, Congress plainly intended that DOJ be able to conduct an independent review of each state’s list.”  Not just a review of a state’s general program of list maintenance – a review of each state’s list.  Each state’s list.  That staggering assertion of federal intervention comes with no citation to any specific statutory provision, and is not supported by any that I’m aware of (nor any historical DOJ practice, nor any judicial precedent).  But the Civil Rights Division thinks it so important that it copied the sentence twice, verbatim, in a 2½-page letter.  Maybe they think repeating it makes it seem truthier?

If the Civil Rights Division were focused instead on the actual language of the statute, they’d recognize that the responsibility they actually have is reviewing a state’s general program of list maintenance.  That means that it’s entirely legit to ask questions about state procedures for cleaning the rolls, and even to ask for statistics that might touch on those procedures’ efficacy.  (While federal law puts some constraints on collecting personal voter information – see below – it’s entirely agnostic about DOJ questions on procedures and stats.)  But data on particular individuals isn’t particularly helpful in enforcing the NVRA/HAVA provisions the letters cite.  Knowing whether “Justin Levitt” is on the voter rolls in a particular state, and knowing Levitt’s Social Security digits, isn’t especially responsive to whether that state has or doesn’t have the general program required by statute.

The new statutory citation (the Civil Rights Act).

Earlier versions of the gimme-all-your-data letter focused on the NVRA’s provision for public access to the voter rolls, which has been repeatedly construed to allow states to keep sensitive info (like Social Security digits) private even while requiring public disclosure of a lot of other material.  The new letter makes clear that the Civil Rights Division wants all fields – which, again, the letter says twice, because then you know it’s serious.  And the new letter cites a different source of authority: the Civil Rights Act of 1960. But that statute doesn’t do what DOJ wants it to do either.

The Civil Rights Act of 1960 has a provision that requires election officials to keep election-related records for 22 months.  And it has a provision that authorizes the Attorney General to ask to inspect, reproduce, or copy any such record (which is cited in the letter), with a written note explaining the basis and the purpose for the demand (which is not cited in the letter).

There’s admittedly not a ton of caselaw on this provision, and what little there is was developed around Southern jurisdictions at a time when records involved less personal data and more blatant discrimination.  But I’ve always thought of the retention provision like a litigation hold: election officials, don’t throw anything out for 22 months, in case there’s a problem.  If DOJ has reason to believe there was a problem, it may come asking for specific records later.  The litigation hold is for everything, but any particular DOJ request from that universe isn’t automatically coextensive with “everything”: each request has to have not merely a “purpose,” but also – and separately under the statute, lest it be mere surplusage – a “basis.”  That’s a little like probable cause — it’s not terribly demanding (the articulation in an internal justification memo for opening an investigation in the first instance would normally more than suffice), and properly gives a lot of latitude to the government, but “I’m just curious” isn’t enough. 

And this all makes sense, given the recordkeeping environment of 1960.  If the Civil Rights Division had reason to believe that particular eligible voters had been denied the right to vote, it’s clear that this provision authorized the Division to go look up their registration cards and go look at the pollbooks to see if they checked in.  But it’s just as clear to me that this provision didn’t authorize DOJ to collect copies of all of the registration cards from all of the states — “each state’s list” — to go fishing to see what they could find.  Such a demand wouldn’t have the “basis” the statute requires.

The affirmative restriction on the federal government (the Privacy Act).

Everything above is about why the statutes in the letter don’t authorize the Civil Rights Division to get what it wants.  But there’s a different federal statute that I think affirmatively prevents the DOJ from getting what it wants, and the statutes above have to be read in light of that statute too.

That statute is the Privacy Act of 1974.  It says that before the federal government collects records on individuals, the government has to facilitate a public conversation – a Federal Register notice and notification to congressional committees — about what information it plans to collect, why it needs the information, who has access, and the like.  That’s 5 U.S.C. § 552a(e)(4) and 552a(r).  Federal officials who collect info on Americans without this public notice are committing a federal crime.  State officials who intend to help the Civil Rights Division blow past this notice requirement may be abetting that crime.

The new letters mention a totally different part of the Privacy Act, and otherwise make some noises about privacy, but those are mostly non sequiturs.  I still haven’t seen any indication that the Civil Rights Division has done the homework the Privacy Act requires to collect the voter files.  They’ve provided notices on some information the Division maintains in the course of regular enforcement work: enforcing civil rights means you’ll collect some info about victims and targets and witnesses.  But none of those notices fairly flag that the Division plans to accumulate a national voter file, with the personal information (and First Amendment activity) of Americans who aren’t any of the above.

The Privacy Act isn’t just a process barrier of its own.  It also provides important context for understanding the litigation-hold provisions of the Civil Rights Act of 1960.  Given increasing congressional skepticism of federal government acquisition of Americans’ personal data in 1974, it would be deeply weird (not to mention ahistorical) to read the 1960 statute to override the careful constraints in the Privacy Act, giving the Civil Rights Division the authority to vacuum up information on more than 155 million voters, without  any individualized “basis” and in service of an invented federal power to double-check every state’s list.  Instead, reading the two statutes together helps confirm that the Civil Rights Act authority is as we thought it was: authorizing the AG to get specific information where there’s reason to believe there was a particularized problem in an election within the last 22 months.

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“Minnesota rejects DOJ demand for state’s voter rolls”

Department of Justice, voter registration

Minnesota Star Tribune:

The Justice Department asked Minnesota election officials in June for voter rolls and other information to show proof of compliance with federal election law. Similar requests were made to other states, including Colorado, Wisconsin and Pennsylvania.

In a letter sent Friday, Justin Erickson, general counsel for the Secretary of State’s Office, said the Justice Department did not “identify any legal basis” for its request, nor did it explain how the data would be “used, stored and secured.”

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“Michigan becomes latest target of Justice Department inquiry on voter roll maintenance”

Department of Justice, voter registration

Votebeat:

The U.S. Justice Department is asking Michigan for a copy of its voter rolls and information about how the state maintains them, as well as a series of questions about its high levels of voter registration.

In its letter to Secretary of State Jocelyn Benson, dated July 21 and obtained by Votebeat, the Justice Department also said it has received a complaint about the state’s compliance with a provision in federal law requiring all voters to be assigned unique identifiers.

It is the latest in a series of letters the Justice Department has sent to states about their management of voter rolls, following directives in President Donald Trump’s March executive order on elections.

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“House Republicans endorse stricter state and federal-led voter roll purges despite dearth of evidence on fraud”

voter registration

CyberScoop on efforts to make it easier to remove voters from the rolls, including changes to the National Voter Registration Act (NVRA) proposed by Georgia’s Secretary of State:

In a congressional hearing on state voter registration practices Tuesday, Republicans on the House Administration Committee were united around common sentiments: It is too easy for citizens to register to vote and too easy for them to stay on voter rolls, states aren’t doing enough to remove ineligible voters, and it’s all led to the country’s elections being vulnerable to mass voter fraud and noncitizen voting.

There was little evidence presented to back up most of those claims….

In a letter sent to House Administration Committee Chair Bryan Steil, R-Wis., Georgia Republican Secretary of State Brad Raffensperger urged the committee to use his state’s policies as a “blueprint” for national election laws, including Voter ID, banning ballot harvesting of mail-in and absentee votes, and robust use of tools like the Federal SAVE database to identify and purge voters suspected of being noncitizens.

One “federal barrier” cited by Raffensperger was a section of the National Voter Registration Act that prohibits states from conducting voter roll purges less than 90 days before an election. This “quiet period” was explicitly designed to prevent states from disenfranchising large numbers of voters right before an election — when relief from the courts could come too late.

But Raffensperger pressed Congress to lift those restrictions, saying the 90-day period “restricts us from conducting systematic list maintenance in federal election years precisely when clean voter rolls are most scrutinized.”

More on Tuesday’s hearing from Ja’han Jones at MSNBC.

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“As Texas dives into federal SAVE database to verify voter citizenship, some experts are worried”

voter registration

Votebeat:

Texas is one of the earliest states to start using the U.S. Citizenship and Immigration Services’ overhauled SAVE database to check voters’ eligibility. That comes after the Trump administration, in its campaign to eliminate the risk of noncitizen voting, made the database free for states to use and easier to search.

But some experts and watchdogs warn that the changes haven’t necessarily made the system more reliable. They say the administration hasn’t publicly released enough information about it, which makes it difficult to assess how complete and accurate the search results are, and whether there are enough safeguards to protect people’s privacy and voting rights.

More on the issues with SAVE here.

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Brennan Center: “Homeland Security’s ‘SAVE’ Program Exacerbates Risks to Voters”

fraudulent fraud squad, voter registration

Jasleen Singh and Spencer Reynolds:

The Systematic Alien Verification for Entitlements, or “SAVE,” program was designed to help states verify the citizenship and immigration status of people applying for government benefits…. But SAVE’s results — sometimes based on incomplete or outdated information — have never been perfect. For that reason, the information gleaned from the SAVE program should be considered useful, but not definitive, in assessing an individual’s citizenship.”

…. DHS has allowed state and local election officials to search for hundreds of thousands of voters simultaneously. This increases the risks that state officials will carry out erroneous voter purges and disenfranchise eligible voters. SAVE could also mislead, either because it incorrectly identifies someone as a noncitizen or fails to confirm immigration status, fueling false conspiracy theories about the integrity of U.S. elections.

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“Trump Admin Defying Court By Stonewalling on Anti-Voting Order, Plaintiffs Say”

absentee ballots, Department of Justice, Election Assistance Commission, voter registration

Democracy Docket:

The Trump administration is defying a court order by refusing to say how federal agencies may be implementing President Donald Trump’s sweeping anti-voting executive order, pro-voting groups and Democrats alleged in a filing Friday.

Among the order’s directives that lawyers for the administration have failed to provide answers about: How is the Department of Homeland Security (DHS) allowing its databases to be used to purge voters? How will the U.S. Department of Justice (DOJ) punish states for continuing to offer a grace period for mail ballots that arrive after Election Day? And how will the U.S. Election Assistance Commission — an independent agency — withhold funds from states that don’t comply with aspects of the order?

“To this day, Defendants have failed to serve a single interrogatory response or make any specific objection to a particular interrogatory,” the groups challenging the order wrote, referring to written questions one party sends to another as part of the discovery process. They added that the Trump administration broke a court-mandated July 11 deadline in failing to respond.

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The recent rash of DOJ voter file “requests”

Department of Justice, voter registration

Recent reports have disclosed that DOJ has now “asked” at least nine states for copies of their voter rolls, and I know that there are at least a handful of counties that have separately also received requests/demands for the county’s voter file.  I’m not at all sure the requests are lawful.  And what’s more, depending on why the requests are coming (the explanation the DOJ is giving doesn’t make much sense), federal law may not only prohibit DOJ from asking, but may also create liability for states and counties that respond.

Some voter registration data (including parts of the voter file) are public (and required to be public by federal law).  Some information on the voter file is more sensitive data (like Social Security digits, driver’s license numbers, and signatures) that states have protected from public release, and in every case I’m aware of (this decision collects several of the others), courts have ratified states’ ability to keep that information protected.  (In a truly odd case, DOJ has sued over this sensitive PII in Orange County, and if I were betting, I’d bet on them losing.)

But here’s the thing: even data that’s available to the public may not be legally available to the federal government.  In the Privacy Act of 1974, based on some then-recent disclosure of unsavory federal efforts to amass personal data, Congress regulated federal access to data records of identifiable individual Americans (statistical compilations are treated differently).  Congress was particularly sensitive to the treatment of data on individuals revealing activity protected by the First Amendment (like, say, voting).

For the most part, Congress didn’t prohibit federal agencies from collecting this data outright.  But it did set up some procedural protections.  The law says that if a federal agency is going to collect data — even data otherwise available to the public — we first have to  be able to have a public conversation about what’s being collected for what purposes (and how it’s stored and secured and transmitted and accessed, etc.)   The agency has to provide a notice in the Federal Register with an opportunity for comment, and has to notify Senate HSGAC and House Oversight committees, for any new set of data records, or any new use of existing records.  The rules are serious: criminal penalties are attached.

And what’s more: if the federal agency plans to use the data records in a matching program that affects an individual’s benefits, there are legal repercussions not only for the federal agency, but for any other governmental entity sending them data.  Those sorts of programs have to be set up with careful written agreements, available to Congress and to the public … and state and local providers of data are on the hook if they send information they know is going into a program like this, without dotting “i”s and crossing “t”s first.

I flagged these potential Privacy Act issues in DHS’s apparent expansion of a system designed for tracking immigrants, to expand to contain searchable data on U.S.-born citizens.  And there are similar (and similarly disturbing) issues if DOJ’s just accumulating voter files.  DOJ keeps its Privacy Act disclosures online, here.  (At least, I’m not aware of another repository.)  It’s the Civil Rights Division that’s asking. And so I’ve looked through the Privacy Act notices submitted by the Civil Rights Division, and the only one that’s even plausibly anywhere near close is the authorization to keep general case files.  That notice says it’s for “case files, matters, memoranda, correspondence, studies, and reports relating to enforcement of civil rights laws and other various duties of the Civil Rights Division” – if you’re investigating a civil rights violation, you’re going to have personal information about the victims and targets and witnesses.  Fair enough.  But I don’t think anyone would look at that notice and expect that DOJ plans to collect and keep a bunch of voter files, with identifiable information about individuals’ registration and/or voting history who aren’t themselves plausibly part of any investigation into state practices.

So I don’t think DOJ has jumped through the necessary hoops to collect what it’s requesting, even if it were telling the truth about why.  But I’ve also got questions about the why.

Collecting the voter files is also of extremely limited utility in investigating what DOJ says it’s investigating in these requests.  The requests cite provisions of the National Voter Registration Act and the Help America Vote Act that require officials to have general programs of voter list maintenance.  To assess whether officials are satisfying these statutory mandates, you’d want to know what procedures they have in place, and maybe some statistics about overall list maintenance activity.  But the individual records on the list aren’t really relevant to that inquiry: whether “Justin Levitt” happens to be on any state or county’s voter list has very, very little to do with whether the state or county has the general program it’s required to have under federal law. 

I’m not claiming that temporary access to particular voter registration data will never be necessary for any federal investigation.  But if the voter rolls aren’t really necessary for the asserted purpose here, that raises questions about why the DOJ actually wants the lists – not only whether it’s not telling the truth (or the whole truth) in its demand letters, but also whether it has other purposes in mind, like matching databases to each other in a way that might impact benefits (with the mistakes that follow from bad matching).  That’d have distinct protections under the Privacy Act, with distinct consequences for the state and local officials asked to supply data.  There have been reports about the degree to which the DOGE approach is to move fast and break things — which may be fine for the private sector, but not consistent with federal statutory protections for public activity.  I guess I’m wondering whether the demands for voter rolls are more of the same.

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“Senators Want Answers on Use of DHS Database to Purge Voters”

voter registration

Democracy Docket:

Under President Donald Trump, DHS upgraded its Systemic Alien Verification for Entitlements (SAVE) system, integrating data from the Social Security Administration and making the database available to state officials to confirm voter registrants’ citizenship for free. 

The rapid expansion of a system previously used by federal agencies to confirm eligibility for social safety net benefits into a widely-accessible, centralized database of U.S. citizens creates considerable risks, Sens. Alex Padilla (D-Calif.), Gary Peters (D-Mich.), and Jeff Merkley (D-Ore.) said in a letter….

The senators said they were troubled that the SAVE program had been expanded without the normal amount of documentation and oversight, including public notice and notice to Congress. And they said they are “gravely concerned” that a DHS official briefed members of the Election Integrity Network, a group that advocates for tightening voting rules and was founded by Trump ally Cleta Mitchell, about the developments in June — a briefing first reported by Democracy Docket.

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“DOJ hits states with broad requests for voter rolls, election data”

Department of Justice, voter registration, voting technology

Washington Post reports:

The Trump administration and its allies have launched a multipronged effort to gather data on voters and inspect voting equipment, sparking concern among local and state election officials about federal interference ahead ofthe 2026 midterms.

The most unusual activity is happening in Colorado — a state that then-candidate Donald Trump lost by 11 points — where a well-connected consultant who says he is working with the White House is asking county clerks whether they will allow the federal government or a third party to physically examine their election equipment….

Separately, the Justice Department has taken the unusual step of asking at least nine states for copies of their voter rolls, and at least two have turned them over, according to state officials.

In addition, two DOJ lawyers have asked states to share information about voters to implement a Trump executive order that would shift some power over elections from the states to Washington….

The administration’s efforts, fueled by Trump’s false claims that the 2020 election was stolen, have rattled state and local election officials from both parties who have spent years contending with threats, harassment and litigation…. Election officials fear the administration could try to build a national file that includes personal information about voters or impose rules that would boot eligible voters from the rolls and make it harder to cast ballots.

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Mamdani’s electoral coalition in the primary (a revision)

primaries, voter registration,

Justin popping back in. Today, the NYT issued a correction to its story on Mamdani’s impact on the NYC primary electorate, and what I described yesterday as a “staggering” departure from the norm:

A correction was made on June 30, 2025: An earlier version of the chart in this article showing voters by age incorrectly identified the age group with the largest turnout. It was voters aged 30 to 34, not those aged 18 to 24.

Here’s the original chart:

And here’s the update:

To be clear, that turnout by younger voters (both 18-24 and 25-29 year-olds) is still eye-popping, both as a primary-over-primary increase and as an absolute. The 18-24 turnout is just a little less “staggering” than it looked yesterday.

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“The Trump administration is building a national citizenship data system”

voter registration, ,

NPR’s latest report is truly a blockbuster.  The SAVE system run by DHS has always been a system keeping track of the immigration status of individuals at some point in the immigration system (including after people naturalize).  As the National Conference of State Legislatures said as recently as May 12, “USCIS is clear that SAVE does not provide information on citizens born in the US [or on individuals outside of the immigration system].”  But DHS and Social Security have now apparently expanded SAVE to effectively serve as a database of natural-born US citizens as well – without the notice to the public or the notice to Congress required by the Privacy Act of 1974.

We’ve never had a federal government database for identifying all of the citizens in the country.  (And even if DHS and SSA have added natural-born citizens, we still don’t: not every citizen is in the Social Security database.)  Part of that is based on concerns about logistics and data quality and data security.  Part of that is based on vigorous public resistance.  Part of that is based on the law: because of the other two categories of issues, Congress has never authorized the executive to create one, and has put legal limits in place to prevent the government just up and creating one without telling us.

And, it appears, the Trump Administration has just been building one on its own, with zero transparency.  According to the article, the primary public indication appears to be a June 13 fact sheet posted deep in the bread crumbs on the USCIS SAVE website, that says “SAVE can verify U.S.-born citizens for voter verification agencies.”  Zero details there.  DHS has also apparently briefed Cleta Mitchell’s Election Integrity Network on the system.  For the rest of us, bupkis.  I don’t understand how any of that is in line with federal statute, which requires advance notice to Congressional committees and to the public of any significant change in the scope or use of federal databases on individuals, with criminal penalties for noncompliance.

To be clear, a reliable database could be really useful for some purposes, IF DONE IN THE RIGHT WAY.  (Just as one example, it would facilitate cutting many of the bureaucratic hurdles to accessing federal benefits reserved for citizens.  Including removing any claimed need for specific documentation of citizenship that citizens may not have readily available.)  But the fact that there might be some beneficial use cases doesn’t resolve any of the questions about logistics and data quality and data security and public support and legal authorization.  NPR reports that DOGE was involved in this Administration’s decision to just plow ahead and given DOGE’s other extremely well-publicized challenges with both accuracy and security, those questions loom quite a bit larger in my mind.

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