Tag Archives: HAVA

“North Carolina to send mailers to some 200,000 voters asking for missing registration info”

provisional ballots, The Voting Wars, voter registration

The AP has the report, following on the DOJ’s case I’ve been blogging. 

This report has a piece of info that’s new to me, though:

About half of the 200,000 affected voters would be limited to casting provisional ballots until they provide the information to the state, [NC Board of Elections Executive Director] Hayes said.

It’s my understanding that all of the voters here were validly registered under state law, which means that the voters were necessarily validly registered under federal law.  (And that’s independent of whether the state itself had sufficiently complied with federal law.) 

Unless the 100,000 people in question are new voters under HAVA who haven’t yet shown any ID, I’d be very interested to know the legal basis for forcing them to vote provisionally.

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A brief return to DOJ’s suit in NC

Department of Justice, election administration, voter registration

Hi, all.  Justin again.

Last week, I blogged the Civil Rights Division’s first voting case of the new Administration: the  suit alleging that North Carolina violated HAVA when it didn’t require driver’s license numbers or Social Security digits for some voters’ registrations.

I also mentioned that despite some early reports to the contrary, DOJ has not sought to remove any voter from the rolls as a result of the alleged violation.  (Here’s the complaint.)  The new Executive Director of the North Carolina State Board of Elections confirmed this past week that “nothing in that complaint compels that folks are kicked off the voter rolls,” and indicated that the real focus is to get the information and not invalidate any registrations.

Indeed, in that earlier post, I said that I thought that DOJ couldn’t ask to kick any of the impacted NC voters off of the rolls, because DOJ doesn’t have that authority.  And I’ve gotten a few questions asking why.

The easiest reason is a straight-up interpretation of the Help America Vote Act.  52 U.S.C. 21083 is the operative provision.  21083(a)(5)(A)(i) says that states can’t accept voter registration applications unless a person with a current and valid driver’s license number submits that number, or a person without that submits the last 4 of their Social Security number, or a person without either is assigned a unique number. 

But clause (iii) of that same subparagraph very clearly says that it’s up to the state to decide whether any individual submitted sufficient info.   (“The State shall determine whether the information provided by an individual is sufficient to meet the requirements of this subparagraph, in accordance with State law.”)  And that’s doubly confirmed by 52 U.S.C. 21085: “The specific choices on the methods of complying with the requirements of this subchapter shall be left to the discretion of the State.”

So if North Carolina decides that the fact that an individual submitted Social Security digits means that they didn’t have a current and valid driver’s license number, that decision is unreviewable.  And if North Carolina decides that the fact that an individual left the space blank means they didn’t have either driver’s license or Social Security digits, and thereby assigns a unique number, that decision is unreviewable.  In either case, accepting the form and registering the voter is effectively the answer that the state has decided the submitted information sufficed, and for any individual voter, that’s the end of the story.

As I understand it from the Griffin/Riggs contest, there are a bunch of records in the North Carolina database that don’t have either driver’s license number or Social Security digits readily visible for the corresponding actively registered voter.  That fact doesn’t mean that the voters in question violated HAVA.  It just means that there aren’t digits currently visible in the system (and a bunch of potential reasons why).  But whether those voters presented the right numbers on the form or not, there’s no indication that any of them were put into the system without a unique identification number (pursuant to state law).  There’s no indication that any of them failed to have their registration accepted by the state (pursuant to state law).  There’s no indication that any of them failed to present HAVA-compliant ID before voting for the first time (pursuant to state law). 

All of which means that all of these voters were properly registered (and validated) pursuant to state law.  And given 21083(a)(5)(A)(iii), that definitionally means the end of the inquiry pursuant to federal law, in deciding whether the absence of a number in the database creates a question about any individual’s registration status. 

So there’s no reason under federal law to think that any of these registrations is invalid, and hence no basis to toss anyone off the rolls.

More generally, HAVA’s statutory deference to the State in making determinations of invalidity gibes with the general authority DOJ has in enforcing federal election statutes.  There are some federal statutes that speak to the maintenance of the voter rolls (NVRA, HAVA) in ways designed to prevent ineligible voters from voting.  But those all speak to general programs of list maintenance, with ample deference to the states; DOJ enforcement of these provisions is limited to broader state structures. 

When it comes to individual voters, there’s a pretty clear division of authority.  As far as individual voters are concerned, DOJ criminal authority is reserved for intentional misconduct with respect to allegedly ineligible registrations or ballots.  And DOJ civil authority is reserved for allegedly eligible voters unlawfully denied the ability to register or vote.  That is, the statutes granting DOJ civil authority dealing with individual registrations or ballots are usually written in one direction only: the direction of enfranchisement.  That’s clearest in most applications of the Voting Rights Act, where 52 U.S.C. 10308 calls out DOJ ability to permit voters to vote and to count their votes, without the converse.  But it’s also the structure of the vast majority of the individual provisions of the substantive statutes – when the Civil Rights Act, the VRA, NVRA, HAVA, UOCAVA, etc. mention individual registrations or ballots, it’s generally to protect the eligible through civil litigation or punish the knowingly ineligible through criminal prosecution. 

(State law or federal constitutional provisions might provide for the invalidation of individual ballots through civil process in some circumstances, but the DOJ’s not authorized to bring those suits in the first instance.)

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DOJ files first voting complaint of new Administration – and it’s a follow-up to the Riggs/Griffin judicial race in NC

Department of Justice, election administration, judicial elections, voter registration,

The Civil Rights Division is out with its first new voting case of the new Administration, and it comes directly out of the long-contested Riggs/Griffin race for the North Carolina Supreme Court.

In the Riggs/Griffin contest, there were three main categories of ballots contested after election day. The largest was a group of voters who allegedly never submitted driver’s license numbers or Social Security digits with their voter registration forms, in part because the state voter registration form at the time didn’t tell the voters they had to.  There were reasons to believe that a sizable chunk of these voters actually did submit the relevant digits, which were just not captured in the state’s voter registration database (and other problems involving contesting not all of these voters, but only those voters who voted by mail, and contesting the ballots after the election).  But I think it’s uncontested that the state voter registration form didn’t require the information that it should have, under HAVA, for some stretch of time.

[Update 5/29: the above paragraph used to say that the form “didn’t ask for the information,” which isn’t accurate: it was requested, but not required. h/t to Bob Hall for the correction.]

Now enter the DOJ.  There’s a fair amount of throat-clearing in the complaint, but it boils down to an assertion that the state violated federal law by not requiring the right info when it registered voters.  That … seems right.

What follows next is a little different: the remedy sought here is a bit legally tricky.  Despite some early reports to the contrary, DOJ’s complaint does NOT assert that any voter should be purged or unregistered (and even if they were later to assert it, I don’t think that they have that authority).  North Carolina was already in the process of fixing the voter registration form last year (and appears to have fixed it by now).  The remedial portion that sticks out most is that DOJ wants to force the state to contact all North Carolina voters without a driver’s license number or Social Security digits in the system, to try to get the relevant numbers (and to just issue a unique ID number if they get no response), but it’s not clear that 1) all of the voters in the system without such a number actually failed to submit the right number, 2) that this is actually required by HAVA as a remedy, or 3) it would be all that big of a deal if the state sent such a note, properly phrased so as not to unnecessarily freak people out. 

One saving grace: it’s extremely likely that there are large numbers of both Republicans and Democrats likely to be affected by the state’s glitch, and so unlike the cherry-picking in Judge Griffin’s contest, there’s reason for all actors involved not to be too terribly hamhanded about the resolution.

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