Securing the vote: How efforts to prevent fraud, and voting rights, collide
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Conservative watchdog groups in several states have filed suit to seek more aggressive action to remove ineligible voters from election rolls, while liberal advocacy and voting rights groups have filed lawsuits of their own. A case in Ohio is going to the Supreme Court. Part 2 of 3.
Fort Lauderdale, Fla.—Richard Gabbay says he wasn’t trying to suppress anyone’s vote. He simply wanted to organize fellow Republicans for the upcoming 2016 presidential election in Florida’s Broward County.
To help in his political organizing, he obtained a list of all registered voters in his precinct. But when he started to compare the names and addresses of his actual neighbors against the names and addresses listed on the official voting roll, he found major discrepancies.
Ultimately, Mr. Gabbay identified 629 voters who he believed were no longer eligible to vote. They included seven individuals who had passed away and 570 who appeared to have moved away.
In all, his list comprised 14 percent of all registered voters in his precinct.
Gabbay and other critics charge that Broward County is failing to keep its voter rolls current and accurate. They say the county’s list of 1.2 million registered voters is grossly inflated with deceased or otherwise ineligible voters.
“If you send out absentee ballots and these people are still on the rolls, you have a perfect storm to enable somebody else to use that address and that voter’s ID.… It makes it possible,” Gabbay told the Monitor in an interview. “I am not alleging fraud, but it is fraud enabling.”
Broward County, a heavily Democratic county in a key swing state, has become the latest flashpoint in a growing national debate over how best to maintain voter registration rolls. It's a debate that pits the desire to prevent election fraud against the need to preserve individual voting rights.
It comes after an array of unsubstantiated comments by President Trump suggesting he would have won the popular vote in the 2016 general election but for millions of noncitizens who he said cast illegal ballots for Hillary Clinton.
It also comes amid multiple investigations into alleged Russian meddling in US elections, including attempts to hack into voter registration databases.
Last spring, the president established an Election Integrity Commission to investigate voting system vulnerabilities. Among issues on the commission’s agenda are whether voter registration lists are inflated with noncitizens and other ineligible registrants.
A federal judge in Miami is currently examining whether Brenda Snipes, Broward County’s supervisor of elections, is adequately maintaining the registration list in her county. A lawsuit filed by a conservative election integrity group, the American Civil Rights Union (ACRU), charges that Dr. Snipes has embraced a lenient approach to list maintenance that violates guidelines set in federal law.
Snipes and her lawyers insist Broward’s elections office follows state and federal statutes and is operating well within legal requirements.
“Our staff is trained in what they should do, and we stay current on what the statutes require,” she says in an interview, adding, “It is not like we are way out in left field creating our own procedures or our own laws.”
A question of honor?
Snipes is not alone in facing litigation. Similar lawsuits have been filed against election officials in Texas, Mississippi, Pennsylvania, North Carolina, Maryland, and Virginia. In each of those states, conservative watchdog groups are asking judges to order supervisors to take more aggressive action to remove ineligible voters from their rolls.
On the other side, liberal advocacy and voting rights groups have filed lawsuits of their own, seeking to halt more aggressive list maintenance procedures by election officials in Georgia, Indiana, Virginia, and Ohio.
Early next year, the Ohio case will be argued at the US Supreme Court, with the justices examining whether voter roll maintenance procedures used in that state comply with federal standards.
At the heart of the legal battles over list maintenance are two competing goals enshrined in the National Voter Registration Act of 1993 (NVRA).
In passing the law, Congress sought to make it easier for people to register to vote. But lawmakers also sought to uphold the integrity of the election process by requiring officials to maintain “accurate and current” voter registration lists. The law says officials must undertake “reasonable” efforts to remove ineligible voters from the list.
Election officials can use a number of techniques to weed out deceased voters, noncitizens, and dormant registrants. There are interstate databases that identify voters registered in more than one state. The Social Security Administration maintains an index of deceased persons. And the Department of Homeland Security operates a database of newly naturalized US citizens.
But many supervisors choose not to use such tools. They view their role as helping people to vote rather than serving as election cops trying to sniff-out ineligible registrants.
Snipes says her office operates under the honor system.
“When a person comes in to register, we don’t ask them to give us proof of citizenship. We don’t ask them to show us that they don’t have a felony conviction,” she says.
“In other words, whatever they put on that document is what we accept as the truth based on the honor of the person who writes it.”
Snipes says it is up to state election officials in Tallahassee to weed out ineligible voters. “We don’t necessarily have a tool that allows us to check a person’s citizenship, or whether or not they are registered in another state, or whether or not they are a convicted felon,” she says. “That is done, since 2006, by the [state] Division of Elections.”
Snipes says her office sends out mailings twice a year asking inactive voters to update their registrations. In addition, she says her office follows up on registration information received from the local community. But generally it is up to the state to perform the lion’s share of list maintenance work, she says.
Mary Garber of the Florida Fair Elections Coalition has been tracking elections in the state for nearly 20 years. She says election supervisors are caught in a no-win situation.
“One of the problems is the state really doesn’t take much responsibility for the accuracy of the registration list. They kind of say, ‘Oh well, that is the county’s problem,’ ” Ms. Garber says. “And the county doesn’t have the resources to be chasing all these people down.”
To Garber, the debate over list maintenance boils down to priorities. “Which is worse, a few people voting who shouldn’t,” she says, “or whether in order to catch those people, you are going to exclude people who legitimately should have been able to vote?”
A challenge in Ohio
Years ago, some states automatically removed registrants from the voter rolls if they failed to vote often enough. That practice was prohibited in 1993 with passage of the NVRA.
Instead, the law set outs out a two-step process. A voter may be removed from the registration list if she fails to respond to a mailing and if she shows no voter activity during a four-year grace period covering two federal election cycles.
In Ohio, election officials follow that same two-step procedure, but the removal process is triggered after a registrant has failed to vote during an initial two-year period.
In April 2016, two nonprofit organizations and an Ohio voter filed suit charging that Ohio’s three-step, six-year removal process violates the NVRA by purging registered voters from the rolls because of their failure to vote during the initial two-year period.
Lawyers for the state respond that since Ohio’s process also requires that a mailing is sent to registrants before they are removed, the Ohio process does not violate the NVRA because it does not rely solely on non-voting.
Democrats and Republicans view the issue of voter list maintenance in starkly different terms.
Republicans see inflated voting rolls as an invitation to election fraud. Democrats insist that such fraud is rare and that aggressive efforts to purge people from the voting rolls may suppress turnout, particularly among low-income voters and minorities who are seen as more likely to vote for Democrats.
The Ohio case first arose in the courts in the run-up to the 2016 election. The plaintiffs argued that since 2011 as many as 1.2 million eligible voters may have been illegally removed from the state’s registration rolls under Ohio’s three-step list maintenance process.
In an attempt to address that possibility, a judge ordered the state to count all ballots cast in the 2016 election by any Ohio voters who had been removed from the rolls since 2011. During the 2016 election, 7,515 voters cast provisional ballots under that ruling, suggesting that at least that many voters would have been disenfranchised under the Ohio removal protocol.
The disenfranchisement of Larry Harmon
The potential disenfranchising effect of the Ohio list maintenance process is clearly apparent in the experience of Larry Harmon, one of the plaintiffs in the Ohio case.
Mr. Harmon is a US Navy veteran and long-time registered voter who lived at the same address in Ohio for 16 years.
He voted in the 2008 presidential election but did not vote in 2009 or 2010. In June 2011, he was mailed a notice from Ohio election officials asking that he verify his eligibility to vote. Harmon doesn’t recall ever receiving that notice. He then went four more years without casting a ballot and was removed from the voter roll in September 2015.
No additional notice was sent to him. Harmon first learned that his voter registration had been cancelled in November 2015 when he tried to cast a ballot in a state-wide referendum.
In a close election, this kind of list maintenance process might disenfranchise enough voters to determine the outcome, analysts say.
How the Supreme Court decides the Ohio case – and what is said in its decision – will give fresh momentum to one side or the other in ongoing legal battles over voter roll maintenance across the country.
The issue in Broward County
In addition to Gabbay’s investigation in Broward County, there have been a number of other attempts in recent years to try to identify the extent that the county’s voting rolls may be inflated.
In 2011, the then Republican chairman in Broward, Richard DeNapoli, examined a sample of 2,100 people who died in the county that year. He found that twelve months later, 481 of them were still listed as active registered voters.
“I wanted to come up with a method that would prove there were dead people on the rolls,” he says. “And we did.”
Mr. DeNapoli compared the Social Security death data with Broward’s voting rolls, matching names and dates of birth.
He turned his findings over to Snipes. A month later, she used the information to remove those deceased voters from the rolls. But, according to DeNapoli, she did nothing to change any of her office’s policies for discovering and weeding out registrants who passed away.
“Here we are five years later talking about this, and she is still not using the Social Security Death Index,” he says. “If we can find this out, she has far greater resources than us to make sure the rolls are accurate.”
One voter, two votes?
Older and deceased voters aren’t the only focus of the voter roll debate in Broward.
Another study found there were 7,635 registered voters in Broward County who were also registered voters in New York State. The study, conducted by William Skinner and Kirk Wolak, also discovered that 169 of those registered voters appear to have cast ballots in both places – a Florida election in March 2016 and a New York election in April 2016.
Mr. Skinner, a retired lawyer, says he sent repeated correspondence to the elections office but received no information about a possible investigation.
“They have a procedure in Florida to deal with it, but nobody wants to deal with it,” he says.
“Nobody is holding their feet to the fire, nobody knows what the law is, and the public is asleep on this,” Skinner says.
“If we are going to have a system people will believe in, we have to have a clean system that everyone agrees is clean,” he says.
In its litigation in Broward County, lawyers for the ACRU are hoping that a pending ruling by the federal judge in their case will help establish an enforceable national standard for voter roll maintenance.
In a five-day trial last summer, ACRU lawyers charged that the county’s voter list maintenance procedures were ineffective or nonexistent.
They say they are not trying to get eligible voters kicked off the rolls. Their goal is not disenfranchisement but reasonable enforcement, they say.
In defending her approach to voter roll maintenance, Snipes says the process of removing someone from the voter rolls is significantly more difficult and time-consuming than her critics understand.
Each registrant must be checked individually and the information verified through official documents, she said during the trial in July.
In her testimony, Snipes acknowledged that she has encountered cases of suspected voter fraud in Broward. The most recent case, she said, was a person accused of voting twice. It was referred to the state attorney’s office for possible prosecution.
But she said she also has encountered cases of suspected fraud that turned out not to be fraud. In 2012, state officials sent election supervisors a list of registered voters suspected of being noncitizens. Snipes said the first person on her list was a military veteran who had become a US citizen. She said he was alarmed that officials were challenging his right to vote.
In his closing argument in the Broward case, a lawyer for the ACRU, J. Christian Adams, said Snipes and members of her office were engaging in “willful blindness to problems going back years.”
Adams, who is also a member of Mr. Trump’s Election Integrity Commission, said Broward’s election department was doing the “bare minimum” to maintain the county’s voter roll. Florida law provides many other tools that officials could use to keep the registration list clean, but Snipes and her staff choose to ignore those tools, he said.
Snipes’ lawyer, Burnadette Norris-Weeks, rejected claims that the elections office was disengaged and ineffective.
“We comply with Florida statutes in every respect,” she told the judge. “The office has gone above and beyond.”
She added: “At every step of the way they want Your Honor to believe there is chaos in the supervisor of elections office, and there is not.”
Ms. Norris-Weeks said the lawsuit was part of a larger effort by conservative groups to reshape election law. “We are not going to be bullied,” she said.
Lawyers with the Service Employees International Union and Demos, a liberal advocacy group, intervened in the Broward case in defense of Snipes and her approach to voter list maintenance.
Kali Bracey, a Washington lawyer, told the judge that there is no evidence that a high registration rate is a problem.
“The record shows that the defendant does substantial list maintenance and is using more tools than Florida law requires,” she said. Snipes does not use all the tools potentially available for list maintenance, but that isn’t required, Ms. Bracey said.
“The plaintiffs’ goal is to obtain an overly broad ruling to scare counties into removing voters who should be on the rolls,” the lawyer said in her closing argument.
Gabbay, the Republican organizer, is eagerly awaiting a decision in the Broward case. He says his research was undertaken out of a sense of public service rather than for any partisan advantage.
“It was just for the purpose of clearing up the voter rolls in my community,” he says. “It was done with the idea that if you clean up the voter rolls it makes it easier for Dr. Snipes and it makes it easier for me.”
When he presented his work to the elections office in October 2015, officials stalled for months before taking action.
Snipes eventually removed about 200 individuals from the voter rolls in early 2016. Then, three months after the November 2016 election, Snipes removed 379 more names from the voter rolls in Gabbay’s precinct.
To Gabbay and other Republicans, waiting until after the election looks like a partisan tactic that leaves open the door to fraud.
“She was just doing what she felt was good enough,” Gabbay says. “Had I not contacted her, who knows if any of those people would have been taken off [the voter rolls].”