Q&A: Brennan Center Lawsuit to Stop Indiana's Voter Purge Law

Members of the Brennan Center's voting team head to Indianapolis to argue in court that Indiana's new law could result in the large-scale disenfranchisement of eligible voters.

May 1, 2018

This week, the Brennan Center will ask an Indiana court to stop the state from implementing an illegal voter purge law. Passed in 2017, the law – Senate Bill 442 – would permit the state to purge the names of voters from registration lists without, the Brennan Center argues, the safeguards that federal law requires.

The Brennan Center filed a lawsuit against the law last August on behalf of the Indiana NAACP and the state’s League of Women Voters. The head of the Brennan Center’s voting rights program, Myrna Pérez, heads to Indianapolis this week to argue the state’s law could result in the large-scale disenfranchisement of eligible voters.

What is the law that you’re challenging?

Myrna Perez: The bill is called SB 442, and it’s a law in Indiana that requires election administrators to remove voters from the rolls if a database called the Interstate Voter Registration Crosscheck shows that person might be registered in another state, and certain other criteria are met. Indiana has used Crosscheck before. But this new law has them use Crosscheck in a way that we believe violates federal law.

How so?

MP: In 1993, Congress passed a law called the National Voter Registration Act (NVRA), which sets up rules that tell state officials: You can remove people from the rolls if you think they’ve moved to another state, but you have to take steps to make sure they’re really gone. You have to send a notice saying you don’t think the person lives at this address anymore.

If they don’t respond, the NVRA says you still have to give them two federal election cycles before you remove them. During that time, the person may show up at the polls or have some other interaction with the election office, like requesting an absentee ballot. That makes the countdown clock stop and discontinues the cancellation.

The problem here is that under SB 442, if a person appears in the Crosscheck database — which is known to be flawed — and matches some additional criteria, the state can remove them from the voter registration rolls immediately, without giving them the legally-required notice or the legally-required waiting period. It places them in clear violation of the NVRA.

What are you asking the court to do this week?

MP: We’re asking the court to put in place what’s known as a preliminary injunction: essentially asking them to put the law on hold until the court makes a final decision in our lawsuit.

Why is it urgent to keep Indiana from implementing the law now?

MP: The state has said that they will begin implementing the law in July unless they’re ordered not to. We filed this early to leave plenty of time between now and then for appeals and other hurdles that might delay the injunction. Otherwise, if there’s no final decision on stopping this law, the state will begin removing people from the rolls before the November election.

It’s extraordinarily difficult to find those voters, warn them, and get them re-registered. For most people, they won’t find out they’ve been purged until Election Day — if they even know there’s an election, which they might not after being knocked off the list. And by then it’s too late.

Why is the implementation of Crosscheck such a problem?

MP: Crosscheck creates matches on first name, last name, and date of birth alone. The problem is that it’s actually quite typical for many people with the same name to have the same birthday. For instance, the name Sophia right now is very popular for girls under the age of ten. It’s not surprising that many people with the same name might have the same birthday, especially when you’re talking about millions of records.

Lots of people have concerns with Crosscheck generally.  Our biggest concern at the moment is that under Indiana law, if an eligible voter mistakenly gets caught up in a system that’s likely to generate false matches, she won’t have a fair chance to keep herself from being unfairly removed and potentially deprived of her constitutional right to cast a ballot.

Indiana says their system is robust enough to clearly show that someone has registered elsewhere, and therefore they don’t need to comply with the NVRA two election cycle requirement, right?

MP: That’s right. Under the NVRA, if you write a letter to state election officials saying you’re registered somewhere else and that you’d like to be removed from the rolls, the state doesn’t have to send you a notice and wait two federal election cycles. Lawyers for the state of Indiana argue that Crosscheck plus their additional criteria is akin to that process.

But the difference here is fairly obvious. With Crosscheck, an election official has no idea what a citizen actually communicated, if anything. The election official is just given an output from a database. Election officials don’t know if the person who entered that information did so accurately. Election officials don’t know if the person just moved into their state or out of their state. And what if someone made a data entry error, like a birth date or a registration date? We’re not saying they can’t clean up their voter rolls. They just have to acknowledge that the system is prone to error, and eligible voters need some simple protections to ensure their right to vote isn’t unreasonably denied. That’s exactly what Congress wanted to do with the notice and waiting period requirement.

Why is this case so important?

MP: Crosscheck and its champions — including the former leader of the president’s now-defunct voter fraud commission Kris Kobach — seem to be using this and other similar cases as attempts to normalize very aggressive and ill-designed voter purges. They want a judicial ruling that these federal protections aren’t required when a state uses the Crosscheck program.

And that’s not what we want happening. We want people who are registered and eligible to vote to stay registered and not be disenfranchised or forced to jump through a bunch of hoops just to cast a ballot because there are a bunch of partisans trying to shave people off the electorate.