Wendy Weiser EAC Testimony Footnotes
The following footnotes are from testimony on voter registration delivered March 17, 2009 before the Election Assistance Commission. Read testimony here.
[1] Although I do not repeat them all here, I ask the Commission to reconsider the comments in my letter dated August 8, 2005.
[2] See Ohio Republican Party v. Brunner, No. 08-CV-913 (S.D. Ohio, filed Sept. 26, 2008), decided in Brunner v. Ohio Republican Party, 555 U.S. __ (Oct. 17, 2008); Van Hollen v. Gov't Accountability Bd., No. 08-CV-4085 (Wisc. Circ. Ct., Dane County, filed Sept. 10, 2008), decided in id. (Oct. 23, 2008).
[3] The basis for the numerical impact is set forth in the following section.
[4] The policy had been enjoined by court order from December 2007 through April 2008, when the U.S. Court of Appeals for the Eleventh Circuit dissolved the injunction based on HAVA and the Voting Rights Act. The U.S. District Court for the Northern District of Florida declined to issue another injunction based on the U.S. Constitution in June 2008. More information on the lawsuit, including court papers, is available here: http://www.brennancenter.org/content/resource/florida_naacp_v_browning/.
[5] See E-mail from Jennifer Krell Davis, J.D., Communications Director, Florida Department of State to Dan McCrea, Florida Voters Coalition, Oct. 27, 2008 (on file with Brennan Center).
[6] See id.; see also Steve Bousquet, 12,165 now on Florida's 'no match' vote list, St. Petersburg Times, Oct. 28, 2008.
[7] Voter registration information often doesn't match driver records; 22% mismatch rate found in registrations this month, Milwaukee Journal-Sentinel, Aug. 28, 2008, available at http://www.jsonline.com/news/wisconsin/32585689.html.
[8] Wisconsin Government Accountability Board, A Statistical Analysis of HAVA Checks in Wisconsin, Jan. 2009, available at http://elections.state.wi.us/docview.asp?docid=15857&locid=47.
[9] Id.
[10] See Brunner v. Ohio Republican Party, 555 U.S. __, 129 S. Ct. 5 (2008).
[11] See House Committee on Elections, Sub-Committee to Study Mail-In Ballot Fraud & Incidents of Non-Citizen Voting, A Report to the House of Representative 23 (Nov. 2008) (on file with Brennan Center).
[12] Id.
[13] See Fla. NAACP v. Browning, No. 07-402, Decl. of Andrew Borthwick, ¶ 47 (N.D. Fla. Sept. 17, 2007) ("Borthwick Decl."), at http://tinyurl.com/4k69sm.
[14] See Fla. NAACP v. Browning, No. 07-402, Decl. of Conny McCormack, ¶ 13 (N.D. Fla. Sept. 17, 2007), at http://tinyurl.com/4z66bc.
[15] See Borthwick Decl. ¶ 12 & Ex. F.
[16] See id.
[17] See Pete Monaghan, SSA Help America Vote Act Powerpoint 14, Nov. 29, 2007, available at http://tinyurl.com/4dp663; Borthwick Decl., supra.
[18] See Borthwick Decl., supra. Indeed, the former Commissioner of the Social Security Administration ("SSA") noted that attempted matches with the SSA database frequently result in false negatives because of "name change[s] after a marriage or divorce, . . . incomplete, transposed or missing names . . . in SSA records[,] . . . [and] discrepanc[ies] created by use of multiple or compound names." American Federation of Labor v. Chertoff, No. 07-4472, Decl. of Kenneth S. Apfel, ¶ 7 (N.D. Cal. Aug. 29, 2007) available at http://tinyurl.com/4jbsbg.
[19] Since that time, three out of four courts to consider the issue have held that HAVA does not require states to implement "no match, no vote" policies. (The one decision that disagreed was reversed by the U.S. Supreme Court on standing grounds.) Two courts have further found that "no match, no vote" policies violate federal law; one based its decision on HAVA and the Voting Rights Act, and the other on the Voting Rights Act alone. A third court also found that "no match, no vote" policies violate HAVA and the Voting Rights Act, but it was reversed by the U.S. Court of Appeals for the Eleventh Circuit.
[20] In fact, as detailed in our earlier correspondence, some of the language in the guidance suggests that it is permissible for states to refuse to register unmatched voters.
[21] Interstate database matching programs also raise privacy concerns, which I do not address here.
[22] See Commonwealth of Kentucky, Attorney Gen. Gregory Stumbo v. Commonwealth of Kentucky, State Board of Elections, Order Denying Injunction and Granting Partial Summary Judgment (Ky. Cir. Ct. Oct. 2, 2006) ("Stumbo"), slip op. at 1; see also Office of the Kentucky Secretary of State, Press Release: Kentucky Blazes Path in New Voter Fraud Prevention Technique, Apr. 24, 2006, available at http://www.sos.ky.gov/secdesk/mediacenter/pressreleases/article41.htm.
[23] Stumbo at 5.
[24] See Stumbo at 6 & n.1.
[25] See Robert Travis Scott, Officials sued over voter purge, New Orleans Times-Picayune, Aug. 31, 2007; see also Ed Anderson, Voter-Rights Group Cries Foul in State, New Orleans Times-Picayune, July 28, 2008; Voter-Rights Group Cries Foul in State, New Orleans Times-Picayune, July 28, 2008.
[26] Ed Anderson, Voter-Rights Group Cries Foul in State, New Orleans Times-Picayune, July 28, 2008.
[27] See Kentucky Secretary of State, Press Release: Kentucky Blazes Path in New Voter Fraud Prevention Technique, Apr. 24, 2006, http://www.sos.ky.gov/secdesk/mediacenter/pressreleases/article41.htm.
[28] Memorandum of Understanding Between the States of Missouri, Iowa, Nebraska and Kansas for the Improvement of Election Administration, December 2005, available at http://www.sos.mo.gov/elections/2005-12-11_MO-KS-IA-NE-MemorandumOfUnderstanding.pdf; see also Sean Greene, electinline.org, Midwest Voter Registration Data-Sharing Project Moves Forward: Kansas leads groups of states crosschecking information; Advocates voice concern, Dec. 13, 2007, http://www.pewcenteronthestates.org/report_detail.aspx?id=33612.
[29] See Data crosschecking expanding to other states, Canvassing Kansas, Sept. 2007, http://www.kssos.org/forms/communication/canvassing_kansas/sept07.pdf; see also Data crosschecking keeps on growing, Canvassing Kansas, Dec. 2007, http://www.kssos.org/forms/communication/canvassing_kansas/dec07.pdf.
[30] See Data crosschecking expanding to other states, Canvassing Kansas, Sept. 2007, http://www.kssos.org/forms/communication/canvassing_kansas/sept07.pdf.
[31] U.S. Election Assistance Commission, The Impact of the National Voter Registration Act of 1993 on the Administration of Elections for Federal Office 2005-06, June 30, 2007.
[32] See Data crosschecking expanding to other states, Canvassing Kansas, Sept. 2007, http://www.kssos.org/forms/communication/canvassing_kansas/sept07.pdf.
[33] 42 U.S.C. § 1973gg-6(d).
[34] While the precise matching protocols used by Washington and Oregon to identify these potential duplicate registrations are not publicly known, we recommend that, at minimum, states should require exact matches of the following information before identifying records for any potential purges: first name, middle name, last name, suffix, date of birth, and additional information like the last four digits of a Social Security number.
[35] News reporting on this purge, as well as the papers filed in a lawsuit challenging it, can be found here: http://www.cbsnews.com/stories/2008/10/09/cbsnews_investigates/main4512526.shtml.
[36] The most notorious such purges were conducted in Florida in 2000 and 2004. The problems with those purges, and their effect on eligible voters, is described at length in Myrna Perez, Voter Purges, available at http://brennan.3cdn.net/5de1bb5cbe2c40cb0c_s0m6bqskv.pdf, as well as in my prior testimony before the EAC. Louisiana's plan to purge voters based on inter-state data matching, discussed above, is another example.
[37] See Kandiss Crone, Horsemann: Voter Purge Violated Federal Law, WLBT3, Mar. 5, 2008, available at http://www.wlbt.com/Global/story.asp?S=7973229&nav=1L7t4viX.
[38] See 42 U.S.C. § 1973gg-6.
[39] United States Student Ass'n Fdn. v. Land, No. 08 cv. 14019 (E.D. Mich. Sept. 17, 2008); Colorado Common Cause v. Coffman, No. 08 CV 2321 (D. Colo. filed Oct. 24, 2008).
[40] Myrna Perez, Voter Purges, supra. The relevant recommendations are found on pages 25 through 30.
[41] The letter from Senator Dianne Feinstein (D-CA) is available at: http://www.brennancenter.org/page/-/blog/Bowen%20-%20SSA%20CAReg%20Ltr%2009-23-08.pdf.
[42] The letter from then-EAC Commissioner Rosemary Rodriguez is available at: http://www.brennancenter.org/page/-/blog/9.19.08.Rodriguez.SA.pdf.
[43] The most comprehensive report to date on problems experienced by voters in 2008 is: Lawyers' Committee for Civil Rights Under Law, Election Protection 2008: Helping Voters Today, Modernizing the System for Tomorrow, at http://www.866ourvote.org/page?id=0075. This Election Protection report found that the single greatest source of voter problems in 2008, based on calls to the voter protection hotline, was the voter registration system.
[44] See Wendy R. Weiser et al., Voter Registration Modernization, available at http://www.brennancenter.org/content/resource/universal_voter_registration_draft_summary/.
[45] The Brennan Center will soon be releasing detailed reports on aspects of voter registration modernization, including studies of procedures already in place in the states.
[46] Robin Carnahan & Trey Grayson, "Voter Registration System Needs to Be Modernized," Roll Call, March 10, 2009.