Attacks on Voter Rolls and How to Protect Them

Even though the United States’ population is highly mobile, there is no national voter registration list. Instead, states and often localities maintain separate lists. Their election officials need to update these lists frequently as voters move, so they can communicate with voters and direct them to the right voting location. To ensure they do so, Congress enacted the National Voter Registration Act of 1993, which requires that states take reasonable measures to facilitate voter registration and remove the names of voters who have died, or moved to a new jurisdiction, or have otherwise become ineligible.

In addition, over a decade ago, a bipartisan group of state election officials conceived an interstate agreement to responsibly share their data for these purposes: the Electronic Registration Information Center. Known as ERIC, this has vastly improved member states’ voting rolls and made for smoother elections. But in the aftermath of the 2020 election, ERIC has come under threat, as election deniers seek to shift control to vigilantes using unreliable tools for updating state rolls. Below, we explain how ERIC came about, why it’s now at risk, and some key protections that can shield voters from the consequences of changing voter list maintenance practices.

Until 2012, states lacked reliable ways to flag voters who had moved, especially those who moved out of state. While there’s no evidence that list inaccuracies were leading to any widespread voter fraud, four states developed a program, commonly known as Crosscheck, to share voter rolls and check them for duplicates. Crosscheck, which expanded to include other states, was an example of a “solution” worse than the problem. It often flagged false positive matches because it relied on a combination of name matches, which inaccurately picked out common names, and date of birth matches, which were frequently missing or inaccurately entered into state systems. footnote1_f3zt27u 1 Sharad Goel et al., “One Person, One Vote: Estimating the Prevalence of Double Voting in U.S. Presidential Elections,” American Political Science Review 114, no. 2 (March 2020): 456–69, https://doi.org/10.1017/S000305541900087X. Matching tools like Crosscheck that rely too heavily on name searches also disproportionately flag minority voters because of how widespread certain first and last names are in those communities. footnote2_02gmifa 2 Compared to 4.5 percent of White people, 16.3 percent of Hispanic people and 13 percent of Black people have one of the 10 most common surnames, Joshua Comenetz, Frequently Occurring Surnames in the 2010 Census, U.S. Census Bureau, October 2016, https://www2.census.gov/topics/genealogy/2010surnames/surnames.pdf; U.S. Census data also shows that minorities are overrepresented in 85 of 100 of the most common surnames, Greg Palast, “The GOP’s Stealth War on Voters”, Rolling Stone, August, 24, 2016, https://www.rollingstone.com/politics/features/the-gops-stealth-war-against-voters-w435890.  For these and other reasons, Crosscheck was notoriously unreliable. footnote3_15oqj2s 3 Jonathan Brater, Voter Purges: The Risks in 2018, Brennan Center for Justice, February 27, 2018, https://www.brennancenter.org/our-work/research-reports/voter-purges-risks-2018. (Crosscheck sometimes indicated that a voter had moved from the state when in fact the voter had moved to the state); Goel et al., “Prevalence of Double Voting,” 25–26. (less than 3 percent accuracy rate in flagging double-votes); Christopher Ingraham, “This Anti-Voter-Fraud Program Gets It Wrong Over 99 Percent of the Time. The GOP Wants to Take it Nationwide,” Washington Post, July 20, 2017, https://www.washingtonpost.com/news/wonk/wp/2017/07/20/this-anti-voter-fraud-program-gets-it-wrong-over-99-of-the-time-the-gop-wants-to-take-it-nationwide/. (following one Crosscheck recommendation would purge 200 legitimate voters for every potential double-vote it prevented).  Election officials had to weed out large volumes of names inaccurately marked for de-registration, and they sometimes failed, and purged eligible voters from their rolls. Finally, Crosscheck failed to protect citizens’ data privacy.

Over a decade ago, election officials conceived a better approach. In 2012, seven states — Colorado, Delaware, Maryland, Nevada, Utah, Virginia, and Washington — four of which were Republican-led, launched ERIC. Over time, it grew to include over 30 state members. ERIC collects data from four sources: encrypted state voter registration and Department of Motor Vehicle data, death data from the U.S. Social Security Administration, and change of address data from the U.S. Postal Service. It then applies sophisticated matching technology to provide member states with reports highlighting potentially inaccurate voter roll information. It sends states lists of likely eligible citizens who are not yet registered. It also offers states reports of voters who may have double-voted in another member state, though this is extremely rare.

Because of ERIC’s unique matching technology and access to sensitive and current state-level data, such as hashed and encrypted social security numbers, ERIC is the best tool yet for matching accurately with minimal false positives. It’s also scrupulously bipartisan, rotating the chair position between Republican-led and Democrat-led states.

To date, ERIC has helped states identify millions of registrants who should be taken off the rolls because they moved or died. It has made voting rolls more accurate, which helps states steer voters to the right precincts to minimize confusion and ensure access on Election Day. It has enabled states to catch rare instances of double-voting. And because its membership agreement requires states to reach out to the eligible but unregistered citizens it identifies, it has facilitated millions of new registrations, fostering a more engaged citizenry and a more representative government.

ERIC would seem to be a no-brainer for election administrators. Indeed, until recently, it was widely praised by Republicans and Democrats alike as “one of the best fraud-fighting tools that we have,” and as a “godsend” that would “lead[] to cleaner and more accurate voter registration rolls” and “increase voter participation in our elections.”

After Donald Trump lost the 2020 presidential election, his supporters raised questions about numerous aspects of election administration, including voter list maintenance, to sow doubts about the integrity of U.S. elections.

As part of this campaign, election deniers went after ERIC. Starting in January 2022, a far-right outlet, Gateway Pundit, posted a series of pieces falsely accusing ERIC of being a front for liberal interests and implying that it was doing something other than identifying potential inaccuracies in state voter rolls. They spurred a campaign among both activists and Republican party leaders like Donald Trump pressuring state officials to withdraw from ERIC. footnote1_277ctfs 1 Neil Vigdor, “Texas to Leave Voting Integrity Group Targeted by Right-Wing Attacks,” New York Times, July 20, 2023,  https://www.nytimes.com/2023/07/20/us/politics/texas-eric-voter-integrity-group.html; Christina A. Cassidy and Julie Carr Smyth, “State Voter Fraud System Fractures as Republicans Opt Out”, AP News, March 17, 2023, https://apnews.com/article/voter-fraud-election-conspiracies-registration-trump-republicans-23f0a2f89b6c8b53c4c7b89e2bdc82af. And nine Republican-led states did leave, including states whose leaders had recently touted their membership in ERIC as a best practice.

Without membership in ERIC, states may lack reliable methods of updating their rolls when registrants move, making it harder for them to communicate with voters and direct them to the right polling location. In turn, this increases the risk of voters being prevented from voting or forced to vote by provisional ballots, which themselves can delay vote counting. States that refuse to be part of ERIC also give up the best tool for ensuring that voter rolls contain only eligible voters. As Al Smith, Pennsylvania’s Republican secretary of the commonwealth, put it, “The perversity with a lot of this is that the arguments against ERIC are allegedly coming from a place of interest in election integrity, when in reality, ERIC is quite possibly the most valuable, useful tool that we have to strengthen election integrity.”

While states can purchase data from the U.S. Postal Service’s National Change of Address Registry, those data cannot replace ERIC. footnote2_mjkbot4 2 U.S. Government Accountability Office, Voter Registration: Information on Federal Enforcement Efforts and State and Local List Management, 48–49, June 27, 2019, https://www.gao.gov/assets/710/700268.pdf. Residents may fill out a change-of-address form whenever they need to receive mail elsewhere, which is frequently for temporary reasons that do not affect their voting eligibility: for example, they’re studying elsewhere, have a temporary work assignment, or are caring for a sick family member. In addition, individuals may be inaccurately flagged because they share a name with someone else who moved or because a member of their household moved and accidentally checked the “family” box rather than the “individual” box. ERIC accounts for these issues by cross-referencing change-of-address reports to its in-state and cross-state movers’ reports.

Recognizing that change-of-address data isn’t sufficient to update voter rolls, states that have left ERIC have been exploring other interstate data-sharing agreements. It remains to be seen whether these will share the kind of sensitive data that enables ERIC to make precise matches, how many sources they’ll be able to access, how good their matching technology will be, and whether they’ll include adequate privacy protections for whatever sensitive data they do collect. Regardless, these efforts will be far less effective and cost-effective than ERIC, which enables 24 states plus the District of Columbia to share their data — particularly Department of Motor Vehicle data —and to share the cost of purchasing federal data.

Even more concerning, some private organizations have begun developing matching software to “replace” ERIC and are working to place it in the hands of both election officials and private activists, even in states that continue to participate in ERIC. footnote3_jfup4c1 3 For a broader discussion of the problem of “vigilante list maintenance” see: Morse, Michael, Democracy’s Bureaucracy: The Complicated Case of Voter Registration Lists (December 22, 2023). 103 B.U. L. Rev. 2123 (2023), U of Penn Law School, Public Law Research Paper No. 24–02, Available at SSRN: https://ssrn.com/abstract=4396446. Among various programs being floated, one appears to have generated particular enthusiasm: EagleAI. EagleAI pulls data from various sources — such as the National Change of Address Registry, “Google scrapes,” business records, and property tax records — and identifies potential inconsistencies that may or may not constitute evidence that a registered voter has moved or is otherwise ineligible to vote where registered. Because most states allow private citizens to challenge voter registrations before and during an election and essentially force election officials to review those challenged registrations, EagleAI’s strategy appears to be twofold: train volunteers  to use this software to file large volumes of challenges, and pitch the same software to election officials as a tool for adjudicating those and other challenges. footnote4_033xjg8 4 In a 03/23/2023 demonstration of the Eagle AI software obtained by Documented, EagleAI CEO John “Rick” Richards Jr. says “we’re building this for three audiences, one is the citizen who wants to verify their state voter rolls, counties who are getting 15,000 challenges on a spreadsheet and don’t know what to do with them, and then we can also do it at the state level and basically do what ERIC is supposed to be doing but is not doing,” https://vimeo.com/920221483. In the recent past, mass challenges have not always been responsibly handled and have sometimes resulted in improper, large-scale voter purges. footnote5_620ep2j 5 “Eligible Voters Are Being Swept Up in Conservative Activist Efforts to Purge Voter Rolls,” CBS News, December 4, 2023,  https://www.cbsnews.com/video/eligible-voters-are-being-swept-up-in-conservative-activist-efforts-to-purge-voter-rolls/; Jonathan Brater et al., Purges: A Growing Threat to the Right to Vote, Brennan Center for Justice, July 20, 2018, https://www.brennancenter.org/issues/ensure-every-american-can-vote/vote-suppression/voter-purges.

Though EagleAI’s proponents pitch it as nonpartisan, internal planning documents indicate it’s funded by Donors Trust, a dark money conservative group that also funds election denial efforts. footnote6_h5abg7i 6 Eagle AI Planning Document, obtained by Documented, August 17, 2023, https://documented.net/media/eagle-ai-planning-document; Hailey Fuchs, “Two Anonymous $425 Million Donations Give Dark Money Conservative Group a Massive Haul,” Politico, November 16, 2022, https://www.politico.com/news/2022/11/16/two-anonymous-425-million-donations-gives-dark-money-conservative-group-a-massive-haul-00067493; Brian Schwartz, “Dark-Money GOP Fund Funneled Millions of Dollars to Groups that Pushed Voter Fraud Claims,” CNBC, January 13, 2021, https://www.cnbc.com/2021/01/13/dark-money-gop-fund-funneled-millions-groups-that-pushed-voter-fraud-claims.html. It’s being rolled out specifically to activists associated with right-wing election denial groups such as the Election Integrity Network that are trying to organize mass voter challenges to state voter rolls.

As described to potential users in these rollouts, the software is designed to autofill various fields in a state’s challenge form, making it easy for users to quickly complete a large volume of these forms. Also as described, once a registration has been flagged for challenging, EagleAI then stores the form with others to be submitted to election offices en masse on the last day for filing challenges — maximizing the chaos by minimizing the time officials have to decide whether to take the serious step of removing voters from the rolls. footnote7_bd098dk 7 In a March 2023 demonstration to an Election Integrity Network coalition, Richards gave a tutorial on how Eagle AI can auto-fill challenge forms and time submissions of mass challenges to the board of elections. Documented, “John Richards Challenge Forms,” Vimeo, August 16, 2023, https://vimeo.com/855102040.  Because some state laws require that challengers live in the same jurisdiction as the registrants they challenge, EagleAI’s promoters are enlisting local voters to submit challenges compiled by other activists. This approach could conflict with certain state laws, and it certainly conflicts with the original rationale for private challenges — that they serve as a way for people to contribute knowledge about their local community. All this looks suspiciously like a recipe for overwhelming election offices and increasing the risk that some eligible voters will be incorrectly removed from the rolls.

Indeed, EagleAI’s supporters are pitching the software to local election officials as a way to update their rolls, prescreen voter registration forms, and respond to “15,000 challenges on a spreadsheet” that they “don’t know what to do with.” In a private training session, EagleAI’s founder openly celebrated that election officials “can’t respond” to mass challenges on short notice, and therefore may be looking to “outsource their headache” to EagleAI.

EagleAI has reached out to numerous state and local officials and has acquired at least one government contract. In Georgia, the Columbia County Board of Canvassers used taxpayer money to purchase EagleAI licenses, even though state election officials advised the board that EagleAI would not improve the accuracy of county voting rolls, which are already updated using ERIC’s reports. While the board has said it’s only using EagleAI to flag registrations for review, reports and internal documents indicate that EagleAI is promoting itself to the board as a tool to vet voting registration applications, flag registered voters for removal, and even resolve challenges. footnote8_52bko0c 8 According to a videotaped 03/23/2023 demonstration of the Eagle AI software obtained by Documented, Richards described a conversation he had with County election personnel in which he offered to sort through challenges and tell counties which ones were valid, https://vimeo.com/920224801?share=copy. In another 03/29/2023 demonstration obtained by Documented, Richards indicated “We’re working with them to do two things. One is when the applications come in from the state, we get them, we review them, and if there’s a problem, we recommend that the problem be fixed before they’re ever granted eligibility. It’s a lot easier to do it that way than try to fix it later,” https://vimeo.com/920544671?share=copy.

EagleAI appears to use the Voter Reference Foundation’s (VoteRef) publicly available voter list as one of its data sources. footnote9_nandj3a 9 VoteRef website is repeatedly displayed as a source for challenges in recorded demonstrations, such as Documented, “John Richards Challenge Forms.” VoteRef, itself substantially funded by a single right-wing, election-denying donor, provides only a snapshot of dynamic voter registration lists that quickly becomes outdated and often lacks critical data like date of birth, which raises the risk of false matches based on name similarities. Internal EagleAI planning documents and public statements by its founder raise concerns that activists might target certain vulnerable populations, such as nursing home residents, homeless individuals, and individuals from immigrant communities. footnote10_63i9isp 10 In legislative testimony, Richards cited the number of names with “special characters” as evidence of irregularities, and when asked about names in different languages that have special characters, he then said “we do English.” GeorgiaStateSenate, “2/15/24 Senate Committee on Ethics,” Youtube Video, 02:32:46, February 15, 2024, https://www.youtube.com/watch?v=oo69sXMOZxA.  And EagleAI’s backers have made misleading statements about current voter rolls. For example, they claim that Georgia has more registered voters than residents based on a list of registered voters that included names already flagged for possible removal by the state. They also conflate routine list inaccuracies like typos with actually ineligible voters. footnote11_x9j961b 11 Richards points to typos and data character errors found in the Georgia voter roll as evidence of fraud. Id. At 2:28:26. As summed up by Georgia Elections Director Blake Evans, “Instead of asking questions or being curious about the data, EagleAI draws inaccurate conclusions and then spreads them as if they are facts.”

Beyond these specific concerns, it’s troubling that some local election officials are turning to a little-known software tool promoted by election denial activists rather than well-studied and externally audited software maintained by a bipartisan organization led by state election officials with a transparent membership agreement and bylaws. While ERIC posts comprehensive information about its membership and internal processes and safeguards, EagleAI does not. And it’s alarming that election-denial activists seem poised to organize mass challenges to registered voters and intentionally bring these challenges at the last minute, when election staff may have limited bandwidth to vet them adequately.

In short, both public and private initiatives to replace ERIC pose a high risk of disenfranchising voters and sowing misinformation about voter roll accuracy.

Fortunately, the National Voter Registration Act provides some protection to voters by limiting when and how they can be removed from the rolls.

Under the act, states and their subdivisions can only remove voters in one of five circumstances. footnote1_2otfb56 1 52 U.S.C. § 20507(a)(3), (d). First, if the voter affirms the change. Second, if required by state law due to a criminal conviction or mental incapacity. Third, for the death of the voter. Fourth, if the voter confirms a change of residence in writing. Fifth, based on other evidence of a change of residence, but only after the state sends a notice and the voter both fails to respond and fails to vote in the next two federal general elections. There is no exception for removing a voter for a change of residence because the county has used private data or because the voter was challenged.

The act also prohibits the systematic removal of voters from the rolls within 90 days of a federal election and requires that any removal processes be uniform, nondiscriminatory, and compliant with the Voting Rights Act of 1965. If officials removed voters from the rolls based solely on database matching, that would clearly be systematic, and therefore prohibited within that 90-day window. In some circumstances, removals that are concentrated in certain precincts or populations could violate the National Voter Registration Act’s uniformity and nondiscrimination requirements or the Voting Rights Act.

Additionally, state officials are limited by the Constitution. Before being removed from the rolls, voters must have notice and a meaningful opportunity to be heard. footnote2_lbc2ocj 2 Mathews v. Eldridge, 424 U.S. 319, 333 (1976). They cannot be targeted for removal on discriminatory grounds. footnote3_xqjnysb 3 Romer v. Evans, 517 U.S. 620, 634 (1996). State constitutions generally include parallel, or in some cases even stronger, due process and equal protection rights. Some state laws also constrain removals based on private challenges, such as by requiring that challenges be based on personal knowledge and/or specific evidence, by outlining a process for notifying challenged voters and considering their response, and/or by penalizing frivolous challenges or knowingly false allegations.

Pro-voter groups will need to keep a close eye on voter rolls to make sure that election officials comply with these laws.

•  •  •

One of the distressing legacies of the 2020 election is the politicization of bipartisan election administrative tools like ERIC. As some states cave to election deniers and withdraw from ERIC, these same activists are trying to fill the void they’ve helped to create with flawed tools that could disenfranchise voters and sow misinformation. Fortunately, there are legal protections that can be brought to bear against irresponsible efforts to remove voters from state voter rolls.