Today, the Virginia State Board of Elections certified the results of a race for Attorney General with a razor-thin margin. With only 165 votes separating the candidates in an election in which more than 3,000 provisional ballots were cast, the decision may not end what has become a controversial election. But as media accounts focus on recounts and challenges, it is worth examining an earlier controversial action by the Board (SBE) that contributed to the current dispute.
Prior to the election, the SBE was sued for both flagging thousands of voters allegedly registered in another state, and for instructing counties to remove them without prior notice. Large-scale purges before elections are contentious, potentially put voters at risk, and in some cases may be illegal.
Virginia recently joined the Interstate Voter Registration Crosscheck (IVRC) maintained by the state of Kansas. Based on IVRC data, the SBE determined in mid-August that counties should review and cancel the records of approximately 57,000 registered voters on the basis that they had left the state and registered elsewhere. But county officials soon discovered large error rates on the list, raising the prospect that eligible voters could have been disenfranchised. Nevertheless, nearly 40,000 voters were removed before the election. Some wrongly removed voters were required to cast provisional ballots on Election Day, adding to the confusion in the recount and certification processes.
Everyone benefits from accurate and up-to-date voter rolls. At the same time, any effort to clean up voter lists must not prevent eligible voters from casting a ballot that will count. Virginia’s experiences emphasize the importance of certain sound list maintenance practices:
Conduct List Maintenance Far in Advance of Elections
Election officials should refrain from conducting large-scale purges too close to an election, because mistakes may not be identified until it is too late and eligible voters could be prevented from casting a ballot which will count. It is for this reason that federal law protects voters against systematic purges within 90 days of any primary or general federal election.
Virginia joined the IVRC in January 2013, and reported conducting cross-checks in April. Yet the SBE waited until mid-August to generate and transfer the aforementioned list of approximately 57,000 individuals to county officials—notwithstanding the fact that Election Day loomed nearby. Ultimately recognizing the problematic timetable, the SBE later informed counties that had not begun removing voters before October 1 that they should wait until after the Nov. 5 election to do so. This may have mitigated some of the disenfranchisement, but approximately 40,000 voters had been already removed. It also meant that voters across the state had different protections against an erroneous purge dependent on whether they lived.
Provide Clear Guidance on Purge Protocols
A state’s list maintenance protocols should be clear and easily understood by the election administrators who are responsible for keeping the voting rolls clean. When county officials receive lists of flagged voters from the state, they should understand what they can rely upon the list to tell them and what they need to do to ensure that no eligible voter is removed. In Virginia, it may be that county officials were given inadequate guidance as to the needed steps when they were sent voter lists in mid-August, and the lists themselves were hard to decipher. At least one election official complained at the time that the SBE “dumped [flagged voter names] on a pretty crude Excel spreadsheet and sent that to the county registrars. It’s hard to work with."
On September 3, at least a week or two after the SBE had already sent the list to county officials, the SBE sent a clarifying email instructing county registrars to “closely review the data provided against the identified individual’s voter registration and voter history.” The e-mail finally explained that it was the county registrars’ responsibility to determine whether the flagged voters could be legitimately purged from the rolls, and laid out some reasons why the flag might be inaccurate. These instructions should have been provided at the time counties were sent the lists, not after some counties had already begun purging the flagged voters.
Audit Source Lists for Accuracy
States should frequently audit the lists upon which they rely to determine whether voters on the rolls are ineligible. This will help ensure states use accurate lists and that election officials know when errors may occur.
The IVRC was launched in 2005 and currently has 26 participating states. Several counties expressed concern over the accuracy of the data. According to one article, county registrars reported error rates of approximately 10 percent% in the lists of voters provided by the SBE. Chesterfield County General Registrar Lawrence Haake examined 1,000 of the names he was sent and determined that at least 170 – 17 percent of the names – were on the list in error. Chesterfield and several other counties were so concerned that they decided to postpone purging voters until after the election due to accuracy concerns. As of the election, at least 11,000 of the voters identified statewide were not removed because they may have been identified in error.
A major source of the problem may have been that voters were wrongly identified as having moved from Virginia to another state, when in fact the opposite was true. One Accomack County voter reported that he had his Virginia registration cancelled because a state or county official believed he was registered in South Carolina. In fact, the voter had formerly been registered in South Carolina, but had moved to Virginia in 2009 and cancelled his South Carolina registration. After contacting officials in South Carolina, the voter confirmed that he was not even registered in his former state anymore. Although no list is perfect, this example underscores the importance of auditing source lists and understanding their limitations.
Utilize Strict Matching Criteria
Strict matching criteria must be utilized to ensure that eligible voters are not wrongly determined to be ineligible.
When states conduct large-scale systematic voter purges, bad matching criteria can put thousands of voters at risk. For example, in 2000, Florida wrongly removed up to 12,000 eligible individuals from the rolls in part because of bad matching criteria. Voters were removed if, in part, 80 percent of the letters of their last names were the same as names of individuals with felony convictions.
In no case should states rely on first name, last name, and date of birth alone. This is likely to create a large number of false matches, especially in a database the size of the IVRC, because so many people share the same birth date – the so-called “birthday problem.” In a group of 180 people, it is more likely than not that two people will share the same birth date, including year of birth.
Specifically, any list comparison should include an exact match on multiple fields, including, at a minimum, last name, first name, middle name, prefix, suffix, date of birth, and a unique identifier such as a driver’s license number or social security number.
Provide Individualized and Public Notice
Individual voters and the voting public-at-large must receive adequate notice before a voter list maintenance activity takes place.
Such notice should include an explanation of how the program will be conducted. Most importantly, before any voter is removed from the rolls for any reason, he or she should be notified and given the opportunity to correct any errors or omissions or to demonstrate eligibility. Federal law requires notice for certain voters before a removal is permitted, but it is a good practice for all voters.
Virginia did not publicize its voter purge in advance, and exacerbated the problem by instructing counties to remove voters without prior notice. Purged voters were notified after the fact and instructed to contact county officials if they were removed in error. But with the voter registration deadline passing on October 15, voters may have been unable to correct errors.
Enact Workable Reinstatement Protocols
Protocols must facilitate the quick and easy reinstatement of wrongly removed voters. Statewide voter registration databases should have the design capacity to easily reinstate the records removed from the voter registration list. The records of voters removed from the registration list, and the reason justifying the removal, should be made available for public inspection and copy, with adequate protections for voters in sensitive situations.
This purge appeared to have reinstatement protocols. State documents indicated that “[u]pon receiving written notice from a voter prior to Election Day that [a] cancellation was not valid, the registrar’s office reinstates the voter’s registration.” Although the extent to which this reinstatement protocol was utilized is unclear, reinstatement protocols should be useful in preventing the wrongful disenfranchisement of some purged voters.
Provide Robust Fail-Safe Procedures
Because not all purge errors can be corrected prior to Election Day, protocols must include effective fail-safe voting procedures, including ensuring that election worker training. No registered voter should be turned away from the polls because her name is not found on the voter registration rolls.
The SBE indicated that voters who were wrongly removed from the rolls had to vote provisional ballots unless the election official could determine at the polling place that they were removed in error. However, these provisional ballots were to be automatically counted as long as the address on the envelope matched the address of the Virginia registration. As it turned out, more than 3,000 provisional ballots were cast, in an election in which 165 votes currently separate the candidates. It is still unclear how many of these provisional ballots were cast by purged voters, how many of those provisional ballots are currently under dispute, and whether all provisional ballots cast by wrongfully removed voters will be counted. Provisional balloting procedures must operate effectively to protect the franchise. In all cases, election workers should clearly understand that:
1. No voter should be denied a provisional ballot.
2. All voters must be given the opportunity to substantiate their eligibility to vote.
3. All voters must be informed as to how they can substantiate their eligibility.
4. All voters must be informed on how to determine whether their ballot was counted.
5. The ballot must be counted when a voter confirms that she is registered and eligible to vote.
Lessons for Election Administrators
The ongoing dispute in Virginia’s 2013 Attorney General race, the closeness of the contest, and the controversy regarding provisional ballots all serve to underscore the importance of careful voter list maintenance. Accurate lists of eligible voters are essential, but states and counties should ensure that voters are not harmed by official errors and that every eligible elector is able to participate. Election administrators should study Virginia’s experiences and be sure to employ the best practices described above in maintaining their own voter rolls.
 Virginia Removes 40K From Voter Rolls Over Democrats’ Objections, Associated Press, Oct. 17, 2013, available at http://www.timesdispatch.com/news/state-regional/va-removes-k-from-voter-rolls-over-democrats-objections/article_2d111de4-49de-523b-bd9c-5d93b7c0a00e.html.
 Thousands of Va. Voters on The Rolls in Other States, Richmond Times-Dispatch, April 5, 2013, available at http://www.timesdispatch.com/news/state-regional/government-politics/thousands-of-va-voters-on-the-rolls-in-other-states/article_3ce0c700-9ac9-53c1-8bfa-54619d917feb.html.
350,000 Would-Be Voters Dropped from Books in Virginia 30 Days before Registration Deadline, The contributor (Sept. 3, 2013 1:22 pm), http://thecontributor.com/my-voter-registration-was-cancelled-will-i-be-one-350000.
 Email from State Board of Elections to County Registrars (Sept. 3, 2013), available at http://thinkprogress.org/wp-content/uploads/2013/09/DonPalmerInstructions.pdf.
 Jim Nolan, Chesterfield Registrar Delays Purge of Voter Rolls, Richmond Times-Dispatch, Oct. 9, 2013, http://www.timesdispatch.com/news/local/chesterfield/chesterfield-registrar-delays-purge-of-voter-rolls/article_162e36b5-0be7-5dc8-af9f-48876a167b43.html.
 Supra note 1.
 The contributor, supra note 3.
 Myrna Pérez, Voter Purges 23, available at http://www.brennancenter.org/sites/default/files/legacy/publications/Voter.Purges.f.pdf 23.
 Id. at 21.
 Virginia Law & Process on Voter Registration List Maintenance, Sept. 17, 2013, available at http://thinkprogress.org/wp-content/uploads/2013/09/57000-FairfaxCounty.pdf.