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Voter Purges in an Increasingly Vote-by-Mail World

In response to the likely increase in mail voting due to Covid-19, the Brennan Center has created guidelines to ensure voter purges don’t disenfranchise eligible voters.

Last Updated: May 21, 2020
Published: May 20, 2020
A Utah County election worker verifies signatures on mail-in ballots for the midterm elections on November 6, 2018 in Provo, Utah.
George Frey/Getty

As Amer­ic­ans stay safe at home and elec­tion admin­is­trat­ors grapple with how to conduct elec­tions during a pandemic, anti-voter groups continue to bring lawsuits seek­ing to compel aggress­ive voter roll purges. At least four lawsuits have occurred in the last five months — partic­u­larly in swing states and in areas with large popu­la­tions of voters of color.

In every state but one, voters are required to be registered before being able to cast a ballot. State and local elec­tion admin­is­trat­ors across the coun­try regu­larly remove or “purge” voters from the rolls as a part of main­tain­ing voters rolls that are accur­ate and up to date. But all too often, a purge is erro­neous and goes wrong, and eligible voters are removed from the rolls, frequently with no notice or know­ledge until they show up at the polls to vote. There was cause for alarm even before Covid-19 turned our elec­tion meth­ods upside down. The coun­try was purging more voters (an increase that outpaces increases in popu­la­tion and regis­tra­tion), and purge rates had increased in juris­dic­tions with a history of racial discrim­in­a­tion after the Supreme Court weakened federal protec­tions against discrim­in­a­tion in.

Now, the risks posed by erro­neous purges are exacer­bated as elec­tion offi­cials confront the novel coronavirus because state and federal propos­als, such as they are, largely rely on vote-by-mail options. But under current vote-by-mail systems, voters who are wrongly purged from the rolls have less oppor­tun­ity to rectify the error and cast their ballots than when voting in person (when provi­sional ballots are avail­able), rais­ing the risk that eligible voters will be denied their right to vote.

Under federal law, states may conduct system­atic purges up until 90 days before a federal elec­tion. Given some states’ primary sched­ules, there are still states that could be conduct­ing large-scale purges in the coming weeks without running afoul of federal law.

To ensure that mail ballot­ing systems do not increase purge-related disen­fran­chise­ments, elec­tion admin­is­trat­ors should focus on: (1) redu­cing erro­neous purges, (2) adapt­ing in-person protec­tions for purged voters to mail ballot systems, and (3) ensur­ing that eligible purged voters can still cast a ballot that counts at the polls.

1. Reduce Erro­neous Purges

The complete­ness and qual­ity of the voter regis­tra­tion list takes on increased import­ance in a mail ballot system because the list will form the basis of who gets a mail ballot. As such, elec­tion admin­is­trat­ors must ensure they use smart prac­tices when clean­ing their rolls.

  • Use good source data. The qual­ity and accur­acy of the inform­a­tion from other sources, like crim­inal convic­tion lists or data from inter­state data shar­ing programs, should be routinely audited or checked. Some sources, like the Kansas-admin­istered Crosscheck program or out-of-date lists of purpor­ted noncit­izens, are too unre­li­able to use. For example, in 2019, a federal judge stopped Texas’s “ham-handed” attempt to purge more than 95,000 purpor­ted noncit­izens from the rolls because the state failed to account for the thou­sands of Texans that become natur­al­ized citizens every year.
    • Consult back up. Elec­tion admin­is­trat­ors should test the accur­acy of their sources by look­ing at differ­ent sources of inform­a­tion, rather than assum­ing one source is flaw­less. Even sources contem­plated by Congress for purges, like the National Change of Address data­base or the Social Secur­ity Admin­is­tra­tion’s Death Master File, have error rates.
    • Right-size the reli­ance. Use of the list should be adjus­ted in accord­ance with the list’s reli­ab­il­ity.
  • Use thought­ful match­ing criteria. When purge lists are developed by match­ing names on the voter regis­tra­tion list to names from another source, false posit­ive matches can arise. Texas saw this in 2012, when a compar­ison of the voter regis­tra­tion rolls to the Social Secur­ity Admin­is­tra­tion’s Death Master File resul­ted in an erro­neous purge.
    • Match across multiple fields. To steer clear of false posit­ive matches, elec­tion offi­cials should require matches across many fields — like first name, last name, address, date of birth, social secur­ity number, and driver’s license number — before flag­ging as ineligible. A match­ing name and address are not suffi­ciently unique; neither are a match­ing name and birth­day. Shared birth­days, for example, are so common that in a group of 180 people, it’s more likely than not that two people will have been born on the exact same day.
    • Avoid list compar­is­ons that use weak matches. The contro­ver­sial and currently defunct Inter­state Crosscheck System used loose match­ing criteria (first name, last name, and date of birth) to create lists of voters who purportedly moved out of state.
  • Complete ALL system­atic purges 90 days before any federal, state, or local elec­tion. Federal law requires that any program to system­at­ic­ally remove ineligible voters from the rolls must take place no later than 90 days before a federal primary or general elec­tion. That’s because voters and elec­tion admin­is­trat­ors need time to identify and correct any purge mistakes.
    • Ninety days for all. While federal law requires system­atic main­ten­ance to be completed by 90 days before federal elec­tions, the logic behind that black­out period applies equally to state and local elec­tions as well.
    • Chal­lenges also should occur far in advance. Purges by another name — for example, voter chal­lenges — need to comply with the federal timeline for purging. For example, in North Caro­lina, a federal court ruled in 2016 that local boards of elec­tions likely viol­ated federal law when they system­at­ic­ally removed hundreds of voters through citizen-initi­ated chal­lenge proced­ures less than 90 days before the general elec­tion.
  • Don’t get rushed into a purge. There has been an increase in activ­ist groups threat­en­ing elec­tion admin­is­trat­ors with legal action based on alleg­a­tions that the juris­dic­tion is not purging aggress­ively enough. An unplanned and rushed purge in response to these threats does noth­ing to increase voter confid­ence in a state’s purge prac­tices.
  • Provide public and private notice of purges. In order to remove a voter based on a change in resid­ence, federal law requires that elec­tion admin­is­trat­ors provide indi­vidu­al­ized notice and an oppor­tun­ity to respond or vote that spans two federal elec­tions before removal. Not only is indi­vidu­al­ized notice essen­tial, but wide­spread public notice before under­tak­ing a purge can prevent a state from making seri­ous mistakes.

2. Adapt In-Person Protec­tions for Purged Voters to Mail Ballot Systems

Because of the novel coronavirus, many more voters are expec­ted to use vote-by-mail options this year. Indeed, one survey reports 66 percent of adults as saying they would­n’t feel comfort­able going to a polling place to vote this year. As calls for expan­ded access to mail voting grow, elec­tion admin­is­trat­ors must ensure that the turn to mail voting does not disen­fran­chise purged voters. 

  • Affirm­at­ively send mail ballot applic­a­tions to inact­ive voters (and remem­ber, if you’re send­ing mail ballots to all registered voters, inact­ive voters are registered too). States have differ­ent terms for voters who are on a path­way for removal but cannot be legally removed yet. Many states refer to these voters as “inact­ive voters.” Because these voters have not been removed, they remain eligible and still have time to adjust their status back to “active.” There­fore, they should not be penal­ized by being deprived of the oppor­tun­ity to vote by mail in the middle of a health crisis.
    • If a voter is deemed inact­ive because of specific evid­ence that the voter is no longer eligible, states trans­ition­ing to mail voting should send provi­sional ballots to all such inact­ive voters who request a mail ballot.
  • Use mail ballot requests in numer­ous ways. Eligible voters should­n’t have to fill out multiple forms to get on the rolls. And erro­neously purged voters should­n’t bear the burden of a mistaken removal. A request for a mail ballot should qual­ify as:
    • An activ­ity that moves a voter from the inact­ive list to the active list.
    • A response to an NVRA notice (see 52 U.S.C. § 20507(d)) suffi­cient to prevent the voter from being removed.
    • An applic­a­tion to register if submit­ted by a never-registered person and the mail ballot request is received before book clos­ing and contains suffi­cient inform­a­tion for regis­tra­tion. In states where the mail ballot applic­a­tion does not contain enough inform­a­tion for regis­tra­tion, the voter should be sent an applic­a­tion to register to vote or update their voter regis­tra­tion.
    • Grounds to rein­state a voter purged for change of address, if the address provided on the mail ballot request is the same as the address provided when the voter was registered. This request is affirm­at­ive evid­ence that a voter did not move.
  • Account for chan­ging circum­stances when contem­plat­ing a purge. Covid-19 has forced many people into new and tempor­ary living situ­ations at new addresses, and the pandemic is already strain­ing the Postal Service.
    • Undeliv­er­ab­il­ity should not result in removal. If a mail ballot or ballot applic­a­tion is undeliv­er­able, do not purge a voter.
    • Reis­sue Notice. Any voter warned of their poten­tial removal in a notice sent in 2020 pursu­ant to Section 8 of the National Voter Regis­tra­tion Act (52 U.S.C. § 20507(d)) should also receive notice in 2021.

3. Polling Place Fail-Safes

Even as increased access to vote-by-mail is a key part of the response to Covid-19, safe and healthy polling places are also crit­ical. Giving every voter access to a mail ballot option will not replace all polling place voting, and it should not come at the expense of access to polling places, partic­u­larly because communit­ies and demo­graphic groups with poor mail access are used to voting in-person, prefer to do so, and will not be will­ing or able to vote by mail. That means polling places still need to be prepared to assist purged voters who remain eligible in cast­ing a ballot that counts. 

Elec­tion admin­is­trat­ors should:

  • Provide clear instruc­tions and adequate train­ing to poll work­ers on the provi­sional ballot­ing require­ments of the Help Amer­ica Vote Act. Poll work­ers should be famil­iar with the circum­stances that trig­ger the use of provi­sional ballots, know how to walk a voter through the process, and under­stand that every provi­sional voter must be given inform­a­tion on how to check if their ballot was coun­ted.
  • Never turn away voters from polls because their names are not on the voter rolls. Under federal law, would-be voters who are not on the rolls or whose eligib­il­ity is in ques­tion always have the right to cast provi­sional ballots.
    • Inact­ive voters must be able to vote. Voters who remain eligible but have been trans­ferred to a state’s list of “inact­ive” voters should be able to cast a ballot that will count.
  • Make paper copies of purge lists and voting history avail­able at polling places so errors can be iden­ti­fied and poll work­ers can find the names of erro­neously purged voters and allow them to cast regu­lar ballots.
  • Ensure every polling place has adequate resources to offer provi­sional voting, includ­ing enough poll work­ers (includ­ing bilin­gual poll work­ers where required) and a suffi­cient number of provi­sional ballot mater­i­als to accom­mod­ate a surge in provi­sional voting due to erro­neous purges, hack­ing, or other Elec­tion Day disrup­tions.
    • Prepare for uncer­tainty. With policy chan­ging rapidly to adjust to Covid-19, juris­dic­tions should prepare for a surge in provi­sional voting due to delays in processing of voter regis­tra­tion applic­a­tions, delays in processing and deliv­ery of mail ballot applic­a­tions, voter confu­sion result­ing from polling site clos­ures and consol­id­a­tion, and unfa­mili­ar­ity with absentee voting.
  • Count provi­sional ballots unless there’s clear and convin­cing evid­ence someone is not When a voter attests to their eligib­il­ity, a desig­na­tion of “canceled” (or “removed” or “purged”), stand­ing alone, is not enough to reject a provi­sional ballot given inher­ent errors in list main­ten­ance or other regis­tra­tion data­base disrup­tions.
    • Consult other evid­ence. Elec­tion admin­is­trat­ors should look to other sources — like motor vehicle records, court records, or original regis­tra­tion applic­a­tions —for evid­ence of ineligib­il­ity before reject­ing any provi­sional ballot.