[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
VOTING IN AMERICA: THE POTENTIAL FOR VOTER LIST PURGES TO INTERFERE
WITH FREE AND FAIR ACCESS TO THE BALLOT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ELECTIONS
OF THE
COMMITTEE ON HOUSE
ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
MAY 6, 2021
__________
Printed for the use of the Committee on House Administration
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available on the Internet:
http://www.gpoinfo.gov/committee/house-administration
______
U.S. GOVERNMENT PUBLISHING OFFICE
45-399 WASHINGTON : 2021
VOTING IN AMERICA: THE POTENTIAL FOR VOTER LIST PURGES TO INTERFERE
WITH FREE AND FAIR ACCESS TO THE BALLOT
COMMITTEE ON HOUSE ADMINISTRATION
ZOE LOFGREN, California, Chairperson
JAMIE RASKIN, Maryland RODNEY DAVIS, Illinois,
G. K. BUTTERFIELD, North Carolina Ranking Member
PETE AGUILAR, California BARRY LOUDERMILK, Georgia
MARY GAY SCANLON, Pennsylvania BRYAN STEIL, Wisconsin
TERESA LEGER FERNANDEZ, New Mexico
C O N T E N T S
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MAY 6, 2021
Page
Voting in America: The Potential for Voter List Purges to
Interfere with Free and Fair Access to the Ballot.............. 1
OPENING STATEMENTS
Chairman G. K. Butterfield....................................... 1
Prepared statement of Chairman Butterfield................... 4
Hon. Bryan Steil, Ranking Member................................. 6
Prepared statement of Ranking Member Steil................... 8
WITNESSES
The Honorable Joshua L. Kaul, Attorney General, State of
Wisconsin...................................................... 12
Prepared statement of The Honorable Joshua Kaul.............. 14
Sophia Lakin, Deputy Director, Voting Rights Project, ACLU....... 17
Prepared statement of Ms. Lakin.............................. 19
Marc Meredith, Associate Professor, University of Pennsylvania... 38
Prepared statement of Dr. Meredith........................... 40
Kaylan Phillips, Litigation Counsel, Public Interest Legal
Foundation..................................................... 49
Prepared statement of Ms. Phillips........................... 51
QUESTIONS FOR THE RECORD
The Honorable Joshua L. Kaul, Attorney General, State of
Wisconsin, Answers to submitted questions...................... 72
Sophia Lakin, Deputy Director, Voting Rights Project, ACLU,
Answers to submitted questions................................. 75
Marc Meredith, Associate Professor, University of Pennsylvania,
Answers to submitted questions................................. 81
Kaylan Phillips, Litigation Counsel, Public Interest Legal
Foundation, Answers to submitted questions..................... 86
SUBMISSIONS FOR THE RECORD
How the Wisconson Voter Purge Targets Black Voters, Submission... 152
American Political Science Review, One Person, One Vote:
Estimating the Prevalence of Double Voting U.S. Presidential
Elections, Submission.......................................... 156
Georgia Voter Roll Purge Errors, Submission...................... 170
Science Advances, The Racial Burden of Voter List Maintenance
Errors: Evidence From Wisconsin's Supplemental Movers poll
books, Submission.............................................. 192
11th Circuit Judgment Florida, Submission........................ 202
Judge Fred Biery Order, Submission............................... 236
VOTING IN AMERICA: THE POTENTIAL FOR VOTER LIST PURGES TO INTERFERE
WITH FREE AND FAIR ACCESS TO THE BALLOT
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THURSDAY, MAY 6, 2021
House of Representatives,
Subcommittee on Elections,
Committee on House Administration,
Washington, DC.
The Subcommittee met, pursuant to call, at 2:00 p.m., via
Webex, Hon. G. K. Butterfield [Chair of the Subcommittee]
presiding.
Present: Representatives Butterfield, Aguilar, Leger
Fernandez, and Steil.
Also Present: Representatives Lofgren, Scanlon, and Rodney
Davis of Illinois, and Loudermilk.
Staff Present: Jamie Fleet, Staff Director; David Tucker,
Parliamentarian; Brandon Jacobs, Legislative Clerk; Sean
Wright, Senior Elections Counsel; Andrew Kasper, Elections
Counsel; Peter Whippy, Communications Director; Natalie Young,
Press Secretary; Tim Monahan, Minority Staff Director; Caleb
Hays, Minority General Counsel and Deputy Staff Director;
Gineen Bresso, Minority Special Counsel; Nick Crocker, Minority
Deputy Staff Director; and Mike Cunningham, Minority Policy
Staff.
Chairman Butterfield. The Subcommittee on Elections of the
Committee on House Administration will now come to order.
I am pleased that several members have joined us today, and
I will recognize each one of them by name, first of all, to say
greetings to each one of them, but also to establish a quorum.
We have with us Mr. Aguilar from California; the Ranking
Member, Mr. Steil, from Wisconsin; Ms. Leger Fernandez from New
Mexico; the Ranking Member of the full Committee, Mr. Davis of
Illinois; Ms. Scanlon from Pennsylvania; and, of course,
myself. I will declare a quorum to be present.
Let me begin by saying good afternoon to all of you. As we
begin today, I want to note that we are holding this hearing in
compliance with the regulations for remote committee
proceedings pursuant to House Resolution 8.
Generally, we ask Committee members and witnesses to keep
their microphones muted when not speaking to limit background
noise. Members will need to unmute themselves when seeking
recognition or when recognized for their 5 minutes. Witnesses
will also need to unmute themselves when recognized for their 5
minutes or when answering a question.
Now, members and witnesses, please, please keep your
cameras on at all times even if you need to step away for just
a few moments. Please, please do not leave the meeting or turn
your camera off. There are good reasons for this rule, and I
will insist that we abide by the rule.
I would also like to remind members that the regulations
governing remote proceedings require that we cannot participate
in more than one committee proceeding at the same time.
And so at this time, I will ask unanimous consent that all
members have 5 legislative days in which to revise and extend
their remarks and have any written statements be made part of
the record.
I hear no objections. Hearing no objections, it is so
ordered.
Ladies and gentlemen, this is the second in a series of
hearings this Subcommittee will be conducting this calendar
year examining voting and election administration in the United
States of America. Today we are examining State and local laws
and processes governing the removal of registered voters from
voting rolls.
Federal law requires that States make a reasonable effort--
that is the terminology in the law--States must make a
reasonable effort to remove registered voters from their rolls
who are ineligible to vote in the State because, for example,
they have passed away, they have died, or moved maybe to
another State.
But the law also requires that any State statute or any
process governing the removal of voters from the voting rolls
must be uniform, must be nondiscriminatory, and in compliance
with the 1965 Voting Rights Act.
Now, since the Supreme Court's 2013 decision in Shelby
County v. Holder--which we are all familiar with, that case
rendered a key provision of the Voting Rights Act to be
inoperable--a number of States across the country have moved to
aggressively remove voters from their voting rolls.
Recent reports have found that States removed more than 30
million voters from their rolls between 2014 and 2018, just a
span of 4 years.
The voter roll purges have been particularly aggressive in
States that before Shelby had to obtain preclearance under the
Voting Rights Act of their voter removal programs from the
Department of Justice.
One study that I have read, one study found post-Shelby
County increases in purge rates are between 1.5 and 4.5 points
in States and localities formerly covered by the Voting Rights
Act compared to States and localities that had never been
covered. That causes me some concern.
Far too often these new aggressive voter roll purge efforts
have wrongfully removed voters who were properly registered to
vote. Indeed, studies indicate that hundreds of thousands of
properly registered voters have been the subject of flawed
voter purge efforts. Voters and organizations have spent
thousands of hours and millions of dollars to correct these
errors.
And so I think we can do better. We must do better. We
should be doing all that is in our power to make it easier to
vote, not erroneously trying to strip properly registered
voters of their right to vote.
The facts and circumstances surrounding several of the
voter purges also raise significant questions about whether
those voter purge efforts complied with mandates under Federal
law that any program providing for the removal of voters from
voting lists, they must be uniform and they must be
nondiscriminatory.
Several States have engaged in highly public efforts to
remove noncitizens from their voting rolls. These efforts,
which disproportionately seek to disenfranchise Hispanic and
Latino voters, often rely on databases that are known to have
inaccurate citizenship information.
Equally troubling is evidence that the databases and
processes many States are using to remove voters from their
rolls are likely to disproportionately burden minority voters.
Let me put it simply. Longstanding socioeconomic
disparities appear to make it more likely that properly
registered minority voters are erroneously identified as
subject for removal. That troubles me, and it should trouble
you.
Also troubling is a growing trend of conservative interest
groups filing legal actions seeking to compel States and compel
localities to remove voters from their rolls. Many of these
actions, which rely on little more than allegations that
registration rates are implausibly high, have been targeted.
They have been targeted at cities and counties with
disproportionately large minority populations.
High voter registration should be a subject of community
pride, not an invitation to litigate.
And perhaps most troubling is the raft of bills recently
enacted or currently being considered by State legislatures to
remove even more voters from the rolls.
These bills, these bills which have their genesis in the
baseless allegations of irregularities in the 2020 election,
often provide for the removal of voters based on little more
than a voter exercising his or her right not to vote in a
single election.
The testimony provided today will help us as this Committee
seeks to understand what needs to be done to ensure that voter
list maintenance efforts are nondiscriminatory and do not
erroneously remove properly registered voters, plain and
simple.
And so I look forward to hearing from today's witnesses and
working with my colleagues on this very, very important issue.
I now would like to recognize the Ranking Member of the
Subcommittee, Mr. Steil, for his opening statement.
Mr. Steil.
[The statement of Chairman Butterfield follows:]
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Mr. Steil. Thank you very much, Chairman.
I can report, in the State of Wisconsin we have a lot of
pride because we have one of the highest voter participation
rates in the country.
But as we dive into this topic, Federal law requires States
to, quote, ``conduct a general program that makes a reasonable
effort to remove from the official list any voters ineligible
by reason of death or change of address.''
And so when President Clinton signed the National Voter
Registration Act in 1993, he said, quote, ``Every year from now
on, we are going to have more registered voters and more people
voting. We are going to make the system work,'' end quote. And
the NVRA's purpose is to make it easier to register to vote and
to ensure that States have accurate voter rolls to support
voter confidence in Federal elections.
That is what the Democrat House, Senate, and Democratic
President Bill Clinton thought then. Now Democrats suggest that
this Democrat-led effort interferes with free and fair access
to the ballots. Is this the same Democratic Party that
supported the NVRA's reasonable safeguards in 1993?
There is nothing that should be controversial about
ensuring people who have died or moved away aren't registered
at their old address. A State's refusal to comply with NVRA is
expensive, it is wasteful, it creates voter confusion, and it
weakens voter confidence in election results.
If we want to actually increase voter participation, I
believe we should be fighting for better-run elections so
people will hold confidence in the election results. If States
mail live ballots to everyone on an outdated list, we might
expect multiple ballots to arrive at incorrect addresses. Many
of these problems wouldn't happen with proper list maintenance.
Outdated voter rolls may lead to long lines for in-person
voting. In 2020, L.A. County voters waited hours because voter
check-in equipment was overwhelmed. Turns out L.A. County had
over 1.5 million ineligible people on the voter rolls. A suit
was filed by a nonpartisan watchdog that alleged L.A. County
had 112 percent of its adult citizens registered to vote.
Under pressure, as you may know, California and L.A. County
finally agreed to clean up their voter rolls in 2019. And,
unfortunately, then California Secretary of State Alex Padilla
could not tell this Committee last fall how many ineligible
people, those who were deceased or those who moved out of the
State, had been removed from California's unmaintained voter
rolls. Not a lot of faith that California is in compliance with
the NVRA.
Pennsylvania recently was forced to comply with Federal law
and remove 21,000 deceased individuals. Michigan, their
Secretary of State removed 177,000 ineligible, saying that
Michigan was not engaged in ``sufficient comprehensive
efforts'' to maintain its lists.
In my home State of Wisconsin there was a lawsuit recently
on this issue of list maintenance. Wisconsin wasn't keeping its
voter lists up to date, and over 70,000 individuals are
registered even though, by all indications, they have moved.
My State's attorney general, a witness we will hear from
today, filed a brief and presented oral arguments in court in
support of keeping these individuals on Wisconsin's voter rolls
even though they no longer lived where they were registered.
And according to WEC, none of them voted in 2020, further
indicating that these individuals moved.
Not that these facts are stopping Democrats from trying to
conflate the issue. Speaker Pelosi tweeted about the case and
got a ``pants on fire'' rating from PolitiFact because she
claimed 200,000-plus people, quote, ``[would] Be prohibited
from voting,'' end quote.
Of course that is not true. Anyone who has moved may
register to vote with a new address. And in Wisconsin, folks
can even register to vote at the polls on election day.
The point is this. Our goal should always be to ensure
every eligible voter can cast their vote and that each voter
has confidence in the integrity of our election process and
outcomes. The NVRA provides specific instructions for
conducting list maintenance and voter fail-safes. No voter may
be removed solely for failure to vote no matter how long that
has been. No comprehensive list maintenance may be conducted
within 90 days of a Federal election.
And, importantly, if a mistake is made, voters can still
preserve their vote by casting a provisional ballot and
addressing the issue with election officials.
Inaccurate voter lists can significantly increase wait
times for in-person voting and have ineligible voters on the
voter rolls weaken voter confidence that our elections are run
fairly and are run accurately.
I believe we should be working to ensure States comply with
Federal law Democrats passed in 1993, not making excuses.
But across the board, I look forward to today's discussion
and conversation.
And with that, Mr. Chairman, I will yield back.
[The statement of Mr. Steil follows:]
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Chairman Butterfield. Thank you, Mr. Steil. The gentleman
yields back.
In just a moment, I will introduce today's panel. But
before I do that, let me just acknowledge the presence of the
full Committee Chair, Ms. Lofgren of California, and yield time
to her for such statements as she may choose to make.
Ms. Lofgren, thank you for joining us.
The Chairperson. Thank you so much, Mr. Chairman.
I just wanted to stop by for a minute and thank the members
of the Elections Subcommittee for the vigor with which they are
approaching the questions of the right to vote in America and
thank also our witnesses for appearing today.
Obviously, voting is fundamental for American citizens. It
is the whole basis for our country's freedom and what our brave
men and women have gone off to fight for over the decades so
that we have that precious right. We need to guard that right,
and I am confident that the Committee's inquiries will help
protect that right.
We all know that the NVRA was passed when the Voting Rights
Act was in full swing, before the Shelby decision. And so here
is the question: Have there been pretextual uses of purges that
really are intended to get to the essence of what the Voting
Rights Act was originally intended to protect?
I think that the Committee's deep dive, the data that you
will get, will inform the Congress and the country as to what
steps, if any, we should take relative to the Voting Rights Act
and the preservation of the rights of every single American
citizen to vote.
So with that, Mr. Chairman, I thank you for letting me sit
in and listen and share these words. I commend you for your
excellent leadership and every member of this Committee for the
work that you are doing. And I yield back with gratitude.
Chairman Butterfield. Thank you, Madam Chairperson. And
thank you so very much for your leadership and all that you do,
not just for this Committee but for the Congress. Thank you
very much.
Let me also extend an opportunity to the Ranking Member of
the full Committee, my dear, dear friend and neighbor from the
great State of Illinois, Mr. Davis, for any remarks that he
might want to make before we hear from the witnesses.
Mr. Davis. Mr. Chair, I am probably going to surprise you,
the Chairperson, and the rest of my colleagues today by
deciding not to go on a diatribe. I want to hear from our
guests today, and I would like to get as quickly into the Q&A
as we possibly can.
And don't think this will probably ever happen again in our
career together. I am going to yield back the balance of my
time.
Chairman Butterfield. Well, you are very kind, Mr. Davis.
We will allow you to accumulate these minutes. How about that?
As a reminder to our witnesses, each of you will be
recognized for 5 minutes. There is a timer on your screen. I
think you can see it there to the left. There is a timer on
your screen. Please be sure you can see the timer and are
mindful of the 5-minute time limit.
Your entire written statements will be made part of the
record, and the record will remain open for at least 5 days for
additional materials to be submitted.
And so today I welcome each of our witnesses. Joining us
today are Josh Kaul, who is the Attorney General for the State
of Wisconsin. We have Sophia Lin Lakin of the American Civil
Liberties Union. We also have Dr. Marc Meredith of the
University of Pennsylvania and Kaylan Phillips of the Public
Interest Legal Foundation.
Let me be specific about each one.
Josh Kaul is the 45th Attorney General of the State of
Wisconsin, having grown up in Oshkosh and Fond du Lac,
Wisconsin.
General Kaul--I keep wanting to call it differently--but
Kaul is the State's chief legal officer and is responsible for
representing the State in all legal matters.
General Kaul's top priorities are protecting public safety,
fighting for clean and safe drinking water and against climate
change, and protecting the rights of Wisconsinites.
Prior to serving as attorney general, he litigated numerous
cases under the 1965 Voting Rights Act, including Wisconsin, my
home State of North Carolina, Ohio, and Virginia. He also
served as Federal prosecutor in Baltimore, Maryland.
Next witness, Sophia Lin Lakin, is the Deputy Director of
the ACLU's Voting Rights Project and assists in the planning,
strategy, and supervision of the ACLU's voting rights
litigation nationwide.
She has an active docket protecting voting rights and
combating voter suppression across the country and has led or
worked on successful challenges to discriminatory voting laws
in several States, including Georgia, Indiana, Kansas,
Missouri, North Carolina, Pennsylvania, Texas, and Virginia.
Among other notable cases, she was lead counsel in cases
successfully challenging a series of Indiana voter purge
statutes.
She is a frequent commentator on voting rights issues,
presenting at conferences and conducting voting rights
trainings nationwide.
Next is Dr. Marc Meredith. Marc is an Associate Professor
with the University of Pennsylvania, Department of Political
Science. His research examines the political economy of
American elections with a particular focus on the application
of causal inference methods. His substantive research interests
include election administration, election law, political
campaigns, and voter decisionmaking.
His research has been published in numerous leading
journals, including the American Political Science Review, the
American Journal of Political Science, the Journal of Politics,
the Quarterly Journal of Political Science, and the Proceedings
of the National Academy of Sciences.
Kaylan Phillips. Kaylan is a litigation counsel with the
Public Interest Legal Foundation. Ms. Phillips has extensive
experience at every level of litigation in State and Federal
court, including our U.S. Supreme Court. She also has
experience representing clients before Federal and State
administrative agencies.
Before joining the Public Interest Legal Foundation, she
was an associate at the Bopp Law Firm where her Federal
practice focused on election law.
Ms. Phillips has also authored numerous amicus curiae
briefs on key election law issues, such as, ``One Person, One
Vote.''
I now would like to recognize each one of our witnesses,
and I will do them one at a time, starting with Attorney
General Kaul.
You are now recognized for five minutes.
STATEMENTS OF THE HONORABLE JOSHUA L. KAUL, ATTORNEY GENERAL,
STATE OF WISCONSIN; MS. SOPHIA LIN LAKIN, DEPUTY DIRECTOR,
VOTING RIGHTS PROJECT, ACLU; DR. MARC MEREDITH, ASSOCIATE
PROFESSOR, UNIVERSITY OF PENNSYLVANIA; AND MS. KAYLAN PHILLIPS,
LITIGATION COUNSEL, PUBLIC INTEREST LEGAL FOUNDATION
STATEMENT OF JOSHUA L. KAUL
Mr. Kaul. Thank you to the Chair and Ranking Member of the
Subcommittee, the Chair and Ranking Member of the full
Committee, and also to the other Members of Congress who are
here.
I would like to start today by talking about Wisconsin's
experience with ERIC data.
Pursuant to legislation passed in 2015, the State of
Wisconsin joined the Electronic Registration Information
Center, Inc., which is known as ERIC.
Through ERIC, States and the District of Columbia share
data with the goal of using that data to assist them in
identifying eligible voters who aren't registered and voter
registrations that are no longer valid. ERIC uses data from
States' voter files as well as data from other sources, such as
the U.S. Postal Service.
Now, in 2017 Wisconsin for the first time received a so-
called ERIC ``movers report,'' a report that identifies people
who possibly have moved. That data has been received every
other year, so we also received it in 2019.
Based on the 2017 data, Wisconsin sent approximately
340,000 potential movers postcards, and it gave them 30 days to
respond in order for them to remain active on the voter rolls.
Over 6,000 voters responded and kept their voter
registrations active at the address at which they were
registered. The other voters who received those postcards were
deactivated.
Now, according to a memo from the staff at the Wisconsin
Elections Commission, that is our State-wide body that oversees
elections in Wisconsin, that deactivation created some problems
in the 2018 spring primary. And according to the Elections
Commission memo, there were some voters who had not moved but
hadn't returned their postcards who were left off the poll
books.
So the Wisconsin Elections Commission followed up with some
of the affected voters, and overall, based on their followups
and having identified situations where voters appeared to have
moved but didn't, they reactivated over 12,000 voters to the
rolls between January and March of 2018.
In addition to that, there are three municipalities, the
city of Milwaukee, the city of Green Bay, and the Village of
Hobart, that reached out and had their voters reactivated.
So ultimately what the Elections Commission did was create
a Supplemental Movers Poll List so that when voters showed up
at the polls they could confirm that they had not, in fact,
moved and could thereby avoid re-registering. And over time,
more than 6,000 voters ultimately re-registered that way.
In 2019, the Elections Commission used a different approach
with the movers data it received. There it sent out letters in
October of 2019 to approximately 230,000 people and asked them
to confirm that they still resided at their registration
address. The letters indicated that voting would keep those
voters active, and they didn't say anything about deactivating
voters.
The next month, however, in November 2019, a group known as
WILL, the Wisconsin Institute for Law & Liberty, filed suit on
behalf of three registered voters and taxpayers in Wisconsin
arguing that the voters who hadn't responded to those notices
within 30 days should be deactivated. They made an argument
under Wisconsin State law that that deactivation was warranted.
Initially, a circuit court judge granted their request and
issued an order requiring the Elections Commission to comply
with the provisions of State law, in its words, and deactivate
the registrations of the electors who had failed to apply for
continuation of their registration within 30 days of the date
the notice was mailed under that provision.
That decision was subsequently reversed in a 3-0 court of
appeals decision. And the case then went up to our State
supreme court, and, as Ranking Member Steil mentioned, I
personally argued that case before our State supreme court.
Our court is generally regarded as having a 4-3
conservative majority. But despite that, the court ruled 5-2 to
affirm the court of appeals decision that those voters did not
need to be deactivated.
So there are a couple points I will just note briefly in my
closing seconds.
One is, there were thousands of voters who were identified
in the movers data who ultimately either responded to the
mailing or reactivated their registrations at the polls. That
comparison to the number of in-person voter fraud cases is
dramatic.
I see that my time is up.
[The statement of Mr. Kaul follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Butterfield. All right. The gentleman's time has
expired.
Ms. Lakin, you are now recognized for five minutes.
STATEMENT OF SOPHIA LIN LAKIN
Ms. Lakin. Chair Butterfield, Ranking Member Steil, and
members of the Subcommittee and the full Committee, thank you
for the opportunity to testify today. My name is Sophia Lakin,
and I am the Deputy Director of the ACLU Voting Rights Project.
Everyone agrees that voter list maintenance, when done
responsibly, is appropriate and necessary. But proper list
maintenance entails not only removing ineligible registrants,
but also taking care that eligible voters are not erroneously
purged.
Unfortunately, States and counties around the country have
engaged in overzealous, sloppy, and/or poorly timed purge
practices that have wrongly removed and ultimately
disenfranchised eligible voters.
Examples of court challenges to improper purges are
described in my written testimony, but I would like to
highlight just a few here today.
Proponents of more aggressive purging often propose
targeting ineligible voters for removal by comparing State
voter roll lists to various databases, like other States' voter
registration lists. But these databases are often incomplete or
out of date and the protocols used to identify potential
ineligible voters deeply flawed.
As a result, eligible voters are often improperly flagged
for purging, and the results of these distorted comparisons are
frequently used irresponsibly to support false or exaggerated
assertions about the integrity of our voter rolls.
Texas provides a prime example. In 2019, Texas Attorney
General Ken Paxton tweeted, in capital letters, ``VOTER FRAUD
ALERT,'' claiming that almost 100,000 registrants in Texas were
noncitizens based on a voter roll comparison to driver's
license records.
But that was false. Within a week, it was clear that many
of these voters were actually naturalized citizens who had
already confirmed their citizenship.
In Harris County alone, this translated to about 18,000 of
the 30,000 voters flagged there, and an audit of 150 randomly
chosen names from the remaining 12,000 revealed no noncitizens.
The impact of this purge of naturalized citizens was of
profound concern, not least because over 80 percent of Texas'
naturalized citizens are Black or of Latino or Asian origin.
Civil rights organizations, including the ACLU, sued, and
the case was settled with Texas ending this deeply flawed
effort. But the settlement came only after the court found that
Texas, quote, ``created a mess,'' which, quote, ``exemplified
the power of the government to strike fear and intimidate the
least powerful among us.'' Texas taxpayers ended up on the hook
for $450,000 in costs and attorney's fees.
The potential for disenfranchisement as a result of these
inaccurate purges is real. Too frequently, voters discover they
are no longer on the rolls only when they show up at the polls
and it is too late to fix the error.
This was the case with our Ohio client, Navy veteran Larry
Harmon, who voted in the 2008 election, but like millions of
Americans around the country, opted not to vote in the 2010
midterms.
When Mr. Harmon tried to vote in the 2015 Ohio State
elections, he arrived at the polls only to discover that his
registration had been canceled even though he had continuously
lived and filed taxes at the same address for 17 years.
Litigation is not adequate on its own to prevent
disenfranchisement. These cases are costly and slow, and even
if one practice is blocked another can spring up in its place.
Take Indiana. In 2017, Indiana adopted a purge program that
required the immediate purge of voters flagged as having moved
out of the State using the highly inaccurate and now defunct
Interstate Voter Registration Crosscheck program.
Studies have shown that the Crosscheck system incorrectly
flagged people more than 99 percent of the time. But under the
Indiana program, targeted voters would get no notice or
opportunity to correct the record before they were removed.
When it comes to accurate rolls, ensuring that voters have
adequate notice and sufficient time to correct the record if
they are wrongly purged is critical.
Federal courts blocked the State from implementing the new
requirement, but just a few months later Indiana enacted a new
law with the very same problem.
Even the demise of Crosscheck was not a deterrent. Indiana
just created its own version, the Indiana Data Enhancement
Association.
This latest iteration of Indiana's purge program was again
blocked, but Indiana appealed the ruling and the appeal was
argued this past April, nearly 4 years after the case was first
brought.
The United States continues to lag behind other developed
democracies when it comes to voter participation in our
elections. We should be working together to increase this
participation and remove obstacles, including practices that
wrongly remove voters.
Thank you.
[The statement of Ms. Lakin follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Butterfield. Thank you, Ms. Lakin.
At this time, I will recognize Dr. Meredith.
You are recognized for five minutes.
STATEMENT OF MARC MEREDITH
Mr. Meredith. Chairman Butterfield, Ranking Member Steil,
and members of the Committee, thank you for the opportunity to
testify before you today.
Managing voter registration or list maintenance is one of
the most challenging tasks election administrators face. The
structure of American election administration means that
elections officials often are deciding whether to take actions
to cancel a registration with uncertainty about whether a
registrant remains eligible to vote at their address of
registration.
There are negative consequences both in failing to take
action on the registrations of those who are no longer eligible
to vote and when taking action on those registrations who are,
in fact, eligible.
Keeping ineligible registrations on the rolls increases the
cost of election administration and leaves open the possibility
that an invalid vote could be cast.
Conversely, taking action on eligible registrations can
reduce these registrants' trust in the electoral system and
prevent them from casting a ballot.
My testimony today highlights my research showing that
poorly conceived list maintenance protocols can jeopardize
electoral integrity by impeding eligible registrants--and
particularly eligible minority registrants--from voting.
Election administrators have not always recognized some of
the limitations in the data commonly used in list maintenance
protocols. List maintenance protocols often rely on information
on voter registrants contained in other administrative data,
including data from other States' registration rolls, to
identify ineligible registrations.
Sometimes information about a different individual, who I
refer to as a registration doppelganger, gets attributed to a
registrant.
This occurred frequently, for example, in data provided by
the Interstate Voter Registration Crosscheck program, or
Crosscheck, a consortium in operation between 2005 and 2019 to
assist member States in identifying registrants who have moved
out of State.
Crosscheck identified cases in which a registrant in one
member State shared the same first name, last name, and date of
birth as a registrant in another member State.
In some cases, election administrators took action on the
registrations identified by Crosscheck, even in the absence of
corroborating information indicating that these two
registrations belong to the same person.
While the probability that any two distinct registrants
share the same first name, last name, and date of birth is
exceedingly small, this happens with significant frequency once
you are considering trillions of pairings of registrations.
Thus, list maintenance protocols that took action on the
basis of Crosscheck data in the absence of corroborating
information made it harder for some eligible registrants to
vote just because they had the misfortune of sharing the same
first name, last name, and date of birth with a registrant in
another Crosscheck member State.
A study that I recently published about Wisconsin's list
maintenance protocols in 2017 and 2018 illustrates other issues
with using databases to identify registrants for cancellation
without appropriate safeguards.
In late 2017, the Wisconsin Elections Commission mailed out
postcards to registrants flagged as potentially having moved by
the Electronic Registration Information Center, or ERIC. The
postcards asked recipients to confirm their registration to
avoid having it canceled.
Two findings of my study are particularly relevant.
First, a majority of registrants who were eligible to vote
at their address of registration failed to respond to the
postcard. This highlights that giving notice is not sufficient
to undo all of the damage when eligible registrations are
canceled.
Second, minority registrants were about twice as likely as
White registrants to vote in 2018 at the address at which they
were flagged as potentially moving from. This highlights the
potential for new list maintenance protocols to particularly
impede eligible minority registrants from voting when they are
first enacted.
The National Voter Registration Act of 1993, or NVRA, helps
but is not sufficient to prevent poorly conceived list
maintenance protocols from unnecessarily disenfranchising
voters.
First, litigation relying on NVRA only blocked the recent
Indiana law, which attempted to cancel registrations solely on
the basis of Crosscheck data once it had already been passed.
Second, the NVRA does not stop Indiana or any other State
from using flawed data like Crosscheck to move registrants from
active to inactive status.
There are a number of reasons why it became more difficult
for an inactive registrant to vote than an active registrant.
For example, inactive registrants are excluded in many States
from receiving certain forms of election mail that are shown to
increase turnout. Finally, the NVRA does not cover all States.
List maintenance protocols that lack meaningful safeguards,
like Indiana's implementation of Crosscheck, come at a
significant, perhaps unacceptable cost to electoral integrity.
My research shows that applying a list maintenance protocol
proposed by Crosscheck in Iowa would have flagged thousands of
registrations that were, in fact, used to legally vote.
Greater oversight could prevent the use of list maintenance
protocols that fail to recognize electoral integrity means
ensuring eligible registrants can vote as well as stopping
ineligible votes from being cast.
Thank you.
[The statement of Mr. Meredith follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Butterfield. Thank you, Dr. Meredith.
Ms. Phillips, you are now recognized for five minutes.
STATEMENT OF KAYLAN PHILLIPS
Ms. Phillips. Chairman Butterfield, Ranking Member Steil,
members of the Committee, thank you for the invitation to
testify today. I am litigation counsel for the Public Interest
Legal Foundation, a nonpartisan charity devoted to promoting
election integrity and best practices for election officials.
A significant problem facing America's electoral process is
the chronic inaccuracy and lack of integrity in the voter rolls
that list the individuals registered to vote in local, State,
and Federal elections.
As an initial matter, I implore the Committee to reconsider
the use of the term ``purge'' when referring to list
maintenance practices. Historically speaking, purges are often
violent systemic acts of removing political, racial, or ethnic
groups from society. Simply put, list maintenance is good
public policy.
For example, the Public Interest Legal Foundation
discovered one Pennsylvania registrant who had seven active
registrations.
The failure to maintain a continuous program of reasonable
list maintenance causes many problems, including inaccurate
voter rolls and misallocation of election resources and funds
by both election officials and candidates.
The Public Interest Legal Foundation has developed a robust
data analysis program with particular emphasis on voter
registration list maintenance audit functions.
In essence, the foundation can see how well of a job States
are doing to identify and timely remove registrants who are
deceased, relocated, exist in duplicate or worse, and may be
claiming improper addresses as residences.
The foundation recently settled a Federal lawsuit against
the Pennsylvania Department of State focused on the question of
whether the Commonwealth was performing reasonable efforts to
remove deceased registrants from the rolls per Section 8 of the
National Voter Registration Act of 1993.
Foundation researchers found in excess of 21,000 registered
voters positively matched against verifiable death records,
some with dates of death dating back as far as the late 1990s.
In the aftermath of the 2020 election, lawmakers must come
to understand the overall quality of an election experience
relying heavily on mail ballots rests on the reliability of the
voter registration lists. Vote by mail plus inaccurate
registration lists equals problems.
By expanding the removal categories under the National
Voter Registration Act, we can reap the benefit of more
detailed accounting practices and hedge the risk of a single
person being automatically mailed two ballots with variations
of their own names on it.
In closing, we have seen marked improvement in voter roll
quality over the past decade. Many States are showing
noteworthy innovations in maintaining lists despite Federal
mandates based on practices and technologies from nearly 30
years ago.
Congress can act to help identify and spread those best
practices.
The time for measured action is now. Election integrity
policies have sustained popularity for years and are showing
renewed spike in interest.
I look forward to any further questions. Thank you for the
opportunity to appear.
[The statement of Ms. Phillips follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Butterfield. And thank you, Ms. Phillips, for your
testimony.
It is now time for member questions. I will go in the
following order.
Mr. Aguilar, you should go first.
Mr. Aguilar. Thank you so much, Mr. Chairman. I appreciate
you having this hearing, and Chairperson Lofgren, Ranking
Member Steil, and Ranking Member Davis for being here.
And all of our witnesses who took the time to be here,
thank you so much.
You know, we heard a lot here about voter list maintenance
and how it can hurt Americans' ability to vote.
Dr. Meredith, Ms. Lakin, and Attorney General Kaul, can
each of you provide just one way that list maintenance can
occur without removing Americans' access to the ballot box?
Dr. Meredith.
Mr. Meredith. Congressman, I will go first because I was
named first.
I think there are ways that you can improve the process to
reduce the likelihood of errors in either direction. Whenever
there is uncertainty you can never be sure you are going to hit
one way or another, but your goal is to do the best that you
can to reduce your errors. Your goal can never be zero errors.
But I think one piece of data that is very helpful in voter
registration databases is the last four digits of an
individual's Social Security number.
In cases where you have access to the last--in a case where
both States have access to the last four digits of someone's
Social Security number, both States do, they can make much more
accurate assessments when they observe someone with the same
first name, last name, and date of birth in their registration
files to know whether those are the same person or the so-
called registration doppelganger.
Mr. Aguilar. Ms. Lakin.
Ms. Lakin. So I think there are a number of ways that voter
list maintenance can be improved.
One example I would give is perhaps automatic voter
registration, which is a way of both facilitating participation
and also making sure that voter rolls are more accurate by
creating a constant stream of updates between registration
agencies, other State agencies, and elections officials.
About 19 States, including Representative Davis' home State
of Illinois, have in recent years adopted these kinds of forms
of automatic voter registration, which ensures that when voters
move, for example, their registrations are automatically
updated with the State. I think this is one really good way of
ensuring both the accuracy of the voter rolls and ensuring
that, at the very least, reducing the risk that voters are
improperly removed from the rolls.
Mr. Aguilar. Thank you.
General Kaul.
Mr. Kaul. Yeah. There are very useful ways to utilize
cross-State data like the ERIC data that I was talking about
before. One of the purposes of that data is to encourage States
to reach out to people who aren't registered and to help them
get registered to vote.
At the same time, that data can also be helpful in
providing information to election administrators to identify
cases where there might potentially be voters who should be
deactivated.
What is important I think, though, is not to just take that
data and act based on that data alone, but rather to follow up,
and, for example, if you believe that somebody who is
registered may have died, to follow up and get confirmation
from vital records as to what that data indicates may be the
case.
Mr. Aguilar. Thank you. I appreciate the answer.
Ms. Phillips, in 2016 and 2017 Public Interest Legal
Foundation prepared a report titled ``Alien Invasion'' that
alleged widespread noncitizen registration in Pennsylvania and
Virginia and included highly sensitive personal information of
numerous voters. Is that correct?
Ms. Phillips. I disagree with the classification, but there
is a report that we published called ``Alien Invasion,'' yes.
Mr. Aguilar. The report was found to include inaccuracies.
Many of the voters listed in the report were, in fact, citizens
properly registered to vote. Is that correct?
Ms. Phillips. The report relied upon data from the State of
Virginia, and if there was any problem with that data, that
would lie in the hands of the State of Virginia. And, in fact,
we sued the State of Virginia for improper list maintenance.
Mr. Aguilar. Was the president and general counsel of your
organization ever required to issue a written apology to voters
that had incorrectly been described in the report as
noncitizens?
Ms. Phillips. There is an apology. He made an apology.
Mr. Aguilar. Was he required to issue the apology?
Ms. Phillips. Not to my knowledge.
Mr. Aguilar. Your organization has brought numerous efforts
to try and force States and local governments to remove voters
from their voting rolls. And given that your organization has
been proven to not accurately determine whether voters are
properly registered, why is your organization in a better
position than local elected officials to decide which voters
should be removed?
Ms. Phillips. Well, I would like to know what inaccuracies
you have discovered. In fact, we have offered a bounty, so to
speak, for anyone who can find somebody who was improperly
removed resulting from our enforcement actions, and to date, no
one has come forward saying that they were improperly removed
as a result of our actions.
Mr. Aguilar. Thank you, Mr. Chairman. My time is up.
Chairman Butterfield. Thank you, Mr. Aguilar.
At this time, I will recognize the Ranking Member, Mr.
Steil, for 5 minutes.
Mr. Steil. Thank you, Mr. Chairman.
What I am hearing today is, I think we can all agree we
want every eligible voter to be able to cast a ballot. My
objective is to ensure that it is easy to vote and hard to
cheat.
There are two key reasons why a person registered in a
jurisdiction would need to be removed from the voter roll: The
person is either deceased or the person has moved out of the
jurisdiction or is otherwise disqualified. Federal law requires
removing these registrants.
In general, in Wisconsin, we do a pretty good job removing,
in particular, deceased persons from the voter rolls. But at
times, and in particular when the death is closely timed to the
election, there have been instances of a person voting
illegally on behalf of a dead person.
Mr. Kaul, are you familiar with a case of voter fraud in
Ozaukee County from 2020 in which a Wisconsin woman was charged
with voting on behalf of her dead partner?
Mr. Kaul. I have read reporting about that, yes.
Mr. Steil. Very good. I think it is a case worthwhile
looking into, because I think it shows that there are
instances, when voter rolls are not clean, someone may try to
take advantage of the situation. I think it shows the
importance of making sure the voter rolls are accurate and up
to date.
And it is much more difficult, admittedly, to clean up
voter rolls when someone moves because there is less paperwork
associated than when someone has passed away.
And the question before us today is, how do we clean up and
remove ineligible voters from our voter rolls to avoid any
illegal votes while still making it easy for folks to vote
legally?
And so, Mr. Kaul, if I can, should election officials in
Wisconsin be prioritizing maintaining accurate voter rolls, in
your opinion?
Mr. Kaul. Yes. I think list maintenance is important for
all the reasons that you have heard spoken about today. And I
also think in Wisconsin we have same day registration, which I
encourage all States to adopt because it is really helpful.
Mr. Steil. I am going to get to that in just a second. I
had that in my opening remarks because I think that is a key
point here, and, in particular, how it plays out with voter ID.
But, Mr. Kaul, is it correct that the original--not the
original, the 2019 active movers list from the Wisconsin
Elections Commission, that is the list of individuals who
report on an official government transaction form an address
different from their voter registration address, included, I
think as you said, 232,000 individuals?
Mr. Kaul. It was approximately 230,000, yes.
Mr. Steil. In that neighborhood. And Wisconsin was able to
confirm about 7 percent or about 17,000 of those individuals
were registered at their original address, correct?
Mr. Kaul. That is approximately right, yes.
Mr. Steil. That is the number I have from the Wisconsin
Elections Commission.
And so then I think the question becomes, what about the
other 93 percent of the individuals, the overwhelming majority
of the people on the 2019 original movers list, what happened
to them?
And from the Wisconsin Elections Commission we were able to
discover that 58 percent registered at a new address, which is
great--they have moved, they are engaged in the process, that
is appropriate, those folks it would be rational to bring off
the list then--3.6 percent were deemed inactive for reasons
such as moving out of State, being deceased, or another reason.
And then the question really comes to, what is the final
third? The roughly 30 percent or 71,000 people still on the
active mover list are there because they didn't respond to a
simple request for information from WEC.
But there are also further indications that they have moved
and they have not requested continuation of address, they have
not re-registered to vote at a new address, and they did not
vote in the 2020 election.
WEC confirmed that no one in this list of roughly 71,000
people did vote in the 2020 election, which is, to me, further
evidence that this might have been a list of folks that have
moved. And then, Mr. Kaul, you argued in court to keep these
71,000 individuals on the voter rolls.
And so the question becomes, what is the plan to keep the
voter rolls accurate if we don't ultimately remove ineligible
voters?
And in the response to Mr. Aguilar asking what is the plan,
I know we can do additional followup, but is there a specific
plan that we could do in Wisconsin to specifically remove
voters that all evidence indicates have moved and should be
removed from the rolls?
Mr. Kaul. Yeah. So, first of all, what we argued in court
was that the Wisconsin Elections Commission was not required to
remove a number of voters from the rolls. And the figure that
you cited, the 230,000 figure, that shrunk significantly over
time for the reasons that you mentioned.
Mr. Steil. And it came down to 70,000 people total.
But here, let me just move as to why I am so concerned.
H.R. 1, as you may know, was passed by the House and would
really gut voter ID laws. And when this issue is combined in
Wisconsin, it gives me great pause that we have 71,000 people
on the rolls that appear to be incorrectly on the rolls, by all
accounts, and we are looking at gutting voter ID law with H.R.
1.
And so in Wisconsin and States across the country, we have
voter rolls that are problematic and not accurate. And at the
same time, we have Nancy Pelosi and attorneys working to gut
voter ID law, and further, H.R. 1 would create a one-size-fits-
all approach.
So I will leave it with this, because I know my time is
running out, Mr. Chairman.
I want it to be easy to vote and hard to cheat. And rather
than working to remove key voter integrity provisions, my
priority would be for us to work to find ways to really improve
the confidence in our elections by working to appropriately
clean up the lists.
And with that, I will pause and yield back to you, Mr.
Chairman.
Chairman Butterfield. Thank you. The Ranking Member yields
back.
At this time, I will recognize Ms. Leger Fernandez for 5
minutes.
Ms. Leger Fernandez. Thank you, Mr. Chair, for holding this
important hearing to hear about voting roll purges as a means
of suppressing access to the ballot.
And I want to really thank the witnesses for lending us
your expertise and viewpoints.
So the 2020 Presidential election saw record numbers of
Americans, including record numbers of Latinos, turn out to
vote. And this was in spite of certain State actions designed
to limit access to the polls, especially for Latinos and other
communities of color. And we see that certain States continue
to pursue efforts to limit access to the ballot, including
using the purging of voter rolls as an excuse.
So I would note that while HAVA and Federal and State laws
require maintenance of the rolls, it must be nondiscriminatory.
So that is the issue that we are concerned about today, is
how can we ensure it is nondiscriminatory, especially when we
have so many instances of States choosing to target Latinos and
other minority voters in that process.
For example, both Florida and Texas have engaged in high-
profile efforts to try to remove alleged noncitizens,
predominantly Latino voters, from the voting rolls.
Ms. Phillips, after facing legal challenges, those two
States were forced to abandon those efforts. Indeed, the Texas
Federal court found that the alleged problem of voter fraud
was, quote, ``infinitesimally small.''
And, as Ms. Lakin noted, the court further found that
Texas' State actions to purge the voter rolls, which were very
similar to Florida's, exemplified, as you noted, exemplified
the power of government to strike fear and anxiety and to
intimidate the least powerful among us.
Ms. Phillips, as a litigator in these matters, have you
read these orders, the Texas LULAC v. Whitley and Arcia v.
Florida Secretary of State?
Ms. Phillips. Yes, I have.
Ms. Leger Fernandez. Mr. Chair, I seek unanimous consent to
enter into the record the two documents. As noted, the first
was the 11th Circuit decision holding that Florida's voter
purge program violated the law, and the second was the district
court order requiring that Texas officials halt the removal of
voters from the polls.
Chairman Butterfield. All right. Without objection.
Ms. Leger Fernandez. Ms. Phillips, you opined in your
testimony that inaccurate voter rolls is a significant problem
in America's electoral process.
Do you think it is a problem if these purges remove a
disproportionate number of eligible voters of color from the
voter rolls? This is a yes or no question.
Ms. Phillips. Absolutely. No eligible voter should be
removed.
Ms. Leger Fernandez. Thank you.
You know, contrary to what we hear in sometimes capitalize
tweets of fraud and big news splashes, there is not actually
evidence that there are many undocumented immigrants committing
widespread voter fraud.
Dr. Meredith, in your view, what is the result, what is the
actual result when we have these targeted, highly publicized
efforts to remove noncitizens from the voter rolls?
Mr. Meredith. I think you want to think both about the
direct and indirect effects that election actions will have.
There are potential direct effects if an eligible person's
registration gets removed or the direct effects if an action
results in a registration being removed that prevents an
eligible vote from being cast.
But I also think it is important to keep in mind that
voters don't have complete information. A lot of times I like
to remind my Introduction to American Politics class that only
two-thirds of Americans know the name of the Vice President.
And so I think one concern I have when you have high-
profile efforts is that people don't always understand the
exact actions being taken and can misconstrue actions to
potentially have broader effects than they do.
So, for example, I have done research on voter ID laws and
show that a lot of people don't understand that if they don't
have their ID on the day of the election there may be a process
for them to still cast a ballot via provisional ballot.
And so I have concerns about any election policy that you
don't just want to think about directly who the affected
parties are but also indirectly what the consequences might be.
Ms. Leger Fernandez. Thank you, Mr. Meredith.
Ms. Lakin, you noted in your written testimony that many
lawsuits brought by the Public Interest Legal Foundation and
other activist organizations actually focused on jurisdictions
with large Latino and Black populations and that these lawsuits
were rejected.
Can you share how these cases could limit voting access for
minority voters?
Ms. Lakin. Yes, absolutely.
The problem with many of these voter roll purges, as we
have discussed, is that in many cases the inaccuracies in the
voter rolls, the type of information that is being collected,
for example, noncitizen information, are going to target,
unfortunately, voters of color most frequently.
When applied then in certain areas that have high
populations of minority voters you are going to end up in a
situation where you are inevitably disproportionately removing
voters of color and minorities from the rolls, and that is
extremely concerning.
Ms. Leger Fernandez. Thank you. My time is up. I yield
back.
You need to unmute, Mr. Chair.
Mr. Davis. I think you are muted, Mr. Chair.
Chairman Butterfield. I was trying to use the space bar to
unmute. I keep getting a message that it can be used as an
unmute tool, but it didn't work.
But anyway, thank you, thank you to the gentlelady for your
questions.
At this time, I will recognize the Ranking Member from
Illinois, Mr. Davis.
Mr. Davis. Just a quick point of personal privilege. We
will ask Jamie Fleet to send down the CAO to get your spacebar
fixed, Mr. Chair. They will be there momentarily, I promise.
Chairman Butterfield. I think I was the problem, Rodney. I
confess.
Mr. Davis. It is never user error, sir. Never user error.
Chairman Butterfield. Thank you.
Mr. Davis. I really enjoy these hearings. And I have
traveled the country during the last Congress, talking about
many of these issues.
And here is the good news. The vote suppressionists that we
talk about in this Subcommittee, they have been doing a pretty
crappy job over the last two election cycles, because we had
historic midterm turnout, we had historic turnout in 2020,
which is great, because that meant as many eligible voters in
the United States were able to cast a vote for their preferred
candidates.
And while we may not like the outcomes of elections, that
is a positive that we all ought to celebrate.
And that leads me to my question.
So, Ms. Phillips, thanks again for being here today, again,
with all the witnesses. Give us your definition of list
maintenance for the Committee.
Ms. Phillips. Certainly. List maintenance is ensuring that
only eligible individuals are on the voter registration list.
Mr. Davis. Good. As you are aware, Section 8 of the NVRA
governs the process for States to conduct list maintenance,
which is critical for good election administration.
Can you briefly describe the criteria and requirements that
must be met in order for a State to remove a voter from its
registration rolls?
Ms. Phillips. Sure. Section 8 requires that list
maintenance be conducted for registrants who are deceased and
who have been moved. And there are certain fail-safes in there
to ensure that voters are not removed unless certain criteria
are met.
Mr. Davis. Great.
There are many people who believe that voters are removed
from their State's voters rolls solely as a result of not
voting. That is not true, right?
Ms. Phillips. That is not true.
Mr. Davis. What makes a voter inactive?
Ms. Phillips. It depends on the State law. Oftentimes it is
an indication from a number of sources that a voter has moved,
a registrant has moved, for example, the National Change of
Address database.
Mr. Davis. Okay.
Speaking of that, can you describe the voter notification
process and really the timeframe that States must follow when
removing inactive voters from the registration rolls according
to law?
Ms. Phillips. Absolutely. The problem is that this is State
law specific. So it is difficult to explain every State's
procedure.
However, in general, there will be a notice sent to the
address that is on file and there will be steps that the
registrant can take to confirm that the address is still valid.
And then, if the notice is returned to election officials,
there are other steps that are then taken by the election
official.
Mr. Davis. Okay.
And some States actually do multiple notices, correct?
Ms. Phillips. That is correct.
Mr. Davis. Okay.
You state in your testimony that a significant problem
facing America's electoral process is the chronic inaccuracy
and lack of integrity in the voter rolls that list the
individuals registered to vote in local, State, and Federal
elections.
The foundation has conducted extensive research into the
accuracy of various State voter rolls, right?
Ms. Phillips. Correct.
Mr. Davis. In fact, your foundation has sued several States
for failure to maintain accurate and current voter rolls as
required by Federal law, correct?
Ms. Phillips. That is correct. Not--we have sued counties
and State election officials.
Mr. Davis. Okay.
And through your foundation's work, have you discovered
State voter rolls that contain more voters registered in a
jurisdiction than eligible voters that live in that
jurisdiction?
Ms. Phillips. Yes.
Mr. Davis. Voters registered at commercial addresses rather
than residential addresses?
Ms. Phillips. Yes.
Mr. Davis. What about voters registered at vacant lots?
Ms. Phillips. Yes.
Mr. Davis. Deceased voters, dead voters?
Ms. Phillips. Yes.
Mr. Davis. I know I am from Illinois. I shouldn't talk
about that.
Nonresident voters?
Ms. Phillips. I am sorry. What do you mean by nonresident
voters? Not resident of the jurisdiction?
Mr. Davis. Correct.
Ms. Phillips. Yes.
Mr. Davis. What about duplicate registrations?
Ms. Phillips. Yes.
Mr. Davis. Noncitizen voters?
Ms. Phillips. Noncitizen registrants, yes.
Mr. Davis. Noncitizen registrants. Okay.
Well, look, I think it is great to have these discussions.
We are talking about vote fraud being infinitesimal, it is just
such a small amount, it is just a little bit of fraud. You
know, everything matters. Every instance of fraud matters.
Remember, we did not seat a duly elected Member from North
Carolina's Ninth District because of voter fraud and the ballot
harvesting provisions that were not legal in North Carolina but
legal in California and others.
There are so many processes right now in our election
process that we need to delve into that, but at the same time
we have to encourage the positivity of how well we have done as
a country in every State across this Nation in having historic
voter turnout in the midterms and in the last election, the
last Presidential election.
And I know some of my colleagues' heads might be exploding.
They will say, ``Turnout doesn't matter.''
Well, it did when we were figuring out--when our
predecessors were figuring out what covered jurisdictions would
be in the original Voting Rights Act. It mattered then, it
should matter today, and we are doing things right in this
country.
And I thank all of our witnesses and my colleagues for
being here today.
I yield back.
Chairman Butterfield. I thank you, Mr. Davis.
At this time the Chair recognizes the gentleman from
Georgia, Mr. Loudermilk.
Mr. Loudermilk. Well, thank you, Mr. Chairman. I appreciate
the opportunity to be here and appreciate this hearing, because
voter maintenance is extremely important.
And before I begin my questions, I want to reiterate that
this is a top priority for every Republican on the Committee,
that every lawful vote be counted and that every qualified
voter is able to vote safely. That is extremely important. It
is the basis of our Nation and our election system.
The integrity of our elections should be paramount as we
exercise our role on this Committee to oversee the Federal
elections process, and that includes ensuring that voter rolls
are kept up to date.
One issue that is of particular concern to me and many of
my colleagues and one that I will continue to be vocal about
addressing is the propensity for poorly maintained voter rolls
to undermine public confidence in election results, especially
with the increased prevalence of mass mail-in ballots like we
saw in the 2020 election.
In fact, a member of my staff received three primary
ballots during the last election cycle. The ballots did not
belong to my staff member or anyone else who lived at that
address, and they had lived at that address for several years.
And at the residence for the elections in the jurisdiction
which he received the ballots, they did not live. Basically he
lived in D.C. and these ballots came from Maryland to someone
else's name. And, again, he had lived at that address from way
beyond the previous election.
To be clear, these were not ballot applications but live
ballots.
And in this scenario, if this scenario that had played
out--now, he took pictures of these ballots and he showed them
to me and he properly destroyed those ballots.
But if this scenario plays out in States across the
country, the potential for millions of ballots to be sent out
indiscriminately without people requesting them and to the
wrong address creates the potential for fraud.
And he very well easily could have filled out these three
ballots that weren't his. He is from Georgia, lives in D.C.,
received the Georgia ballot he requested, but received three
ballots from Maryland he did not request to other people's
names.
And this really brings doubt to the integrity of the
election system.
Now, my questions.
Ms. Phillips, your foundation brought enforcement action
against States for failing to conduct comprehensive list
maintenance as required under the National Voter Registration
Act, as the ranking member has brought up.
In your opinion, why are certain States reluctant to
routinely conduct voter list maintenance?
Ms. Phillips. In my opinion, the pressure has come from
various interest groups not to maintain the rolls for myriad
reasons. So the pressure is to do nothing.
It is also at times difficult to conduct list maintenance.
It requires diligence. It requires consistency. And there may
be lack of training. Various reasons why election officials
would not conduct list maintenance.
Mr. Loudermilk. Okay. One thing you didn't mention was
funding. Do you ever--have you ever encountered that maybe it
is a lack of funding to do this?
Ms. Phillips. Absolutely. And the problem is that having
unclean rolls only makes the financial burden greater when you
are mailing out pieces of mail to individuals that should not
be registered to vote. So it is one of those tasks that should
be a priority in order to trim budgets in other places.
Mr. Loudermilk. So you have mentioned that there is
pressure from outside groups, which we are fully aware of in
Georgia. There are a lot of groups putting a lot of pressure on
the election system, on both sides.
But you have mentioned that they are putting a lot of
pressure on some elected officials or government officials to
not purge voter rolls. I note in some cases there are threats
of lawsuits, et cetera, et cetera.
What impact does a State's failure to conduct their list
maintenance have on the integrity of our election process?
Ms. Phillips. As you mentioned, it is devastating to voter
confidence. The example of one person receiving multiple
ballots, especially for individuals that do not live in that
location, those effects can be felt far and wide.
So it is a voter confidence issue and it also is just a
misallocation of resources for these election officials that
have in many cases very limited budgets anyway.
Mr. Loudermilk. Well, thank you.
And one last question for you. Are States required to
coordinate with State or Federal agencies to verify voter
information when conducting their list maintenance?
Ms. Phillips. No.
Mr. Loudermilk. Okay.
Turning to Ms. Lakin.
Your state in your testimony that accurate rolls are
appropriate and necessary for election administration. And I am
glad to hear that the ACLU supports voter list maintenance.
In your testimony you highlight perceived problems with
various databases available but don't mention alternatives. If
States need accurate voter registration lists, what databases
or alternative measures should they use to maintain their
lists?
Ms. Lakin. Thank you, Representative.
I think I mentioned earlier today that automatic voter
registration, for example, is one solution, one assistive
program that could provide assistance with maintaining accurate
voter rolls, as well as ensuring that voters aren't improperly
purged from the rolls.
In addition, having good notice and sufficient time for
voters who may have been purged from the rolls inaccurately to
correct the record is absolutely critical in this regard and is
not always provided in the way that it should be provided, as
is the case in Indiana where we have sued successfully multiple
times.
Mr. Loudermilk. Well, and making sure that only legal
voters are the ones casting the vote is important. I could go
through multiple stories of even in this last election people
that have moved as much as a decade before started receiving
ballots again from the State they moved from.
And I have got numerous reports of that, and even people
that are family members who called me and said, ``Hey, I just
want to let you know. You know I moved from State X 10 years
ago. I just started getting a ballot again in this election''--
which was ironic, that it was this election that they got the
ballots that they had never--that they hadn't received since
they left, which tells me it was a voter list issue.
So thank you, Mr. Chairman, for this hearing. I appreciate
the time. And I yield back.
Chairman Butterfield. I thank the gentleman.
At this time I will recognize the gentlelady from
Pennsylvania, Ms. Scanlon, for 5 minutes.
Ms. Scanlon. Thank you, Chairman Butterfield, for holding
this very timely hearing.
Chairman Butterfield. It is not a Loudermilk 5 minutes.
That is a Scanlon 5 minutes.
Ms. Scanlon. Can I have some of Davis' time maybe?
Chairman Butterfield. You could do a Davis time limit,
sure.
Ms. Scanlon. Okay.
Chairman Butterfield. Yes.
Ms. Scanlon. Over the past decade we have seen a rise in
modern day voter suppression techniques built upon a false
narrative that our elections are vulnerable to widespread
fraud.
This false, unsubstantiated narrative has been used to
justify an array of voter suppression techniques, including
strict voter ID laws, restrictions on hours and places of
voting, and the practice under consideration today, voter roll
purges.
Unlike gerrymandering, which has a long history of
bipartisan abuse, these new techniques have been weaponized by
one party to suppress the votes of those less likely to support
that party and to energize its own supporters by claiming--
without evidence--that our elections are subject to widespread
fraud.
Of course, the members of this Committee and the entire
world saw the damage that can occur when national leaders
spread lies about the integrity of our elections, with exhibit
A being the violent attack on the U.S. Capitol which occurred 4
months ago today.
Pennsylvania has a robust bipartisan election security
system, including voter roll maintenance, which not only
conducts secure and accurate elections twice a year, but also
in the past year has managed to identify and prosecute those
few bad actors who tried to commit election fraud. And it is
worth noting that they were all supporters of the former
President who were inspired by his unsubstantiated claims of
rampant election fraud.
So we are talking about voter roll purges that have been
initiated by some States, but I want to focus on efforts by
groups such as Judicial Watch and the Public Interest Legal
Foundation to force voter purges in areas that do not favor
their candidates.
In the lead-up to the 2020 election, the group Judicial
Watch attempted to force the State to purge hundreds of
thousands of voters but focused on the three counties bordering
Philadelphia, two of which I represent, which have increasingly
trended to Democratic candidates over recent years.
Ms. Lakin, the ACLU intervened in this suit brought against
Pennsylvania and its counties prior to the 2020 election. Can
you discuss what happened in that case and address Judicial
Watch's allegations about mass defects in voter roll
maintenance?
Ms. Lakin. Yes, absolutely.
In this case, which was recently dismissed in March of
2021, there were allegations that the list maintenance process
was incomplete, was unreasonable, or was insufficient.
In dismissing this case, however, the court concluded that
the lawsuit was based on outdated information and data which is
subject to all the problems that we have discussed earlier.
And the court also concluded that Judicial Watch based its
lawsuit on--rejected the claim that just high discrimination
alone should lead to an inference that counties have a list
maintenance problem and targeting districts just based on that
information alone leads to--is not a problem in itself.
And I should just flag very, very briefly that, because
there is this notice and waiting process that has been
highlighted by many members today and other witnesses, there is
often a little bit of a lag before some voters that are to be
removed are actually removed.
And so that in and of itself should not be a basis for
forcing jurisdictions like your own to conduct overly
aggressive purges based on information that is outdated and
may, therefore, wrongly purge and disenfranchise voters.
Ms. Scanlon. Would it be fair to say that this group was
not seeking for a global solution to Pennsylvania's voter roll
situation if it was only targeting the most Democratic
districts?
Ms. Lakin. I think that would be fair to say, that it was
targeting just the three districts that were included in the
lawsuit.
Ms. Scanlon. Are you aware that, having had the case
dismissed just in March, three days ago Judicial Watch has now
tried to start the case all over again in the run-up to the
2022 elections?
Ms. Lakin. I am, unfortunately, aware of that fact.
Ms. Scanlon. Unfortunately aware.
So one of the things we have seen is that Judicial Watch
and these other organizations bring these suits. Very
expensive, aren't they?
Ms. Lakin. Litigation is often extremely expensive on both
ends, on everybody's part.
Ms. Scanlon. So it wastes valuable public resources that
could go into more election security, more election
availability?
Ms. Lakin. I think that is a fair statement.
Ms. Scanlon. Okay.
Is there anything we can do to reform the NVRA to prevent
suits like the one that was brought here?
Ms. Lakin. Yes. There are multiple ways that list
maintenance can be improved. There can be additional
protections for ensuring that overly aggressive purges aren't
taking place.
For example, increased guardrails for using improper,
unreliable, or outdated data; ensuring that there are
additional checks on that information; ensuring that there is
more notice that is provided for voters who may be flagged in
that; and banning, for example, inaccurate proxies, for
example, the failure to vote, which we have argued and have
demonstrated is highly inaccurate as a trigger for removing
someone from the rolls.
These are all different methods for ensuring that local
jurisdictions and States aren't forced to conduct purges that
are overly aggressive and wrongly disenfranchise thousands and
thousands of voters.
Ms. Scanlon. Thank you.
And I see that my time is expired. I did want to involve
Mr. Meredith from the University of Pennsylvania in the
discussion, but I am afraid the Chair will have my head.
So thank you for your testimony, and I did appreciate your
report.
Chairman Butterfield. Thank you, Ms. Scanlon. And you just
got a chuckle from the staff. Thank you.
The Chair now recognizes himself for not more than 5
minutes.
Let me just address this to Ms. Lakin.
Ms. Lakin, what do you think are the most important changes
that we can make to Federal election laws governing State voter
list maintenance practices?
Ms. Lakin. Thank you for that question, Chairman.
The Congress can do many things. I would point to the list
maintenance and transparency and notice provisions in H.R. 1.
Those go quite a long way.
In addition, there are these guardrails that I mentioned
with Representative Scanlon that help to ensure that proxies
that are unreliable, that are based on outdated databases are
in place to ensure that voters are given security precautions
before they are removed from the rolls.
I would also highlight--and this has come up in a few
instances--that same-day registration, I will add that it does,
in fact, provide at least some fail-safe for voters who may be
erroneously purged from the rolls who can then show up at the
polls, that they are able to register and vote at that time.
That is at least a fail-safe option for those voters.
Chairman Butterfield. Thank you.
What about you, Dr. Meredith? Can you add any to this
discussion?
Mr. Meredith. I think one thing I would like to see done is
more modernization in how people are notified when there are
questions about whether they are eligible to vote or not.
I think the cases that make me most concerned are when
things like undelivered election mail trigger list maintenance
action which is then responded to by sending them a postcard.
If the problem is that there is an issue with the mail, you are
not going get that postcard.
And so I think we need to be thinking about what forms of
communication we can be using beyond postcards to make sure
that voters actually see the information and can act upon it in
a timely way.
Chairman Butterfield. Thank you. Thank you for that.
Let me now go to the attorney general.
Mr. Kaul, you have testified, I believe you said, in
numerous cases to protect voters' access to the ballot, and
that is a good background for the question that I need to ask
you.
What are the most important tools at the Federal level, not
the State level, but the Federal level to protect the right of
the voter to exercise their franchise?
Mr. Kaul. That is right, Mr. Chair. I have litigated
several voting rights cases.
Certainly the U.S. Constitution protections related to the
right to vote are critically important. But the Voting Rights
Act plays a critical role as well.
Strengthening the Voting Rights Act and providing greater
clarity to how Section 2 applies, I think, is very useful.
It is also true that we have seen States since the Shelby
County ruling restrict access to voting. So restoring some sort
of regime like used to be in place under Section 5 would be
extremely valuable.
And then rules that protect people's access to
registration, like the NVRA, are also very valuable.
Chairman Butterfield. Attorney General, my staff tells me
that you successfully defended the Wisconsin Elections
Commission against an effort by a conservative group to
compel--it was an interest group--to compel the purging of
voters in your State.
Why are State and local election officials in a better
position than private interest groups to determine whether to
initiate proceedings?
Mr. Kaul. There are a few reasons. One is State and local
officials can obtain local data and they can find things like
death notifications that, when you have an outside interest
group that is just using log scale data, they can't get into
the details as well.
The other thing is election officials often have access to
personal identifying information that is not publicly
available. And so they can make a better determination often
about whether two records relate to the same person or
different people.
And then, of course, they have experience administering our
elections. They are not there with an agenda other than to
administer elections fairly and effectively.
Chairman Butterfield. Thank you.
I have got 30 seconds left, and let me conclude with Ms.
Lakin.
How do State voter removal programs have the potential to
discriminate against minority voters?
Ms. Lakin. Well, there are a number of different ways. The
database inaccuracies and flawed matching protocols that we
have discussed play a really big part in this.
As I noted, in Texas the fraud effort there targeted
naturalized citizens who are a group that, at least in Texas,
80 percent of that group were Black or Latinx or of Asian
origin. The same was true in the Florida purge that attempted
to target, again, noncitizens but ended up sweeping in
naturalized citizens.
Matching protocols, as we talked about with Dr. Meredith,
they rely on names and date of birth. They frequently
disproportionately flag voters of color because of their naming
conventions and higher rates of similar names.
These burdens also, they are halting the process of getting
registered in the first instance. They fall more heavily on
voters of color due to structural inequalities, structural
racism, the history of suppression in this country that make
many of these activities much more difficult for voters to
overcome.
Chairman Butterfield. Thank you.
Ms. Lakin. Thank you.
Chairman Butterfield. Thank you. I think my 5 minutes has
expired.
Let me just thank all of the witnesses for your very
valuable testimony today.
And I thank the members for their questions. These have
been some very insightful questions.
The members of the Committee may have additional questions
for the witnesses. And, if so, we will ask you to respond to
those in writing. The hearing record will be held open for
those responses.
Again, I want to thank all of the witnesses for your very
valuable testimony today. Many thanks to all of you for all
that you do in the voting space, in the election space. You
have been very valuable to this process, and I thank you for
it.
We will continue to have these important hearings as we
seek to comply with the Supreme Court's decision of 2013.
Without objection, the Subcommittee on Elections of the
Committee on House Administration stands adjourned.
[Whereupon, at 3:25 p.m., the Subcommittee was adjourned.]
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