ANALYSIS Voter Purges: the Risks in 2018 by Jonathan Brater† Introduction state sent county clerks the names of more than 50,000 people who were supposedly ineligible Voter purges — the often controversial practice to vote because of felony convictions. Those of removing voters from registration lists in or- county clerks began to remove voters without der to keep them up to date — are poised to be any notice. The state later discovered the purge one of the biggest threats to the ballot in 2018. list was riddled with errors: It included at least Activist groups and some state officials have 4,000 people who did not have felony convic- mounted alarming campaigns to purge voters tions.1 And among those on the list who once without adequate safeguards. If successful, these had a disqualifying conviction, up to 60 percent efforts could lead to a massive number of eligi- of those individuals were Americans who were ble, registered voters losing their right to cast a eligible to vote because they had their voting ballot this fall. rights restored back to them.2 Properly done, efforts to clean up voter rolls are The Arkansas incident also illustrates the important for election integrity and efficiency. confusion arising from many state laws that Done carelessly or hastily, such efforts are prone disenfranchise persons with past criminal to error, the effects of which are borne by vot- convictions. Nationally, more than 6 million ers who may show up to vote only to find their Americans cannot vote because of a past fel- names missing from the list. ony conviction. Up to 4.7 million of them have been released from incarceration and are liv- Many of the voter purge efforts examined by ing and working in their communities. In Ar- the Brennan Center for Justice here not only kansas, voting rights are not restored until the risk disenfranchisement, but also run afoul of terms of the sentence are complete, including federal legal requirements. These efforts point prison, parole, and probation. In this case, it to a decentralized, hard-to-trace mode of voter appears that thousands of individuals who suppression — one that is perhaps less sweeping had met those conditions and had their rights than voter ID, proof-of-citizenship, and similar restored were still removed. legislation enacted by 23 states over the last de- cade. But the effect of voter purges can be equal- Counties scrambled to fix the mistakes right be- ly devastating. fore a school board race and weeks before the One example? In 2016, Arkansas’ secretary of presidential election, but clerks admitted they VOTER PURGES: THE RISKS IN 2018 | 1 would have a hard time restoring all the voters laws are designed to apply to a different set of to the rolls in time. “There’s an old saying that circumstances than the laws governing purges, you can’t unring a bell, and that’s where we are,” but are sometimes being used in their stead. said one official, Pulaski County Clerk Larry Under federal law, states may not conduct large- Crane.3 scale, systematic purges of the voter rolls within In 2014 and 2015, the Brooklyn Board of Elec- 90 days of a federal election.7 This buffer, Con- tions purged more than 110,000 voters who gress found, is needed to detect and correct the had not voted since 2008, and another 100,000 inevitable errors that arise from mass purges. who had supposedly changed their addresses. Challenger laws, on the other hand, operate There was no public announcement that this much closer to elections without this safeguard. would be done. Some of those voters were given Traditionally, they have been used to target vot- a paltry three weeks’ notice before removal,4 and ers individually as they seek to vote rather than thousands of voters showed up at the 2016 pri- to delete large numbers of voter registrations at mary elections and discovered that their names the same time. were missing from the rolls. After a lawsuit, the Board of Elections restored registration records Recently, election officials and outside agitators — but by that point, the voters had missed their have attempted to blur these lines by issuing opportunity to cast a ballot in the primary. batch challenges to a large pool of voters all at once. They have been helped by laws in at least A decade ago, the Brennan Center published fifteen states that allow challenges not only to the first comprehensive examination of voter voting, but also to registration, before the election purges.5 We found a patchwork of inconsistent, even occurs.8 Challenger laws were already trou- error-prone practices for removing voters from blesome to those voters who were challenged the rolls. These problematic purges have oc- individually, but now they’re being exploited to curred for a variety of reasons. Election officials conduct what is, in effect, a mass purge. depend on unreliable sources to determine that individuals are no longer eligible to vote, use A purge of this variety can both be an end-run poor methodology to compare the voter regis- around federal protections against wrongful re- tration list with sources of potentially ineligible movals and, like with most purges, be difficult individuals, conduct voter removal without no- to detect until it is too late. This risk is not hypo- tice, or fail to provide appropriate protections to thetical: High-profile attempts to use challenger voters before removing them. laws to accomplish “challenge purges” have been exposed before each of the last few elections. There is reason to believe problems will be es- pecially acute and widespread in 2018. Here are Just before the 2012 election, former Colora- four voter purge vulnerabilities to watch out for do Secretary of State Scott Gessler tried to use this year. challenge procedures to remove alleged non- citizens from the voter rolls.9 A large-scale re- 1. “Challenge Purges” and Other Misuse of moval would have violated the federal 90-day Challenger Laws buffer.10 Instead, Gessler sent letters to 4,000 Most states have “challenger” laws allowing offi- voters (most of whom turned out to be citizens) cials, or even private parties, to question voters’ threatening to challenge their registrations. Un- eligibility at the polls on Election Day.6 These der Colorado law, challenges can be issued up 2 | BRENNAN CENTER FOR JUSTICE at New York University School of Law to 60 days before an election, and a hearing mailing was returned as undeliverable. This was can occur 30 days after that.11 Effectively, then, the only evidence they used to make their case. Gessler was trying to systematically purge vot- But, instead of questioning voters at the polls ers from the rolls as close as 30 days before the on Election Day, these individuals went a step election. Gessler, after much public criticism, further and challenged the voters’ registrations, retreated from these efforts.12 trying to remove the identified voters from the rolls. The challengers were temporarily success- Former Iowa Secretary of State Matt Schultz ful: only weeks before the 2016 election, they tried a similar tactic until he was blocked by a got 6,700 voters purged from the rolls — in- state court.13 In 2013, a judge rebuffed his first cluding a disproportionately high number of try to purge suspected noncitizens using federal African Americans.18 A federal court ultimately immigration data (again, most turned out to be reversed the removals,19 but the statutory provi- citizens).14 Schultz then attempted to send the sion20 that was used to purge voters still remains names of suspected noncitizens to county offi- on the books to this day, even though the judge cials so they could challenge the voters’ qualifi- in the case called it “insane.”21 cations themselves. Voters identified as noncit- izens, based on unreliable information, would In the past, activists and political operatives be forced to “show their papers” or else be chal- have taken advantage of challenger laws to lenged by election officials, with no restriction conduct “voter caging.” The term refers to on removals within 90 days of an election. In mail cages at post offices: caging involves March 2014, less than three months before the sending mass mailers out to registered voters, primary election, a court blocked Schultz’s chal- and challenging voters at the polls if mail sent lenge scheme. The court found Schultz did not to their address was returned as undeliverable.1 have authority to create a new voter removal Caging operations have intimidated voters program simply by calling it a challenge.15 and led to chaos at the polls. Operations to challenge registrations, however, present the In other states, officials have used challenges on additional danger that voters will show up to an ad hoc basis, but in large numbers. For ex- the polls not to find their vote challenged, but ample, prior to a 2015 state election, Hancock instead to find out that they cannot vote be- County, Georgia challenged 174 of the city of cause they have been deleted from the rolls Sparta’s 988 voters. Almost all the challenged altogether. voters were African Americans, alleged court fil- 16 ings. The county eventually settled a lawsuit 2. New Potential for “Noncitizen” Voter Purges over their actions, agreeing they had failed to There is a substantial threat that some election consider federal law. 17 officials will initiate purges of suspected noncit- The 2016 election brought an even more brazen izens this year. Without any evidence of a prob- “challenge purge.” In North Carolina, individ- lem, the president22 and like-minded allies have uals used challenge laws to try to knock large raised the specter of noncitizen voting since the groups of voters off registration lists under the 2016 election.