By Steven Rosenfeld
With less than four weeks to go before the 2008 presidential vote, new practices in key swing states to update voter rolls are coming under fire for mistakes that could involve rejecting tens of thousands of legitimate voters, suggesting that close vote counts in these states could lead to legal fights echoing Florida’s presidential recount in 2000.
According to a New York Times report on Oct. 9, key swing states -- including Nevada, Ohio, Pennsylvania, Indiana and Missouri -- have been using federal Social Security data to verify voter registration information from established and potential voters. The Social Security data, which is used to authenticate voters’ identity but is known to be error-prone, has been used to purge "tens of thousands" of voters already on voter rolls, the Times reported, as well as to reject numerous new voter registration applications.
Of 7.7 million inquiries by states to the Social Security Administration to verify voter applications in 2008, nearly 2.4 million resulted in "non matches," according to the agency, which Monday issued a statement urging election officials in six states -- Alabama, Georgia, Indiana, Nevada, North Carolina and Ohio -- to "review their procedures."
This past summer, AlterNet reported that Michigan, Kansas and Louisiana were using drivers’ license databases in a similar manner to purge voters. In both instances, whether using Social Security or motor vehicle data, it is difficult to fully know how voter rolls will be affected because different states and counties have differing procedures on purging and removing voters, and because this process is often secretive.
What’s clear to leading voting rights attorneys, however, is that this "name-matching" process not only violates the guiding federal law on removing voters, the National Voter Registration Act, and violates the guiding federal law on accepting vote registrations, the National Voting Rights Act, but also creates a new basis to challenge presidential results if the vote count is close on November 4.
Unless there is litigation to force states to follow these federal laws before Election Day and restore purged voters and accept registrations from new voters, a close vote count in swing states could see post-Election Day legal fights over provisional ballots. These are ballots issued to voters whose names are not on voter lists and are later validated before they are counted. Thus, a fight over provisional ballots in 2008 could echo the fight over hanging chads -- or punches in paper ballots -- in Florida in 2000.
"I think it is a real risk," said Brenda Wright, legal director of The National Voting Rights Institute at Demos, a public interest law firm. "If you have a situation where people are showing up who think they are registered to vote, that is where provisional ballots come in. The question is will those ballots be counted. If there are thousands of provisional ballots in a number of states, there’s a danger that they may not all be counted."
"There will be an effort by the civil rights community to figure out what to do," said Jon Greenbaum, Voting Rights Program director at the Lawyers Committee for Civil Rights Under Law.
"There is the potential the perfect storm is developing," said Gerry Hebert, executive director of the Campaign Legal Center, another public-interest law firm. "New voters should be added to the rolls immediately, and then vetted and sent letters if there are problems."
The scenario of post-Election Day litigation is not speculation. Across the country, GOP partisans already have filed lawsuits over voter registration issues or said they planned to pursue polling place challenges of individual voter registrations in states such as Ohio, Wisconsin and Michigan. In federal court in Ohio, a hearing was held Thursday on a GOP suit seeking to force the state to use the Social Security data to vet new voters.
"It does add a whole other dimension to the potential debates on what is the vote," said Kimball Brace, director of Election Data Services, a Washington consulting firm. "I was Al Gore’s expert in Florida on this. ... In 2000, we were concerned with the voting equipment, and what happened with under- and over-votes. Now, if you are a lawyer looking at challenges, you don’t only look at that but at the voter side as well."
Roots of the Problem
The name-matching issue has its roots in the federal legislation that was passed after the 2000 presidential election debacle in Florida -- the Help America Vote Act of 2002. Under that law, states were instructed to compile statewide voter lists in contrast to lists that previously were maintained at the local level. States also were allowed to use Social Security data to verify registrations, but only as a last resort after other forms of voter ID could not be corroborated.
The problems that have arisen since the law took effect are multiple, but they seem to have one common factor: The practices now at issue evolved with little or no guidance from federal election officials, such as the Election Assistance Commission, or without any comment from the Justice Department, which enforces federal voting rights law.
The Help America Vote Act told states to create statewide voter registration databases, said Tova Wang, vice president for research at Common Cause, but did not tell states how to use them. Similarly, states were not told how to use provisional ballots.
Thus, states began using Social Security and motor vehicle databases to screen voter lists and purge voters instead of following the National Voter Registration Act, which requires states to contact a voter over a four-year period before removing them and to conduct no purges closer than 90 days before an election. Indeed, the Lawyers Committee for Civil Rights’ Greenbaum said his organization was filing a lawsuit on Thursday in Georgia over that state’s use of motor vehicle databases to purge voters outside of the National Voter Registration Act process.
On the issue of screening new voter registration applications, the states are overlooking the Voting Rights Act, which tells them to accept voter registration forms that might be missing some voter information, a staff attorney at the Senate Rules and Administration Committee said, citing 42 USC 1971. But this staffer and other voting rights attorneys said the Justice Department’s selective enforcement of civil rights laws during George W. Bush’s presidency allowed states to maintain voter rolls under their own standards.
Moreover, because the voter purging process and new voter registration vetting process is so secretive -- and states are not required to remove or reject voters due to non matches with these databases, Wang said it was hard to know what lays in store for voters on Election Day.
"HAVA had all the best intentions," said Wang, who, when pressed, said she was tempted to characterize the current situation as "anarchy" because of an absence of clear rules and procedures.
"You do have to ask, where is the Justice Department," Wright said.
The Name Matching Problem
The biggest problem with using Social Security or motor vehicle data to update voter rolls is government agencies often have different data for the same individual.
"It is a problem we are very worried about because this database matching so often produces false non-matches," said Wright. "It could be something as simple as you have a hyphenated name, or an apostrophe is missing for O’Leary. There are so many ways to be a non-match when there is no real world discrepancy."
Kimball Brace, whose firm parses election data, cited himself as an example. "I figured I could be eight different people if I wanted to," he said, saying he could appear as Kim, Kimball and so on.
These distinctions are hardly academic, but instead, are at the heart of current litigation that will affect who gets to vote and which votes will count in November. In Ohio, the Secretary of State Jennifer Brunner, a Democrat, and state Republican Party, had a federal court hearing on this very issue on Thursday.
"Ohio Republicans sued the secretary of state to use database matching," Wright said. "Brunner pointed out that she is being accused of violating the law for not taking names off the rolls and the Social Security Administration just sent out a notice that Ohio is overusing Social Security Association matching to take people off."
The best practice, said the Campaign Legal Center’s Hebert, who used to be Voting Section Chief at the Justice Department, would be to add people’s names to voter rolls and then subsequently seek to contact them to clear up discrepancies, which is what the NVRA prescribes.
The reason the name matching issue is so politically explosive is the number of potentially affected voters could be many times the size of the president’s margin of victory against Democrat John Kerry in 2004. According to the Social Security Administration, the number of "non-matches" for voter registrations, from January through September 2008, was: 265,691 in Georgia; 39,489 in Missouri; 716,252 in Nevada; 74,797 in North Carolina; 289,603 in Ohio; 72,137 in Pennsylvania; and 57,887 in Florida.
In the meantime, as election officials across the country continue to process voter registrations with an eye to election day, the Social Security Administration this weekend is proceeding with a planned three-day shutdown of its computer systems for maintenance purposes -- despite requests by the Senate Rules and Administration Committee to postpone that maintenance until after Election Day.
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