Voter Rolls — Public Records or State Secrets? – Inside Sources

Isn’t transparency a hallmark of democracy and honest elections? Doesn’t the public have a right to know who is registered to vote and whether election officials are maintaining accurate, up-to-date rolls to prevent errors, mistakes and fraud from affecting elections?

Federal courts have grappled with this question over the last year, not only in response to requests from the federal government but also from private citizens and organizations like the Public Interest Legal Foundation (PILF), which is dedicated to protecting the integrity of the election process.

Now a case is potentially before the Supreme Court — if it accepts it for review — that could resolve the issue. The court should accept the case and overrule lower courts that have misinterpreted federal law and treated registration records and maintenance procedures as classified documents no one is allowed to see.

The U.S. Court of Appeals for the 9th Circuit recently ruled that a state’s list of registered voters is not a document under Motor Voter that must be disclosed. This makes it impossible for independent verification that election officials are doing their job and removing voters who have died, moved away, or were never eligible to begin with because they are not U.S. citizens. The law known as “Motor Voter” was passed in 1994 as the National Voter Registration Act. It contained transparency requirements that require states to allow the public access to registration records to assess their accuracy.

Yet the 9th Circuit, contrary to Congress’s stated purpose in passing Motor Voter, held that the public is not allowed access to voter rolls. This is the question before the high court — are the lists of eligible voters a list maintenance document under Motor Voter’s transparency provisions?

The obvious answer is “yes,” and other federal appellate courts have disagreed with the 9th Circuit’s incorrect holding. For example, the 1st Circuit squarely held that the list of eligible voters is covered by the transparency provisions of Motor Voter.

It matters because one always finds dead and duplicate voters on the rolls. In just one of many examples, PILF found one Pennsylvania voter — Rashawn Slade — had six active registrations. Duplicates are common across the United States. And so are dead registrants.

Judith Presto was dead when she registered to vote in Pennsylvania. Eventually her husband was arrested for registering Presto, but not before the Public Interest Legal Foundation obtained the voter rolls and cataloged all the dead registrants like her.

Discovering the dead and duplicates in Hawaii is impossible because Hawaii won’t disclose them. It has hidden its registration records under a veil of secrecy.

The 9th Circuit’s failure to follow the straightforward disclosure requirement of federal law means all mail-voting states such as California, Hawaii, Nevada, Washington and Oregon run elections without transparency.

Congress required transparency to encourage clean elections and allow the public to verify the honesty and fairness of the election process.

Three organizations have joined PILF in asking the Supreme Court to resolve this circuit split. The Center for Election Confidence, Judicial Watch and the Honest Elections Project have urged the court to grant PILF’s petition for certiorari.

Mistakes, duplications and deadwood are readily found on every voter roll. It isn’t a conspiracy. It isn’t necessarily a criminal plot. It more often is administrative laziness or incompetence. The why doesn’t matter because those mistakes can affect elections and disenfranchise legitimate voters. Election officials who do not disclose voter lists escape scrutiny, and the public cannot assess their effectiveness.

Hawaii’s lack of transparency frustrates those objectives, and its intransigence frustrates Congress’s purpose in passing the National Voter Registration Act: to make records concerning eligible voter lists public information.

Congress mandated public access to “all records concerning the implementation of programs and activities conducted to ensure the accuracy and currency of official lists of eligible voters…” The 9th Circuit misinterpreted this language, wrongly concluding that the 1sr Circuit placed too much weight on “all” and “concerning.” Yet Congress chose broad terms that encompass all records related to voter-list maintenance.

The stakes are significant. The country still lacks a uniform answer to who is entitled to access voter registration data. The Hawaii petition would let the Supreme Court resolve that vital question.

That leaves Hawaii at the center of a defining question: does the public have these transparency rights or not? In our 250th anniversary year, the absence of a clear national answer — the correct answer — is no small matter. Accurate voter rolls are vital to honest elections, and they belong in the public record, not behind a curtain of state secrecy.