DOJ guidance on voter list maintenance targets election integrity

Thousands of non-citizens are being found to have registered to vote across the country. Evidence is emerging that authorities may be providing even criminal illegal aliens currently in custody with voter registration materials. Meanwhile, as millions of immigrants have surged across our borders, lawmakers have blocked Republican legislation mandating that vote registrants provide documentary proof of citizenship, leaving the election system vulnerable to potentially unprecedented non-citizen participation in the 2024 election.

So, is the Biden-Harris administration doing everything it can to support state efforts to clean up the voter rolls and deter potential lawbreakers to protect our republic from foreign interference and corruption?

On the contrary, the Biden-Harris administration that itself is arguably culpable for such efforts via Executive Order 14019, under which federal agencies are registering and mobilizing those with whom they interact seemingly without regard for citizenship, appears to have just fired a shot across the bow of those defending the integrity of the 2024 election.

The shot comes in the form of guidance issued by the Justice Department, and trumpeted by the administration’s progressive allies “addressing limits on when and how jurisdictions may remove voters from their voter lists.” 

There are three aspects of the guidance that seem problematic.

The first is that the DOJ feels compelled to emphasize prohibitions on state efforts to remove ineligible voters – just days away from the earliest start of early voting – rather than apprising states of their responsibility to remove ineligible voters.

The implication is that DOJ is more concerned with efforts to clean the voter rolls than that the voter rolls may be dirty, despite states having found ample evidence of it.

It also suggests DOJ believes states are being too vigorous in their voter roll maintenance efforts, and that DOJ may be watching them – potentially chilling activity aimed at defending Americans’ voting rights under the guise of defending Americans’ voting rights.

The second problematic aspect of the guidance concerns its likely chilling effect not only on states but on third-party election integrity watchdogs. The guidance notes that certain list maintenance activities may violate the National Voter Registration Act, including:

comparing voter files to outdated or inaccurate records or databases, taking action that erroneously affects a particular class of voters (such as newly naturalized citizens), or matching records based solely on first name, last name, and date of birth.

“The prohibitions of the NVRA extend to any list maintenance activity based on third-party submissions,” the guidance continues.

Now the NVRA is mostly silent on what legitimate list maintenance practices consist of, leaving prescriptions largely to the states.

Despite creating these new standards, for the sake of argument, let’s assume the DOJ is on solid footing. 

Still, how are we to interpret its constraints?

What constitutes an outdated or inaccurate record or database in DOJ’s eyes?

If an election challenge is brought in a state against 1,000 individuals credibly suspected of being non-citizens, and ten people are inaccurately flagged who share some similar characteristic, would that represent an illegal action “erroneously affect[ing] a particular class of voters?”

An accompanying fact sheet adds that “lodging discriminatory voter challenges to voter eligibility or lodging frivolous challenges without a good faith basis” may violate the NVRA – whether conducted by public or private actors.

Consider how subjective this is. This is an administration that has embraced DEI in all its forms, which in and of itself is discriminatory. The Biden-Harris DOJ calls having to show one’s birthplace and proof of citizenship to vote “discriminatory.” If colorblindness or ID requirements are “discriminatory” color me suspicious here.

And how does DOJ define a “frivolous” challenge? 

And why should we think it’s a fair arbiter of “good faith?”

Remember, this is a Justice Department that claims Donald Trump’s challenges to the 2020 election constituted the civil rights-violating election interference conspiracy of the century. They targeted not just Trump but election integrity lawyers and watchdogs in his orbit. 

What kind of case might a Department led by an AG who has to promise his agency won’t be used as a “political weapon” concoct against like-minded groups now? And is the mere threat of targeting those groups its objective in providing the guidance?

As Democracy Docket – a publication founded by preeminent progressive election litigator Marc Elias – editorializes, the “guidance comes amid a surge of challenges to state and county voter rolls and maintenance procedures, mostly from right-wing groups attempting to disenfranchise millions of voters right before the November election.” 

No doubt the Biden-Harris DOJ sees things the same way – that efforts to clean the voter rolls equal vote “suppression” rather than an effort to ensure Americans’ votes are not illegally diluted by unlawfully cast ones.

And its guidance is likely aimed at the same “right-wing” groups Democracy Docket identifies.

The third aspect of the guidance that seems problematic concerns what DOJ calls the “90-day quiet period before federal elections” regarding voter list maintenance practices.

According to the guidance, under the NVRA, any “systematic” removal of ineligible voters must be completed no later than 90 days before a federal election. 

The implication then is that if a surge of non-citizens were registered to vote 89 days from an election, it’d be impossible to remove them from the rolls in any “systematic” effort.

Seems like a pretty big loophole.   

During a recent House Judiciary Committee hearing on noncitizen voting, a Republican representative asserted that a fundamental flaw in our system is that “It’s pretty easy to get added to the voter rolls, but it’s nearly impossible to get removed.”

Irrespective of the letter of DOJ’s guidance, in its spirit, the Department seems intent on preserving that feature – to the detriment of our republic.