DOJ NVRA Memo Seeks to Gut HAVA Fraud Protections

In December of last year and March of this year, I wrote about the suggestions from many that the National Voter Registration Act (NVRA), passed in 1993, disallows removals from the voter file based on a match within the statewide voter registration file created by the Help America Vote Act (HAVA), passed in 2002.  It’s a weak argument, that to date has been pushed mostly by voter registration reform groups.  Now, however, the United States Department of Justice is jumping on this bandwagon as detailed in this undated and unsigned memo that appears on their website (to which I was pointed by the electionline newsletter in early June).  Adherence to the shaky legal interpretations of the memo would eviscerate any fraud protection passed by Congress in 2002.

The first thing that should be mentioned about the latest DOJ memo is the last item in the memo.

46. How can I contact the Department of Justice about the NVRA’s voter registration requirements?
As a general matter, the Department of Justice does not issue advisory opinions concerning the statutes that it enforces.

The 45 items before this, however, are nothing but an advisory opinion.  As an advisory opinion though, it is short on analysis and hardly fit for any legal department, especially the chief law enforcement agency in our country.

It is hard to avoid the notion that DOJ is offering up a shallow legal opinion to prop up the overall agenda of many people, which is to worry less about the integrity of our voter registration rolls and more about making sure that everyone is on them, no matter how many times.

The list maintenance section of the DOJ memo starts at number 26.  Sections 30, 31, 34, 35 and 36 are all flawed and largely ignore the list maintenance provisions in the Help America to Vote Act.  For example, item 31 of the DOJ memo states that new applications in another jurisdiction only trigger a removal in the former jurisdiction if the registrant provides information about the fact of registration in the former jurisdiction.  That’s not what happens in practice, nor was it what was intended with HAVA.  In fact, the statewide voter registration file was established precisely to eliminate the problem of voters not informing the former jurisdiction of their address change.  The 18 page DOJ memo mentions the HAVA required statewide voter file just once and that is only regarding deaths and felony convictions.  It is as if Congress had done nothing.

However, over the last five years, DOJ has entered into a number of memoranda of understanding regarding list maintenance.  I detailed some of them in a post in December.  As an example, here is the procedure for removing duplicate registrations in California.

§20108.60. Duplicate Registration Records. (a) Beginning January 1, 2006, the Secretary of State shall conduct weekly checks within the Calvoter statewide registration list to identify potential duplicate registrations for the same voter within that list, based on established rotating criteria. Upon identification of potential duplicate registration records, the Secretary of State shall automatically send an electronic notice to the county with the record that has the oldest date of registration.
(b) Within five (5) business days of receipt of a notice of potential duplicate registration the elections official shall take all necessary steps to determine whether or not the registration record is a duplicate of an existing newer registration, and if a duplicate registration is confirmed, shall cancel the older duplicate registration and submit a registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40.

If list maintenance procedures for election officials are to be based solely on NVRA, there was essentially no reason for Congress to mandate the statewide voter file.  I doubt that a single state administers their statewide voter file in a way that meets the standards laid out by DOJ in this recent memo.  Following DOJ’s guidelines would raise costs dramatically and probably inflate the voter rolls by millions.  In Illinois, over 200,000 voters have been removed through the statewide voter file.  Without the statewide voter file, those nonvoters would still be on the voter rolls at a cost to taxpayers and with a potential risk for fraud.

Special Senate Election a Possibility

I didn’t catch this case coming through the federal courts. It’s interesting, largely unimportant for voters, very important for taxpayers, and adds to the zaniness surrounding the filling of the U.S Senate vacancy created when Barack Obama was elected President.

What has now happened is that in response to a filing by Marty Oberman in Chicago, the U.S Appellate Court has ruled that there must be an election to fill the months remaining in the Obama Senate term between the November election and the swearing in of U.S. Senators in January of 2011, a period of just two months.  Here is the opinion. Incredibly, it will likely be far less than two months as the State Board of Elections is not likely to announce an official winner of the race until late November.

This could have been avoided if Illinois had just adopted something like the Pennsylvania Senate vacancy process and nominated candidates at party caucuses and elected someone at the April 2009 Consolidated Election.  Instead, the circus goes on.

Hopefully, the U.S.  District Court will treat this in a reasonable way and declare that this is a vacancy occurring after the Primary and allow political parties to make nominations per 7-61 of the Election Code.

Any vacancy in nomination under the provisions of this Article 7 occurring on or after the primary and prior to certification of candidates by the certifying board or officer, must be filled prior to the date of certification. Vacancies shall be filled by the officers of ….. State central committee in the case of a candidate for statewide office, including but not limited to the office of United States Senator) of the respective political party for the territorial area in which such vacancy occurs.

Alternatively, the judge could possibly order a special primary election, likely sometime in September, which would cost millions and possibly create delays in the production of ballots for the November election.

I personally would find this second option to be an overreach by the Federal Judiciary.  While the argument is strong that interpreting what constitutes a vacancy is within the federal purview, a stronger argument can be made that the “how” of filling this vacancy is left with state authorities.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies:  Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Put another way, a judge should examine the law and, if he can find a reasonable interpretation of the law that satisfies the requirement of a higher court ruling, he should adopt it.  Treating this as a vacancy in nomination after the primary maintains the authority of the General Assembly as granted in the 17th amendment above.

In fact, if a special primary election would be held, it is all but certain that military ballots would not go out in time to meet the new standards set up by the MOVE Act.

It could also be argued, persuasively, that a simple tweak to the Election Code could clarify this issue for this election.  That would require a special session, but the cost of that vs. the cost of a special primary is not even close.  If Judge Grady, at the U.S. District Court, tries to take the authority for this process away from the legislature, the legislature should wrest it back and save taxpayers the money of the special election and not imperil the November election, especially the votes of those overseas.

County Treasurer Pays On Time and In Full

I went to the Urbana School Board meeting last night regarding the future of Washington Early Childhood.  Of course, no school board meeting in the state happens these days without some discussion of payments from the State of Illinois.  Superintendent Preston Williams informed the group that the State of Illinois was $4.8 million behind in payments to the district.

A little relief is in sight for the school district, and every other taxing body in the County.  The first distribution of property tax payments should hit their bank accounts tomorrow.  For Urbana schools that is a payment of $4.6 million which represents about 17% of what they’ll end up receiving from property tax revenues.

It bears noting that while the state plays games with tax dollars and withholds tax revenues due to local governments, the County is paying on time and in full.  Once a month, the Treasurer makes  a distribution of all that has been collected to that point.

The Township Assessors, Supervisor of Assessments Office, Board of Review, County Clerk, and County Treasurer work as a team to get tax bills out by May 1st each year.  Because of the great work of this team, we’re able to mitigate the disaster that we face from a state that fails to meet their obligations.

Young Voters

I’m preparing to go back to Springfield today to testify against yet another attempt to force Champaign County to open an early voting site on campus.  In preparing testimony, I found an interesting article, College students in the 2004 Election.  It was prepared by The Center for Information & Research on Civic Learning & Engagement.  The key element for the purposes of the campus voting bill is here.

Most students were registered to vote, and turnout was high. Nearly 90% (88%) of the students said they were registered to vote. Of these, nearly 90% (88%) said they voted. This means that overall, some 77% of the students said they voted. Similar percentages of freshmen through seniors voted.

This rate of turnout is very high when compared to non-college students. According to CIRCLE’s analysis of national exit poll data and vote tallies, approximately 42% of all 18-24s voted. Thus, in 2004 as in other recent years, college students were nearly twice as likely to vote as young people who do not attend college.

The fact that college students vote at higher numbers than their non college counterparts is reflected in Champaign County as well.  Roughly speaking, 76% of the young voters in the campus area voted last time.  Just 61% outside of the campus area did.

That Didn’t Take Long

I’ve written before about the MOVE Act, federal legislation that attempts to facilitate voting by overseas and military voters. At the time I wrote about it, I noted something interesting.

One change is the effective period for a Federal Post Card Application (FPCA).  Before this law passed, a person who submits an FPCA is applying for a ballot for the next two federal election years.  So an application in 2005 would have entitled a person to a ballot for the 2006 and 2008 federal elections.  The new law changes that to a single year.  Now, military and overseas voters will have to submit a new application each and every year that they want to vote.

I noted how this flew in the face of other efforts to sign up people without their knowledge or consent.

At the time, I understood that this would mean that fewer military people would be signed up.  Common sense tells us that if you require people to sign up every year instead of every four years, you’re going to see a drop off.

Now, we receive word from the folks who oversee the Uniformed and Overseas Citizens Absentee Voting Act that they are concerned about the drop in the number of people receiving ballots.  Here is the email that was  sent to state officials.

Director Carey is concerned that the repeal of Section 104 of UOCAVA is having a negative impact on the total number of UOCAVA citizens with active ballot requests on file. To address this issue, we are asking for your data. Specifically, we are asking for  the number of active ballot requests from UOCAVA citizens as of April 30, 2010, as well as the same information from April 30, 2008. If you have this information broken down to include the number of uniformed service voters and overseas citizen voters, please let us know.

I’ll give Director Carey the benefit of the doubt and assume that he knew this would be the outcome of the law but couldn’t stop it.  But I’m curious as to whether a rewrite will be in the works for this totally predictable but apparently unexpected outcome.

Thanks to a Great Staff

Today, April 19, was the last day for the established political parties to fill vacancies in nomination when no candidate was nominated in the primary election.   For the first time, no established political party candidate filed to run against me.  New political party candidates and independents can file for office in June so it is no guarantee that I’ll  be unopposed.  Nevertheless, not having an opponent from the opposition parties is gratifying.

I’m sure I could give a host of reasons for the lack of opposition.  But first, foremost, and without peer is the great work of the staff in my office.  Over nearly 13 years they have provided great service, fair and honest elections, and progressive advances in every area of this office.  Every week I have multiple people who approach me and  compliment the work of my office.  The confidence and support of the public in general is reflected in those compliments and hopefully is reflected in the lack of opposition.

Thanks so much to my staff who has served so well and earned such trust.

Good News from the SBE

I’ve certainly had a rocky relationship with the State Board of Elections.   They’ve sued me once (and lost) and now I’m suing them.  Beyond that, there have been plenty of other skirmishes and difficulties.

But I’d be remiss if I didn’t throw a big compliment toward them regarding their campaign disclosure software project.

Readers may recall that I’ve expressed an interest in open source programming for government.   While most open source advocates are particular to using purely open source software applications, I am open to taking advantage of the benefits of open source programming within programs such as SQL Server and Visual Studio.  They key for me is that government holds onto the code and is able to modify that code to meet changing needs.

Now enter the programming department of the State Board of Elections.  This month they are getting ready to release the beta version of their new IDIS software.  Rather than going to another outside vendor to upgrade the IDIS software, the SBE instead developed the program in house.  This will give them the flexibility to more easily make changes in the future as necessitated by new laws or to meet other needs expressed by users.

People who currently use IDIS have often expressed dismay at the product.  Their concerns to date have been unmet because there was no ability for the SBE to change the software that had been developed outside their agency.  That will now change.

Not insignificant is that this has been done for a reduced price.  Nearly a year ago, it was anticipated that the cost in house would be over $350,000.  The new budget that will be presented at the SBE meeting on Wednesday this week has that reduced to $60,000.  I wouldn’t be surprised to this tick up a bit after the bugs in the beta version are identified.  In any case, this cost figures to be reduced from the likely cost from a vendor by a factor of  at least ten.

Most important, the code belongs to the government, can be changed as desired, and will have no licensing costs in the future.  A great example of how software development in house can be a win-win for everyone.

Champaign County Facility Costs

Looking at the facility costs related to voter registration for election authorities in Oregon and comparing it to Champaign County leaves one wondering.

Here is how I roughly calculated our facility costs for voter registration.

First, I used a cost of $14,76 per square foot which is the rent paid by the Illinois Attorney General for space in the Brookens Administrative Center where our office is.

Second, I measured and determined that there was 1,312 square feet used in some way or another in the voter registration process.  Without any proration of the space based on time spent on voter registration I calculated a cost of 16 cents per voter, which would make our county the fifth cheapest in Oregon.

However, if you prorate the space based on time allocated to voter registration activities, the cost drops to 5 cents a voter.  That would be the cheapest of any Oregon county except Crook County which reported $173.82 in facility costs amounting to 1 cent per voter.

In my mind, there are two ways to look at this, neither of which Pew adopted.

The first way to examine this it is to question your methods and procedures.  Is the methodology really returning accurate data?  I’d suggest that it almost certainly is not and that Pew needs to go back to the drawing board on facility costs and probably almost everything else in their survey.

The second way to examine this is to wonder why it costs so much for facilities in these counties.  If Champaign County can operate with a facility cost of 5 cents, shouldn’t a county like Marion County be able to lower their 61 cent cost to something more reasonable?  Why are the facility costs for voter registration in Washington County 6 times the cost of Champaign County?

With the quality of the Pew report as I’ve seen it so far, I have a lot more faith that the Oregon counties are running with more reasonable costs than reported by Pew.  But either way, Pew owes the public and policy makers a closer examination of the data they are reporting.

Pew Report Loaded with Inconsistencies

As I’ve chatted with Oregon election officials about the Pew report on voter registration costs, one thing is clear.  The numbers in the  Pew for their report were solicited with little guidance and compiled in many instances as estimates.

If you look at the spreadsheet which Pew provided you’ll get an indication of this.  First, there are glaring gaps in the submitted data.

For example, 16 of the 36 counties submitted no facility costs.  19 counties submitted no computer costs.  23 counties submitted no County IT costs.

These gaps demonstrate that there were few guidelines for counties to follow.  Like many of these counties, I hesitate to answer questions for which I don’t have solid data.  It’s always safer to not answer than to provide data that is wrong, especially when I don’t know how the data is going to be used.

Beyond those gaps, it is easy to see that many of the numbers are purely estimates.  For example, Marion County’s computer costs turned out to be $30,000 and their County IT costs turned out to be $45,000.  A number of other rounded numbers in the report suggest estimating as well.

Then there is the great disparity in costs from one county to another.  So for example, on the facility costs we see a high of $2.37 per voter for Clatsop County and a low of $.01 for Crook County.  Rather than digging in deeper to these numbers to determine why such a discrepancy would exist, Pew just reported it as is.

Just looking at the County IT costs per voter for the two largest counties reveals shocking discrepancies.  Multnomah County’s IT costs per voter is 11 cents.  Washington County’s is 58 cents.

Don’t differences of that nature cry out for clarification and review?  This isn’t the first time that I’ve found inaccurate data that seems to be accepted only because it supports someone’s agenda.

And my opinion about the accuracy of the data is supported by some of the Oregon officials.  Here are a few quotes:

the Pew Center did not provide any guidance or even require any degree of accuracy in their request.

My numbers were all rough estimates.

I was under the impression when I spoke with him by phone regarding this subject, that we did not have to spend a lot of time on this request, that indeed it was just an estimate.

Take the Pew report with a grain of salt.  It fails by the most basic of research standards.