Protecting Your Vote by Deleting Your Registration

The Justice Department found a wonderfully efficient way to identify suspicious voters: start with everyone who registered. In a ruling Friday, a federal judge described the department's position as suggesting that every registered American was under a voter-fraud investigation simply for registering. Apparently, exercising the right is probable cause for the paperwork.

On October 9, U.S. District Judge Sparkle L. Sooknanan vacated DOJ's Voter List Maintenance Policy in Common Cause v. U.S. Department of Justice. Her 78-page opinion found that the department exceeded its statutory authority, disregarded the risk of wrongful removals, and violated federal privacy and paperwork laws. The nationwide policy was set aside under the Administrative Procedure Act. The court did not need to decide the constitutional claims. The statutes were enough.

DOJ had sought unredacted state voter rolls, including sensitive personal information, to check against the federal SAVE citizenship database. Reuters reported that eighteen states complied. Agreements described in the opinion required participating states to "clean" their rolls within 45 days after DOJ identified supposedly ineligible voters. "Clean" is a pleasingly sanitary word for a process whose mistakes leave citizens unable to vote.

The database had a problem familiar to anyone who has ever corrected a government record: reality could change without the record noticing. SAVE incorporated Social Security data that could still list someone as a noncitizen after they became a citizen. Sooknanan found DOJ knew about accuracy limitations and failed to consider the resulting danger to eligible voters.

This was not an objection invented by people philosophically opposed to spreadsheets. The opinion describes Anthony Nel, a U.S. citizen whose Texas registration was cancelled after SAVE failed to confirm his citizenship. Separately, a February investigation by ProPublica and The Texas Tribune found that SAVE flagged a Missouri voter whom a county employee had personally helped register at his naturalization ceremony. The government was having trouble recognizing a citizen it had already welcomed in person.

DOJ defended its authority under the Civil Rights Act of 1960, the National Voter Registration Act and the Help America Vote Act. Laws protecting voting rights, pressed into service to justify this operation. Sooknanan rejected that reading. She also rejected the notion that investigating everybody could excuse the department from privacy protections. The Civil Rights Division should not need a court to explain why the rights belong to the civilians.

A DOJ spokesperson told Reuters the department was reviewing the decision. The ruling does not prohibit states from maintaining accurate rolls or bar lawful federal assistance. It does not authorize ineligible people to vote. And it is separate from the SAVE litigation in which the Supreme Court temporarily paused another ruling last month.

Accurate rolls are a legitimate public responsibility. So is checking whether the citizens marked for removal are citizens. Under this arrangement, the department got to announce its vigilance while the person misidentified by its database got another administrative chore attached to a constitutional right. If Washington wants credit for protecting the vote, leaving eligible voters registered would be a useful place to begin.

Protecting Your Vote by Deleting Your Registration

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