[EL] Arkansas registration provision

[Justin Levitt]

There are two different provisions of the NVRA at issue.

One is section 8(c)(2), which is the 90-day "pencils down" provision.  
It says that "a State shall complete, not later than 90 days prior to 
the date of a primary or general election for Federal office, any 
program the purpose of which is to systematically remove the names of 
ineligible voters from the official lists of eligible voters."  Unless 
the AG candidate (Leslie Rutledge) was caught up in a sweep under a 
"program" with the purpose to systematically remove similar people, the 
90-day provision doesn't appear to apply.  This is the part that Rick 
was mentioning.

BUT.  The other applicable provision is section 8(d), which says that a 
State may not cancel a voter's registration on the grounds that the 
person has changed residence -- any cancelled registration, not just a 
purge as part of a "program" -- unless the registrant 1) confirms in 
writing that the registrant has changed residence or 2) has been sent a 
notice, hasn't responded, and hasn't voted in the jurisdiction for two 
cycles after the notice was sent.

I gather <http://www.thecitywire.com/node/34959#.VCzn3GddW_g> that the 
clerk's official reason for the purge is that Ms. Rutledge has changed 
her residence (apparently, because she registered in DC in 2008 and 
Virginia in 2010), and that her registration in another state served as 
"written confirmation" of a change of residence.  That's an 
interpretation of the Act that I think is seriously suboptimal.  But 
it's one that I understand a fair number of registrars are using when 
they cancel registrations after receiving results of an interstate 
matching protocol, and finding what is ostensibly the same person listed 
as more recently registered in another state.  More careful registrars 
(and there are many) do a lot more investigation when they get such 
results, just in case it's the _other_ registration that's invalid.

Or maybe they're both valid.  Perhaps Ms. Rutledge was registered in 
Arkansas, moved to DC and became a voter there, and then re-established 
residence in Arkansas.  (There seems to be a 2008 absentee ballot cast 
from DC, in Arkansas, that raises other serious questions.)  The clerk 
apparently issued a registration card 
<http://www.leslierutledge.com/unbelievable> to Ms. Rutledge in 2013.  
Which means that whatever the validity of Ms. Rutledge's status as an 
eligible Arkansas voter in the interim, it's not clear how the (old) DC 
registration could serve as valid written confirmation that Ms. Rutledge 
has (now) changed residence out of Arkansas, particularly when she's got 
more recent written confirmation that she lives in Arkansas.

More generally, I think it's worth noting that an outside group 
apparently checking for duplicate registrations -- the "Arkansas 
Libertarian Coalition 
<http://www.thecitywire.com/node/34959#.VCzn3GddW_g>," if indeed they 
exist -- seems to have raised the issue.  Whether they had the most 
civic motives in mind or not, there's also a substantial risk that 
groups that are data-mining for challenges to registration status or 
residency 
<http://campaignstops.blogs.nytimes.com/2012/10/29/the-danger-of-voter-fraud-vigilantes/> 
can misinterpret the information they get -- and when the challenges 
come at the last minute, there can be insufficient time to clear things 
up before the election itself.  That's part of why the 90-day provision 
exists.  But registrars ought to have a healthy skepticism about this 
sort of information -- or, at least, double-check the ramifications -- 
before acting on it, even when they're not acting as part of a 
"systematic program."

Justin

-- 
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

On 10/1/2014 9:11 PM, Rick Hasen wrote:
>
>
>     Irony Dept: Republicans Go After Dem. Election Official for
>     Purging Voter (AG Candidate) Too Close to the Election
>     <http://electionlawblog.org/?p=66184>
>
> Posted onOctober 1, 2014 2:14 pm 
> <http://electionlawblog.org/?p=66184>byRick Hasen 
> <http://electionlawblog.org/?author=3>
>
> This from the RNLA is too delicious 
> <http://thereplawyer.blogspot.com/2014/10/rnla-responds-to-dirty-tricks-by.html?spref=tw>. 
> Usually it is Democrats fighting a last minute voter purge under the NVRA.
>
> My understanding of these provisions is not deep, but my impression is 
> that the NVRA only stops large, wholesale voter purges and not the 
> individual removal of ineligible rolls for particular reasons, but if 
> my understanding is incorrect please let me know. In any case, whether 
> or not it violates the NVRA, there is a real risk of partisan election 
> officials monkeying with voter registration (and other) rules for 
> political gain.
>
> This is why we need nonpartisan election administration.
>
> Posted inNVRA (motor voter) <http://electionlawblog.org/?cat=33>
>
>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20141001/a8c5c15e/attachment.html>