Washington
CNN
—
The Justice Department is concerned that conservative efforts by Donald Trump’s campaign, the Republican National Committee and others to purge states’ voter rolls ahead of the November election could violate federal rules that govern how states manage their registered voter rolls.
Doubting the accuracy of voter rolls has long been a feature of right-wing efforts to cast doubt on the integrity of elections, and was particularly prominent in 2020 when allies of the former president pushed false claims that Joe Biden’s presidential victory was the result of massive vote fraud.
As of Tuesday, at least 30 lawsuits related to voter rolls and their maintenance were pending in 19 states, according to the liberal-leaning Democracy Docket, which tracks election litigation.
Some of the lawsuits were filed by the Republican National Committee against state election officials in battleground states where both President Trump and Vice President Kamala Harris must win, including Georgia, Nevada, Michigan and Wisconsin.
The right-wing voter roll purge movement has primarily revolved around claims that foreigners are casting illegal votes in favor of Democrats. But reports of foreigners voting in U.S. elections are extremely rare. The right-leaning Heritage Foundation’s database of confirmed fraud cases lists fewer than 100 instances of foreigners voting out of more than 1 billion legally cast votes between 2002 and 2022. The left-leaning Brennan Center for Justice analyzed more than 23 million votes from the 2016 election and found an estimated 30 instances.
Legal experts say the total number of lawsuits is a significant increase from previous elections, and the vast majority are intended to sow controversy and undermine confidence in the election.
“There has always been some litigation about voter rolls and roll management, but what we’re seeing with this surge appears to be a coordinated attempt to create errors and controversies that can be used to undermine the results of future elections,” said Uzoma Nkwonta, a lawyer representing the New Georgia Project Action Fund, a group working to block an effort by two Georgia voters to remove thousands of voters from the state’s voter rolls.
“And that’s what makes this an unusual environment,” Nkwonta added. “Now we seem to be experiencing an all-out attack on list management practices, an all-out attack on voter registration practices.”
Justin Levitt, an election law expert at Loyola University Law School and a former voting rights adviser to the Biden administration, agreed, saying he sees some of the lawsuits as “just marketing, not intended as legal solutions.”
“There are quite a few of these challenges that clearly were not intended to win in court, but I’m not sure that was the goal,” he said.
Regardless of merit, the Biden administration is considering it, and the Justice Department reiterated this month that it must follow the National Voter Registration Act, a 30-year-old federal law that dictates how and when states can update their voter rolls.
One of those NVRA restrictions is at the center of a federal lawsuit filed last month by two Republicans in Fulton County, Georgia, against local election officials. Plaintiffs Jason Fraser and Earl Ferguson argue that the county elections board is improperly applying a provision of federal law that requires states to observe a 90-day quiet period during which officials cannot “systematically remove the names of ineligible voters from official voter rolls.”
The two Republican lawmakers argue that federal rules don’t apply to individuals who challenge the voter rolls, and are asking a federal court to order the removal of individuals who they say are ineligible to vote from Fulton County’s voter rolls. Nkwonta and other lawyers representing NGPAF, who intervened to defend the elections board, say no loophole exists that would allow officials to “systematically remove voters from the rolls for any reason, upon request from the public, within 90 days of the election.”
Such efforts, if successful, could have crucial consequences in places like Georgia, which narrowly supported Biden in the 2020 election by less than 12,000 votes over Trump. Fulton County, Georgia’s most populous county, which includes Atlanta, has become a stronghold for conservatives trying to sow doubt about the integrity of the state’s elections.
The lawsuit may not last long. On Monday, the two voters filed a motion to dismiss the lawsuit, citing procedural errors. If the judge overseeing the case grants their request, the voters could refile their lawsuit at a later date.
Reviewing voter rolls is routine for states, and despite a 90-day quiet period, the NVRA allows individuals to ask to be removed from the rolls as an election approaches. The Department of Justice’s guidance on the law appears to be consistent with NGPAF’s arguments, with the Department essentially saying that states cannot use names submitted by individual voters to carry out backdoor mass purges.
Georgia in particular has been a hotspot when it comes to challenges to voter rolls, because state law allows individuals to file unlimited challenges while other states have rules that require challengers to be more careful.
Critics of the expulsion of foreigners warn that a mass expulsion of registered voters could disenfranchise legitimate voters ahead of an election.
The risk became clear in August when Alabama’s Republican Secretary of State, Wes Allen, announced he had begun the process of removing more than 3,200 people previously listed as noncitizens from the state’s voter rolls, though Allen acknowledged that some of those people may have become naturalized citizens eligible to vote.
Several voters in the state filed a federal lawsuit last week, alleging that the “purge program” violates the National Voter Rights Act, the Voting Rights Act and the U.S. Constitution. They are asking a federal judge to order Allen to halt the plan and to return voters who were removed from state rolls to their own rolls.
Nkwonta stressed to CNN that the NVRA “strikes a careful balance” between allowing people to register to vote and remain on voter rolls close to an election and giving states the opportunity to maintain and clean up their rolls.
“And when the election is this close, it tips the balance in favor of the voter to make sure no one is illegally removed, because at this point it’s often too late to correct registration errors before the registration deadline,” he said.
CNN has reached out to Allen’s office for comment.
Accusations that states don’t control voter rolls
The lawsuit, filed last week in Nevada by the Republican National Committee, the Trump campaign and others, alleges that Nevada Secretary of State Francisco Aguilar, a Democrat, is not properly managing the state’s voter rolls and that they are being inflated with foreign voters. The plaintiffs are asking the state court to order Aguilar to verify that registered voters are U.S. citizens before the November election.
The lawsuit cites data from the Nevada Department of Transportation and alleges that just under 4,000 people “listed in the Department of Transportation’s alien files” voted in the 2020 general election. The battleground state voted for Biden by about 33,600 votes four years ago.
Aguilar’s office quickly denied the allegations, saying Nevada elections have “numerous safeguards in place to prevent non-citizens and other ineligible voters from voting.”
“Allegations of widespread problems are false and will only create more confidence in our elections,” the office said in a statement to CNN.
Similar lawsuits are pending in Michigan, North Carolina and Arizona accusing election officials of not properly maintaining voter rolls, and the plaintiffs say census data suggests the rolls are inflated.
As one such example, the Republican National Committee cited data from the U.S. Census Bureau’s 2022 American Community Survey and “the most recent registered voter count available from the Michigan Department of Elections,” accusing state officials of “substandard list management” that has resulted in “suspiciously high registered voter rates” in counties across Michigan.
Levitt said these lawsuits have been filed for years but have not produced any significant results.
“And this inference has been explicitly denied many times because census numbers and registration numbers measure two fundamentally different things, at different times, and with different margins of error,” he said. “It’s like saying your alarm clock doesn’t match the temperature outside… so there must be fraud.”
Not all states are subject to the NVRA, which also prompted the lawsuits this year. Federal law excludes some states that allow voter registration on Election Day at polling places where federal elections are held.
In Wisconsin, a battleground state that is entirely exempt from the NVRA, right-wing groups are asking a federal court to order the state to make certain records related to maintaining its voter rolls available to the public.
The group, called the Public Interest Legal Foundation, said it has used similar records in other states to examine “the programs and activities of state and local election officials to determine whether lawful efforts are being made to keep voter rolls up-to-date and accurate.”
J. Christian Adams, the group’s president and general counsel, told CNN that the group’s goal is to “help correct errors big and small” in states’ voter rolls, and that Wisconsin’s exemption from the NVRA undermines Congress’ intent in the law, even though the law has always allowed exemptions for certain states in the past.
“We just want transparency to apply to 50 states, not 44 states,” he said.
Last month, the Department of Justice intervened in the case to defend the NVRA exemption.
CNN’s Daniel Dale and Fredreka Schouten contributed to this report.
