California Voters: Don’t Ignore that Address Confirmation Card
October 26, 2020
By Josh Turiel
If you received an address confirmation notice from your local elections official, you may want to pay attention. In early 2019, California reached a settlement with the conservative group, Judicial Watch, concluding a lawsuit that accused the state of failing to fulfill its responsibilities under the National Voter Registration Act (NVRA). The Act requires that states make a reasonable effort to remove inactive voters – those who have moved out of the jurisdiction or passed away – from voter registration lists. Judicial Watch targeted Los Angeles County because they determined its registration rate was 112% of the voting age population – the result of an absence of reasonable effort to clean its voter rolls.
Inactive voters may still vote (after affirming their eligibility at their polling place on Election Day), but a voter who has been removed from the registration list may not vote without re-registering pursuant to applicable deadlines. Therefore, Section 8 of the NVRA dictates strict procedures for removing an inactive voter from the registration list. Notably, failure to vote in previous elections, on its own, is not a sufficient basis. Election officials must first send inactive voters a written notice containing a postage paid card that can be returned to validate their current address. If the inactive voter does not respond to the notice and does not vote in the following two federal elections, she is removed from the registration list. Although California previously took the position that removal in this situation was at the state’s discretion, the Supreme Court of the United States clarified in Husted v. A. Philip Randolph Institute that it is mandatory.
Given this post-notice removal mandate, one’s ability to vote may depend on whether they are sent a notice card. The NVRA, however, does not say when a notice card may be sent. States have taken different approaches – some, for example, send a card only when a change of address application is received by the United States Postal Service, while others send a notice to every registered voter each year. Judicial Watch’s complaint alleged that between 2014 and 2016, Los Angeles County sent notices to approximately 93,000 people annually – about 2 percent of active voters – despite Census Bureau reports that about 13 percent of Los Angeles County residents move each year. As part of the settlement, more than 1.5 million notices were issued in Los Angeles County. California law instructs county election officials to send a notice to confirm residency prior to each primary election, but this was not the basis of Judicial Watch’s complaint, which was filed in federal court.
Despite Judicial Watch’s focus on Los Angeles County, the ramifications of the settlement have been felt statewide. California’s Secretary of State updated the “California NVRA Manual” to reflect Husted’s post-notice removal mandate. The manual now instructs local election officials that, “[i]f a voter fails to return an address confirmation notice[;] . . . does not offer or appear to vote in any election within the next two federal general election cycles following the mailing of that notice; and does not notify a county elections official of continued residency within California, the county elections official must update the voter’s registration record to reflect that the registration is cancelled.” California election law was also revised to reflect this change. Furthermore, this tale is not unique to California – similar inactive voter purges have occurred in other states. Nationwide, 17 million voter registrations were nixed between 2016 and 2018, according to the Brennan Center for Justice.
Judicial Watch asserts that these efforts limit the potential for voter impersonation and fraud. According to their district court complaint, “[i]nactive registrations are also inherently vulnerable to abuse by voters who plan to fraudulently double-vote in two different jurisdictions on the same election day.” Eligible voters, they emphasize, have nothing to fear. Echoing this sentiment, California’s Secretary of State, speaking about the settlement, remarked that there will not be “unnecessary removal of active and eligible voters. Safeguards remain in place to ensure . . . procedures are followed before canceling any voter registration records.”
Critics are not so confident. They see a broader effort of voter disenfranchisement that disproportionately strikes the registrations of Democrats and people of color. Amici reported to the Husted court, which was examining a notice and removal program in Ohio, that voter purge efforts “disproportionately affected minority, low-income, disabled, and veteran voters.” In Georgia, court proceedings led to 20,000 people being returned to the active list after incorrectly being labeled as inactive. In Ohio and Wisconsin, voting rights groups identified tens of thousands of people who were incorrectly set to be removed. Furthermore, critics note that experts have not found evidence of substantial voter fraud in the United States.
Registration was not a requirement to vote at the country’s founding. After the Reconstruction, voter registration laws, including purges of registrants who missed an election, became a tool to suppress minority and low-income votes. Justice Sotomayor’s Husted dissent noted that Congress enacted the NVRA with these harms in mind. She bemoaned the majority for “ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against.” While agreeing that states must make reasonable efforts to keep voter registration lists clean, Justice Sotomayor cautioned that such efforts must be conducted in a manner that will not cause poor and illiterate voters from being required to re-register.