Democracy Decoded: Season 4, Episode 2 Transcript
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Danielle Lang: What we need is folks who get registered, check their registration status, and vote. Because by voting, we can make our voices heard and we can make sure election officials know that we want our voter systems to work better and to work for us, the American people.
Simone Leeper: I'm Simone Leeper, and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable, and inclusive democracy. I work for a nonpartisan organization called Campaign Legal Center. CLC advocates for every eligible voter in America to be able to meaningfully participate in the democratic process. This season, we're looking squarely at elections and the tried and tested systems that ensure our elections are safe, secure, and accurate.
For this episode, we're changing up our format a little bit. Alongside our regular episodes this season, we're also bringing you up-to-the-minute interviews with election law experts to help you better understand some of the most important issues that are impacting our elections as we speak. Today, we'll be focusing on issues involving voter registration.
For voters, the first step towards casting a ballot is registering to vote. Voter registration, like elections themselves, is handled locally by counties, under rules set state by state. The United States doesn't maintain a national voter registry, though the federal government does provide money and technical resources to help register voters.
You might assume that federal, state, and county governments would be aligned in at least one simple goal, getting Americans registered to vote. But this summer, we've seen huge fights over voter registration, voters versus officials, party versus state, state versus county, states versus federal government. At issue in all of these disputes, voter registration.
I'm here today with Danielle Lang, my CLC colleague. Danielle is a civil rights attorney and our Senior Director of Voting Rights. Welcome, Danielle, and thanks for talking with us about this important topic, especially with election day only weeks away.
Lang: I'm glad to be here. Thank you so much, Simone.
Leeper: Okay, so first things first. Can you help our listeners understand the current landscape around attacks on voter registration? What kind of attacks are we seeing? And how do they impact Americans' freedom to vote?
Lang: Absolutely. So let's start with the basics, which is understanding where voter registration fits in with the voting process. We know if we get more folks registered, we'll have more folks participating. A lot of states still have deadlines that are well earlier than election day. And we all know what procrastination looks like, we all know that many voters don't tune in to elections until the coming weeks before an election when sometimes in some states it's too late.
I like to think about a tax on voter registration in at least two buckets, and the two buckets are up at the front end. How do we get registered? And then at the back end, how do we make sure we stay registered so that we're actually on the rolls when we show up at the polls on election day?
On that front end, we're seeing registration in many states get easier. That's great, but with modern technology, there's no reason to have a 30-day waiting period for a voter registration deadline. That might've made sense in 1993 when they passed the National Voter Registration Act because books closing was a complicated process. But in today's age, we can do same-day election registration and lots of states are doing that. We can do online voter registration, we can do voter registration at a whole bunch of different agencies so that when you interact with not just your driver's license agency, but with a Medicaid office or a disability office, so you can also get registered to vote.
But we're also seeing a lot of states that are moving in the opposite direction, and that's what's really heartbreaking. So while some states are making it easier to register to vote, other states are digging in their heels and making it harder. What does that look like? It makes it look like a bureaucracy. “Let me see your birth certificate. Let me see your utility bill. Turn in a copy of this. Turn in a copy of that. You didn't fill out this unimportant field and we're going to reject you for that reason.” All of those types of barriers can make voter registration really difficult.
We're also seeing folks get denied based on outdated data. So in Georgia, when you register to vote, Georgia will go look at the driver's license agency to see if they have anything to say about your citizenship. But of course, lots of people who are naturalized citizens get their driver's license while they're green card holders and then they go register to vote on the day they naturalize and then they end up getting bounced back and having their voter registration rejected, and that can be really demoralizing.
The other thing on the front end that we're really concerned about now are attacks on the groups that try to make voter registration easier. So if you think about during election season, you walk outside of the grocery store and you see somebody tabling and saying, "Hey, are you registered to vote? Let me help you register to vote." I think of this as a kind of fundamental civic participation activity at the heart of the First Amendment, at the heart of election season. I always know that it's time for an upcoming election when I start seeing those tables in my community.
But rather than rewarding the kind of volunteers who spend their Saturdays doing this, there are a lot of states that are regulating this activity to the point of criminalization. Saying, "If you don't turn in these forms within a certain number of days, if you don't do this specific kind of training, if you don't pre-register before you do a table event, you could end up with these heavy fines or even with jail time," just for trying to do your civic duty. And that kind of penalization of civic engagement organizations like the League of Women Voters, not only trenches on the rights of the League of Women Voters to do that activity, but also on the voters that they're trying to help.
And then you get to the back end. Okay, finally make it through all of these hurdles, all of the bureaucracy that voter registration can entail. In some places, you show up on election day, what if your name isn't on the rolls anymore? That can happen a couple of different ways. States are always doing the work of maintaining their rolls. Somebody dies, they got to remove that person from the rolls. Somebody moves across the country, you have to remove that person from the rolls.
But doing that in a way that is responsible and that protects eligible voters is crucial. And pretty quickly, voter list maintenance, which is ordinary and important, can turn into voter purges that are harmful to eligible voters, where you see thousands of voters being removed without care to whether or not these folks are actually ineligible. And that's one of those things that we're really concerned about on the back end.
Leeper: So you just defined voter purges for our listeners. Can you also break down for us what exactly a mass challenge is? How those things interact and maybe ways in which they aren't the same?
Lang: So when we talk about a voter purge, we're typically talking about actions that originate with election officials. Election officials have a job to do, which is to keep the voter lists up to date. That's going to involve regular maintenance, removing people who have moved, removing people who have passed away, removing folks who have become ineligible, unfortunately, because of a felony conviction. That's an election officials job.
I call it a voter purge when election officials go beyond responsible list maintenance and start to use unreliable data, stale data, aggressive tactics to remove people from the rolls. But that often end up sweeping in a whole lot of eligible voters who then show up to the polls on election day and find themselves not registered to vote.
Mass challenges are different in that they don't originate from election officials. There is a process available in many states for people outside the election process, for other citizens to challenge voters who are on the voter registration list. That is not supposed to be the typical way that we maintain our voter registration lists. That's the job of election officials.
I think of these challenge laws as intended to be the backstop for the idiosyncratic experience of a neighbor knows about somebody who's registered to vote who really shouldn't be for a specific reason, and they have personal knowledge about that. It gives a regulated opportunity for someone to be challenged. Unfortunately, we're seeing these processes abused in what we call mass challenges. So rather than it being a challenge based on the idiosyncratic knowledge of one voter about another voter, you're seeing vigilante folks who don't trust their election officials instead trying to do their job, using mass data, commercial data to try to find people that they believe are ineligible on the voter registration lists and then challenging thousands of voters on this basis.
That data is almost always flawed, it's almost always unreliable, and it's sometimes discriminatory. We've actually had folks who've run these mass challenge programs before, say they're looking at specific neighborhoods based on the racial makeup of those neighborhoods. They're looking at surnames and making assumptions about people's citizenship based solely on having a Latino surname, for example.
Typically, these mass challenges are not going to be accepted. We have good safeguards in most places. Election officials are going to reject them, but that's really burdensome on those election officials to sift through thousands of challenges. And of course, what we're really concerned about is when election officials, perhaps exhausted by all of these challenges, start accepting some and kicking out voters by the thousands. These are voters who are going to show up on election day and perhaps find themselves out of luck.
If I'm a voter, I could be purged by an election official. I could also be challenged by somebody else. And if an election official accepts that challenge, I could get kicked off the rolls and end up in the same place I would be if I had been removed through a voter purge.
Leeper: Generally, in what ways are voter purges being used by bad actors in this election cycle?
Lang: There's a couple of goals when it comes to these mass challenges. One is to remove people from the rolls, and I think to do so in a discriminatory way. We've seen evidence, in fact, sometimes really direct evidence that folks that are engaged in these mass challenges are targeting folks based on where they live, the color of their skin, their surname.
I think equally importantly, the goals of these mass challenges are to muck up the election process and create what they think looks like chaos. So if they manage to remove a lot of eligible voters from the rolls, you can imagine that election day doesn't look very smooth at all. In fact, you have a lot of upset Americans, angry that they're not appearing on the rolls, that they're being asked to vote provisional ballots. That's going to create an atmosphere where folks are more concerned about the legitimacy of an election.
These mass challenges really do muck up election officials' work. It takes an incredible amount of work to run through thousands of challenges and figure out if any of these have any legitimacy at all. Election officials don't always have the tools they need to throw out the mass challenges wholesale or think that they can't do that. So I think equal to the goal of actually removing folks from the rolls is the goal of creating an atmosphere of chaos around our elections.
Leeper: So whether it comes from the election officials and is a streamlined voter purge or whether it comes from a mass challenge that is then accepted by election officials, what is the result for the voter? What happens once that voter is purged from the rolls?
Lang: Most generally, the problem is that a voter shows up on election day to cast a ballot and they're told that they're no longer on the voter registration list and therefore cannot cast a regular ballot. Now, anyone who alleges that that's wrong, that they should not have been removed from the rolls and that they should be on the voter registration list is entitled to vote what we call a provisional ballot. The ballot that they can fill out and turn in, and then the election officials after election day have to go back and figure out whether or not that person should have been removed or not. Unfortunately, many of those provisional ballots won't be counted though because as long as somebody was properly removed under the right procedures, their ballot won't be counted even if they are, in fact, an eligible, qualified voter.
Leeper: So that would result in the voter losing their right to vote in that election even though they lawfully should have never lost that registration. Is that right?
Lang: That's right. In that, that person is a qualified voter who is registered to vote, didn't want to get deregistered to vote, and nonetheless, because of procedures that happened outside of them, ended up off the rolls and will not be able to cast a ballot that will be counted.
Leeper: Do voters have a chance to re-register in time for the election if they've been purged from the rolls?
Lang: If you are removed from the rolls, you should receive a notification and an opportunity to re-register. Even then, that's a risky proposition. Not everybody gets their mail, not everybody opens their mail, but that is how the process at least should work.
And federal law has a really important safeguard meant to make sure that voters have enough time to re-register, and that's what we call the quiet period. The 90 days before an election, no one is supposed to engage in systematic voter removal. So you can remove people that you think moved, if you follow the right procedures, 100 before an election, 120 days before an election. But in those 90 days before an election, systematic removal of voters needs to stop so that no one finds themselves in a place where they're removed from the rolls without enough time to get re-registered. So one of my jobs is to make sure that states and folks engaged in these mass challenges are respecting that quiet period.
Leeper: Turning back to mass challenges, you were saying that these are not election officials, these are people that have engaged in this vigilante act of challenging, en masse, registrations of voters. Is that legal?
Lang: It's a great question. Simone, I wish I had an easy answer for you. The answer is sometimes yes, and sometimes no, as too often lawyers' answers maybe are.
And what do I mean by that? So there are processes available in a variety of states to engage in challenges. And if you have personal knowledge that someone's not properly registered to vote, you have a right to make a challenge. But that's not what most of these mass challenges look like. They're not about personal knowledge, they're about these kind of systematic and shoddy database matching systems often used to challenge thousands of voters. That is often not lawful. It often does not follow the rules of states for mass challenges. And in fact, depending on the facts of the case, it could qualify as voter intimidation and voter harassment that are both unlawful under both state and federal law.
Leeper: And how could states update their laws to ensure that mass challenge laws that exist aren't being improperly implemented?
Lang: There are two really important mechanisms here that every state should have. One is a requirement about the burden on a challenger, which means that they should only be able to come forward with a challenge if they have that kind of personal information to show that a voter is ineligible. And the burden should be on the challenger to come forward with clear and convincing evidence of ineligibility. These types of mass challenges would never succeed under that kind of standard.
And two, we need to give election officials the tools to throw out these types of challenges when they're done en masse the way we're seeing now. So rather than going through 10, 000 challenges one by one by one, state laws need to make sure that election officials have the tool to spot an improper mass challenge and reject all of them.
Leeper: Thank you for outlining all of that. You, in addition to tracking these general trends, I know have been following some specific intense fights about voter registration status in various states over the whole summer. Can you tell us about the situation in Arizona that has made its way all the way up to the US Supreme Court?
Lang: Absolutely. The case in Arizona is called Mi Familia Vota v. Fontes. And the case started in 2022, or depending on how you think about it, maybe 2004. But it is about a series of laws that were passed in 2022 by the Arizona legislature in the wake of the 2020 election that really crack down on voter registration and make voter registration in Arizona potentially the most burdensome registration process in the country.
The reason why I say that in some ways this story starts in 2004 is that for decades, Arizona has been trying to impose what they call a documentary proof of citizenship requirement for voter registration that is not allowed under federal law. So when they passed this law in 2004, there was extensive litigation, it went to the Supreme Court then over a decade ago. The Supreme Court said the National Voter Registration Act, a federal law, just simply does not allow them to require this kind of documentation for federal elections. Why? Because Congress passed the National Voter Registration Act for the purpose of making registration easy, and these kind of documentation requirements don't allow that.
But unhappy with that ruling in 2022, the Arizona legislature tried to re-up this documentation requirement for federal elections, this time saying that anyone who doesn't provide this additional documentation beyond an attestation of citizenship has to, one, vote in person, not by mail, even though mail voting is the most popular method in the state of Arizona. And two, cannot vote in the presidential election.
It also added a whole bunch of other restrictions on voter registration activity, much of which they knew would be immediately challenged, including a new documentation requirement. Not just citizenship, you also need to provide proof of your residency through documentation. Nowhere in that law did they discuss how people with non- standard addresses, people who are living on reservations, people who live in rural areas are supposed to provide this kind of documentation of residency.
They also said you have to provide your birthplace on your voter registration form. Where you were born doesn't decide whether or not you can vote in our elections. Many of us were born in the United States and can vote in our elections. Many of us weren't and can also vote in our elections because we are a country of immigrants with many naturalized citizens that are eligible to vote and have the same right to a voice in our government as any other citizen.
So the challenges to those voter registration laws have been ongoing for the past couple of years. We have been overwhelmingly successful in beating those restrictions back in the trial court. And at the very last minute, with less than 90 or so days left before the election, some of the defendants in this case ran to the Supreme Court for what they call emergency relief, asking for these laws to be put in effect for the very first time in the months running up to an election.
Leeper: Turning now to some other actions by a specific attorney general. Texas's attorney general has been, we could say quite active in challenging the status of certain voters in Texas. What can you tell us about the voter purges happening in that state? And could you give us a little bit of a history about whether or not we've seen similar actions in Texas before?
Lang: Recently, Governor Abbott of Texas, accompanied by the Attorney General, Ken Paxton, made an announcement about removal of over a million Texans from the rolls in recent years. Two things are going on there that I want listeners to know. One is that a lot of that is actually not that unusual. It is perfectly fine. And that a million might sound like a really big number and certainly the goal of Governor Abbott and Ken Paxton is to make that sound like a really big scary number, like they're stripping people from the rolls, but most of those people are just people who've moved, people who've died. Lots of people live in the state of Texas. Lots of them move in and out of the state of Texas. So some of this is just bluster, I think trying to live up to the current message that we need to clean up our rolls, when, in fact, it's ordinary list maintenance activity.
That being said, there are some concerning elements. One area that I'm particularly concerned about is targeting of naturalized citizens for removal. Back in 2019, the attorney general, with the secretary of state and the governor, announced that they'd found upwards of 100, 000 non-citizens on the rolls, they'd come up with this brilliant idea to check the entire voter registration roll of the state of Texas against the entire driver's license database and flag anyone who had any indication of non-citizenship in the driver's license database.
That might sound reasonable for just a moment until you remember that driver's licenses in Texas last for a long time, I think upwards of 10 years. And as you can imagine, hundreds of thousands of people naturalized during that period in the state of Texas. So what this purge did was not find non-citizens. Extensive reporting showed a botched program where naturalized citizens were expertly targeted.
We sued, we won, we stopped the process. In fact, the state of Texas folded on that process. So when we see the governor again raising numbers of thousands of folks that he alleges are non-citizens on the rolls, we're pretty concerned. So that's something we're looking into to make sure that they're following the settlement agreement in our case.
Texas is a place where we're also seeing some mass challenges, and so we want to be really careful. We've seen some reports that these mass challenges are actually targeting military families who are stationed outside of the state of Texas, but are Texas residents. So, of course, we're really concerned about making sure that those folks maintain their right to vote.
Leeper: Turning a little bit higher level on voter registration now, is there a solution for how states and counties can modernize voter registration so that it's more accessible?
Lang: Yes, absolutely. Voter registration in 2024 can be really easy. There are a lot of solutions here, solutions that actually make our elections more secure too. One of them is what we call automatic voter registration. As Americans, we're engaging with a lot of government agencies on a regular basis. But whether it be the motor vehicles agency or the agency where you're getting your unemployment benefits from, or you're getting healthcare through an exchange or through Medicaid or Medicare or a disability check and the list goes on, those are all agencies that are already working with you and they can help you get registered to vote. And we can make that process paper free, automatic. That information goes from that agency office to the election officials all on the back end and doesn't really require any additional work from you, the voter.
The great thing about automatic voter registration is it helps keep the voter rolls clean too, because the next time you engage with an agency and you say, "Hey, I moved," guess what? They can tell the election officials, "Hey, this person moved. Make sure that they're registered to vote in their new address." So this is a process that works well for voters, but it also works well for the system overall.
But what are some other ways that we can catch folks who might not get caught up by automatic voter registration? Same-day registration. Over a dozen states have the ability to show up on election day and get registered to vote and cast your ballot on the same day. Studies show it makes a huge difference in participation levels. Thank goodness most states are there, but we do have holdouts, states like the state of Texas, not interested in providing online voter registration. We need that to change. We need Texas to join the 21st century and get to 2024 and have online voter registration.
So there are a lot of ways in which we can make voter registration very easy, and a lot of places are already doing that, and we just need the rest of the states to follow those best practices.
Leeper: Okay, we have covered a lot of ground today, but is there anything else you'd like to add that we haven't covered?
Lang: I have a simple message for everyone who's listening, which is to get registered, check your voter registration status. Make sure that the people around you get registered, check their status. Make sure the people around you know how to get registered and to check their status. I've hemmed and hawed a good amount today about my frustrations with the voter registration system. We can do better.
But that doesn't mean that voter registration is inaccessible. We have a national voter registration form that you can get online, that every state has to accept and use. You can use that form. Most states, as I mentioned, have online registration. There are great groups like the League of Women Voters, the NAACP, and the list goes on, that are out there willing to help you get registered.
So what we need is folks who get registered, check their registration status and vote. Because by voting, we can make our voices heard and we can make sure election officials know that we want our voter systems to work better and to work for us, the American people.
Leeper: Danielle, thank you so much for being with us today.
Lang: Thank you so much for having me, Simone.
Leeper: At the end of the day, as our conversation with Danielle showed us, our democracy works best when every American can meaningfully participate. But mass challenges to voter eligibility, inaccessible voter registration processes, and other hurdles can deprive voters of this basic American freedom. Voting should be easy and accessible for all citizens, and our laws should promote participation in our democracy and instill trust in our elections. We have strict laws that make sure only US citizens vote, and Americans can rest assured that our elections are secure and accurate.
Special thanks to Danielle Lang for joining us and sharing her expertise during this episode. You can find more background information on the topics discussed in our show notes, along with a full transcript of the episode.
This season of Democracy Decoded is produced by JAR Audio for Campaign Legal Center. CLC is a nonpartisan nonprofit organization that advances democracy through law at the federal, state, and local levels, fighting for every American's right to responsive government, and a fair opportunity to participate in and affect the democratic process. You can learn more about us and support our work at campaignlegal.org.
I'm your host, Simone Leeper. Thanks so much for listening. If you learned something today, we'd really appreciate it if you could leave us a review on your podcast platform of choice. And hit subscribe to get updates as we release new episodes in the coming weeks.
Leading the production for CLC are Casey Atkins, multimedia manager, and Matty Tate-Smith, senior communications manager for elections. This podcast was produced by Sam Eifling and Reaon Ford, edited and mixed by Luke Batiot. Democracy Decoded is a member of The Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at democracygroup.org.