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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Verifying Voter Registration Lists, Part 2

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March 29, 2005

In the previous Weekly Comment, I sketched a two-tiered system by which newly-registered voters could verify that their registrations were accurately included in their state's official voter registration list. The two different sets of procedures, each with its own distinct timetable, correspond to two separate deadlines by which voters must submit their registration forms: an early deadline and a second, later one. If voters submit their forms by 60 days before Election Day (the early deadline), then the verification process includes personal notification to the voters from the state of any problems with the registration form, as well as evidentiary hearings if the state disputes the registrant's eligibility to vote. By contrast, if the voters submit their registration forms by the late date, then their ability to verify the accuracy of the state's official list depends on their taking the initiative - or interest groups taking the initiative on their behalf - to examine a publicly accessible copy of the list, and any dispute about a late registrant's eligibility to vote would be resolved on a documentary record, without the kind of evidentiary hearing available to the early registrant.

It remains necessary to consider what procedures and timetables should apply when other citizens or interest groups wish to challenge the inclusion of names on the state's official voter registration list. The effort of the Ohio Republican Party in 2004 to challenge approximately 35,000 new registrations in the state exposed the inadequacy of the state's procedures for handling such challenges (an inadequacy shared by other states, if confronted with comparable challenges). Yet there needs to be some mechanism by which citizens who believe registrations are fraudulent or otherwise improper can present their objections, with a concomitant fair opportunity for the challenged registrants to defend their eligibility to vote.

An added advantage of a two-tiered system of voter registration, with separate early and late deadlines, is that any challenges to early registrants can occur earlier, with procedures that impose a heavy burden on those who challenge registrants that the state already has verified as eligible. By contrast, late registrants may be challenged in more streamlined procedures that are somewhat less favorable to the effort to resist such challenges. The extra protections for early registrants are a fair bonus for the early submission of their forms, which gives officials more time to check their accuracy.

The following are sample schedules for challenges to early and late registrations. They are meant to coincide with the schedules sketched in the previous Weekly Comment. Like those, they are intended to prompt a discussion among election administration officials, policy analysts, and others (including the Century Foundation project of which I am a part). Additional details, particularly concerning the appropriate grounds for challenges (lack of citizenship, under the age of 18, and so forth), would need to be developed before legislation embracing this idea could be adopted. Nonetheless, as before, these schedules may provide a useful starting point in considering what reforms should replace the evidently inadequate procedures that currently exist.

Again, these schedules are based on 2006 dates for illustration. The notation "E-45" refers to 45 days before Election Day. Each schedule is subdivided into two parts, the first concerning names that the state has added to its official list based on its initial intake of registration forms, the second concerning names that the state has added to its list after the registrants themselves have already objected to being omitted from the list and the state, having reviewed these objections, have resolved these cases in favor of inclusion.

Challenges to Early-Deadline Registrants

Challenges to Initial Posting of Names

Day Date Election Day minus X days Event
Saturday Sept. 23 E–45 state must publish voter list on web site
Tuesday Oct. 3 E–35 deadline for all challenges to names on list
Tuesday Oct. 10 E–28 state dismisses challenges or schedules hearings to resolve voter eligibility [schedule for these hearings is the same as when early registrant objects to omission from 9/23 list, and state disputes registrant's eligibility]

Challenges to Subsequent Posting of Names

Day Date Election Day minus X days Event
Friday Oct. 13 E–25 state publishes updated list on web site; includes new names from voter-initiated objections to omissions from 9/23 list
Tuesday Oct. 17 E–21 deadline for challenges to new names on 10/13 list
Monday Oct. 23 E–15

state dismisses challenges or schedules expedited hearings in which eligibility is presumed, unless new clear & convincing evidence of ineligibility

Monday Oct. 30 E–8 state completes expedited rulings; registrants have opportunity for expedited appeal if ruled ineligible
Thursday Nov. 2 E–4 state resolves expedited appeals
Friday Nov. 3 E–3 state publishes Verified List on its web site
Tuesday Nov. 6 E–0 Election Day

Challenges to Late-Deadline Registrants

Challenges to Initial Posting of Names

Day Date Election Day minus X days Event
Friday Oct. 13 E–25 state publishes updated list on its web site; includes initial posting of late registrants [this list is the same as the one that includes new names of early registrants initially omitted from 9/23 list but then verified; different procedures apply to challenges of verified early registrants]
Wednesday Oct. 18 E–20 deadline for challenges to late registrants on list
Saturday Oct. 28 E–10 state resolves challenges; limited opportunity to appeal for registrants ruled ineligible
Thursday Nov. 2 E–5 state resolves appeals
Friday Nov. 3 E–4 state publishes Verified List on its web site
Tuesday Nov. 6 E–0 Election Day

Challenges to Subsequent Posting of Names

Day Date Election Day minus X days Event
Tuesday Oct. 24 E–14 state publishes updated list; includes new names of late registrants omitted from 10/13 list but added after objections [see 2d verification schedule]
Friday Oct. 27 E–11 deadline for challenges to new names on 10/24 list
Thursday Nov. 2 E–5 state resolves challenges using presumption of eligibility; no opportunity to appeal rulings
Friday Nov. 3 E–4 state publishes Verified List on its web site
Tuesday Nov. 6 E–0 Election Day

These four timetables reflect a combination of two main considerations: (a) whether the registration met the early or late deadline, and (b) whether the state already has resolved a dispute over the registrant's eligibility, in response to the registrant's objection to being omitted from the state's official list. The procedures are most favorable to the early registrant whom the state already has verified as eligible: in this scenario, the challenger must overcome a strong presumption of eligibility, based on new evidence (not previously available to the state) that presents a clear and convincing showing of ineligibility, and the registrant is entitled to an expedited hearing to present rebuttal evidence, as well as an expedited appeal in the event of an adverse ruling after the hearing. By comparison, the late registrant whom the state already has verified as eligible is entitled to the same strong presumption of eligibility when the state considers the subsequent challenge - with the challenger facing the same obligation to supply new and clear and convincing evidence of ineligibility - but there is insufficient time to guarantee appeals in those cases where the state finds that the challengers have met their heavy burden of proof.

Regarding challenges to the initial posting of names, where the state has not verified the eligibility of an omitted registrant in response to an objection, the procedures again favor the early-deadline registrant. In this situation, the challenged early registrant is entitled to the same evidentiary hearing as an early registrant whose omission from the list the state continues to believe is justified. In other words, a dispute might arise either (i) because a challenger sees a name on the initial list of early-deadline registrants, posted 45 days before Election Day (which is September 23 in 2006), and the challenger believes this name should be excluded, or (ii) an early registrant's name was not included on this list and, in response to an objection from this early registrant, the state maintains that the omission was proper. In either case, the registrant is entitled to an evidentiary hearing, to be held between 28 and 14 days before Election Day, in which the issue of eligibility to vote is resolved, with the registrant entitled to an appeal occurring between 14 and 7 days of the election if the hearing results in a ruling of ineligibility.

The corresponding procedures for challenges to late registrants, whose names appear on the state's updated list posted 25 days before Election Day (October 13 in 2006), is much less favorable for the registrants. If a challenge of this kind is resolved against the registrant, there is only a limited opportunity for an appeal (to be conducted within 10 to 5 days before Election Day), based on the documentary record available to the state, without the possibility for an evidentiary hearing. In this respect, the comparative disadvantage to the late registrant is similar to the one that applies when the registrant objects to being omitted from this list. Simply put, if the state determines that the late registrant is ineligible to vote, there can be only limited review of this determination, in contrast to the more robust evidentiary hearing available to the early registrant who is ruled ineligible. But this comparative procedural disadvantage is the inevitable price of submitting one's registration form by the later rather than earlier deadline.

If we consider these four timetables as a whole, we can see that they set up a sequence of deadlines by which challenges must be made, as names of new registrants are added to the state's official list of registered voters. The state posts the names of early-deadline registrants 45 days before Election Day, and challenges to these names must be submitted within the next 10 days, or 35 days before Election Day. Then, 25 days before Election Day, the state posts both additional names of early registrants (who have been verified in response to objections after initially being omitted from the E-45 list) and the names of late-deadline registrants. Challenges to the additional names of early registrants must be filed within 21 days before Election Day (only four days later), and challenges to the names of late-deadline registrants within 20 days (the extra day reflecting the greater hurdle to challenging early registrants already verified by the state). Finally, 14 days before Election Day, the state adds to its list the names of late-deadline registrants omitted from the previous (E-25) list but subsequently verified after the registrant objected. With respect to these additional names, challenges must be filed within the next 3 days, 11 days before the election. This staggered sequencing of challenges enables the state to resolve them more efficiently, without all challenges to new registrants being filed by a single deadline.

Moreover, with respect to previous voters (who are not new registrants), the state should establish even earlier deadlines for challenging their continued inclusion on the state's official list. For example, 90 days before the election, the state could post its list of all registered voters as of that date, and require challenges to any names on that list to be submitted within 75 days before the Election Day. By resolving these challenges ahead of time, the state frees up its administrative process to handle any challenges arising from voters who comply with the early-date deadline for new registrations (60 days before Election Day). Likewise, the state could complete its own purges of preexisting lists by 90 days before the election, so that disputes over these purges could also be resolved in advance.

In sum, an overarching goal in reforming the process of verifying voter registration lists should be to have as much of this verification occur as early as possible before Election Day. The creation of a two-track system of early-deadline and late-deadline registrations would help accomplish this objection. With respect to both the procedures by which the registrants themselves verify that their forms were processed accurately and the procedures by which others can challenge new registrations they deem improper, the bifurcation of the registration deadline enables early registrants to receive more procedural protections. The result is a system with both greater fairness and accuracy.