This DOJ Letter May Be More Alarming Than Trump Commission’s Request For Voter Data

“I really worry that at the end of the day there’s gonna be a lot of noise about this Kobach-Pence commission and people will miss the enforcement efforts of DOJ.”

Former Department of Justice officials and voting advocates are seriously alarmed over a DOJ letter sent to states last week that they say could signal a forthcoming effort to kick people off voter rolls. This comes as national attention focuses on several states blocking a request for voter information from President Donald Trump’s commission to investigate voting fraud, which does occur, but is not a widespread problem.

The DOJ sent the letter to 44 states last Wednesday, the same day the Presidential Advisory Commission on Election Integrity sent a letter controversially requesting personal voter information. The DOJ letter requests that election officials respond by detailing their compliance with a section of the National Voter Registration Act of 1993 (NVRA), which covers 44 states and was enacted to help people register to vote, but also specifies when voters may be kicked off the rolls. 

Several experts said it’s difficult not to see the DOJ letter in connection with the commission’s letter as part of a multipronged effort to restrict voting rights. 

Former Justice Department officials say that while there’s nothing notable about seeking information about compliance with the NVRA, it is unusual for the department to send out such a broad inquiry to so many states seeking information. Such a wide probe could signal the department is broadly fishing for cases of non-compliance to bring suits aimed at purging the voter rolls.

“These two letters, sent on the same day, are highly suspect, and seem to confirm that the Trump administration is laying the groundwork to suppress the right to vote,” said Vanita Gupta, the CEO of the Leadership Conference on Civil and Human Rights and former head of DOJ’s civil rights division under President Barack Obama. “It is not normal for the Department of Justice to ask for voting data from all states covered by the National Voter Registration Act. It’s likely that this is instead the beginning of an effort to force unwarranted voter purges.”

These two letters, sent on the same day, are highly suspect, and seem to confirm that the Trump administration is laying the groundwork to suppress the right to vote. Vanita Gupta, head of DOJ’s civil rights division under President Barack Obama.

“If this went to any individual states, I don’t think anybody would’ve blinked twice,” said Justin Levitt, a professor at Loyola Law School who served as deputy assistant attorney general in the civil rights division in the Obama administration. The letter asked for public information that was uncontroversial, he added, but what made the letter “really weird” was that it was sent out to so many states.

“The Department of Justice does investigations all the time, but those are usually based on individualized predicates to believe that there’s a problem in a given area, in a given jurisdiction. And I’m not aware of a similar letter being sent to blanket jurisdictions across the country,” he said.

The NVRA requires states to “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists.” If a state wants to act to remove a voter from its rolls, it must first send a broad, nondiscriminatory solicitation seeking a confirmation of address to those registered. If a person fails to respond, they can only be removed from the rolls if they don’t vote in the next two consecutive federal elections.

In the past, voting rights groups have used the legislation as a powerful tool to try to prevent states from kicking eligible voters off their rolls. The Supreme Court will consider a case next term dealing with whether a voter removal process used in Ohio is violating the NVRA.

The DOJ letter asks the states covered by the NVRA to provide information on the processes they use to remove people from the voting lists and the people authorized to implement them. It also asks for data from recent years on the number of voters removed from the voting rolls and the reasons they were removed.

“When you see DOJ send a bunch of letters like this requesting information about compliance with the law, that’s usually a sign that they’re kicking an enforcement campaign into gear,” Sam Bagenstos, who served as the principal deputy assistant attorney general for civil rights from 2009 until 2011. “It looks like what they’re doing is they’re laying the groundwork to file lawsuits against states that, in their view, aren’t kicking enough people off of the rolls.”

“It looks like what they’re doing is they’re laying the groundwork to file lawsuits against states that, in their view, aren’t kicking enough people off of the rolls.” Sam Bagenstos, former principal deputy assistant attorney general for civil rights

Devin O’Malley, a Justice Department spokesman, said the department’s review of list maintenance procedures hadn’t been done in many years.

“The Department of Justice is committed to free and fair elections for all Americans. Congress enacted the NVRA’s list-maintenance provisions specifically to advance that goal. The Department had not conducted a review of state and local list-maintenance activities under the NVRA for many years,” he said in a statement. “The Department looks forward to working with state and local election officials to facilitate appropriate list-maintenance activities toward our common goal of free and fair elections for all voters.”

A DOJ official also said the department had not coordinated with the separate election integrity commission.

But Bagenstos said he was skeptical the two efforts weren’t related and were part of a multifaceted approach by the Trump administration to make voting more difficult.

“What an amazing coincidence that these letters went out on the same day. This administration is, without even knowing it, doing parallel efforts to try to trim the voting roll. I don’t buy it,” he said. He added that the voter fraud commission led by Vice President Mike Pence and Kansas Secretary of State Kris Kobach was trying to create a nationwide database of voter registration that would paint a picture of potential voter fraud that could then be used to justify more restrictive voting laws.

David Becker, the executive director of the Center for Election Innovation and a former DOJ lawyer, agrees.

“In the quarter-century since passage of the NVRA, of which I spent seven years as a DOJ lawyer enforcing the NVRA, among other laws, I do not know of the DOJ conducting any other broad-based fishing expedition into list maintenance compliance, whether during Democratic or Republican administrations,” he wrote in a Thursday op-ed. Becker also noted it was strange the DOJ letter only focused on voter list maintenance procedures and did not want to examine compliance with parts of the law aimed at making it easier to vote. 

Allegra Chapman, director of voting and elections at nonprofit group Common Cause, said she found it striking the DOJ was uninterested in the aspect of the law that provided voter registration opportunities at public assistance agencies. 

“To me, that indicates this agency just has zero interest in ensuring the rights of poor Americans too and ensuring that, you know, people across the income divide are equally being given the registration services that they’re entitled to under federal law,” she said in an interview.

While Bagenstos said he was alarmed by both the Kobach and DOJ requests, he believed the department could be a much more potent tool in curbing access to the ballot box.

“On Kris Kobach’s work on this commission, they’re going to get a lot of push-back, they’ve already gotten some pushback from states. It’s all been sort of ham-handed,” he said. “They don’t really have staff, so that’s all really amateurish and it might not go anywhere. But the folks at DOJ know what they’re doing and I really worry that at the end of the day there’s gonna be a lot of noise about this Kobach-Pence commission and people will miss the enforcement efforts of DOJ.”

“DOJ, at the end of the day, is more likely to be successful as a tool in this process than is this commission, so that’s why I worry more about them,” he said.

Read the DOJ letter below:

DOJ NVRA letter by Sam Levine on Scribd