As we approach the 2024 election, states across the country are removing thousands of noncitizens from their voter rolls.
Yet amid a surge of millions of immigrants across our borders, Democrats seem intent not only on undermining these state-led efforts, and leaving the election system vulnerable to potentially unprecedented noncitizen participation, but on threatening those acting to protect our republic from foreign election interference.
The Biden-Harris administration has also led opposition to the Safeguard American Voter Eligibility (SAVE) Act, requiring that voters provide documentary proof of citizenship, and enacted Executive Order 14019, under which federal authorities are allegedly working to register and mobilize Democrat-leaning voters, including even criminal illegal aliens.
The Justice Department’s (DOJ) recent guidance, trumpeted by the administration’s progressive allies, addresses “limits on when and how jurisdictions may remove voters from their voter lists.” Three aspects of the guidance are problematic.
Failing to Give Guidance on Preventing Illegal Voting
The first is that the DOJ feels compelled to emphasize prohibitions on state efforts to remove ineligible voters — just days away from the earliest start of early voting — rather than encouraging states to avail themselves of all resources necessary to identify ineligible voters and reminding states of their responsibility to remove them. The implication is that the nation’s chief law enforcement agency is more concerned with policing the efforts of government officials to clean the voter rolls than that the voter rolls may be dirty — this despite states having found ample evidence of impropriety.
They also lack guidance. “These instructions for states focus on voter registration list maintenance and somehow fail … to provide guidance on preventing noncitizen voting,” Sen. Mike Lee, R-Utah, said in an interview.
Former Justice Department Voting Section official J. Christian Adams, now serving as president and general counsel of the Public Interest Legal Foundation, similarly observed that the guidance “doesn’t address at all what would constitute a violation of the law for FAILING to have a list maintenance program that is effective.”
Chilling Effect
The DOJ’s decision to issue such guidance also suggests it believes states are being too vigorous in their voter roll maintenance efforts, and that the department is scrutinizing those efforts.
The second problematic aspect of the guidance is its likely chilling effect not only on states but on third-party election integrity watchdogs. The guidance notes that certain list maintenance activities may violate the National Voter Registration Act of 1993 (NVRA), including:
comparing voter files to outdated or inaccurate records or databases, taking action that erroneously affects a particular class of voters (such as newly naturalized citizens), or matching records based solely on first name, last name, and date of birth.
“The prohibitions of the NVRA extend to any list maintenance activity based on third-party submissions,” the guidance unsubtly continues.
The NVRA is mostly silent on what legitimate list maintenance practices consist of, leaving prescriptions largely to the states. The guidance leaves unclear what constitutes an outdated or inaccurate record or database in the DOJ’s eyes.
If an election challenge is brought in a state against 1,000 individuals credibly suspected of being noncitizens, and 10 people are inaccurately flagged who share some similar characteristic, would that represent an illegal action “erroneously affect[ing] a particular class of voters?”
An accompanying fact sheet adds that “lodging discriminatory voter challenges to voter eligibility or lodging frivolous challenges without a good faith basis” may violate the NVRA, whether conducted by public or private actors. This language could prove precarious for election integrity watchdogs.
Assistant Attorney General for the Civil Rights Division Kristen Clarke has called having to show one’s birthplace and proof of citizenship to vote “discriminatory.” Chances are this administration’s definition of “discriminatory” as it relates to voter challenges is not the same as yours.
And how does a DOJ that has turned former President Donald Trump’s challenges to the 2020 election into the civil rights-violating election interference conspiracy of the century define a “frivolous” challenge? Why would we believe the department is fit to serve as an arbiter of “good faith?” This is a department the attorney general had to promise wouldn’t be used as a “political weapon.” Is the guidance intended as a threat to those who promote election integrity?
As Democracy Docket — a publication founded by preeminent progressive election litigator Marc Elias — editorializes, the “guidance comes amid a surge of challenges to state and county voter rolls and maintenance procedures, mostly from right-wing groups attempting to disenfranchise millions of voters right before the November election.”
No doubt the Biden-Harris DOJ sees things the same way — that efforts to clean the voter rolls equal voter “suppression” rather than an effort to ensure Americans’ votes are not illegally diluted by unlawfully cast ones. The guidance is likely aimed at the same “right-wing” groups Democracy Docket identifies — along with like-minded governmental authorities.
“The Department of Justice is clearly trying to intimidate state governments into allowing voter fraud,” amid a string of removals of noncitizens “embarrassing Democrats, who insist that illegal voting doesn’t happen,” Sen. Lee said.
Large Loophole
The third problematic aspect of the guidance is what DOJ calls the “90-day quiet period before federal elections” regarding voter list maintenance practices. According to the guidance, under the NVRA, any “systematic” removal of ineligible voters must be completed no later than 90 days before a federal election. The implication is that if a surge of noncitizens were registered to vote 89 days from an election, it would be impossible to remove them from the rolls in any “systematic” effort.
It’s unclear to what extent this guidance or the law undergirding it bears on litigation over voter roll cleanup efforts in places like Fulton County, Georgia, and Arizona.
“It’s pretty easy to get added to the voter rolls,” while “it’s nearly impossible to get removed,” Rep. Russell Fry, R-S.C., asserted during a recent House Judiciary Committee hearing on noncitizen voting. The DOJ seems intent on preserving that fundamental flaw.
The DOJ guidance aligns with broader efforts, about which I recently reported at RealClearInvestigations, of the left to normalize noncitizens in American life and legitimize their incorporation into our society.
Sen. Lee remains adamant that “Congress should pass the SAVE Act and ensure only Americans vote in American elections.”
The Republican-led House is set to vote on the bill on Wednesday and to attach it to the continuing resolution to fund the government.