(*This story was updated at 10:52 a.m. on Tuesday 1/11/22 to correct a number of factual errors. An earlier version of this report misstated the name of the individual making comments about a lawsuit seeking to force North Carolina to more regularly maintain its voter rolls. The comments were made by Jason Snead, director of the Honest Elections Project.)
North Carolina’s voter rolls are like a refrigerator that needs to be cleared periodically of rotting milk and other items past their expiration date, according to Jason Snead.
Snead is a lawyer supporting Republican plaintiffs in a lawsuit seeking to force the state to more regularly maintain its voter rolls.
But Jeff Loperfido, an attorney for the Southern Coalition for Social Justice who is representing voting rights groups that intervened in the lawsuit, called the comparison of North Carolina voters to rotting foods “just as frivolous and insulting as the lawsuit” filed against them.
“The only thing that needs to be thrown out are these claims,” he said.
A group of conservative attorneys including Jason Torchinsky and William Consovoy, known for defending former President Donald Trump’s “Big Lie” that voter fraud cost him the 2020 election, filed the lawsuit in North Carolina federal court in September, alleging that the state’s process for maintaining its voter rolls is inadequate.
Torchinsky previously represented Republicans in redistricting battles and former North Carolina Republican Gov. Pat McCrory in his claim that irregularities in the 2016 gubernatorial election cost him the race.
The lawsuit is the latest in a series of legal actions filed by conservative groups claiming states and counties don’t do enough to maintain their voter rolls, weakening the integrity of elections.
But voting rights groups say the lawsuits are disingenuous attempts to make it more difficult for eligible voters, especially non-white voters in growing urban areas, to cast ballots. They claim the lawsuits present burdens for underfunded, understaffed election offices, which are already struggling to conduct elections safely during a pandemic while also battling widespread misinformation about voting.
Reaching out to voters
Currently, North Carolina’s Board of Elections conducts routine voter roll maintenance, as required by state and federal law. The state removes voters who have died, committed a felony, or who have moved out of the state.
The Board also conducts a biennial process of reaching out to voters with whom they haven’t had contact for two federal election cycles, eventually removing them if they do not respond to a notice asking them to confirm their address.
As part of that process, North Carolina removed more than 570,000 names in 2019 and almost 400,000 more in 2021 out of more than 7 million registered voters, according to SCSJ.
But Snead said the process isn’t enough.
“If you aren’t keeping your voter rolls accurate on a timely basis, they very quickly become unreliable, and then it does open the door to fraud as well as opening the door to doubts about the credibility of the election system,” he said.
The Republican plaintiffs argue that the voter registration rolls in some counties near or exceed the voting age population, signifying that the list must include ineligible voters.
Loperfido, senior counsel with the Southern Coalition for Social Justice’s voting rights group, said the conservative attorneys are relying on “back of the envelope mathematics,” comparing numbers of eligible voters in census data with voter registration totals.
“The basis for claiming that the rolls are inflated, when put under scrutiny, has not passed the smell test,” Loperfido said.
He explained that the lawsuits fail to take into account the fact that U.S. citizens frequently move from one address to another and that the list maintenance required under the National Voter Registration Act takes time.
“It isn’t the case that if somebody doesn’t vote after one cycle, the state board can remove that person immediately,” he said. “There are protocols and rules set by the NVRA, which was passed for the purpose of increasing voter registration and limiting some of the aggressive list maintenance voter purge activity that some states were engaging in.”
The question of how aggressively states can purge their voter rolls came before the U.S. Supreme Court, which in June 2018 approved Ohio’s aggressive purge of its voter rolls. The court found that states can kick people off the rolls if they miss a few elections and do not respond to a notice from election officials.
But still, conservative groups have continued to target swing states and counties with legal actions saying their list maintenance doesn’t go far enough. Loperfido explained that they often target urban areas or Democratic strongholds that have larger populations of people of color.
“In the last couple of years especially, we have seen a coordinated effort from the voter integrity groups to file these lawsuits to try to encourage aggressive list maintenance behavior by counties and states boards with similar theories and similar motivations,” he said.
In the North Carolina lawsuit, Torchinsky is representing plaintiffs alongside William Consovoy, who launched his legal career by arguing before the U.S. Supreme Court in Shelby County v. Holder that states across the South no longer needed Justice Department approval to make changes to their voting laws. In a 2013 decision, the court ended up gutting the Voting Rights Act. More recently, Consovoy championed Trump’s false claim that he won the 2020 election
The lawsuit follows one filed by Judicial Watch, a conservative activist group which is one of the most active organizations in filing this type of litigation, against Guilford and Mecklenburg counties in North Carolina over their list maintenance procedures. In August, a North Carolina federal judge recommended the lawsuit be dismissed.
In July 2018, a Kentucky federal court agreed to a settlement in a lawsuit the organization brought against the state board of elections in which the U.S. Department of Justice intervened. Kentucky agreed to develop a program of statewide voter list maintenance that “makes a reasonable effort to remove registrants who have become ineligible due to a change in residence.”
D.C. and Colorado lawsuits
The Public Interest Legal Foundation, a conservative nonprofit, is also actively involved in this type of litigation. In December, the group sued Monica Evans, the director of the District of Columbia Board of Elections, claiming she was not allowing them to inspect voter list maintenance records.
PILF also filed a lawsuit in December against Colorado Secretary of State Jena Griswold claiming she violated federal law by withholding records about voters in the state who are potentially deceased.
Both D.C. and Colorado use the Electronic Registration Information Center, an organization of state election officials, to help maintain their voter rolls. ERIC collects voter registration and motor vehicle licensee data from its member states and keeps its states updated with reports on which voters have moved or died or have duplicate registrations.
“ERIC is being used to hide decisions about who gets to vote and who is removed from the rolls,” PILF President J. Christian Adams said in a statement when the D.C. lawsuit was filed.
Counties and states often choose to settle these lawsuits to avoid costly and lengthy litigation, especially given that the terms of the settlement rarely require much list maintenance effort beyond what they already conduct, Loperfido said.
“When groups that seemingly have bottomless pockets to file these lawsuits come into North Carolina, there’s certainly some incentive to say, ‘What can we do to just make this go away because a multi-year litigation on this is going to make it hard to do what we want to do, which is run elections efficiently and fairly and accurately and now safely,’” he said.
For that reason, defendants in Judicial Watch’s lawsuit in North Carolina are currently working on a settlement agreement which will involve producing records, even after a judge recommended the suit be dismissed.
Voting advocates warn that these lawsuits have dangers beyond just the burden on counties and the voters being potentially purged from the rolls. Allison Riggs, co-executive director of the SCSJ, called the latest North Carolina lawsuit a “dangerous escalation” of the GOP’s tactics to erode voter access.
Loperfido explained how the allegations are tied to the Republican narrative that inflated voter rolls lead to rampant voter fraud, and voter fraud cost Trump the 2020 election.
“The right is driving these narratives and bringing these lawsuits in sort of a vicious loop,” he said.