Court ruling is a win for cleaner voter rolls, but only if rules are enforced

Some good news has come from the United States Supreme Court.

In a 6-3 ruling in Department of Homeland Security v. League of Women Voters(DHS v. LWV), the court allowed the Trump administration to continue using a federal program to help states check their voter rolls for noncitizens while a lawsuit against the program proceeds in court.

The program uses data from the Systematic Alien Verification for Entitlements (SAVE) program to allow states to check their voter rolls against its list of noncitizens.

The court found that the plaintiffs’ claims against the program “likely lack merit” and that the federal government would suffer “irreparable harm” if a lower court ruling that “inhibits the Federal Government’s efforts to assist state and local agencies in the proper administration of the midterm elections” was allowed to stand.

The court also made clear that a National Voter Registration Act prohibition of systematicallyremoving classes of ineligible people from voter rolls within 90 days of an election does not prevent individualized removals based on inquiries into the SAVE system. This is an important signal to other courts that may see similar lawsuits with other verification programs that use databases.

The other good news is that the North Carolina State Board of Elections (SBE) is ready to use data from the SAVE system to identify and remove noncitizens from our voter rolls. The board approved the use of the system last year and subsequently proposed a rules process for doing so.

While speaking in favor of the proposed noncitizen removal process at an SBE hearing in March, I noted how the process would help election officials make voter rolls cleaner while protecting the voting rights of citizens:

As government data on registered voters’ citizenship status becomes more widely available, we need a process in place to thoroughly vet voter rolls using that data while protecting citizens’ voting rights.

The rules provide a means to appropriately inform purported noncitizens of a challenge to their voter registration. It also allows challenged voters to present both documentary and non-documentary evidence of citizenship.

Importantly, in the context of the DHS v. LWV ruling, the process is individualized. No one is automatically removed based on their presence in the SAVE database. Instead, the county board of elections first checks its records for citizenship documentation for each matching record. If none is on file, the county board staff enters a challenge of the individual registration. The county board then holds a preliminary hearing and proceeds to a formal hearing for removal only if it finds that probable cause exists that the challenged voter is not a United States citizen.

Again, a challenged registration can provide documentary and nondocumentary (such as witness testimony) evidence of citizenship. The system is designed to protect citizens’ voting rights while removing noncitizens from voter rolls.

SBE Executive Director Sam Hayes welcomed the Supreme Court ruling that reiterated that “no voters will be automatically removed as a result of any voter list maintenance we do utilizing the database.”

Now, we get to the (temporary) bad news.

The rules for using the SAVE database to help remove noncitizens from voter rolls are not yet officially in place.

After a full rulemaking process, including a public comment period and a vote by the State Board, the Rules Review Commission (RCC) approved the rules at its May meeting. Nevertheless, as noted on page five of the RCC’s meeting minutes, they received more than 10 letters of objection requesting legislative review. At the time of writing, the SBE still places the noncitizen list maintenance rules as among those being “subject to legislative review,” although it appears that the statutory period for the legislature to disapprove a rule has passed.

However long the rulemaking process takes to finalize rules for using SAVE program data to initiate list maintenance based on noncitizenship, the State Board of Elections and county boards should be ready to implement them as soon as possible to help ensure that voting in North Carolina is for citizens only.