BRENNAN CENTER

A national study recently released from NYU’s Brennan Center for Justice found the number of names removed from states’ voter rolls has increased significantly in recent years, raising concerns about the disenfranchisement of some eligible voters.

Among other examples, the researchers point to the 2016 episode in which a number of seemingly eligible Arkansas voters were kicked off the rolls due to bad data provided to county clerks by the Arkansas secretary of state’s office. The state flagged some 7,700 voters as felons, many of whom had regained the right to vote and some of whom had never been convicted of a felony. The error led to at least some voters being at least temporarily disenfranchised. The Arkansas Times reported on the story at length.

Nationwide, “almost 4 million more names were purged from the rolls between 2014 and 2016 than between 2006 and 2008,” the Brennan Center report states. That’s an increase of 33 percent in the number of removed voters. By contrast, the increase in the number of total registered voters was 18 percent.

Despite the negative connotations of the word “purge,” it’s important to note there’s nothing inherently wrong with cleaning up the voter rolls to remove ineligible individuals. (For example, no one would argue that people who have moved out of state or who have died shouldn’t be removed.) But overzealously policing the rolls can do more harm than good. The question is whether states are getting the balance right.

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The Brennan Center takes an especially close look at those jurisdictions affected by the 2013 U.S. Supreme Court decision (Shelby County v. Holder) that invalidated a portion of the 1965 Voting Rights Act. Before the Shelby County ruling, certain states and counties — predominately in the South — were subject to federal “preclearance” under the Voting Rights Act, meaning federal authorities had to approve any change in election practices to ensure those jurisdictions were not attempting to discriminate against minority voters. In its 2013 decision, the court threw out the formula used to determine which jurisdictions were subject to preclearance, saying it was decades out of date. Congress hasn’t come up with a new formula.

The researchers warn that states and counties formerly covered by preclearance saw a big uptick in their purge rates:

Across the board, formerly covered jurisdictions increased their purge rates after 2012 more than noncovered jurisdictions. Before Shelby County, jurisdictions that were subject to preclearance requirements (“covered jurisdictions”) had removal rates equal to other jurisdictions (“noncovered jurisdictions”). After 2013, the two groups sharply diverged. For the 2012-14 and 2014-16 two-year election cycles, the removal rate for noncovered jurisdictions did not budge. The story was entirely different for covered jurisdictions, whose median removal rate was 2 percentage points higher after the Shelby County decision than the noncovered jurisdictions. Though 2 percentage points may seem like a small number, more than 2 million fewer voters would have been removed if these counties had removal rates comparable to the rest of the country. Previously covered jurisdictions ended up removing more than 9 million voters between the presidential elections of 2012 and 2016. 

(An aside: It may also be possible that in the wake of the greater latitude created by the Shelby County decision, there was a one-time wave of changes enacted in those jurisdictions previously subject to preclearance. Thus, it’s possible the spread in removal rates between covered and noncovered jurisdictions will disappear in subsequent cycles. Or, maybe not.)

The researchers caution that “our analysis cannot establish what percentage, if any, of these post-Shelby County purges were done erroneously.” But the study did find a significant rise in provisional ballots in formerly covered jurisdictions. “This means that as the purge rates increased, so did the number of people who showed up to vote but were unable to do so, either because their names were not on the rolls or for some other reason,” the study says.

At the time of the Shelby County decision in 2013, Arkansas was not one of the states subject to federal preclearance. However, its 2016 episode involving the list of erroneous felon data is an especially glaring example of what can happen when states get it wrong with purging voters. (The secretary of state’s office has always maintained that it was not at fault with providing that list of “flagged” names to county clerks, saying that local officials bear responsibility for vetting the data it provides.)

The Brennan Center sums up the Arkansas purge as follows:

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In June 2016, the Arkansas secretary of state sent county officials a list of more than 7,700 records from the Arkansas Crime Information Center (ACIC) of persons who were supposedly ineligible to vote and should be removed from the rolls. (Those convicted of felonies in Arkansas lose their right to vote until their sentence is complete or they are pardoned.) But the list included a high percentage of voters who were indeed eligible, yet appeared on the list because they had had some involvement with the court system, such as a misdemeanor conviction or a divorce. Also included were names of those whose voting rights had been restored. The error became public in July 2016, and despite the public outcry, the records of fewer than 5,000 of the more than 7,700 erroneously listed voters had been corrected by September 2016. Pulaski County, the largest county in the state, explained that the problem was flagged by the counties, not the state, and not all counties were able to correct errors.

Previously, the secretary of state had not been providing counties with regular updates of conviction data and, in the past, had been using the wrong source list for data on felony convictions. Once Arkansas switched to the list required by law, the secretary did an overly broad match and provided counties with inflated lists with bad matches. Pulaski County flagged the errors and was able to investigate the list, but some counties with insufficient resources simply sent purge notices to everyone on the list.