Comments to the U.S. Election Assistance Commission
"Information Collection Activity; Proposed Collection Comment Request"

Submitted by the Electronic Privacy Information Center (EPIC)
February 25, 2005

These comments are submitted by the Electronic Privacy Information Center (EPIC) in response to the announcement placed in the Federal Register on February 22, 2005, by the U.S. Election Assistance Commission (EAC) that seeks comment on the gathering of statistics and other information from states as required by the National Voter Registration Act (NVRA). Specifically, the NVRA requires that the EAC collect information regarding voter registration following each Federal general election.

EPIC’s interest in this area is well documented on our web site, http://www.epic.org, which provides public access to a large repository of voting, transparency, and privacy related policy, open government, and legal work. We first would like to comment on the three-day time frame provided for public comment announced by the agency to the public because we believe that it will greatly impede the opportunity for public participation.

Voting

The first step in participating as a voter in an election held in the United States is voter registration. Only six states allow same-day voter registration.¹ For this reason, the process and efficiency of this function provided by states is critical to full participation in public elections by citizens.

The Election Incident Reporting (EIR) system used by the Election Protection Coalition registered 6,424 incidents from voters, or their trained field staff, that resulted from "registration" problems during early voting and on Election Day 2004. Although this information was not scientifically gathered it does provide a snapshot of the process that is worth noting.

There are only two states, North Dakota and Alaska that list no election-related incidents referencing "registration." North Dakota has no voter registration system. However, for the other states, the rosters of problems registered are numerous, but these lists should not be considered all inclusive of the negative voter registration experiences of 2004. ² EPIC identified two general problem areas with voter registration during the elections, which were confirmed by many of the reports recorded on the EIR system. These problems included: lack of transparency and voter privacy regarding the public administration of voter registration.³

Transparency and Administration of Voter Registration

The need for transparency is important to public understanding of how the process works and more importantly, where it could use additional resources to accomplish the tasks required by voter registration systems employed by states. It is important to note that there are no uniform rules for managing the voter registration process, nor are resources provided for the purpose equal within states. It would be very beneficial to policymakers to know the conditions that affect the voter registration process state-by-state and a survey is a means of accomplishing this. Some of the problems may include, but not be limited, to poor administration of voter registration; uncertainty about voter registration status; and third party voter registration efforts.

Insufficient transparency of the voter registration process prevents further scrutiny of certain types of voter registration management issues. One challenge that is as old as public election, includes multiple inter and intra-state voter registrations. It was discovered that 11,000 voters, some of them deceased, were registered in Indiana.⁴ Although voting more than once in state and federal elections is a felony, states and the federal government rarely investigate charges of multiple voting across state lines. However, several regional newspapers took it upon themselves to check for multiple registrations on voting rolls across state lines. The Orlando Sentinel reported that it found more than 68,000 cases of voters with the same names and dates of birth registered in two states in the states of Florida, Georgia, and North and South Carolina.⁵ The Charlotte Observer found as many as 60,000 voters may be registered in both North and South Carolina.⁶ The Kansas City Star provided proof that some voters had cast multiple ballots in the same federal election in Kansas and Missouri.⁷

Another important problem is a disturbing issue of gender bias is evident in a number of complaints regarding Election Day and voter registration experiences of women. Some female voters reported that men with similar situations were allowed to use the regular ballot, while they had to use provisional ballots.⁸ In addition, there were a number of EIR reports of women facing problems because name and address changes on their identification that were not reflected in their voter registration documentation.

Poor Administration of Voter Registration

Multiple Registrations

There may be a number of contributing factors to the existence of multiple registrations, not all of which can be associated with voter fraud. Citizens are not clear on the rules of voter registration in public elections. Even when voters present themselves to vote and have a current voter registration document they are refused the opportunity to vote.⁹ If on Election Day the voter registration documents provided to voters in anticipated for them voting in the next election are treated as if they are not valid then this undermines the integrity of the voter registration system. A number EIR system reports expressed confusion on the part of voters regarding the rules that govern voter registration in several key areas: changes of address within or among counties and/or states,¹⁰ registration deadlines prior to elections,¹¹ rules that bar registration, i.e. felony convictions or college student enrollment,¹² requirements for possession of voter registration document,¹³ removal from registration rolls between primary and general elections in 2004,¹⁴ and routine voter participation requirements for continued registration.¹⁵ In addition to these questions, voters have a wealth of experience in this and past elections where the machinery of voter registration administration has failed them.

Other reasons for multiple registrations include poor record keeping on the part of the state or local governments, as was the case in Marion County, Indiana and Davidson County, Tennessee.¹⁶ The subject of voter fraud and charges of fictitious registrations prior to the election fueled efforts to challenge voters and their ballots in many states. However, in the wake of the election, actual cases of multiple votes being cast in the November 2, 2004 election EPIC has found little effort has been made to pursue them.

Errors on Voter Rolls and Voter Registration Documents:

In October 2004 it was reported that four Ohio counties—Franklin, Delaware, Fayette and Mercer—had voter registration numbers that exceeded the population of voting age persons living within their boundaries, based on 2000 U.S. Census figures. The same reports came out of Lincoln County, West Virginia when 105% voter registration was reported.¹⁷

There were errors on public voter registration rolls, but on Election Day 2004, poll workers and election administrators treat their voting eligibility records as if they were flawless. The Maricopa County Arizona election office sent 8,800 residents "election notification cards listing the wrong polling places in wrong cities."¹⁸ After last year’s primary election in Pulaski County, Arkansas, election officials speculated on the reason why voters went to the wrong polling place. Some election officials concluded that in part because because incorrect information provided to voters on voter registration documents sent to them by the county.¹⁹

The errors found in voter registration records could occur at any point in the process such as during data entry, poor handwriting by the applicant or through omissions. It is important that if states continue to rely upon voter registration records that they develop data quality control protocols to improve the accuracy and reliability of this information.

Problems with Voter Registration Forms

Among the registration form problems faced by voters included too many state applications that were cluttered with text, the same question asked multiple times, and challenges to the voters right to privacy when the form is in transit to the registrar’s office.

Voters in Massachusetts faced the daunting challenge of out dated registration forms. These forms lacked an entry for a personal identification number, which was a requirement of the Help America Vote Act.²⁰ There were charges made that New Hampshire’s same-day voter registration process was too restrictive because of the language used in the sworn affidavit’s requirements.²¹

In Washington State 3,000 voters faced disenfranchisement in the primary election because they did not mark a box on the form to attest that they were U.S. citizens. ²² Fortunately, election administrators decided to allow those voters to cast ballots in the November Election. Unfortunately, Florida’s election officials worked aggressively not to include applications on the voter rolls that were incomplete even in cases where the information has provided elsewhere on the form.²³

Conflict of Interest Questions and Voter Registration Administrators

The rules and administration of voter registration on the state level falls to, in many cases, the office of the Secretary of State, Lieutenant Governor, Attorney General, or a special board or commission. Two examples that are noteworthy of possible conflicts of interests on the part of top state election officials that also control voter registration rules. The Secretary of State for Missouri Matt Blunt was on the November 2, 2004, ballot as a candidate for govenor. Although he may not have used his position to secure his victory for that office on November 2, 2004, the appearance of a conflict of interest in fulfilling his public responsibility to conduct a fair election and his personal interest in the outcome of his own race should have been obvious.²⁴ In addition to this situation, Ohio voters had to contend with their Secretary of State for Ohio, J. Kenneth Blackwell, holding the position of co-chair of the Ohio Bush Re-election Campaign.²⁵ Secretary Blackwell also played a role in the 2000 Bush Presidential Campaign as Bush’s "principal electoral system advisor," who was sent to Florida during the chaotic end of the Presidential general election in 2000.²⁶

Voting Roll Purges

The most vulnerable and marginalized in our society are the canaries in the coalmine of the American democratic experience. This group includes poor, minority, immigrant, young people, and those incarcerated. They are the first to be denied basic rights and civil liberties and therefore are the best indications on the health of our system of government.

There are approximately 4.7 million Americans who are prevented from voting because of a felony conviction.²⁷ A report compiled by the ACLU, the Right to Vote Coalition, and Demos titled "Purged!" that was released in October of last year, reviewed individual state felony voter roll purge practices.

In 2000 Florida was given a list of 8,000 names from a data broker since acquired by ChoicePoint, which incorrectly identified them as having felony convictions in the state of Texas.²⁸ This is only one of the many errors discovered on the purge list used in that, and other, states during the 2000 Presidential election.

The disparate conditions of voter roll purges based on felony convictions, especially those that occurred outside of the states in question have wrongfully disenfranchised thousands of voters. Last year Florida, produced a felony purge list that included thousands of state residents, most of which were African American, who had their voting rights restored. A number of problems in the method and means of compiling purge lists contribute to the disparity in voting roll purges among the states and disenfranchisement of voters. Voter roll purges often lack: legislative standards; routine checks to ensure data quality and accuracy; codification of minimum criteria for purges; notice requirements to those voters targeted for removal from voting rolls.²⁹

Uncertainty About Voter Registration Status

Voters in many states faced the prospects of being denied the right to vote because they were unsure if their voter registration efforts had been successful. Several callers with voter registration questions or problems indicated that they had registered, but had not received a voter registration document. On Election Day many who had voted in the past and assumed that their registration was still valid learned that it was not, due to a lack of voting activity.³⁰ In the majority of cases, the deadline for registration had already passed.

Many college and university students who intended to participate in last year’s presidential election were blocked by local and state administration rules for registering to vote. Students at Prairie View A&M University, a historical black college located not far from the city of Houston, had their right to vote challenged by a local election administrator. They were eventually successful in having their right to register and vote restored, but other students were not as fortunate. Students at the College of William and Mary in Virginia discovered on Election Day that their voter registration applications had not been processed and they were barred from voting.³¹ This was repeated at many colleges and universities around the nation.

A survey of colleges’ voter registration policies sponsored by Harvard’s Institute of Politics and the Chronicle of Higher Education found that only 6 of the 249 responding institutions were in full compliance with the voter-registration provision of the Higher Education Act.³² The study was severely criticized by two educational associations, however, the survey director countered that the institutions that responded to the survey had no clear understanding of the correct responses. In light of the publicity that was generated by the release of the survey results, a second survey would not be possible.

Greater transparency in allowing voters to better understand the rules for effective voter registration, access to information on their voter registration status, and the adoption of fair information practices may address many of the problems identified.

Third Party Voter Registration Efforts

There were numerous third party voter registration efforts.³³ These include any registrations not involving people who went directly to a state or local voter registrar’s office to file an application to participate in last year’s primaries or general election. Millions of voters went to the polls on Election Day confident that they were registered because of the registration efforts of churches, mosque, synagogues, community & civic groups, local and national voter registration efforts, but found problems.³⁴

The EIR system collected many reports of voters who had fallen victim to third party voter registration problems, which included their voter registration not being processed, and no voting registration document being sent to them by state and local election officials.³⁵

There were also reports of groups that paid workers for each completed voter registration application, which resulted in bogus registrations by individuals seeking compensation from the sponsors of the registration effort. In Colorado this prompted the prosecution of a former employee of a voter registration drive for forging nearly 50 voter registration cards. For each card that was registered as a Democrat or unaffiliated, the worker was paid $3.³⁶ All of the problems attributed to massive voter registration also are a reflection of local and state government rules that require steps that complicate the process for administration and for those seeking to register to voter. Some county and state voter registration administration officials require that all completed voter registration forms obtained by groups must be turned into their offices, including forms that may be clearly invalid.³⁷

Invalid DMV Voter Registration Process

It would be easier to point the finger of blame at some non-government registration efforts, but the main source of invalid registration efforts on Election Day may have been the collective efforts of State Departments of Motor Vehicles (DMV).³⁸
Election officials and poll workers faced the consequences of ineffective voter registration efforts by their own state DMV offices.³⁹ Voters have registered complaints for years about the poor performance of DMV offices in seeing that voter registration applications are processed properly.⁴⁰

The Federal Government’s Two Cents on Voter Registration

Voter registration efforts attracted the attention of several federal agencies. The Department of Homeland Security found its mission stretched to include securing the exterior of new citizen swearing-in events from non-partisan voter registration efforts.⁴¹ The agency was pressed into service again when the Sheriff of Alamance County, North Carolina, submitted a list of registered Latino voters to the Department of Homeland Security’s Immigration and Customs Enforcement office to cross check their immigrant status.⁴²

During the summer, the Indian Health Agency would not allow employees to run a non-partisan voter registration drive at hospitals and clinics that served Native Americans. In an e-mail, "Ronald C. Wood, executive officer of the program's regional Navajo office, told his hospital and clinic directors that ‘we are in a very sensitive political season’ and outlined a policy that he said came from Indian Health Service headquarters."⁴³

However, some federally sponsored voter registration projects were encouraged. The Department of Defense was reported to have engaged in an aggressive grassroots voter registration effort targeting men and women in the armed forces.

The U.S. Office of Special Counsel issued a warning to labor unions and other groups that they would "have a hard time legally conducting voter registration activities on federal grounds once they endorsed a candidate for partisan political office."⁴⁴

Invalid Voter Registrations

The struggle that local and state election administration officials face when they have to determine which voter registration applications are authentic, puts a strain on their limited resources.⁴⁵ The Chicago Board of Elections used handwriting analysis to determine that between 1,000 to 2,000 voter registrations from one ward were from nonexistent people or addresses, or vacant lots.⁴⁶ Another dilemma faced by election officials occurs when a legitimate voter has the same name as a celebrity, a person of notoriety, or a fictional character.⁴⁷

Another problem that local and state election officials struggle with is the residency requirement of voter registration. With a population of homeless persons in many cities there should be a means of ensuring their eligibility to vote without ignoring the reality of people who have no fixed permanent address.

There should be caution taken by the media, policymakers and the public when presented with instances of registrations that include parks, vacant buildings, bridges, and office addresses. Some homeless individuals will select an area where they feel safe and may live within that limited geographic area for years. Anyone who works in a major city and walks along sidewalks will generally see the same individuals day after day for months or in some cases years. One model for homeless voter enrollment is presented by Tennessee whose voting law does not require that a person have a fixed building as an address as a requirement to register to vote. "However, a homeless person must give a description of the location of his habitation which is sufficient for the registrar to determine the voter’s precinct, as voters may vote only in the precincts in which they reside." ⁴⁸

Voter Registration and Privacy

There should be appropriate oversight of efforts to register the homeless when done in conjunction with providing them with vital services. There should be no condition of benefits associated with the act of registering to vote. The choice should be clearly that of the individual to register and participate in a public election. There should also be adequate oversight to ensure that homeless people who wish to participate in the election process are free from intimidation and harm as they exercise their constitutional rights.

There are approximately 215 million eligible voters in the United States and only 144 million of them are registered to vote according to the report "Voter Privacy in the Digital Age," prepared by the California Voter Foundation. Most citizens know that voter registration rolls are also used to select jury pools for local, state and federal court cases. However, the voter registration data is also shared with political campaigns for the purpose of promotion of their candidates. Unfortunately, this election year it was made very evident that not all solicitations for registration information are to seek out votes. Voters reported getting unsolicited calls from individuals that state that they needed the social security number of registered voters to confirm their registration.⁴⁹ The information already publicly available on voter registration records coupled with social security numbers presents a source for identity theft.⁵⁰ Others may have used publicly available voter registration information to target voters for suppression and intimidation activities. Reports out of Florida just prior to the November 2^nd election indicate that voters had to be content with their party affiliation being changed from Democrat to Republican and strangers offering to pick up completed absentee ballots.⁵¹ Making the decision to participate in public elections should not mean that voters have to give up their right to privacy. Unfortunately, voter registration information in many states is considered public information.

Recommendations of Questions Which Should be Included in the Survey:

Most of these questions have been designed to only require Yes or No responses.

Were there voter registration applications received prior to the deadline for registering to vote in the Federal elections in question that were not processed in time for the election?

Was due process accorded to voters whose registration application to vote were rejected?

Did third parties challenge voter registration applications once they were part of the rolls of eligible voters?

If a state relied on felony purge lists, did the burden for checking for errors fall to the counties or the state?

Does your state check for multiple voter registrations across state lines?

Does your state investigate post election intrastate or interstate charges of multiple votes being cast by a voter?

Are voter registration records treated as public information?

Are voter registration records available over the Internet?

Are voter registration records available to commercial requestors?

Does the state or county governments sell voter registration records?

Is there a method of tracking to see that state service agencies (i.e. welfare offices, WIC offices, publicly subsided housing, and motor vehicle offices) provide voter registration opportunities to clients?

Are statistics maintained by state office service provider on the number of completed applications received from clients?

Are records maintained on how voter registration applications collected at state department of motor vehicle offices?

Did your state use statewide-centralized voter registration?

Does your state use the services of data brokers, or private contractors to maintain or service voter registration lists? If yes, are they barred from using the list for commercial purposes?

Does the state employ quality control measures in the processing of voter registration applications?

Does the state monitor across state agency jurisdictions the collection and transporting of voter registration applications to the appropriate voter registration agency?

Does the state apply Fair Information Practices regarding voter registration data?

If not already employed, has your state considered a same day voter registration system?

Does your state bar state and/or local election officials from running for office while holding that position or taking official roles in election contest they administer?


Thank you for this opportunity to comment on the survey that will be sent to states to gather information on voter registration during the 2004.

Sincerely,

Lillie Coney
Associate Director

¹ National Association of Secretaries of State, "State Election Laws and Administrative Procedures, States with Same-Day Voter Registration available at http://www.electionline.org/site/docs/html/same-day_registration_states.htm

² National Association of Secretaries of State, "Voter Registration Deadlines," available at http://www.electionline.org/site/docs/html/voter_registration_deadlines.htm

³ Ralph Vartabedian, Los Angeles Times, State Laws Unjustly Bar Voters, ACLU Says; Oct 19, 2004, at A16

⁴ Associated Press, Newspaper finds 11,000 voters registered in more than one county" Indianapolis Star, Oct 28, 2004

⁵ Roger Roy and Beth Kassab, "Double votes taint Florida, records show," Orlando Sentinel, Oct 22, 2004

⁶ Scott Dodd and Ted Mellnik, "Voters Found on Both N.C., S.C. Rolls;" Charlotte Observer, Oct 24, 2004

⁷ Greg Reeves, "One person, one vote? Not always," Kansas City Star, September 5, 2004, at http://www.kansascity.com/mld/kansascity/news/9584013.htm

⁸ EIR, incident Cuyahoga County, OH, #044854, #045364, Nov 2, 2004 available at http://voteprotect.org/

⁹ EIR, incident, Cuyahoga County, OH, #044854, Nov 2, 2004, 3:12 PM PST.

¹⁰ EIR, incident, Greenville County, South Carolina, #031938, #041380, and El Paso Colorado, #034796 Nov 2, 2004 available at: http://voteprotect.org/

¹¹ EIR, incident, Fort Bend County, Texas, #030043, November 2, 2004, id

¹² EIR, incident, Jefferson County, Texas, # 047970, Duval County, Florida #045304, November 2, 2004, id

¹³ EIR incident, Snohomish County, WA, #034554, Harris County, Texas, #052009, Maricopa County, AZ, #032562, King County Washington #037520, November 2, 2004, id

¹⁴ EIR, incident, Cuyahoga County, Ohio, #029801, Nov 2, 2004, id

¹⁵ EIR, incident, Harris County, Texas, #051518, Nov 2, 2004, id

¹⁶ Lexis/Nexis Search, "Too close to election to purge voter rolls," The Indianapolis Star, Aug 27, 2004 pg. 12A, Brad Schrade and Anne Paine, "Bloated registration rolls might mean long line at polls," The Tennessean, Jun 28, 2004.

¹⁷ Staff, "Registered voter lists need to be more accurate," The Herald-Dispatch, pg. 6A, Oct 9, 2004.

¹⁸ Dennis Wagner, "8,800 Voting Cards Have Wrong Poll Address," The Arizona Republic, Oct 27, 2004.

¹⁹ Jill Zeman, "Hundreds complain of voting problems," Arkansas Democrat-Gazette, May 22, 2004.

²⁰ Chris Echegaray, "Obsolete forms may bar voters; ID boxes missing for registration," Telegram & Gazette, pg. A1, October 28, 2004.

²¹ "New Hampshire’s Voter Registration Form Draws Complaints," Votelaw available at http://www.votelaw.com/blog/archives/election_administration/voter_registration/

²² Susan Gilmore, "3,000 denied right to vote," pg. B1, The Seattle Times, September 22, 2004.

²³ Catherine Wilson, "Ruling allows Florida to reject incomplete voter registrations," The Wichita Eagle, October 26, 2004, available at http://www.kansas.com/mld/kansas/news/special_packages/election2004/10019762.htm

²⁴ Matthew Fox, "To be Blunt Missouri’s Reeks of Conflict of Interest and Warrants a Recount," Oped News, available at http://www.opednews.com/foxMatthew_missouri.htm

²⁵ "Political disaster; The state’s top election official is too much of a player," Akron Beacon Journal, November 15, 2004

²⁶ Joe Hallett, "Blackwell Join GOP’s Spin Team," pg. 3A, Columbus Dispatch, November 16, 2000

²⁷ "Making Votes Count, " Editorial, pg. 12, New York Times, July 11, 2004

²⁸ "Florida’s flawed "voter-cleansing" program ­ Salon.com’s politics story of the year," Salon.com, December 4, 2000.

²⁹ "Purged!", ACLU, Right to Vote, Demos, October 2004, available at, http://www.aclu.org/Files/OpenFile.cfm?id=16844

³⁰ EIR, incident, El Paso County Colorado, #046317

³¹ Daphne Sashin, "Some W&M Students Voter Forms Never Entered System," pg. C7, Daily Press November 4, 2004.

³² Daniel Engber, "2 Education Associations Assail Survey on Student Registration," pg 36, Chronicle of Higher Education, October 8, 2004.

³³ "Mistake leaves hundreds off voter rolls," pg. 3, The Myrtle Beach Sun-News, October 24, 2004.

³⁴ "11 Would be Voters Sue ACORN for Damages," November 9, 2004, available at http://www.votelaw.com/blog/archives/election_administration/voter_registration/

³⁵ EIR, incident, Duval County Florida, #044526, Cuyahoga County Ohio, #029415, #031469, #051024, El Paso County Colorado, #040034, Harris County Texas, #031214, Los Angeles California, #034926, available at http://www.voteprotect.org

³⁶ John Ingold, "Voter registration worker is charged Applications Forged," pg. C-05, The Denver Post, August 22, 2004

³⁷ Shea Andersen, "Flawed voter sign-ups piling up," pg. A2, Albuquerque Tribune, August 7, 2004

³⁸ id

³⁹ David Slone, "Voter Registration at BMV Not on Registration Rolls," Times-Union, available at http://www.timeswrsw.com/N1104042.HTM, November 4, 2004

⁴⁰ "Minnesota: Problems with Registering at the DMV," Grand Folks Herald, Associated Press, November 14, 2004, available at http://www.grandforks.com/mld/grandforks/10170906.htm

⁴¹ Harold Myerson, "Homeland Security Blocks Latino Voter Registration," Washington Post, September 22, 2004 available at http://www.independent-media.tv/item.cfm?fmedia_id=9089

⁴² Andrea Bazan-Manson, "Latinos targeted," pg. A12, The Herald-Sun, October 16, 2004

⁴³ Jo Baker, "Indian Health Agency Barred New-Voter Drive," pg. A12, The Washington Post, October 6, 2004, available at http://www.washingtonpost.com/wp-dyn/articles/A9946-2004Oct5.html

⁴⁴ Amy Keller, "Special Counsel Cautions Groups on Voter Registration," Roll Call, April 26, 2004.

⁴⁵ Shea Andersen, "More glare on voter sign-ups," Pg A2, Albuquerque Tribune, August 25, 2004.

⁴⁶ Cheryl V. Jackson, "Massive voter registration fraud case probed," pg. 11, Chicago Sun-Times, March 12, 2004

⁴⁷ Scott Hiaasen, "Fowl play ‘Jive Turkey Sr.’ tops Cuyahoga’s phony-voter list," pg. A1, Plain Dealer, October 22, 2004

⁴⁸ "Voter Registration of Homeless Persons," Secretary of State Division of Elections, available at, http://www.state.tn.us/sos/election/webhome.htm

⁴⁹ "Voters, beware of scammers’ election-year scheme," pg. 3, The Kansas City Star, October 14, 2004.

⁵⁰ "Voters Warned about callers," pg. 8, The Daily Oklahoman, September 17, 2004.

⁵¹ Brendan Farrington, Accusations of fraud, wrongdoing abound ahead of Nov. 2 election," October 30, 2004.

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EAC Request for Comments