Nonprofit spots discrepancy; county elections officials call it human error

Foundation wrote Clark County suggesting its voter rolls are in violation of federal law

By Jake Thomas, Columbian staff writer

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Letter from Public Interest Legal Foundation

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Greg Kimsey response to Public Interest Legal Foundation

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Clark County is the only county in Washington targeted by a conservative legal group that’s threatened local jurisdictions across the country with legal action unless they can prove they’re properly scrubbing their voter rolls of people who’ve died, moved away or have become ineligible.

Last week, the county released correspondence showing that in September Clark County Auditor Greg Kimsey, who oversees elections, was sent a letter by the Public Interest Legal Foundation, an Indianapolis-based nonprofit that describes itself as a nonpartisan public-interest law firm. It has argued that neglected voter rolls attract fraud and undermine election integrity.

Citing federal data, the three-page letter concluded that the “county has significantly more voters on the registration rolls than it has eligible, living, citizen voters.” It further suggested that Clark County was failing to keep its rolls free of ineligible voters, disenfranchising eligible voters through “ballot dilution” and potentially violating the National Voter Registration Act. The letter requested a long list of documents detailing Clark County’s efforts to maintain its voter rolls and hinted that Clark County could be subject to litigation.

“When this was brought to my attention, I immediately thought, ‘This isn’t right; something is wrong,'” said Kimsey, a Republican.

Both Kimsey and county Elections Supervisor Cathie Garber said the scrutiny from PILF was caused by incorrect data submitted by the county that was published by a federal agency. They said they’ve corrected the error and that the county maintains its voter rolls in compliance with federal law. But PILF persisted in requesting the documents, which they are now reviewing.

Nationally, the once humdrum topic of voter roll maintenance has become increasingly political and has now ensnared Clark County. The situation in Clark County, and elsewhere, has caught the attention of voting rights groups who argue that the problems with the rolls are overblown and PILF’s efforts are part of a broader voter-suppression effort.

‘Big repercussions’

The Public Interest Legal Foundation is headed by J. Christian Adam, a former Bush-era U.S. Justice Department lawyer. Since it was founded in 2012, PILF, along with other like-minded groups, has waged legal battles against what it’s characterized as “lawlessness in American elections.” Those battles have involved suing counties (sometimes resulting in settlements) over what PILF has said is their failure to maintain voter rolls.

PILF finds its targets by comparing the number of people eligible to vote in a county according to the U.S. Census to the number of registered voters in the county published by the federal Election Assistance Commission. If the number of voters on record with the commission in a county exceeds the number of eligible voters in the U.S. Census, PILF will contact the county’s elections officials asking for more information.

“If you have over 100 percent registration, something is wrong,” said PILF spokesman Logan Churchwell.

According to Churchwell, the 2016 total voting age population from the Census for Clark County is 351,953. Clark County reported 273,240 “active” and 205,233 “inactive” voters to the commission for a registration total of 478,473. According to Churchwell, that pencils out to a registration rate of 135.9 percent, which triggered a letter from PILF to Clark County raising concerns and requesting documents.

Garber, the county’s elections supervisor, said she mistakenly entered the number of “nonactive” instead of “inactive” voters in a form sent to the Electoral Assistance Commission. She explained that the nonactive category includes voters who are unable to cast ballots because they are deceased, didn’t provide verifiable identification, moved away, canceled their registration or are felons under the supervision of the Department of Corrections.

She explained that a voter is deemed inactive if a ballot or piece of mail was returned to county elections as undeliverable. The voter can become active by updating their address. There are currently 31,610 inactive voters and 272,885 active registered voters in Clark County.

“I just entered the wrong info,” said Garber, who has corrected the number submitted to the commission. “But it had big repercussions.”

Kimsey said county elections routinely checks obituaries and receives notification from the state on deaths, as well as information from other jurisdictions on Clark County voters registering elsewhere.

Churchwell said that if Clark County hadn’t submitted the erroneous data, it wouldn’t have received a notice from PILF. He said that PILF appreciates Garber correcting the error. But added that the mistake has made PILF curious about the county’s operations. He said PILF has received records from the county, which it will review before deciding how to proceed.

“PILF — and any other party — enjoys the right to ask tough questions of its election officials and expect thorough answers,” he wrote in an email. “Vigorous public inspection reveals errors both negligent and accidental.”

‘Voting wars’

Churchwell said that in September the Public Interest Legal Foundation sent out notices to 248 jurisdictions in 24 states advising them that their voter registrations exceeded the number of eligible voters. These notices were followed by a memo and offer of guidance from three voting rights advocacy groups: the Lawyers’ Committee for Civil Rights Under Law, Demos and the Brennan Center For Justice.

The six-page memo advised the jurisdiction that the suggestions from PILF could actually violate the National Voter Registration Act by pressuring counties into pursuing rushed removals of voter registrations. The memo states that Congress passed the law to increase voter registration and that it restricts how counties can remove voters. It also takes issue with the methodology used by PILF, stating that there are “proper” reasons why the number of registered voters may exceed the eligible population.

“This is becoming a bigger front in sort of what’s become the voting wars,” said Jonathan Brater, a lawyer with the Brennan Center.

Currently, PILF is involved in a federal lawsuit regarding the maintenance of voter rolls in Broward County, Fla. Both Brater and Churchwell said its outcome could be precedent-setting. Adam, the president of PILF, serves on the election integrity commission convened by the Trump administration that critics say is a precursor to future voter-suppression efforts.

Garber said she received the memo from the groups. She said she doesn’t feel pressured to remove voters and hasn’t asked them for help.

Kimsey said staff has spent more than 40 hours responding to PILF’s request for documents. He said he wishes PILF would have just called his office to discuss their concerns. He said his office is always happy to present information or spend time helping people understand the election process.

“It’s been our experience that when we do that, at the end of the conversation the person will have greater confidence in the election process than before they began,” he said.