- The Washington Times
Wednesday, March 17, 2021

Judicial Watch is the nation’s leading elections watchdog in going to court to force jurisdictions to update vintage voter rolls by shedding long-inactive voters.

But Democrats are putting the brakes on such culling with the proposed enactment of H.R. 1, a far-reaching, vote-counting overhaul that conservatives say will make the federal election bureaucracy less open and more secret.

“Voter rolls may become something akin to historical records,” said Robert Popper, a former Justice Department attorney who leads Judicial Watch’s voter integrity effort.

Protecting swollen voting lists is just one of a number of H.R. 1 measures to blunt any watchdog, be it a nonprofit like Judicial Watch or citizens, from challenging a voter’s soundness. Conservatives believe the Democrats’ target is them since they do most of the integrity oversight, state by state.

For example, one H.R. 1 section calls for a new select “class of users” who are exclusively authorized to inspect voter rolls. Judicial Watch officials wonder if blue states such as California, where it has been active, will cut them off.

To boot, H.R. 1, which passed the House on March 3 without a single Republican vote, also greatly would restrict access to federal courts to challenge the bill’s constitutionality. All challengers must file in one court alone and share one lawyer.

Overall, if approved by the Senate and signed by President Biden, the new law would seize many state election functions and dictate them from Washington.

The conservative Judicial Watch has rung up court successes, such as in Los Angeles County, by forcing jurisdictions to follow the 1993 National Voter Registration Act. It mandates cleaning up rolls sometimes cluttered with more people than the jurisdiction’s total number of eligible voters.

H.R 1 promises to end that winning streak with one key change: Section 2502. Failure to respond to an address confirmation postcard from an elections board could no longer be used to start the years-long clock on removing an inactive voter. Instead, the notice has to be returned, undeliverable. Even if the registrant never votes, there is no removal.

“I think it will crush anyone’s ability to sue,” Mr. Popper told The Washington Times. “These are people who need to be removed. It’s always a minority of people who write back and say, ‘No, no, I still live here.’”

A Judicial Watch lawsuit filed in Pennsylvania in April 2020 to drop 800,000 inactive voters probably could not be brought under H.R. 1. “We would need more than we had,” said Mr. Popper, who signs each Judicial Watch election complaint.

Judicial Watch has been able to sue based on states not following the National Voter Registration Act requirement to mail address confirmation notices. Under H.R. 1, the watchdog must show that the listed people are no longer living there.

“You may have inactive voters on the rolls for 20, 30 years,” Mr. Popper said.

There are other anti-watchdog provisions.

Logan Churchwell, director of research at the Public Interest Legal Foundation (PILF), said parts of Section 1201 would limit the ability of outsiders to scrutinize lists and challenge suspected ineligible voters. Democrats have greatly limited personal voter data from which to make comparisons with known ineligible voters.

“Section 1201 is what H.R. 1 supporters presume to be a kill shot for PILF research and others,” Mr. Churchwell said. “Lists that don’t include personal information like signatures or Social Security numbers attached to list leads would not be acceptable. It goes to show just how primitive H.R. 1 supporters are in their understanding of our research work.”

Registrars maintain lists of suspected ineligible voters. H.R. 1 would outlaw these “vote caging lists” and says another list used to verify the names cannot be used to reject a voter’s registration

There is also a provision that would set the stage for limiting the public’s access to voter registration rolls.

H.R. 1 would inject the director of the National Institute of Standards and Technology, a Commerce Department agency, into the federal election process. The director is to publish new “privacy and security standards for voter registration information.”

H.R. 1 would direct state elections leaders to take those standards and develop a list of “each class of users who shall have authorized access to computerized statewide voter registration list.”

If a group makes the coveted list, there are more hurdles. The states then decide each class’ “levels of access to be granted.”

“We often request and frequently have to fight states to get access to their voter rolls to check them for excessive registrations or old inactive registrations,” Mr. Popper said. “Will Judicial Watch remain in each state’s ‘class of users’ who can access voter rolls? We have no way of knowing.”

And then there is court packing — that is, packing up all challenges to H.R. 1 and sending them to the U.S. District Court in Washington. No other federal district court may hear challenges. The D.C. court now has 11 active judges appointed by Democratic presidents and four by former President Donald Trump.

What’s more, the assigned judge has the power to limit all challengers to one attorney, said Hans von Spakovsky, legal scholar and elections expert at the Heritage Foundation.

“It is not only a denial and restriction of fundamental due process rights, but severely limits the ability of challengers to obtain full and robust legal representation,” Mr. von Spakovsky told The Times.

From U.S. District Court, all appeals must go to the U.S. Court of Appeals for D.C., also a Democrat-heavy judiciary.Mr. von Spakovsky provided some history. Democrats added three seats during the Obama administration despite a light case load.

“This was a blatant attempt to pack the appeals court with liberal justices who would vote the way liberals want them to vote on bills like H.R. 1 and may explain why they are routing lawsuits against H.R. 1 to the District of Columbia,” he said.

On the left, the Brennan Center for Justice issued a detailed H.R. 1 endorsement, saying its measures would “protect against flawed purges” that disenfranchise thousands of voters.

“Modernizing our voter registration system means not only registering all eligible voters, but also making sure those eligible voters stay on the voter rolls,” the Brennan Center said. “Voter purges — the large-scale deletion of voters’ names from the rolls often using flawed data — are on the rise.”

The National Council of State Legislatures says voter lists must be kept up to date: “The goal of maintaining an accurate voter list is to ensure that eligible voters are able to cast a ballot, to keep track of who has voted to prevent anyone from voting twice and, by reducing inaccuracies, speed up the voter check-in process at polling places. Voter registration lists are the foundation of everything else in election administration.”

• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.

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