NVRA Enforcement Updates-Virginia and Texas
Voter Protections Newsletter Volume 6 Issue 4
September 2, 2010
A core component of Advancement Project’s work is ensuring compliance with the National Voter Registration Act of 1993 (NVRA) through advocacy and, if necessary, through litigation. Earlier this year, Advancement Project filed a lawsuit in U.S. District Court in Norfolk, Virginia, to force the state to comply with the NVRA by allowing public inspection and copying of voter registration records. The NVRA’s public disclosure provision mandates that records relating to the implementation of voter registration programs and activities be made available to the public for inspection and photocopying upon request. Most election officials have interpreted that provision to include voter registration applications. However, Norfolk’s General Registrar, Eliza Long, denied Advancement Project access to those records, citing Virginia state law, which prohibits such records from being disclosed. Attorneys for the Virginia State Board of Elections agreed with Registrar Long’s decision.
At a recent hearing in the case (Project Vote v. Long) in late July, U.S. District Judge Rebecca Beach Smith expressed grave doubts that the Commonwealth’s refusal to permit disclosure of completed applications was legally permissible, in light of the NVRA’s broad public records disclosure provisions. While acknowledging the desire of election officials to limit disclosure of certain records, as a means of protecting privacy, the judge also noted that other less draconian measures could be taken, such as redacting the applicants’ Social Security Number from the application. Judge Smith also recognized the important role of public monitoring of election officials’ activity through inspection of public records. In light of those comments at the hearing, the plaintiffs remain confident that they will prevail in this litigation.
Now, Advancement Project turns its advocacy efforts to the State of Texas, to ensure that private groups who seek to conduct voter registration drives will not be prohibited from organizing the drives or making archival copies of the completed voter registration applications they receive. Since third party voter registration groups are gearing up to conduct voter registration drives in advance of the midterm elections, it is vital that these groups not be prevented from assisting voters with the registration process and/or verifying that applicants have been successfully registered.
Earlier this month, Advancement Project sent a letter to the Texas Secretary of State, Hope Andrade, asking her to clarify portions of the state’s interpretation of the Texas Election Code that appear to conflict with the NVRA. As in the case of the Norfolk Office of Elections and Virginia law, when there is a contradiction between state and federal statutes, the prevailing rule of law is the federal statute.
Secretary Andrade’s interpretation of the Texas Election Code appears to conflict with the NVRA in two important ways that greatly impede third party voter registration efforts. First, Texas requires individuals seeking to collect completed voter registration applications to be appointed as volunteer deputy voter registrars, a burdensome requirement not found in the NVRA. As an example of the burden, volunteer deputy registrars are only authorized to work in one particular county, which impedes individuals from conducting voter registration drives in any metropolitan area that covers or borders multiple counties. Private individuals who collect and submit completed voter registration applications from applicants without being appointed as volunteer deputy registrars may face criminal penalties. The requirement conflicts with the NVRA, which requires states to permit both government officials and private individuals and groups to conduct voter registration drives.
Secondly, Secretary Andrade interprets the Texas Election Code as prohibiting volunteer deputy voter registrars from photocopying completed voter registration applications. Advancement Project is concerned that the secretary’s interpretation could be misconstrued as a prohibition on the right of private voter registration groups to photocopy voter registration applications for their records - which could tremendously thwart the ability of such groups to ensure that the individuals whom they assisted with registration actually make it onto the voter rolls.
Advancement Project has asked the secretary to issue an Official Election Law Opinion clarifying that private groups are permitted to conduct voter registration drives without being appointed volunteer deputy voter registrars and that the photocopying prohibition on volunteer deputy voter registrars does not apply to third voter registration groups. Additionally, Advancement Project urges Secretary Andrade to revise the Volunteer Deputy Registrar Guide to eliminate any language stating that private voter registration activity by non-deputized individuals is prohibited by law. Pursuant to the NVRA, the Secretary has until September 6 to respond.
