Two Letters, The National Voter Registration Act, and Voter-ID in Nebraska

By: Eric Sutton

On September 22, the Omaha World Herald published a story about two letters sent to seven Nebraska counties threatening lawsuits for voter registration irregularities. In particular, the letters alleged that the Nebraska counties of Wheeler, Loup, Kimball, Thurston, Hooker, Keya Paha, and Thomas have more registered voters than individuals of voting age. While the groups behind the letters argue that the threat of suit is designed to prevent voter fraud through effective maintenance of voter registration records, an examination of the Nebraska Legislature’s most recent session, and the past of the two organizations responsible for the letters, indicates that these letters may provide the foundation for a renewed push for voter-ID in Nebraska.

The Letters, Organizations, and Counties

True the Vote is a 501(c)(3) organization based in Houston, Texas characterized as “Tea-Party affiliated”. The group used to be associated with King Street Patriots, an organization selected for close scrutiny by the IRS when filing for tax-exempt status. The Public Interest Legal Foundation is self-described as a “501(c)(3) non-profit, public interest law firm” focused on “high-profile matters affecting the political processes of the nation.” The Foundation’s board of directors is fairly characterized as conservative and has conducted legal work for True the Vote in the past.

The letters allege that the seven Nebraska counties violated federal law by failing to “clean up” their voter rolls. J. Christian Adams, president and legal counsel of the Public Interest Legal Foundation, said that “corrupted voter rolls provide the perfect environment for voter fraud.” As the letters cited a provision from the National Voter Registration Act of 1993 (“NVRA”) that allows private enforcement (likely Section 1973gg-9), the alleged violations of federal law almost assuredly emanate from the National Voter Registration Act as well. Especially since past actions of True the Vote were based on the enforcing provisions of the Act.

All the counties that received letters are primarily rural with dwindling populations. As the Omaha World Herald Reported, Loup County had 460 residents of voting age but 513 registered voters. Kimball County had 2,893 residents of voting age but 3,023 registered voters.  The likely explanation for these registration numbers is grounded in the NVRA and the effects of rural flight.

The National Voter Registration Act

The NVRA limits and regulates the ability of states to remove registered voters from the voting rolls. It requires, under Subsection 4(A) of Section 1973gg-6, the state conduct “reasonable efforts” to remove the names of deceased voters or those who have changed their residence. But the state can only remove that voter’s name if the person has failed to vote or “appear to vote” in the last two consecutive general federal election cycles or if the person failed to respond to the appropriate notice sent by the county registrar.

Furthermore, any state programs to remove voters must comply with certain rules, the most relevant of which are the procedures for removing voters that no longer reside in the relevant district. If appropriate information indicates that a person moved outside of the district (or is deceased), the state cannot remove that person’s name unless the person failed to respond to a written notice sent to the registrant’s last known address. If the person fails to respond to the notice, confirmation or affirmation of the registrants address might be required before they are allowed to vote in any federal election that takes place between the date the notice was issued and the day after the second Federal election that occurred after the notice was issued. If the voter fails to vote in two consecutive Federal elections after the issuance of the notice, their name is removed from the rolls.

The above requirements not only fail to align with census practices, they also create a period of “time lag” when a voter or former voter cannot be removed from the rolls. Likely because of these requirements and their consequences, Nebraska Secretary of State John Gale does not expect to find any major irregularities in the counties.

 Nebraska’s Recent History with Voter ID Laws

In the 2015 Nebraska legislative session, State Senator Tyson Larson introduced the voter ID bill (LB 111). State Senator Paul Schumacher introduced a similar bill (LB 121) that never advanced out of committee. While LB 111 advanced out of committee, the bill was bracketed after a filibuster lasting four days. The debate during the filibuster involved familiar terms. Sen. Larson argued that voter-ID was necessary to “protect the integrity and reliability of the election process,” while opponents of the bill, like State Senator Adam Morfeld, questioned the need for the bill in the absence of evidence of voter fraud.

Considering that four voter-ID laws failed to pass the Legislature in the last five years, the letters and resultant publicity of these voter roll issues seem likely to encourage a renewed push by those legislators in favor of the past bills. This is particularly so as the most recent elections resulted in a more conservative legislature. The continued publicity of voter fraud nationwide, combined with the letters from True the Vote and the Public Interest Legal Foundation have created a fertile environment for another round of voter ID debates in Nebraska.

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