Election Watchdog Threatens to Sue Virginia for ‘Inaccurate’ Noncitizen Voting Records

December 20, 2018 Updated: December 21, 2018

The Public Interest Legal Foundation (PILF), an election watchdog group, is threatening to sue the Virginia Board of Elections unless it corrects voter roll maintenance procedures involving the removal of noncitizens.

PILF published a pair of reports using noncitizen data supplied by the Board of Election, which erroneously identified several eligible citizens as ineligible noncitizen voters. That sparked a defamation lawsuit from the League of United Latin American Citizens, alleging “reckless” behavior and “spurious allegations of voter fraud.”

The threat to sue the Board of Elections is the latest development in a series of election-related confrontations between the nonprofit watchdog and Virginia elections officials over the past several years.

The group sent a formal notice (pdf) to the state Department of Elections on Dec. 12, stating its intention to file a lawsuit if appropriate measures are not taken to comply with the National Voter Registration Act.

“Despite reasonable intentions, something is broken in Virginia’s system to identify and remove ineligible non-citizens from its voter roll,” said Logan Churchwell, PILF’s communications and research director.

Churchwell said the issue is a manifestation of past transparency failures: “Virginia election officials fought transparency efforts, surrounding their list maintenance process in previous years—we are now beginning to see why,” he said.

Last year, the group discovered more than 5,500 noncitizens on Virginia voter rolls, with nearly 2,000 casting thousands of votes over multiple elections. Both documented and undocumented noncitizens are barred from voting in federal elections. It is also a felony for non-U.S. citizens to register to vote.

Virginia election officials eventually removed the illegal registrants, but not until PILF filed three lawsuits, dozens of public record requests and reviewed voting documents across 133 state jurisdictions.

Referring to Gov. Terry McAuliffe, a longtime Democratic Party fundraiser and staunch Bill and Hillary Clinton ally, PILF president J. Christian Adams said, “Virginia hid critical information that would have improved election integrity while a political operative-turned-governor vetoed numerous proposals that would’ve prevented alien registration and voting.”

Adams served in the U.S. Department of Justice Civil Rights Division from 2005 to 2010 under former Presidents George W. Bush and Barack Obama. PILF filed more than a dozen lawsuits in federal courts relating to voter roll maintenance and access to public voter records.

As part of Virginia’s previous document release, election officials incorrectly included four eligible citizens in their noncitizen maintenance records. PILF published the individuals’ voter registration applications as provided, along with thousands of others.

Reprinting the four mistakes provided an opening for the group’s voting rights opponents to launch a concerted legal attack.

The League of United Latin American Citizens lawsuit was joined by the Southern Coalition for Social Justice, the Protect Democracy Project, and a number of supportive lawyers and law firms.

“This case concerns one modern form of voter intimidation: the groundless assertion that certain eligible voters are committing voter fraud by participating in elections,” the lawsuit says.

The Campaign Legal Center, led by the late Sen. John McCain’s former general counsel, Trevor Potter, filed an amicus brief on the league’s behalf, and said in a press release the “plight of the four individual plaintiffs in this case is a prime example of how voter roll purges can harm even eligible voters.”

The Campaign Legal Center, which has been partially funded by George Soros’ Open Society Foundations, also said PILF’s efforts to expose noncitizen voting “constitute[s] intimidation tactics designed to threaten, embarrass, harass, and dissuade plaintiffs and others from voting.”

PILF responded by filing a motion to have the complaint dismissed, saying that reposting Elections Board information does not meet the legal definition of voter intimidation.

“Before publishing these reports, PILF had no way of verifying the accuracy of the government-created list maintenance records, provided by the Department [of Elections] and registrars of cities and counties across Virginia without contacting each of the voters named—conduct that likely would have been characterized as threatening and intimidating,” states the Dec. 12 letter, addressed to Virginia Department of Elections commissioner Christopher Piper.

The basis of the dispute stems from a Virginia election law, requiring election officials to collect state Department of Motor Vehicles records and federal immigration SAVE records, or the Systematic Alien Verification for Entitlements Program.

The information is used to verify the citizenship status of registered noncitizen voters.

The Virginia Department of Elections issues those leads to local registrars, who then mail notices to the listed individuals. The notices include an opportunity to submit a sworn statement, affirming they are in fact U.S. citizens. Local registrars are required to cancel voter registrations if they do not receive an affirmative return response.

Local registrars then send relevant information back to the state Department of Elections, which then issues publicly available “declared non-citizens” lists—which PILF used in its research. The group also found that individuals on “declared non-citizens” lists were allowed to remain on voter rolls.

When the group learned that several Elections Board-provided errors were included in their reports, specifically in a nearly 800-page appendix containing voter registration forms, it added a footnote saying, “Exhibit 12 was updated after the discovery that some records were erroneously disclosed by the Commonwealth of Virginia, which reflected individuals incorrectly categorized in the official voter registration archive as being ‘declared non-citizens.’ Those records were removed.”

This does not matter as far as the League of United Latin American Citizens and other voting rights groups are concerned. “Each plaintiff has been falsely accused of having committed one or more felonies by registering to vote and actually voting as alleged non-citizens,” their case argues.

PILF said the Elections Board’s errors and the lawsuit against it have created a chilling effect, inhibiting the group from ensuring federal election laws are followed.

“PILF has been unable to advocate for election integrity and the rights of eligible citizens to be included on the voter rolls because the department’s improper removal of citizens from the voter rolls created the confusion that led to the litigation,” the foundation said in a letter dated Dec. 12.