CNN political director breaks down how Georgia rule change could impact Election Day results

Washington (CNN) — Attempts by conservatives to purge state voter rolls ahead of the November election, including from Donald Trump’s campaign and the Republican National Committee, are ramping up, prompting concern from the Justice Department that those efforts might violate federal rules governing how states can manage their lists of registered voters.

Questioning the accuracy of voter rolls has long been a hallmark of right-wing efforts to raise doubts about the integrity of elections and featured prominently in 2020 when allies of the former president pushed false claims that scores of fraudulently cast votes helped Joe Biden win the presidency.

As of Tuesday, at least three dozen cases related to voter rolls and their maintenance are pending in 19 states, according to the liberal-leaning Democracy Docket, which tracks election litigation.

Some of the lawsuits have been brought by the Republican National Committee against state election officials in the battleground states that are atop both Trump’s and Vice President Kamala Harris’ must-win lists, including Georgia, Nevada, Michigan and Wisconsin.

The right-wing effort to purge voter rolls has largely centered around claims that noncitizens are casting illegal votes in favor of Democrats. But reports of noncitizen voting in US elections are extremely rare. The right-leaning Heritage Foundation’s database of confirmed fraud cases lists fewer than 100 examples of non-citizens voting between 2002 and 2022, amid more than 1 billion lawfully cast ballots. The left-leaning Brennan Center for Justice analyzed more than 23 million votes from the 2016 election and found an estimated 30 examples.

The total number of lawsuits is a notable increase from previous elections, according to legal experts who say an overwhelming majority are intended to create controversy and undermine confidence in the election.

“There’s always been some litigation about voter rolls and list maintenance. But part of what you’re seeing with this explosion is what appears to be a concerted attempt to generate errors and controversy that can then be used down the road to undermine the election results,” said Uzoma Nkwonta, an attorney representing the New Georgia Project Action Fund, a group working to thwart an effort by two Georgia voters to purge thousands of voters from that state’s voter rolls.

“And that’s what makes this environment different,” Nkwonta added. “Now you are seeing what appears to be an outright assault on the list maintenance practices, outright assault on voter registration practices.”

Justin Levitt, an election law specialist at Loyola Law School who served as a voting rights adviser in the Biden White House, agreed. He said he sees some of the lawsuits as “purely marketing” that weren’t “designed to go anywhere legally.”

“There’s a fairly hefty category of these challenges that is decidedly not designed to win in court, but I don’t know that that was ever the point,” he said.

Running up against federal law

Meritless or not, the Biden administration has taken note. This month, the Justice Department reiterated that states have an obligation to comply with the National Voter Registration Act, a 30-year-old federal law that sets out rules for when and how most states can update their voter rolls.

One of those NVRA limits is at the center of a federal lawsuit in Georgia filed last month by two Republicans in Fulton County against local election officials. The plaintiffs, Jason Frazier and Earl Ferguson, argue that the county’s elections board is misapplying the federal law’s rule that states must observe a 90-day quiet period during which officials cannot “systematically remove the names of ineligible voters from the official lists of eligible voters.”

The two Republicans claim that the federal rule does not apply to individuals who submit challenges to voter rolls and they’re asking a federal judge to order Fulton County to purge from its rolls the individuals whom they claim are ineligible to vote. Nkwonta and other lawyers representing NGPAF, which has intervened to defend the elections board, say there is no such loophole that would allow officials to “systematically remove voters from the rolls for any reason within 90 days of an election if only a private citizen asks them to.”

Such efforts, if successful, could be extremely consequential in a place like Georgia. The state went for Biden by an extremely slim margin in 2020, with fewer than 12,000 votes separating him from Trump. Fulton County, which includes Atlanta and is Georgia’s most populous county, has been ground zero for conservatives looking to sow doubts in the integrity of the state’s elections.

It’s possible that the case is short-lived. On Monday, the two voters moved to throw out their lawsuit, pointing to a procedural error. If the judge overseeing the matter grants their request, the voters could refile the lawsuit later.

Reviewing voter rolls is a regular practice for states, and despite the 90-day quiet period, the NVRA does allow individuals to ask to be taken off lists close to an election. The DOJ guidance on the law appears to be in line with what the NGPAF is arguing, with the department saying essentially that states cannot backdoor mass purges by using names submitted by individual voters.

Georgia, in particular, has been a hot spot when it comes to voter roll challenges because under state law, individuals are able to bring an unlimited number of challenges, whereas other states have in place rules that require more diligence on the part of the challenger, legal experts told CNN.

Sowing ‘distrust in our elections’

Critics of noncitizen purges warn that mass removals of registered voters could disenfranchise legitimate voters ahead of an election.

That risk was illuminated in August when Alabama Republican Secretary of State Wes Allen announced that he had begun a process of removing more than 3,200 individuals previously identified as being noncitizens from the state’s voter rolls even as he acknowledged the possibility that some of those people have since become naturalized citizens who are eligible to vote.

Last week, several voters in the state filed a federal lawsuit, arguing the “Purge Program” violates the NVRA, the Voting Rights Act and the US Constitution. They’re asking a federal judge to order Allen to stop the plan and put any voters removed from the state’s rolls back on them.

Nkwonta stressed to CNN that the NVRA “strikes a careful balance” between allowing people to register to vote and stay on voter rolls close to an election and giving states the opportunity to maintain and clean up their lists.

“And when you are this close to an election, that balance tips in favor of the voter to make sure that no one is unlawfully removed, because at this point you are too late often to correct errors in registration before the registration cutoffs,” he said.

CNN has reached out to Allen’s office for comment.

Accusing states of not maintaining voter rolls

A case brought in Nevada last week by the RNC, Trump’s campaign and others accuses Nevada Democratic Secretary of State Francisco Aguilar of not properly maintaining the state’s voter rolls, which they claim are inflated with noncitizens. The plaintiffs are asking a state court to order Aguilar to verify that registered voters are US citizens before the November election.

Pointing to data from the Nevada Department of Motor Vehicles, the lawsuit claims that just under 4,000 people “listed in the DMV noncitizen file cast a ballot in the 2020 general election.” The battleground state went for Biden four years ago by nearly 33,600 votes.

Aguilar’s office quickly rejected the claims, saying that there are “numerous safeguards in place to prevent noncitizens, or anyone ineligible to vote, from casting a ballot” in Nevada’s elections.

“Any claims of a widespread problem are false and only create distrust in our elections,” the office said in a statement provided to CNN.

Similar lawsuits accusing election officials of not properly maintaining their voter rolls are pending in Michigan, North Carolina and Arizona, where litigants are leaning on census data to make claims about what they see as bloated registration lists.

In one such case, the RNC is pointing to data from the US Census Bureau’s “2022 American Community Survey” and “the most up-to-date count of registered active voters available from the Michigan Bureau of Elections” to accuse state officials of “substandard list maintenance” resulting in “suspiciously high rates of active voter registration” in counties across Michigan.

Cases like these have been brought for years but have never resulted in any significant outcome, Levitt said.

“And the reasoning has been explicitly sort of smacked down on a number of occasions because the census numbers and registration numbers measure two fundamentally different things at different times with different margins of error,” he said. “It’s a little bit like saying my alarm clock doesn’t match the temperature outside … so therefore there must be fraud.”

Lawsuits over voter roll access

Not all states are subject to the NVRA, something that has also spurred litigation this year. The federal law exempts some states if they allow voter registration on Election Day at polling centers where federal elections are conducted.

In the battleground state of Wisconsin, which is totally exempt from the NVRA, a right-leaning group is trying to get a federal court to order the state to allow the public to inspect certain records related to the maintenance of voter rolls.

The group, called the Public Interest Legal Foundation, has said that it used such records in other states to examine “the programs and activities of state and local election officials to determine whether lawful efforts are being made to keep voter rolls current and accurate.”

J. Christian Adams, the group’s president and general counsel, told CNN that his group’s aim is to “help states fix large and small mistakes” on their voter rolls and that Wisconsin’s exemption to the NVRA undermines Congress’ intent with the law – even though the statute has always provided an exemption for certain states.

“We just want transparency to apply to 50 states, not 44,” he said.

Last month, the Justice Department stepped into the case to defend the NVRA’s exemption.

CNN’s Daniel Dale and Fredreka Schouten contributed to this report.

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