Voter File Challenges
State and federal law dictate how VRE and the Secretary of State maintain the voter file, including the removal of voters. (52 U.S.C. §§20501 to 20511 and EC §§ 2000-2227)
As required by state and federal law, VRE and the Secretary of State diligently maintain California’s voter file using the most recent data available from
various government agencies (“VoteCal data”).
Recently, several county elections offices, including VRE, have received massive voter file challenge lists
from members of the public seeking to remove thousands of people from the voter rolls.
These communications have included requests to county elections offices to review its
official voter lists, which are confidential and not subject to public record act requests,
against their list of voters being challenged. These communications have also included
demands for the immediate removal of voters they have identified.
There are many issues regarding these challenges:
- The publicly available State
and county voter file do not include all of the VoteCal data, as it is unlawful for the
public to have access to certain types of data. (Gov. Code § 7924.000). VoteCal
data includes other voter record matching criteria found in a voter’s confidential voter file, such as a Social Security Number, a California Driver’s License number, a
California Identification Card number, and uniquely assigned voter identification
numbers. The publicly available State or county voter file data is prohibited from
including this information.
- The voter file data used by proprietary computerized
data-matching programs (such as IV3, EagleAI, and i360) using unknown
methodologies and datasets is outdated, sometimes as old as six months – in marked
contrast to the daily VoteCal data updates that occur throughout the state.
- California relies on a more robust set of data to maintain the voter file – including regular
updates from the California Department of Corrections and Rehabilitation, the
California Department of Public Health, the California Employment Development
Department, and the California Department of Motor Vehicles. As a result, many of the
lists of challenged voters provided to state and county election officials have included
active voters and already-cancelled voters.
Additionally, it is unlawful for unauthorized persons to possess or use voter file data.
The use of unlawfully obtained voter registration data is a misdemeanor. (EC § 18109) The knowing use of fraudulent or spurious data to challenge a person’s voter
registration and the mass, indiscriminate, and groundless challenging of voters solely
for the purpose of preventing voters from voting or to delay the process of voting are
punishable as felonies. (EC § 18543)
Moreover, the National Voter Registration Act (“NVRA”) governs the manner and timing
of removing a person’s name from voter registration file. (52 U.S.C. § 20507). As
stated in recent United States Department of Justice (“U.S. DOJ”) NVRA list
maintenance guidance, in addition to a state or county’s regular list maintenance
programs, a registrant may seek removal of their own name from the voter file. (United States Department of Justice: Civil Rights Division, “Voter Registration ListMaintenance: Guidance under Section 8 of the National Voter Registration Act, 52U.S.C. § 20507 (“Guidance document”), Sept. 2024).
Third-Party Challenges
These mass challenges of voter eligibility that county
election officials have received have been issued by third-party individuals or
organizations.
With respect to challenges made by third parties, the U.S. DOJ, in their Guidance
document, states, “A ‘removal at the request of the registrant’ under the NVRA requires
first-hand action by a registrant … [¶]’Information submitted by a third party does
not constitute a “removal at the request of the registrant.’”
Furthermore, the U.S. DOJ’s guidance cautions that certain types of list maintenance
activities may violate the NVRA:
Examples of list maintenance activities that may violate the NVRA include comparing
voter files to outdated or inaccurate records or databases, taking action that erroneously
affects a particular class of voters (such as newly naturalized citizens), or matching
records based solely on first name, last name, and date of birth. The prohibitions of
the NVRA extend to any list maintenance activity based on third-party
submissions.
90-Day Blackout Period
Additionally, the NVRA establishes a 90-day “quiet period” or
“blackout” period prior to each primary or general federal election, during which election
officials are prohibited from processing and removing the names of ineligible voters from
the state’s voter rolls as part of their normal list maintenance programs. (52 U.S.C.§ 20507(c)(2)(A)) Note that the 90-day period does not prohibit removal based on a
request from the registrant themselves.
As with other aspects of the NVRA list maintenance requirements referenced above, the
U.S. DOJ’s guidance specifically states: “This [90-day] deadline also applies to list
maintenance programs based on third-party challenges derived from any large,
computerized data-matching process.”
Changes of Residence Outside of the Jurisdiction
The NVRA contains specific safeguards designed to protect voters from improper voter
purges. The U.S. DOJ provides a reminder of the NVRA’s rules regarding address
changes.
For instance, a voter may be removed from the voter rolls due to a change in
their residential address outside of the jurisdiction only after providing written
confirmation of the move, or if an NVRA 8(d)(2) notice, which includes all required
language advising the voter that they will be removed if:
They do not vote in two
subsequent federal elections,
They do not respond to an NVRA 8(d)(2) notice, and
They do not vote during that time
frame.
With respect to a voter’s written confirmation, the U.S. DOJ’s guidance notes that: “A
third-party submission—such as a submission of another individual’s information
via an online portal or a challenge based solely on public database information—
is not confirmation by the registrant of a change of address.”
In Conclusion
The mass challenges recently submitted to many offices are not authorized
by statute:
- We are well into the 90-day quiet period where such activities are
prohibited.
- These requests for removal not being made by the registrants
themselves, but instead submitted by third-parties.
- These voter challenge efforts
rely on computerized data-matching processes (such as IV3, EagleAI, and i360) using
unknown methodologies and datasets.
- These voter challenge efforts have often
relied on very outdated state or local voter file data. Many counties have reviewed
some of the challenged voter records and found that they contained significant errors.
Acting upon these challenge requests would disenfranchise voters and may subject
(requestors) and counties to liability.
Vote Center Challenges
Elections Code section 338.5 provides that the term “polling place” means a location
where a voter casts a ballot and includes the following terms, as applicable: poll,
polling location, and vote center. A polling place can serve more than one precinct. It
should be noted that “polling place” would include a Vote by Mail ballot drop-off location
and an Official Vote by Mail Ballot Drop Box.
Elections Code sections 14240 through 14253 detail the procedures for a member of
the precinct board to challenge a voter’s qualifications at a polling place.
Precinct board and precinct board member are defined in Elections Code section 339
as follows:
(a) “Precinct board” is the board appointed by the elections official to serve at a
single precinct or a consolidated precinct. In an election conducted using vote
centers, “precinct board” means the board appointed by the elections official to
serve at a vote center.
(b) “Precinct board,” when used in relation to proceedings taking place after the
polls have closed, likewise includes any substitutive canvassing and counting
board that may have been appointed to take the place of the board theretofore
serving.
(c) “Precinct board member” is a member of the precinct board and includes an
election officer.
Elections Code section 14240(a) clearly provides that only a member of the precinct board, and not any
other person, can challenge a voter’s qualification at a polling place. Elections Code section 14240(a) reads, in part, as follows:
A person offering to vote may be orally challenged within the polling place only by
a member of the precinct board upon any or all of the following grounds…
Elections Code section 14216(a) provides that challenge may be made in the event a voter is unable to
sign the roster and has their name signed by another person on the roster.
For challenges made at a polling place, the precinct board is required compile and
maintain a list of challenges. (EC § 14252)
While only a member of the precinct board can make a challenge to a voter’s
qualification at a polling place, there is a provision that allows individuals to provide a
document or list to the precinct board concerning the residence or other voting
qualifications of any person(s). Elections Code section 14240(c) allows for such an
action. If such a list is provided, the precinct board member shall first determine
whether the provided list or documentation contains or is accompanied by evidence that
constitutes probable cause to justify or substantiate a challenge. Whether or not
sufficient evidence has been provided, the precinct board member must contact the
elections official immediately for further action.
If a voter is challenged by a member of the precinct board, the voter shall be provided a
provisional ballot.
In the event a person attempts to challenge a voter’s qualifications in any manner, the
precinct board should immediately contact the county elections official.
Finally, if the precinct board determines that persistent challenging of voters is resulting
in a delay of voting sufficient to cause voters to forego voting because of insufficient
time or for fear of unwarranted intimidation, the board shall discontinue all challenges,
and so note on the roster. (EC § 14253)
Processing of Vote by Mail Ballot Identification Envelopes
Members of the public have the right to observe the processing of Vote by Mail ballot
identification envelopes and Vote by Mail ballots.
Elections Code section 15104(a) provides that the processing of identification
envelopes and Vote by Mail ballots shall be open to the public, both prior to and after
the election.
As specified in Elections Code section 15104(d), the elections official must provide
sufficiently close access to enable individuals to observe the identification envelopes
and the signatures on those envelopes and challenge whether those individuals
handling Vote by Mail ballots are following established procedures.
As used in Elections Code section 15104(d), “sufficiently close” is defined in Section 20872(l) of the
Election Observations Rights and Responsibilities of the California Code of
Regulations (“the regulations”) as:
…the distance determined by the elections official that enables an observer to
observe and see the Vote by Mail identification envelopes and the signatures and
dates, date stamps, or postmarks thereon and challenge whether those
individuals handling Vote by Mail ballots are following established procedures,
which includes all of the following:
(1) Verifying signatures on the vote by mail ballot return envelopes by
comparing them to voter registration information.
(2) Duplicating accurately damaged or defective ballots.
(3) Securing vote by mail ballots to prevent tampering with them before they
are counted on Election Day.
In determining the “sufficiently close” distance, the elections official takes into account
the health and safety of the election workers and observers, while maintaining the right
of observers to observe the identification envelopes and the signatures on those
envelopes and challenge whether those individuals handling Vote by Mail ballots are
following established procedures.
In addition, challenges to a Vote by Mail voter may be made for the same reasons as
those made against a voter voting at a polling place. A challenge may also be entered
on the grounds that the ballot was not received within the time provided by the Elections
Code or that a person is currently serving a state or federal prison term for the
conviction of a felony. All challenges shall be made prior to the opening of the Vote by Mail identification envelope of the challenged Vote by Mail voter. (EC § 15105)
Elections Code section 15106 provides that, because the Vote by Mail voter “is not
present, the challenger shall have the burden of establishing extraordinary proof of the
validity of the challenge at the time the challenge is made.”
- If the challenge is overruled, the precinct board shall open the identification envelope
without defacing the affidavit printed on it or mutilating the enclosed ballot and, without
viewing the ballot, remove it and destroy the numbered slip, if any remains, and store
the ballots in a secure location. (EC §15107)
- If a challenge is allowed, the precinct board shall endorse on the face of the
identification envelope the cause of the challenge and its action thereon. (EC §15108)
While challenges may be made during the processing of identification envelopes,
Section 20879(c) of the regulations provide elections officials with the discretion to halt
verbal challenges from a person or group if multiple challenges are being made by the same person or group, and those challenges are disrupting the processing of the voteby-mail identification envelopes. However, that person or group shall have the right to
submit written challenges for the elections official to review at a later time.
Finally, Section 20879(f) of the regulations provide the elections official with the
discretion as to whether a challenge made during the processing of identification
envelopes and vote-by-mail ballots can be made verbally or in writing.
For reference, the regulations may be found on the Secretary of State’s website.
Challenges in General
For all challenges made during the conduct of the election, Section 20879(g) of the
regulations provides that in the event the elections official determines that challenges
appear frivolous or meritless, the elections official shall have the right to halt the
challenge process for those making the frivolous or meritless challenges to prevent
interference with the conduct of the elections activity or process being undertaken.
The elections official shall document these challenges as required by Section 20879(h)
of the regulations.
Criminal Penalties
There are criminal penalties associated with the improper use of voter registration data,
making improper challenges, interfering with the conduct of the election, and
intimidating voters. (Division 18. Penal Provisions, Elections Code)
