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A Big Week For Flawed Voter Matching Experiments

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By Adam Skaggs

Concerns about matching voter data with motor vehicle records were back in the news last week in New Jersey, Wisconsin and Florida — but for very different reasons. In one case, the matches were conducted in an attempt to add voters to the registration rolls; in the others, to take them off. But the experience in each state teaches the same lesson: matching data between the voter and driver databases is an inherently flawed process — and one that's far too unreliable to make a successful "match" a precondition to registering and voting.

In New Jersey, it was an attempt by Secretary of State Nina Wells to expand the voting rolls that gave rise to the latest kerfuffle. Wells was concerned that some citizens who'd applied for driver's licenses hadn't been given the opportunity to register to vote, as is required under the "Motor Voter Act." So she had the Division of Elections cross-check the voter registration database against motor vehicle records. The data comparison turned up 880,000 driver's license records that couldn't be matched up with voter registration records. Officials concluded that this meant there were 880,000 drivers who weren't registered to vote. So, to be helpful, they began sending all those drivers a voter registration form, along with a letter encouraging them to fill it out and register so they could vote in November.

Unfortunately, a lot of those drivers already were registered, and they weren't too happy to receive letters implying they were not. The confusion arose because minor discrepancies between their records in the voter and motor vehicle databases — like missing middle initials or inconsistent treatment of hyphenated last names— prevented officials from matching a driver's record in the motor vehicle database with the same person's voter record.

Some of these "false negatives" happened because, in the past, drivers didn't have to provide a specific birth date when they registered; they just had to certify that they were of legal driving age. When the motor vehicle database was modified to include specific birth dates, a default value was entered for all these existing drivers: January 1, 1800. Not surprisingly, few of these drivers were actually 208 years old, and none of them gave a birth date from 1800 on their voter applications. So none of them matched. And they got letters saying they weren't registered, even though some of them had been voting without incident for decades.

Notwithstanding the panic some voters must have felt when they opened their mail, there was little real harm done: no voter registration was canceled as a result of New Jersey's failed matches. After all, the entire exercise was set in motion by an attempt to add more citizens to the registration rolls, so more citizens could vote. The same can't be said about the latest matching developments outside the Garden State.

In Florida, reports about matching hit the press when Florida Secretary of State Kurt Browning announced Monday that, with less than a month to go before the registration deadline, he would begin enforcing Florida's "no-match, no-vote" law. The law hadn't been enforced since last December, when a federal court enjoined it after concluding that it was keeping more than 14,000 eligible Florida citizens off the registration rolls. These Floridians would have been denied a regular ballot in the January presidential primary had the court not stepped in. But after the legislature amended the law earlier this year — fixing some, but not all of its flaws — the court declined to continue the injunction against the amended version of the law. Unfortunately, this opened the door to Browning's decision, which will put tens of thousands of voters who register in the next month at serious risk of being kept off the rolls for the actual presidential election in November.

It's a particularly dangerous move at a particularly dangerous time. In 2004, about 20 percent of all Floridians who registered to vote — some 300,000 voters — registered in the two weeks just before the deadline. There's every reason to expect a similar flood of applications this year, meaning that a huge percentage of new applicants will be at risk of having their votes go uncounted because of matching.

Florida's law is especially troubling because of its disproportionate impact on people of color, who have made up a substantial percentage of new registrants so far this year: although African-American voters made up only 13% of the total applicant pool in 2006-07, they comprised 26% of those blocked by the law, and though Latinos made up only 15% of the total applicant pool, they comprised 39% of those blocked. In contrast, white voters constituted a full 66% of the voter pool, but made up only 17% of those harmed by the matching law.

With statistics like that, any fair-minded policymaker would be reluctant to launch a no match, no vote policy on the eve of a historic election. But Browning isn't the only official who apparently thinks that changing policies at the eleventh hour is a good idea despite its potential to disenfranchise tens of thousands of voters. Out in the Badger State, Wisconsin's Attorney General is doing everything he can to make sure that, when it comes to counting votes in 2008, Wisconsin will be "the next Florida."

Attorney General J.B. Van Hollen sued the state elections agency on Wednesday, demanding that it run retroactive database matches on every voter who registered after January 1, 2006. Van Hollen's move, which he claimed was necessary to remove ineligible voters from the rolls, comes because the elections agency has, in the last two months, protected Wisconsin voters by twice rejecting calls to implement a strict no match, no vote policy for the November elections.

We'd explained to the elections agency why a matching policy like the one Van Hollen is advocating would be inconsistent with federal law, not to mention bad public policy. And thus far, they've wisely avoided any precipitous actions that would put voters at risk in November, in large part because the preliminary results of matching have been so dismal: in the first month Wisconsin tried matching voter data, nearly a quarter of the matches failed. Indeed, four of the six members of the board that oversees elections couldn't be matched with motor vehicle records because of problems with middle initials and the like.

Assuming that the 22% failure rate remains consistent, retroactive matching like that Van Hollen is pushing for would mean that somewhere between 53,000 and 220,000 Wisconsin voters would have to vote a provisional ballot instead of a regular ballot if they didn't bring acceptable proof of identity and residence to the polls — proof they wouldn't know to bring, since they haven't needed to show it in past elections. That's a serious problem. As the U.S. Election Assistance Commission has explained, "[t]he bottom line is that the casting of a proper, traditional ballot constitutes a vote, while the casting or submission of a provisional ballot does not." So it shouldn't be a surprise that 70% of provisional ballots cast in Wisconsin don't get counted. Van Hollen's proposal is a recipe for chaos, confusion and, inevitably, disenfranchisement.

It's hard not to wonder why, in the face of empirical data showing how unreliable matching is, public servants like Van Hollen and Browning would push policies that will make it more likely that the votes of tens or hundreds of thousands of new voters — disproportionately voters of color — won't be counted in an historic (and close) election.

In the words of the editorial page of the Milwaukee Journal Sentinel, "Draw your own conclusions."

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Mr. Skaggs works on a range of election administration and voting rights concerns, including the Center's efforts to reform the process of voter registration. Before joining the Brennan Center for Justice, he was a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP.