Purged Colorado Voters Will Be Able to Vote

After lawyers made their arguments yesterday in federal court in the lawsuit challenging the purging of tens of thousands of Colorado voters from voter registration lists, U.S. Senior District Court Judge John L. Kane, Jr. declared he would take the matter under advisement. Shortly before he returned to rule, the parties reached a settlement. The result is that those who who were purged will be able to vote and their credentials will be checked afterwards. If they are eligible to vote, their vote will count.

Under the agreement, voters removed from the rolls will be permitted to cast provisional ballots, and those ballots will be counted unless election officials can prove the voters were not eligible. To strike such ballots, county election officials must conduct an extensive records review on each one, a decision that must then be reviewed by Mr. Coffman’s office.


From my post yesterday morning at 5280.com:

Senior U.S. District Court Judge John L. Kane, Jr., a registered independent, will hear arguments today on whether to issue a temporary restraining order that would (1) prevent the Colorado secretary of state from removing voters from registration lists between now and Election Day and (2)reinstate those who were removed after July 21, 2008.

The lawsuit was brought by Common Cause of Colorado, Mi Familia Vota Education Fund, and the Service Employees International Union. The groups allege that Colorado has removed more than 20,000 voters from registration lists in the 90-day period before Election Day. A federal law, the National Voting Rights Act, generally prohibits removals in this 90-day window, except in the event of death, incapacitation, a felony conviction, or if the voter asks to be removed.

The lawsuit charged that the Secretary of State implemented a Colorado law that was in conflict with the federal law and facially invalid. The Colorado law required cancellation of new registrations when a non-forwardable notice mailed to the voter was returned as undeliverable within 20 days of receipt of the registration application.

Secretary of State Mike Coffman said there has been no malfeasance, just perhaps some mistakes.

Taking a closer look:

First, why the need for such a quick hearing? Common Cause and their fellow plaintiffs write, in their motion for a temporary restraining order(pdf):

With the November 4, 2008 election only 11 days away, any delay will result in thousands of Coloradans being turned away from the polls, irrevocably preventing public participation in the electoral process and undermining the legitimacy of our most valued democratic institutions. There is no way to give a voter back their right to vote in this election, once the day has passed. Without expedited consideration, thousands of Colorado voters will be prevented from vote on election day.
Second, what exactly were they asking for? From their motion, these are their demands:
  • (1) to immediately desist removing or cancelling the names of any voters from the official list of eligible voters for any reason not provided for in [a specific statute]
  • (2) to immediately desist removing or cancelling the names of any voters from the official list of eligible voters in violation of [a specific statute];
  • (3) to reinstate the names of any and all voters who were removed or cancelled from the official list of eligible voters since May 13, 2008 for any reason not provided for in [a specific statute]; and
  • 4) to reinstate the names of any and all voters who were removed or cancelled from the official list of eligible voters in violation of [a specific statute].

Next, is emergency action really necessary? Yes, according to Professor Jonathan Nagler, a political science, campaign and elections expert who teaches at New York University. Nagler was retained to analyze the data for groups bringing the lawsuits.

In his affidavit (pdf), attached as Exhibit 4 to the groups' brief, Nagler states his job was to determine if voter registrations were being purged between August 5 and November 4, the 90-day period before the national election, when federal law allows removals only for reasons similar to the ones I named above. If Nagler found voter records had been purged, his next task was to determine why they were removed.

First, he looked at the cancellations for July, August, and October. He found that 14,859 voters' names on the July 15 list were no longer on the list in October.

Nagler set out to find out why. Using death and felon records, and the numbers provided by Coffman, he was able to determine that 1,145 had died, 544 were felons, and 203 had asked to be removed. Subtracting these numbers from the 14,859 names that had been purged, he was left with 12,067 purged voters and no explanation as to why their voter registration records were canceled.

He used age and other records as factors in the death analysis and didn't find that the 1,145 deaths were underrepresented. He moved on to felons. The Colorado Department of Corrections reports that 90 percent of our inmates are men and 10 percent women. But he found that of the purged voters, 48.2 percent were men and 51.8 percent were women. If a much greater number than 544 were felons, there should have been fewer females and more men.

Bottom line: Nagler found that 12,967 voters were not removed due to death, a felony conviction, or because they asked to be removed.

He then worked with postal records to see who might have changed their addresses. He searched for duplicate voting records. He found no more than 197 of the 12,2967 purged voters were duplicates.

After running more tests, he concluded that most of the 14,859 voters with missing registrations are truly missing and cannot be accounted for.

His final breakdown: Of the 14,859 Colorado voters purged from voter registration lists, the secretary of state's office provided numbers showing that 1,892 had died, been convicted of a felony or removed their name from the list.

That leaves 12,967 who were removed for other reasons. Of this group, 3,118 may still be on the list under another name; 197 may represent duplicate records.

That leaves 9,652 voters with no explanation as to why they have been removed.

Nagler then proceeded to examine the voters on the August 15 to October 20 lists.His conclusions:
  • 12,072 purged voters between July 31 and August 15
  • 14, 859 purged voters between August 15 and October 13.
  • The total number of purged voters is 26,931, which is quite higher than the 14,049 number provided by Secretary of State Mike Coffman.

Here is Coffman's breakdown, from his press release, which is included in Nagler's affidavit:

Reason for Cancellation
Moved out of County/State ****** 6,572

Duplicate ******* 4,434

Failed 20-day period ******* 1,136

Deceased ******* 1,145

Convicted Felon ******* 544

Withdrawn ******* 203

Not a Citizen ******* 13

Voter Fraud ******* 2

TOTAL ******** 14,049

A valuable resource for understanding the problems is the this report on voter purging by the Brennan Center for Justice.

If you'd like to read more of the legal documents, here are: (pdf) Complaint, Motion for Temporary Restraining Order, Plaintiff's Brief and Supplement, Secretary of State's (Opposing) Brief.

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  • Display: Sort:
    Will they be counted? (5.00 / 0) (#3)
    by Lora on Thu Oct 30, 2008 at 10:11:43 PM EST
    Provisional ballots have quite a history of not being counted.  I hope this is not the case here.

    The states have different rules for (none / 0) (#6)
    by hairspray on Fri Oct 31, 2008 at 12:58:33 AM EST
    counting provisional ballots and that isn't right. But that is the problem with those ballots.

    Whew (none / 0) (#1)
    by fiver on Thu Oct 30, 2008 at 09:22:18 PM EST
    Great decision (none / 0) (#2)
    by arguewithmydad com on Thu Oct 30, 2008 at 09:22:53 PM EST
    This was a great and timely decision that will allow thousands to retain their right to vote on Tuesday, November 4th.  Kudos to Sr. U.S. District Court Judge John L. Kane, Jr !

    Judge Kane is a terrific judge (none / 0) (#5)
    by Jeralyn on Fri Oct 31, 2008 at 12:38:58 AM EST
    but in this case, he didn't rule -- instead, after he heard arguments, the parties settled and made their own agreement right before his decision. Which, I assume, means both sides feared they might lose something if he did rule.

    My right to vote was violated in the last election (none / 0) (#4)
    by faster on Fri Oct 31, 2008 at 12:16:14 AM EST
    Wanna know how I was deprived of my right to vote in the last presidential election?

    After WWII my parents bought a home in a new suburb of Chicago which was still largely farmland.  By the time I grew up it had become a neocon-type bastion for VERY wealthy Republicans.  I'm NOT Republican.

    I'm now 63, severely disabled and live retired in Mexico, so I had to vote absentee that year.  I did everything right.  I even had e-mail communications with the voting board of my county several times, assuring me my registration was fine.  When I didn't get my ballot, near the deadline, I wrote again.  They assured me it was already in the mail.

    I got it, all right.  A YEAR LATER.

    And so, boys and girls, ends the story of one absentee ballot (which counted a lot that year) was avoided being cast for any Democrat.  And I'm by no means undereducated, a person "of color" or otherwise vulnerable to illegal manipulations of the vote - yet they did it to me and got away with it.  The ballot, when it came, was franked mail, so it had no dated postmark of when it was really mailed.  All they'd need do, if accused, would be to blame the Mexican Postal service.  Prejudice about "stupid, incompetent Mexicans" would do the rest of the job for them.  I, of course, know the limitations of Mexico's mail service, but THIS is not one of them.  If the fault was theirs, I simply would never have gotten it at ALL.  Most mail comes in as timely a fashion as U.S. Mail does.

    The Republicans, you may be sure, are very busy little bees right now, and it wouldn't surprise me if my vote THIS time doesn't just end up in their circular file.  Of course, I'll never have any way to know that, much less prove it.

    But they did it in '02 - by mailing it a year late. This year, with the help of Democrats Abroad, I got my ballot and sent it in promptly.

    Probably for nothing, though.  Even if counted, it'd only be one of, perhaps, 100 votes for anyone on the Dem ticket in the entire county.

    I don't care if my vote counts for nothing.  It was ALL I could do to support Obama, and I did it.