Resistance Is Futile: Federal Law Requires Public Voter Rolls

Congress intended voter records to be publicly scrutinized. Some states are determined to keep voters in the dark.

A new report by Hans von Spakovsky, senior legal fellow at the Edwin Meese III Center, makes the case that the National Voter Registration Act of 1993 (NVRA) requires states to make voter records public and overrides state laws to the contrary.

Too many states treat their registration lists like classified documents, hiding them behind restrictive laws and specious claims to privacy. For instance, Massachusetts Secretary of the Commonwealth William Galvin tried to make Voter Reference Foundation, an election integrity watchdog and subsidiary of Restoration of America, apply to each of the 351 local election officials for voter records. New Mexico tried to bring criminal charges against VRF for publishing its voter data. Both failed, but this shows the lengths states will go to prevent the public from scrutinizing their voter rolls.

Without public oversight, dead voters linger on rolls and people register in multiple states—sometimes at addresses that no longer exist. This invites errors and potential fraud. It also breeds suspicion, as trust in America’s elections depends on accurate, publicly verifiable voter rolls.

Von Spakovsky notes that recent polling shows 43 percent of Americans are not confident in the security of elections or the accuracy of results. The only way to restore public confidence is to allow the voters themselves to personally review the voter rolls, just as they are allowed to observe elections. This will require states to follow the NVRA by opening their books.

NVRA Demands Transparency

Studies and audits of state voter rolls repeatedly find inaccuracies, including duplicate registrations, deceased individuals still listed, and movers who never updated their addresses. Public scrutiny helps election officials catch problems before they affect outcomes and prevents intentional moral hazard that can facilitate fraud.

Congress passed the NVRA, known as the “Motor Voter Act,” to boost registration while ensuring states maintain accurate lists of registered voters. The law is clear that states must “maintain for at least 2 years and shall make available for public inspection . . . all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.” The Help America Vote Act requires states to maintain these records electronically.

These requirements also cover lists of voters flagged for address confirmation notices, responses—or lack thereof—and other maintenance activities.

Von Spakovsky explains there is no “need to know” test. Any “person aggrieved” can sue—after providing notice to the state—and inspect voter lists. In addition to individual researchers and concerned citizens, this includes watchdog groups.

Where the term “person” is not specifically defined in the text, federal law defines it as “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

The 5th Circuit Court of Appeals specifically addressed this in 1999, ruling that it was “unconvinced” that, when crafting the NVRA, Congress intended to limit standing to individuals as opposed to corporations.

Resistance Is Futile

Multiple states have sought to prevent election transparency organizations, such as Voter Reference Foundation (VRF), from publishing voter data online by demanding website takedowns, passing new legislation to limit publication, and even threatening prosecution. 

These actions directly conflict with the NVRA’s public-access mandate, as courts in cases like Voter Reference Foundation v. Torrez have recognized when striking down these barriers. Von Spakovsky points out that the law even allows criminal prosecution of state officials who attempt to impede its public disclosure requirement. The Justice Department could conceivably prosecute state attorneys general who have attempted to prevent organizations like VRF from publishing voter data.

These obstinate states have been bolstered by contradictory circuit court rulings. The 3rd, 5th, and 6th Circuits have ruled that nonprofits do not have standing to bring informational injury claims under NVRA, while the 1st and 9th Circuits have ruled that they do. 

Although the 9th Circuit ruled that the Public Interest Legal Foundation (PILF) had standing, it ruled against PILF on the merits. The court claimed the “disclosure of personal data” does not form part of the NVRA’s requirement of “transparency regarding processes.” 

Von Spakovsky rightly notes that without the ability to confirm that the deceased or non-residents have been removed from voter rolls, it is impossible to verify whether a state’s processes are sound. He urges the Supreme Court to take up the question of whether private organizations are entitled to this data, believing this will settle the issue in the affirmative.

States’ Attempts to Shield Voter Data Must Be Crushed

Congress passed the NVRA to bolster election transparency. Von Spakovsky’s analysis shows that the law is not on the side of states hiding their voter rolls from the public. 

Nonprofits must continue to take the legal fight to recalcitrant states that not only fail in their duty to voters but also prevent these groups from doing it for them. This will hopefully lead to a definitive ruling by the conservative-majority Supreme Court that will decide this issue as Congress intended.

States should let citizens, journalists, and researchers help keep the electoral system honest. A transparent process builds trust, prompting greater voter turnout. Secrecy, on the other hand, breeds doubt in our system of government. That balance requires real public oversight from citizen watchdogs. Our elections are too important to entrust to a handful of state bureaucrats. 

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