Mississippi’s “matching” legislation is a solution in search of a problem and a litigation magnet.
Legislatures across the country, including here in Mississippi, continue to consider legislation that will make it harder to exercise one’s right to vote. Some of these bills, like Mississippi’s House Bill 586, demand that states or localities more aggressively purge voters from their voter rolls. HB 586 proposes a database matching scheme to compare statewide voter rolls with county, state and federal database records in an effort to identify and purge non-citizens from the voter rolls.
While the integrity of the ballot is essential to our democracy, we need to focus on actual threats. Non-citizens registering to vote and voting in Mississippi is not an actual problem. Trying to identify and purge any non-citizens who may be registered to vote will result, instead, in flagging validly registered voters as potential non-citizens and putting them at risk to be purged from voting rolls. If enacted, HB 586 will also certainly result in litigation against the state. HB 586 is bad legislation and should not become law.
Identifying non-citizens who are registered to vote is unnecessary.
There are threats to the integrity of our electoral system. We need to ensure foreign cybercriminals cannot infect our election infrastructure. Then Mississippi Secretary of State Delbert Hosemann identified over 5,000 hacking attempts in August 2016 and 4,000 attempts in September 2016 alone. We need to combat specious allegations of fraud, which cause voters to believe the system is corrupt and their votes do not matter. One poll after the 2020 U.S. Presidential election found 52% of Republicans said Donald Trump “rightfully won” an election he lost. We need to ensure that people respect the voice of the electorate. The storming of the U.S. Capitol on January 6, 2021 shows what can happen when people do not.
Attempts to purge non-citizens from Mississippi’s voter rolls is a solution in search of a problem at best. The evidence of non-citizens registering to vote and voting in Mississippi is vanishingly small and as a percentage of the total vote approaches zero. In September of 2020, Mississippi Secretary of State Michael Watson said, “Occasionally, we see instances where non-citizens attempt to register to vote, but many of those individuals do not understand it is illegal and seek to withdraw their applications once realizing the consequences.” The Heritage Foundation, which keeps track of all voting relating criminal convictions, found that over a quarter century, from 1993 to 2019, there were only 31 convictions in Mississippi for voter or election fraud, none of which involved non-citizens. A 2016 New York Times survey of election officials and law-enforcement in 49 states and Washington, D.C. found just two possible instances of noncitizens voting—out of 137.7 million voters nationwide. Federal courts have reached similar conclusions about the infrequency of noncitizen registration and voting. In 2016, the U.S. Court of Appeals for the Fifth Circuit, in Veasey v. Abbott, found that “undocumented immigrants are unlikely to vote as they try to avoid contact with government agents for fear of being deported.”
Similar “matching” laws have resulted in wildly inaccurate results.
While evidence of non-citizens registering to vote and voting remains elusive, the problems with “matching” laws is clear. To properly maintain voter lists, officials must not only remove ineligible registrants but also ensure eligible voters are not erroneously purged. States have not implemented such schemes with much success.
In 2019, then Texas Secretary of State David Whitley questioned the citizenship status of almost 100,000 registered voters in an effort to purge non-citizens from Texas’s voter rolls. The effort was flawed from the start. The secretary of state’s office matched voter rolls with data from the Texas Department of Safety for people who had at some point in the past told the department they were not citizens; however, the review did not account for people who later became naturalized citizens. The error became evident within days, and the secretary of state’s office later admitted at least 25,000 names were mistakenly identified. After this debacle, David Whitley resigned after five months in his post. A similar failed effort in Florida that initially identified almost 200,000 registered voters as potential non-citizens ultimately removed only 85 people from voter rolls. That means thousands of U.S. citizens were wrongfully designated as non-citizens and threatened with removal from the rolls. Similar database matching efforts have failed in Kansas and Indiana.
HB 586 and similar legislation are worse than a solution in search of a problem; they are a problem in itself, as they often misidentify eligible voters as non-citizens.
If HB 586 becomes law, litigation will follow.
Voter purge legislation also results in almost certain litigation against the state. These “matching” efforts run the risk of violating a host of federal laws and constitutional provisions including the Voting Rights Act, the National Voter Registration Act, and the First and Fourteenth Amendments. In addition to bad press and lawsuits, there are financial costs. Texas agreed to pay $450,000 in costs and fees to the plaintiffs’ attorneys in its botched “matching” effort. Mississippi is already engaged in litigation, MIRA v. Watson, over its program that attempts to match voter registration applications with the driver’s license database in an effort to find non-citizens. This effort often leads to voter registration denials of Hispanic people based on inaccurate assumptions they are non-citizens.
Maintaining the integrity of our electoral process is of paramount importance. Legislation like HB 586 undermines faith in our system and should not become law in Mississippi.