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Right-wing group sues over errors in Pennsylvania voter registration records

Lehigh County voter registration workers sort mail-in ballots Nov. 7, 2023, at Lehigh County Government Center in Allentown, Lehigh County, Pennsylvania.
Matt Smith
/
For Spotlight PA
FILE - Lehigh County voter registration workers sort mail-in ballots Nov. 7, 2023, at Lehigh County Government Center in Allentown, Lehigh County, Pennsylvania.

This article is made possible through Spotlight PA’s collaboration with Votebeat, a nonpartisan news organization covering local election administration and voting. Sign up for Votebeat Pennsylvania's free newsletters here.

A far-right group is asking a judge to order Pennsylvania to clean up its voter roll, citing flaws it claims to have found in voter registration data as evidence that the state is violating federal law.

The group's claims, however, appear to contradict facts about how the state's voting systems work, reflecting what one election expert suggested is a "gross misunderstanding of election law." Much of the information in the suit comes from groups with histories of making false claims about the state’s voter rolls, and the suit includes at least one easily disproved claim.

The lawsuit is part of a broader strategy that the lead plaintiff, United Sovereign Americans, has acknowledged: to challenge voter rolls across the country, in separate federal court jurisdictions, to force the issue up to the U.S. Supreme Court in time to affect the 2024 general election. The group filed a similar suit in Maryland that was dismissed in May because the plaintiffs didn’t have legal grounds to sue.

It is unclear if the Pennsylvania suit will face the same fate, but the group has gotten a high-profile local attorney, Bruce Castor, to file the case on its behalf. Castor served as acting attorney general of Pennsylvania in 2016 and represented former President Donald Trump during his second impeachment trial in 2021.

The Pennsylvania Department of State, which is the primary defendant in the case, denounced the suit as another effort to falsely malign the state’s elections.

“A review shows it to be a frivolous action alleging, without any supporting facts or viable legal theories, a panoply of conspiracy claims advanced by litigants who have repeatedly filed baseless actions rejected by the courts,” said department press secretary Matt Heckel. “Undeterred, these litigants and their counsel continue to waste taxpayer money. The Department will respond accordingly.”

What the suit claims

The lawsuit notes that Congress established minimum standards for federal elections through the National Voter Registration Act and the Help America Vote Act. The plaintiffs argue the state is not meeting these requirements because of the alleged illegal or invalid voter registration records the group says it discovered from the 2022 election.

The suit references language from Section 21081 of HAVA — although it incorrectly cites it as being from Section 21083 — that says states cannot exceed a certain error rate in the accuracy of the systems used to cast and count votes.

The plaintiffs claimed they discovered errors with the state’s voter roll such as supposed duplicate registrations, voters who registered after the deadline for the 2022 election, or voters with “questionable addresses,” among other things. In total, they allege, there were flaws in the registrations of more than 3 million Pennsylvanians who participated in the November 2022 election. That volume of errors exceeds the acceptable error rate for voting equipment set by HAVA, they claim, an argument conflates voter registration records with vote-counting equipment.

United Sovereign Americans and the other plaintiffs are asking the federal court to force the state to comply with their interpretation of the law, prior to the 2024 election. They want the court to compel the state to “investigate and remedy” the issues they claim to have identified, but the suit is not clear on exactly what the remedy would be and whether they’re seeking to invalidate the voter registrations they identified.

Nicholas Stephanopoulos, a law professor at Harvard University who focuses on election law, said that a request for such a powerful order from the court is an unusual legal approach, and that the suit doesn’t appear to meet the high bar for making such a legal claim.

“That's an extraordinary remedy that's almost never available,” he said in an email. “You can’t get relief from a court unless a court first concludes that a particular legal provision has been violated. This complaint, however, skips directly from its recitation of the facts to the remedies the plaintiffs want. It never specifies the claims that warrant those remedies.”

Suit mischaracterizes how voting systems work

Crucially, the plaintiffs argument seeks to tie HAVA’s error threshold for voting systems to the state’s voter registration system by claiming that HAVA’s definition of a voting system encompasses voter registration “because a voting system includes the documentation required to program the voting machines and to ‘cast and count votes.’”

But the state’s voter registration system is not used to program voting machines, officials say.

“Oh my, no,” Karen Lupone, election director for Jefferson County, said. “They are not tied in whatsoever.”

Castor told Votebeat and Spotlight PA this information came from an expert, whom he did not name and who he said did not detail for him how the registration system is connected to voting systems.

“If I ever have to prove that is the case and not an allegation only, I will need to learn more about it,” Castor said. “There are enough easily provable issues, this may or may not become relevant.”

The filing also contains factual errors. One of the plaintiffs, Diane Houser, claims in the suit that she voted in the 2020 and 2022 elections but that she is recorded in the state’s voter registration system as not having voted in either year. However, Votebeat and Spotlight PA reviewed voter registration data showing Houser is credited with a vote in both the primary and general elections in 2022. It also shows she voted by mail in the primary in 2020.

Chester County, where Houser lives, confirmed those records, and said Houser was also sent a mail ballot for the 2020 general election, although there is no record of it being returned.

When Votebeat and Spotlight PA pointed out the error to Castor and asked whether he verified his client's claims, he said he would “have to look into this, as I do not know the answer.”

Votebeat and Spotlight PA were not immediately able to independently check other claims in the suit about the accuracy of the state’s voter rolls. Many of the claims come from Audit the Vote PA, which has a history of making inaccurate claims about the voter rolls.

Previous independent reviews, such as from former Pennsylvania Auditor General Eugene DePasquale in 2019, found that the rolls have contained some errors.

Election officials often attribute this to a variety of factors. Legal requirements often prevent officials from removing out-of-date registrations for several years. When the state switched from paper registrations to the current electronic system, data entry was imperfect, such as missing birthdates on paper records being replaced with Jan. 1, 1901, in the electronic system. Additionally, data extracted from the system is merely a snapshot in time and doesn’t accurately reflect a system that is constantly being updated as people move, die, or change their information.

“I'm confident that Pennsylvania's voter registration list isn't perfect, but I have zero faith in the figures cited by the complaint,” Stephanopoulos said. “I expect that a proper review of this data will show that few, if any, unregistered or improperly registered voters cast ballots in 2022.”

Stephanopoulos added that these issues are not unique to Pennsylvania, and that if imperfect lists are grounds for judicial intervention, “then courts would need to supervise voter registration throughout the country.”

The suit may also run into issues with the way it brings its claims.

The claims in the suit are primarily grounded in perceived violations of HAVA, but HAVA does not contain a provision for a private citizen or group to sue. A different law, the National Voter Registration Act, does have such a provision, and the plaintiffs are citing this law as a basis for bringing their case.

One election law expert who has been following United Sovereign Americans’ work said the connection between the two laws is dubious.

David Becker, an election lawyer who leads the Center for Election Innovation & Research, said the NVRA has “zero” to do with voting machines, and the voting system guidelines the suit cites have “nothing” to do with voter registration.

“It's unclear whether this is just gross misunderstanding of election law or whether he is intentionally trying to mislead the court,” Becker said.

Asked how he was bringing an allegation of a HAVA violation in a suit based on the NVRA’s right-to-sue provision, Castor said it was “an inference,” but did not elaborate on the connection.

“I am going to argue the inference is a reasonable one,” he said, adding that the type of filing being used makes this acceptable. “... We’re asking the Court to be logical in ascertaining a harm is occurring by virtue of election laws not being followed, and fashioning a remedy (or series of remedies) to address the future to keep the harm from re-occurring.”

What happens next

United Sovereign Americans has been open about the fact that its strategy is to lose some cases and win others, in the hopes that a split in rulings on the issue from different federal appeals courts will force the question to the U.S. Supreme Court. The group’s leadership has detailed this strategy both in public statements, such as to the Los Angeles Times, and in privatestrategy documents obtained by Documented, a Washington-based investigative news outlet.

Representatives for United Sovereign Americans directed questions about the Pennsylvania lawsuit to Castor.

Pennsylvania is the second state where the organization has filed a lawsuit. The first was Maryland, where a district judge dismissed its suit last month. It’s currently on appeal in the U.S. Court of Appeals for the 4th Circuit.

“A disagreement among circuits, even if it does happen, is one of the grounds that grants the Supreme Court discretionary review, but it doesn't require it,” Becker said. “I expect it's going in the same place the Maryland case went. It's going to be dismissed, and it may lead to sanctions against the lawyers who filed it.”