October 25, 2023
COMMONWEALTH of VIRGINIA DEPARTMENT OF ELECTIONS
Susan J. Beals Commissioner
Jason Torchinsky
HOLTZMAN VOGEL BARAN TORCHINSKY JOSEFIAK PLLC 2300 N Street NW
Suite 643
Washington, DC 20037 jtorchinsky@holtzmanvogel.com
Mr. Torchinsky,
Thank you for sharing your clients’ concerns related to the voter list maintenance program in Virginia. While the Department of Elections (ELECT) appreciates and welcomes such input, we strongly disagree with any assertion that the voter list maintenance program is not in compliance with the National Voter Registration Act (NVRA). On the contrary, citizens of the Commonwealth can be assured that our list maintenance program is compliant with all relevant federal and state law. Further, our voter list has become even more accurate and up to date with recent improvements.
Voter List Maintenance Program
As required by the NVRA, ELECT conducts a voter list maintenance program “that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of - (A) the death of the registrant; or (B) a change in the residence of the registrant ....”1 ELECT also complies with all Virginia laws regarding list maintenance.2 ELECT’s list maintenance activities do not only comply with federal and state laws, however; in the past year, ELECT has made unprecedented strides in improving the accuracy of its voter list. Indeed, ELECT has identified multiple opportunities to transform the list maintenance program in Virginia, as outlined below. For a more comprehensive overview of the list maintenance program and ELECT’s efforts, we invite you to review the recently released Annual List Maintenance Report.3
Persons who are ineligible to vote by reason of a change in residence
ELECT provides localities with a list containing: (1) all persons no longer qualified to vote in the county or city where they are registered because they have changed residence; and (2) duplicate registrations identified from comparing other states’ registration and voting information.4 In gathering this data, ELECT utilizes the following sources of information: voters’ self-reporting; data-sharing agreements with other states; National Change of Address (NCOA) reports from the United States Postal Service (USPS); and surrender reports from the Department of Motor Vehicles (DMV).
One area of improvement in this part of the list maintenance program relates to the NCOA mailing process. In previous years, ELECT conducted only one annual address match and mailing (as required by law).5 In 2023, for the first time in Virginia history, ELECT conducted two USPS NCOA mailings, once in February and once in July. This additional mailing was consistent with recommendations in the 2018 Joint Legislative Audit and Review Commission (JLARC) Report of Operations and Performance of Virginia’s Department of Elections.6 Voters who respond to the mailing within 30 days and confirm that their place of residence has not changed, or that their new address is in Virginia remain on the voter registration list as “active Virginia-registered voters. Voters who do not respond to the notice within 30 days or whose confirmation mailing is returned as undeliverable are then classified as “inactive” on the voter registration list. In compliance with federal law, inactive voters remain on Virginia’s voter rolls for two federal elections before they are removed, unless a voter-initiated action is taken, such as a change of address, re-registration, or voting in an election, to restore a voter’s status to active. As a result of the confirmation mailing process, approximately 172,501 voters were classified as inactive in February 2023 and 88,152 voters were classified as inactive in August 2023. The total number of voters classified as inactive from September 1, 2022 to August 31, 2023 was 260,653.
As you are aware, the NCOA mailing process is a critical step in the NVRA cancellation process, which is required after every federal election. The NVRA cancellation conducted in January 2023 resulted in the cancellation of 60,988 voter registrations, as they had remained inactive for two successive federal general elections.7 However, the 2020 NCOA mailing was delayed and did not occur until after the 2020 November General Election, which means that any voters placed on inactive status after that mailing are not eligible for cancellation until after the 2024 November General Election. This means that a larger number of NVRA cancellations can be expected in early 2025.
Another area of improvement relates to voter registration data and history sharing with other states. In May of 2023, Virginia ended its membership in the Electronic Registration Information Center (ERIC). Since that withdrawal, ELECT has worked diligently to establish data sharing agreements with individual states. So far, Virginia has entered one-to-one data sharing agreements with Tennessee, Washington D.C., West Virginia, Georgia, Ohio, and South Carolina. The agreement with Tennessee is notable, not only because it is a neighboring state but because this is the first time since 2017 that our states have such an agreement in place. Efforts to secure agreements with additional states are ongoing.
Deceased Individuals
ELECT receives a weekly list of registered persons 17 years of age or older who have died in the Commonwealth in the previous month from the Bureau of Vital Statistics at the Virginia Department of
Health and compares it to the voter list.8 Additionally, ELECT conducts a match of the voter list against the list of deceased persons maintained by the Social Security Administration on or before October 1 of each year.9
In 2023, ELECT introduced a series of new measures to improve and streamline the process of reporting voters who are known to be deceased in a respectful, accurate, and secure way:
• Creation of a new form (ELECT 427-B)10 to be used in cancellation of a deceased voter if completed by a specific relative, estate personal representative, or general registrar or deputy registrar who personally knows the voter.
• Allowing obituaries to be used as a record for confirming the death of a voter. (An ELECT 427-B Form must be used.)
• Acquired access to a national death record database to allow the look-up out-of-state deaths. General registrars can request that ELECT perform a search of national death records through the National Association for Public Health Statistics and Information Systems (NAPHSIS). As of August 31, 2023, ELECT conducted 504 NAPHSIS lookups. Deaths confirmed on NAPHSIS can be used with an ELECT 427-B Form for cancellation purposes.
• Requested an audit of all Virginia Department of Health death records going back to 1960. As a result, 18,990 death records of registered voters were identified and sent to local registrars for cancellation.
From September 1, 2022 to August 16, 2023, 77,348 deceased voters were removed from Virginia’s voter list, which is the highest number of deceased voters removed since records have been kept. This increase is the direct result of ELECT’s new initiatives to streamline and enhance the process of removing deceased voters from Virginia’s voter lists.
Other ineligible voters
ELECT has also implemented new initiatives in relation to the following groups of ineligible voters:
Mentally Incapacitated Adjudications. ELECT is working with the court system to update the notification of mentally incapacitated individuals sent to ELECT from a paper mailing process to an electronic, automated, and encrypted process.
Non-Citizens. Beginning in August 2022, the DMV began sending the legal presence code to ELECT in its monthly noncitizen file, which indicates the legal status under which a person resides in the country. This allows ELECT to run Systematic Alien Verification for Entitlements (SAVE) verification through the Department of Homeland Security, U.S. Citizenship and Immigration Services.
Congressional Recognition
In May of 2023, Congresswoman Laurel Lee, Chair of the Elections Subcommittee of the U.S. House Committee on Administration, wrote to ELECT, commending our work on streamlining voter list
maintenance processes. The Committee further requested that ELECT share insights, for use as a best practice example for other states, into the procedural step to identify and remove deceased voters on its voter list. We are proud to receive this recognition and will continue to seek opportunities to streamline and strengthen the various facets of our list maintenance program.
Review of Data Cited
You cite registration figures as evidence that ELECT’s voter list maintenance program is not compliant with the NVRA. Regardless of potential issues with the underlying data, attempting to draw sweeping conclusions about the overall health and efficacy of a voter list maintenance program from such registration figures is not a complete or fair method of assessing a list maintenance program. List maintenance is a continuous, fluid process. This is clearly the case with the lengthy cycle of voters with active registration being moved to inactive status and, eventually, having their registrations cancelled. Based on the most recent registration data,11 there are currently 499,960 inactive voters on Virginia’s voter list. Many of these voters will be cancelled after the 2024 General Election automatically pursuant to federal law (and many would have been cancelled after the 2022 General Election if the 2020 NCOA mailing had been conducted earlier), but until then they are still considered registered voters.12 Registration rates at any given point are a snapshot in time that lack context about the ongoing and complex process of list maintenance. Regardless of the problems with assessing the list maintenance program in this way, we have attempted to review the registration figures provided. In reviewing your cited data (the 2017-2021 American Community Survey (ACS)) and our most recent registration data, the basis for the registration percentage figures at which you have arrived is unclear; comparing the available ACS data with the voter registration data does not arrive at the same registration percentages provided. Without a clear understanding of the components used in your calculations, ELECT is not able to respond directly to the registration figures presented. We welcome you to provide the full set(s) of data used in calculating these figures so that we can have a better understanding of how they were determined.
However, even if we have access to the data you viewed, there are nevertheless issues with your approach. First, the registration data and population data are from two different periods. The registration data utilized is presumably from 2023, but the ACS population data is from a five-year period between 2017 and 2021. Further, the ACS is an estimate and is not generated in the same way as the actual Census; it relies on statistical sampling to create these estimates. In fact, on the U.S. Census website, the 2017-2021 ACS is clearly described as the “least accurate” information provided by the site. We have serious concerns about the accuracy of registration figures derived from the combination of these data sources.
Preservation of Records
In relation to the request for preservation of records, the emails and communications described are public records that ELECT already retains pursuant to Virginia law.13 Further, ELECT ensures that all required records are properly maintained in accordance with 52 U.S.C. § 20507(i).
Thank you again for sharing your clients’ concerns and overall interest in Virginia’s voter list maintenance program. In our ongoing efforts to improve our systems, such input is valuable and always appreciated. We hope that the information in this letter provides increased confidents in Virginia’s voter list maintenance program and ELECT’s continued improvement efforts.
Sincerely,
Susan J. Beals Commissioner
Cc: Travis Andrews, Assistant Attorney General (Counsel to ELECT)
Washington Building, 1100 Bank Street, First Floor, Richmond, VA 23219
Toll-Free: (800) 552-9745 TTY: (800) 260-3466 elections.virginia.gov
1 See 52 U.S.C. § 20507(a)(4)
2 See, e.g., Va. Code §§ 24.2-404–24.2-404.4
3 https://www.elections.virginia.gov/media/formswarehouse/maintenance-reports/2023-List-Maintenance- Report.pdf
4See Va. Code §§ 24.2-404(4) and 24.2-404.4
5 See Va. Code §24.2-428
7 See 52 USC §20507(d)(2)(A) and Va. Code §24.2-428.2
8 See Va. Code §24.2-408
9 See Va. Code §24.2-404.3
10 https://www.elections.virginia.gov/media/formswarehouse/veris-voter-registration/cancellation/ELECT-427B- Report-the-Death-of-a-Registered-Voter_Final.pdf
11 https://www.elections.virginia.gov/media/registration- statistics/2023/08/pdf/Daily_Registrant_Count_By_Locality_2023_09_01_055420.pdf
12 This is further complicated by Virginia’s significant populations known to be transient, including university students, military personnel, and government-related workers.
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