American elections are suffering from a lack of truth about what is working and what isn’t. Federal courts have mangled laws regarding state obligations to keep voter rolls clean and transparent. In some parts of the country, voter list maintenance must be transparent. In others, like Hawaii, courts have shielded governments from scrutiny.
The Supreme Court now has a case before it that could fix the nationwide inconsistencies.
Passed in 1993, the National Voter Registration Act is the most important tool we have to keep elections clean and transparent. Commonly known as Motor Voter, the federal law not only protects registrants from arbitrary removal from the rolls, it gave the public a potent weapon to ensure rolls were clean and the right to see how government officials were doing their job.
Or so the sponsors thought.
We now have a hodgepodge of court interpretations of Motor Voter. That’s what the Supreme Court case out of Hawaii – PILF vs. Nago – is about.
Some history first. The Public Interest Legal Foundation won the landmark case in the First Circuit Court of Appeals, PILF v. Bellows. In the First Circuit, elections are transparent because of the decision.
Maine Secretary of State Sheena Bellows prevented PILF – an organization for which I am president – from reviewing her work. She hid voter rolls. That means she hid mistakes, duplicates, and dead voters.
After it seemed Maine would be forced by federal courts to be transparent, the Maine Legislature passed a law criminalizing any discussion about problems one might find on the voter rolls.
Maine Democrats targeted PILF by name in emails for ungood badspeak.
Thankfully the federal courts fixed it. The First Circuit held that Motor Voter makes important election records transparent and cannot punish groups criminally for speaking about how good or bad election officials are keeping election records clean.
Then came Michigan. There, a federal court ruled that Motor Voter is limp and carries no obligation to have effective voter roll maintenance. The Sixth Circuit Court of Appeals ruled that as long as Michigan Secretary of State Jocelyn Benson makes an effort to keep the rolls clean, she satisfies Motor Voter’s obligations to keep rolls clean.
Worse still, the Sixth Circuit trimmed in the standing of plaintiffs who wanted to challenge sloppy voter roll maintenance by states. So if you care about clean elections in Michigan, Ohio, Tennessee and Kentucky, forget about it. You can’t do anything about a mess you might find on the rolls.
In those states, the proof is decidedly not in the Motor Voter pudding.
Then there is the current case now before the Supreme Court that could fix the mess in the courts, or enshrine it as permanent.
It starts in Hawaii. And if you haven’t noticed, Hawaii has recently flouted United States law and the United States Supreme Court on multiple occasions. Whether firearms regulations or creating voter eligibility based on race, it seems Hawaii thinks it can ignore federal Constitutional obligations.
And so it did when the PILF asked for election records under Motor Voter. The lower federal court ruled that PILF should not have asked the state, despite the express text of the Motor Voter Act, which makes the state the ultimate repository of election records and gives it the job of keeping voter rolls clean.
The lower court said PILF didn’t have standing until it sued individual counties first.
The Ninth Circuit Court of Appeals reversed on the standing question, but ruled that voter rolls aren’t records under Motor Voter that are required to be disclosed.
That’s what lawyers call a “circuit split.”
Citizens in Maine, Massachusetts, and the First Circuit have a right scrutinize the job that state election officials are doing. Citizens in Hawaii, California, Alaska, Oregon, and other western states do not.
The split doesn’t end there. Numerous other courts have leaned toward the transparency of the First Circuit. That includes the Tenth Circuit covering states like Colorado, Utah, and New Mexico. The Fourth Circuit has largely leaned that way too, finding transparency obligations in cases brought both by the left in Project Vote and the right in PILF.
Multiple lower courts have ruled in favor of transparency too, from Mississippi, Illinois, Virginia and Maryland.
Americans in Michigan and California cannot enjoy the clean election protections of Motor Voter while others in Maine and North Carolina largely can.
This is the issue now before the Supreme Court. Effective transparency the way Congress wrote into the law won’t happen until this split is resolved.
The disparity doesn’t end there. Six states are exempted from the list maintenance and transparency protections of Motor Voter – Wisconsin, Minnesota, New Hampshire, North Dakota, Idaho, and Wyoming.
PILF has two cases pending before the Seventh and Eighth Circuit challenging this exemption as a violation of the Equal Sovereignty of states principle that the Founders baked into our Constitution.
If Congress goes against the Founders' presumption against federal involvement in American elections, it should do so on equal terms. The Founders wanted power over elections to be decentralized. They knew centralized power is dangerous.
The mess involving wildly different interpretations of Motor Voter demonstrates a danger of national election laws.
If this wild circuit split isn’t fixed, then add to the dangers the Founders feared of centralized control: Opposite and contradictory court interpretations of those federal laws. And the Supreme Court doesn’t always have the bandwidth or will to align them.
Editor's Note: Unelected federal judges are hijacking President Trump's agenda and insulting the will of the people.
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