EAC Board Talks up Trump Election EO
Also this week: why so many deletions of Republican early voting ballots in Virginia's primary? And the return of full date of birth data, in compliance with federal law.
Three Topics in this Issue:
—EAC Advisory Board Meeting and an Election EO
—Virginia Primary Early Voting Shows 65K Republican Ballots Deleted
—Virginia Returns to full Month and Data of Birth in Voter Files
1. EAC Advisory Board Told to Get Ready for Voter Form Changes
The advisory board of the Election Assistance Commission met for two days this week in Washington for its annual meeting. Among the topics: the Trump Administration’s Executive Order on election integrity, and ongoing litigation over parts of the order.
The EO, in part, calls for the EAC to update the federal voter registration form to require documentary proof of citizenship, which it is authorized to do under the Help America Vote Act (HAVA).
On Apr. 24, district court Judge Colleen Kollar-Kotelly granted a preliminary injunction on Section 2(a), which enjoins EAC board members from “changing the federal voter form … taking any action based on the Executive Order to modify the content of the federal voter registration application form.”
The judge also temporarily enjoined Section 2(d) to prevent federal agencies from “assessing citizenship” before handing out federal voter registration forms — a clear violation of federal law that has legal experts scratching their heads. It is illegal for noncitizens to register to vote in federal elections.
At the very least, they are asked to check a box on the form to affirm citizenship and eligibility to register.
The judge also denied Democrat activist group motions to block Sections 2(b), 7(a), and 7(b) of the Executive Order 14248, per JustSecurity.org, which is tracking the litigation.
Given the 120-page federal court opinion, attendance was way up this year, per advisory board members.
However, after two days of discussions, the board made no formal recommendations, nor did it vote to take any action on changing the form, or to form working groups to address changes on the form to require proof of citizenship to register.
One advisory board member, J. Christian Adams of Public Interest Legal Foundation, urged the EAC board to get moving.
After all, the judge made clear in her order: the EAC has the authority under HAVA to change the federal voter registration form on its own to require proof of citizenship.
Judge Kollar-Kotelly's ruling takes the disputed view that a chief executive has no authority over an executive branch board such as the EAC — other than appointing board members.
This issue is also being litigated in many federal cases. On this point, given that Congress debated whether to require documentary proof of citizenship when it passed the National Voter Registration Act (NVRA), the judge may be on solid ground about whether a president can essentially order changes to the NVRA.
But the EO doesn’t do that. It directs the EAC to change the voter form under its statutory authority.
Adams made that point during discussion of the EO, telling the board it should expect requests to modify the form.
“I’m a little surprised,” he added, that the board has not begun to prepare for the work. “I understand there's ongoing litigation. That doesn't mean you can't work toward a process” that has not been touched by the litigation.
“Because it's coming. I would suggest that people get cracking on figuring out what you're going to do with state applications to revise the federal form with state specific instructions.”
The other item that dominated Day 2: How to update the EAC’s Voluntary Voting System Guidelines (VVSG 2.0) and re-certify vendors to the standard.
Section 4 (b) i. of the March 25th EO says:
The Election Assistance Commission shall initiate appropriate action to amend the Voluntary Voting System Guidelines 2.0 and issue other appropriate guidance establishing standards for voting systems to protect election integrity. The amended guidelines and other guidance shall provide that voting systems should not use a ballot in which a vote is contained within a barcode or quick-response code in the vote counting process except where necessary to accommodate individuals with disabilities and should provide a voter-verifiable paper record to prevent fraud or mistake.
(ii) Within 180 days of the date of this order, the Election Assistance Commission shall take appropriate action to review and, if appropriate, re-certify voting systems under the new standards established under subsection (b)(i) of this section, and to rescind all previous certifications of voting equipment based on prior standards.
As EPEC Team has noted in a prior post: Not one vendor currently operating in the United States is believed to be certified to the “VVSG 2.0” standard for securing election machines. Most are still being certified to the outdated “VVSG 1.1” standard.
Advisory board members did a lot of discussing during the two-day annual meeting. But they took no actions to activate working groups or outreach to vendors, for example, to understand where they are in product cycles regarding updated security standards in VVSG 2.0.
It may fall to working groups to get the process started. We will keep you posted. #
2. Big Ballot Deletion Numbers, Low Turnout in Virginia Primary
Early voting in Virginia’s June 17 primary is about a week in and already some odd data points are popping up, such as more than 65,000 Republican primary ballots that appear to be have been deleted so far.
That is a higher than usual number at this point in the process.
EPEC Team is tracking the output from the Daily Absentee List (DAL) for the Republican primary here and Democrat primary here.
The anomaly in the Republican ballot data may reflect two very different primaries ahead of off-year gubernatorial and statewide elections taking place in the fall.
For example, the Republican party of Virginia has settled on its ticket for statewide offices. Lt. Gov. Winsome Earle-Sears is the Republican nominee for governor, John Reid is the Republican nominee for lieutenant governor, and current Attorney General Jason Miyares is standing again for the job.
Voters will decide Republican candidates for seven assembly seats. See the full list here.
For the Democrats, Rep. Abigail Spanberger is the nominee for governor, “but six Democrats are running for the lieutenant governor position and two are running for attorney general,” as WVIR notes.
The full list of Democrat statewide and the nine assembly seat primary candidates can be viewed here.
As of May 9, one week after early voting began for the June 17 primary, more than 234,000 absentee ballots have been issued for the D primary, and 10,348 ballots are in “countable” state. (See image below.)
As of May 9, the Republican DAL data shows 10,343 ballots issued for the assembly seat primary races (almost identical to the number of “countable” ballots on the Democrat side). The DAL shows 65,554 ballots as deleted. (see chart below), and 1,623 ballots in “countable” state after a week of voting.
EPEC Team is looking into why so many ballots are showing up as “deleted” on the Republican side. (See chart below.)
Early voting concludes on June 14th, and Primary Day is June 17th. #
3. Virginia’s Dept. of Elections Returns to Compliance with NVRA
EPEC Team can confirm that Virginia’s Dept. of Elections has returned to compliance with the National Voter Registration Act by providing full month and date of birth to the voter-list maintenance data.
This is a welcome update since the Dept. of Elections’ abrupt change in policy in August of 2024 to only issue the year of birth with voter-list maintenance records.
For months, EPEC was pointing out that this is violation of Sec. 8 of the NVRA. The public interest legal firm Restoring Integrity and Trust in Elections (RITE) sent a letter to the Dept. of Elections on EPEC’s behalf alerting it to the violations of federal law by withholding information critical to efforts to verify the accuracy of the Commonwealth’s voter rolls. As of this month, the full data are appearing.
The full month and date of a voter’s birth-date in registration records are critical to the public’s ability to check the accuracy of voter lists. That’s why Congress included the provision in the NVRA statute and why many federal courts have upheld that provision when states start to withhold this key data.
The full month and date of birth in the files also help groups discern higher-than-normal duplication of registrations, and whether voters may be casting more than one ballot as a result. It also helps the public check on whether under-age voters are being added to the rolls accidentally through Dept. of Motor Vehicles’ “Motor Voter” programs. The full birthdates are critical to helping voter participation activities.
EPEC Team will keep readers posted on our analysis of voter rolls now that the full date/month of birth has returned to Virginia’s voter files.
For now, that’s a wrap. #