'ELECT' Removes Key Voter Data in Last-Minute Switch

VA's Dept. of Elections says it will no longer provide full date of birth on voter-list records in a sudden shift that has Commonwealth officials scrambling weeks before voting starts.

Three weeks before the start of early voting in Virginia’s 2024 presidential election, the Department of Elections has thrown voter-participation groups into a scramble by suddenly removing full date of birth in official registered voter lists.

The reasoning cited a Virginia statute that says voter-data files must be encrypted to protect the privacy of voters, or redacted. Virginia’s Department of Elections currently uses encrypted methods to transmit voter-data files to qualified groups.

The shift means that only the year of birth will be listed on its Registered Voter List, Voter History List, List of Those Who Voted, and Monthly Update Service that the Dept. of Elections (known as “ELECT”) provides to qualified groups in the Commonwealth.

The justification for the change reads as follows:

The Code of Virginia §§ 24.2-405, 24.2-406, 24.2-706 and 24.2-710, requires the Department of Elections (ELECT) to sell datasets to specific entities for specific purposes. The lists ELECT sells contain data elements that are not required under the aforementioned laws but provide additional elements that are beneficial for the entities authorized to receive such lists.

Pursuant to § 2.2-3803(A)(1) of the Code of Virginia, agencies that maintain personal information should only “[c]ollect, maintain, use, and disseminate only that personal information permitted or required by law to be so collected, maintained, used, or disseminated, or necessary to accomplish a proper purpose of the agency;”.

Additionally, pursuant to 1VAC20-20-20 of the Code of Virginia, an individual’s day and month of birth is classified as sensitive personal information that must be redacted or encrypted prior to transmitting any individual's information.

ELECT consistently aims to minimize the personal information and sensitive information that is processed and accessed to only that which is legally necessary for the purposes for which it was collected or derived in accordance with ELECT’s privacy policy.

Therefore, to enhance compliance with existing statutes, ELECT’s privacy policy, and to increase voter privacy, ELECT is removing day and month of birth from our client services lists. However, we are still providing a voter’s year of birth which offers the critical age demographic information that is beneficial to individuals and organizations.

However, the sub-section of the code that ELECT cites is clear: the full dataset is to be encrypted in transmission, or redacted.

ELECT already encrypts its voter-data products to qualified groups.

The change was so sudden, the department’s website was still advertising full DOB among voter records available to qualified voter groups under the National Voter Registration Act (NVRA).

The Month and Date of birth are key information elements that voter-participation groups use to check on whether a voter will be 18 on or before election day.

As readers of EPEC Team know, the full date of birth in the voter lists enables groups to identify voters with multiple voter registrations — and identify potential cases of voters casting more than one ballot, as EPEC has documented.

Commissioner of Elections Susan Beals had not responded to a query about the decision by the time EPEC Team had published its update.

The change raises new questions about whether progressive-leaning “advisors” from the prior administration of Democrat Governor Ralph Northam have an outsized role in shaping policy after Governor Glenn Youngkin, a Republican, appointed Beals following his 2021 election.

At the time she was named Commissioner, media reports questioned whether she would bring in a new management team, or rely on staff members holding over from the prior administration.

Questions about Whether VA Statutes Comply with Federal Law

The trend among progressive and Democrat-run states is toward less transparency in voting data, which has led to litigation under federal voting laws.

For example, nonprofit firm Judicial Watch filed a lawsuit against Montgomery County in Maryland in 2017 over a similar policy of removing date and month of registrants’ date of birth from publicly available voting records.

Judicial Watch filed suit under Section 8 of the National Voter Registration Act (NVRA) “after uncovering that there were more registered voters in Montgomery County than citizens over the age of 18 who could legally register (Judicial Watch vs. Linda H. Lamone, et al. (No. 1:17-cv-02006)).”

In 2020, a federal judge agreed and “ordered the State of Maryland to produce the voter list that includes the registered voters’ date of birth.”

The judge noted in the ruling

Judicial Watch need not demonstrate its need for birth date information in order to facilitate its effort to ensure that the voter rolls are properly maintained. Nevertheless, it has put forward reasonable justifications for requiring birth date information, including using birth dates to find duplicate registrations and searching for voters who remain on the rolls despite “improbable” age.

The ruling also noted that Maryland law did not require redaction of information.

However, neither does the Virginia statute — as long as ELECT transmits the files using encrypted links, which it currently does with qualified groups.

EPEC Voter News will keep asking about what led to the sudden change so close to an election, and whether the shift complies with federal law. For now, the policy appears to be: just trust us.

Until the next edition, that’s a wrap. #