A federal court on 8 June 2018 blocked Indiana from abruptly kicking voters off registries using a controversial database in the run-up to consequential midterm elections, but the state has been accused of violating the court order.
Journalist Greg Palast reported on 9 October 2018 that as many as 20,000 Indiana voters may have been purged using the Interstate Voter Registration Crosscheck Program (Crosscheck) even though U.S. District Judge Tanya Walton Pratt sided with government watchdog group Common Cause, which sued over allegations the method could unlawfully disenfranchise eligible voters. Pratt ruled that a 2017 law allowing election officials to boot voters without notice if their names were flagged by Crosscheck violated the National Voter Registration Act (NVRA)
Palast reported that:
Indiana has purged no less than 20,000 voters, some apparently in violation of a federal court order …
A team of database experts, statisticians, lawyers and investigators working with the Palast Investigative Fund discovered — and Indiana now admits — that these thousands of voters were cancelled in violation of a June 2018 federal court order that barred the state from using the notorious Interstate Crosscheck purge list sent to state officials by Kris Kobach, Secretary of State of Kansas.
Palast told us it’s unclear exactly how many Indiana voters were improperly purged using Crosscheck before versus after the court enjoined the state from doing so. His report included a searchable database where Indianans could check to see whether they’re on the list.
We also reached out to Indiana Election Division co-counsel Matthew Kochevar, the official cited in the Palast report, and received no response. Palast quoted Kochevar as saying, “I’m just speculating, but it is possible that some counties used the 2017 legislation so were cancelling voters using that method [which the court enjoined].”
Valerie Warycha, spokeswoman for Indiana Secretary of State Connie Lawson, told us in an email on 18 October 2018 that, “This story is not true. Indiana did not participate in Crosscheck this year.” She did not respond to follow-up questions asking for more detail.
Jan Mensz, staff attorney for the American Civil Liberties Union who represented Common Cause in the lawsuit, told us the ACLU hasn’t independently confirmed details in Palast’s report but added that because Lawson is designated as the chief elections official in Indiana, it would be concerning if the court order was violated even if it happened inadvertently at the county level.
Palast told us a list of voters who were purged using Crosscheck was only furnished by the state after they were served a 90-day notice of a pending NVRA lawsuit. “We’ve been asking for this information for nearly one year,” Palast told us by phone. “They waited til the last day of the 90-day notice. They deliberately ran our clock.”
The controversy revolves around accusations that Republicans in multiple states are leveraging policies nominally targeting voter fraud that have the de facto effect of suppressing predominantly Democratic voters.
In July 2017, the Indiana State Assembly passed Indiana Senate Enrolled Act (SEA) 442, which according to court documents allowed counties to “cancel voter registrations immediately once they receive information through Crosscheck that they ‘determine’ indicates a voter may have moved. The counties are no longer required to send the requisite written confirmation or wait for two general elections in which the voter is inactive before removing the voter from the rolls.”
Palast began reporting on Crosscheck more than two years ago, and his 24 August 2016 article in Rolling Stone magazine was cited in the Common Cause lawsuit. In that story, he described how Crosscheck, which uses names, birth dates, and the last four social security digits to confirm identification, is not only deeply flawed but has racial implications as well:
We were able to obtain more lists — Georgia and Washington state, the total number of voters adding up to more than 1 million matches — and Crosscheck’s results seemed at best deeply flawed. We found that one-fourth of the names on the list actually lacked a middle-name match. The system can also mistakenly identify fathers and sons as the same voter, ignoring designations of Jr. and Sr. A whole lot of people named “James Brown” are suspected of voting or registering twice, 357 of them in Georgia alone. But according to Crosscheck, James Willie Brown is supposed to be the same voter as James Arthur Brown. James Clifford Brown is allegedly the same voter as James Lynn Brown ..
[Database expert Mark] Swedlund’s statistical analysis found that African-American, Latino and Asian names predominate, a simple result of the Crosscheck matching process, which spews out little more than a bunch of common names. No surprise: The U.S. Census data shows that minorities are overrepresented in 85 of 100 of the most common last names. If your name is Washington, there’s an 89 percent chance you’re African-American. If your last name is Hernandez, there’s a 94 percent chance you’re Hispanic. If your name is Kim, there’s a 95 percent chance you’re Asian.
Problems with Crosscheck’s accuracy have been known for years. Florida and Oregon dropped it in 2014, with state officials citing data as unreliable. Kentucky, as of January 2018, joined a growing list of states opting out of the program even though it’s free, citing security concerns and complaints the database produced information that was not useful. A 14 October 2017 analysis by researchers at Stanford, Harvard, University of Pennsylvania, and Microsoft found Crosscheck results to be inefficient in identifying cases of voter fraud, reporting: “We find that one of Crosscheck’s proposed purging strategies would eliminate about 300 registrations used to cast a seemingly legitimate vote for every one registration used to cast a double vote.”
Crosscheck is run out of Kansas Secretary of State Kris Kobach’s office, and Kobach has a rather eventful history of making unfounded claims of widespread voter fraud. In January 2018, the Presidential Advisory Commission on Election Integrity he launched to look for evidence to back up claims made by President Donald Trump that millions had voted illegally in the 2016 election was abruptly disbanded after finding no evidence. A grand jury is investigating whether Kobach, in his role as Kansas’ secretary of state, purposely failed to register eligible voters in 2016.
Kobach, who is running for Kansas governor, and Lawson, who is running for reelection, are two of at least three Republican secretaries of state who are simultaneously campaigning for public office in the 6 November 2018 general election while using their current office to enact policies that restrict voter access. Georgia secretary of state and gubernatorial candidate Brian Kemp is being sued by a coalition of civil rights groups who claim he has hampered the registration of 51,111 voters, 80.15% of whom are black, Latino, or Asian. Critics have called on Kemp to resign.
In 2017, Lawson purged nearly half a million voters from Indiana electoral rolls, stating she “discovered voter list maintenance was not being done statewide and many outdated voter registrations were still on the rolls.” After two voters, Willow Wetherall and Elizabeth van Jacob, discovered on the state’s website that they were no longer registered to vote, Warycha claimed it was the women who erred.
Added comment from Secretary of State spokeswoman Valerie Warycha and ACLU attorney Jan Mensz.