PROTECTING CITIZENS FROM BEING
IMPROPERLY PURGED FROM THE VOTING ROLLS:
PROBLEMS AND REMEDIES
A review of New Jersey election laws, regulations and practices reveals that State
election system may lack uniform and effective provisions that safeguard against the
erroneous removal of eligible persons from the voter rolls, contrary to 42 U.S.C. §
15483(a)(4) and 42 U.S.C. § 1973gg-6(b). The absence of uniform and effective
provisions places the voters of the state, especially voters who are removed from the
rolls for purported mental incapacity, at some risk of wrongful purging, even though
further research is required to determine the extent of wrongful purging or the precise
level of risk. Moreover, the removal of voters from the rolls without a meaningful
notice and opportunity to be heard would violate their procedural due process rights,
and while the State election system has the capacity to notify voters of their removal
from the rolls, there is no regulatory mandate for election officials to give voters the
requisite notice. The Article provides an outline of the regulatory reforms that could
remedy these issues.
Historical Voter Purging Practices and General Background
In the months leading up to the November 2000 presidential election, former
Florida Secretary of State Katherine Harris ordered local election supervisors to
purge 57,700 voters from voter registries, supposedly because they had felony
convictions that disenfranchised them under Florida law. Subsequent
investigations demonstrated that at least 90.2 percent of those on Harris’s “scrub”
list, targeted to lose their civil rights, were not ineligible to vote because of a
criminal history. Notably, more than half – about 54 percent – were Black or
Hispanic,1 whereas only 21.6 percent of all Florida voters in 2000 were Black or
Hispanic. Since 2000, there have been a variety of new laws, litigation, and general
public attention to purge practices, and egregious errors like Florida’s seem to have
1See Robert E. Pierre, Botched Name Purge Denied Some the Right to Vote, WASHINGTON POST, May
31, 2001 at A01; see also Ortiz v. City of Phila., 824 F. Supp. 514, 518-19 (E.D. Pa. 1993) (recounting
plaintiffs’ claim that Pennsylvania voter purge laws were invalid because of a “disproportionate
impact on minority voters”).
Nevertheless, the risk of voters being improperly purged continues, and
improper purges have been identified in some jurisdictions. According to an
exhaustive report by the Brennan Center for Justice (“Brennan Center”), thirty-
nine states and the District of Columbia reported purging more than 13 million
voters from registration rolls between 2004 and 2006;2 an additional 12.6 million
were purged between 2006 and 2008.3 This latter number included 418,770 in New
Jersey. Of course, this number necessarily includes the large number of registered
voters who moved out of an election jurisdiction or died in that two-year period and
who were justifiably removed from voter rolls for these or other legitimate reasons.
The aggregate number therefore does not indicate either how many voters were
wrongfully purged from voter rolls or how many of that group suffered
disenfranchisement as a result of the wrongful purge.4 Even the Brennan Center
report, on which this memorandum relies, acknowledges that “it is difficult to know
the full extent of the problem, or the exact number of people who have been
wrongfully kept from voting.”5
Whatever the scope of the problem may be, however, the evidence supports
the Brennan Center’s conclusions that purge practices across the United States are
“unnecessarily secretive” and lack meaningful statutory or regulatory standards.6
The evidence also supports the Brennan Center’s conclusion that that, given the
lack of clear standards for conducting voter purges, or for providing notice of such
purges, voters receive only inconsistent protections. The risk of purges that
wrongfully disenfranchise individual voters – or even affect election outcomes7 – is
therefore sufficient to warrant prophylactic action.8
2MYRNA PÉREZ, VOTER PURGES 1 (2008), available at
3U.S. ELECTION ASSISTANCE COMM’N, THE IMPACT OF THE NATIONAL VOTER REGISTRATION ACT OF
1993 ON THE ADMINISTRATION OF ELECTIONS FOR FEDERAL OFFICE 2007-2008: A REPORT TO THE 111TH
CONGRESS, 62 (2009), available at http://www.eac.gov/program-areas/research-resources-and-
4 Just because a particular voter’s purge was wrongful does not necessarily mean it resulted in
disenfranchisement. For example, a voter might be purged for the (wrongful) reason of failing to
vote in just one election, even though that voter had moved and successfully re-registered and voted
in another State. Or a voter might have been purged based on a mistaken belief that he or she had a
felony conviction when in fact that voter had died. It is therefore important to distinguish between
unlawful purges and purges that actually disenfranchise someone.
5 Pérez, supra note 2, at 7.
6 Id. at 7, 16, 19.
7 See id. at 7; see also N.J. DEPT. OF THE PUBLIC ADVOCATE, CLOSE ELECTIONS IN NEW JERSEY AND
THEIR SIGNIFICANCE FOR THE BEHAVIOR OF ELIGIBLE VOTERS AND ELECTION OFFICIALS 1 (Oct. 27,
(concluding that there are dozens of elections decided by a less than one percentage point margin
In researching New Jersey’s practices respecting voter purges, we examined a
variety of published information, including statutes, regulations, advocacy reports,
and the like. We also conducted a diligent search of election officials’ websites. In
addition, personnel from the New Jersey Division of Elections provided documents
in response to an investigative request, and met with us to explain their
perspectives on the issue of voter purging in New Jersey. Finally, the Department
sought and obtained documents from six counties relating to voter purges
performed because of the purported incapacity of the voter.
While more in-depth study would be required to establish the number or
extent of wrongful voter purges in New Jersey, additional research is not necessary
to establish that New Jersey’s election system lacks enough protections against
improper voter purging, and that voters are therefore at some risk of wrongful
purging and wrongful disenfranchisement. Likewise, the same lack of statutory
and regulatory standards, inconsistent protections, and opacity that the Brennan
Center found nationally also exist in New Jersey.
To curtail the risk of wrongful purges and to decrease arbitrary and
nontransparent practices, both federal and state law require that the state election
system must affirmatively include meaningful standards and provisions governing
voter purges. Both the National Voter Registration Act (NVRA), which took effect
in 1995, and section 303 of the Help America Vote Act (HAVA), which took effect in
January 2006, limit some voter purges. HAVA requires state election systems to
have “provisions” protecting voters, specifically, “[s]afeguards to ensure that eligible
voters are not removed in error from the official list of eligible voters.”9 In an
October 2006 consent decree, the State expressly promised to follow these rules.
Moreover, under the NVRA, the applicable procedures must be “uniform.”10 Next,
procedural due process protections also limit the ability of election officials to purge
voters without notice. Finally, the State Legislature has decreed the development
of “minimum standards” to ensure that all procedures used by New Jersey voter
registration officials for voter list maintenance “ensure that eligible voters are not
removed in error from the system.”11
every year in New Jersey and finding that “when election officials . . . make it impossible for even a
small number of eligible people to vote, this conduct can change the result.”).
8 Pérez, supra note 2, at 7-8.
9 42 U.S.C. § 15483(a)(4).
10 42 U.S.C. § 1973gg-6(b)(2).
11 N.J. Stat. Ann. § 19:31-32(d).
Our research found the State had no regulations detailing the procedures to
follow or the standards to apply when evaluating whether a voter should be
removed from the voter rolls. Moreover, State law only contained two instances
expressly providing for giving the voter notice of a purge: first, voters whose
registration is deleted as a result of a specified judicial proceeding that has not been
used in decades, would be entitled to notice of the cancellation; second, voters whose
election mail has been returned to election officials receive a postcard notifying
them that they will be purged unless they vote by the second federal election
following the notice, or some two to four years later. No notice need be sent to such
voters when the actual purge occurs.
We also found that while New Jersey’s Statewide Voter Registration System
(SVRS) has reasonable procedures in place for properly identifying potentially
ineligible voters, the SVRS and its documentation was bereft of directives setting
out the protocols and standards to determine whether voter flagged as potentially
ineligible was actually ineligible. Likewise, while the SVRS has the capacity to
print and send letters to voters whose registrations are purged, it contains no
directives commanding election officials to actually send the letter to voters. We
also determined that the automatically-generated letter also lacked the necessary
content to give the voter sufficient information about their rights to appeal or seek
reconsideration of the decision.
At the county level, our research did not find, and the Division of Elections
did not produce, county-based documents that laid out the procedures and
standards for deleting voters from the rolls, and even if any had been produced,
there is no indication that they would have been uniform throughout all 21
As such, we believe that it would be desirable for New Jersey to adopt
effective procedures required by federal and state law to mitigate the risk of
unlawful purges. We recommend that the chief state election official fill this void by
using her regulatory powers to set out comprehensive rules that would govern the
substantive requirements for voter purges and the procedures county election
officials must follow in conducting them, including rules that would increase public
awareness, transparency and accountability about voter purges.
The Practice of Voter Purging
Voter purging is the practice of removing voters from registration lists in
order to update those rolls. In New Jersey, this actual deletion of voter names is
performed by county commissioners of registration, not by State officials,12 even
though the chief state election official has extensive power to regulate how this is
done.13 “Purged” voters are to be distinguished from “inactive” ones. A New Jersey
voter who is “purged” is not on the voter rolls in the place where he or she resides
and where he or she previously registered to vote. Because New Jersey does not
have election-day registration, a purged voter cannot cast a vote on a voting
machine absent a court order allowing the vote. Moreover, while such a voter has
an absolute right to a provisional ballot by virtue of N.J. Stat. Ann. § 19:53C-3(g),
the ballot is almost certain to go uncounted when canvassed because election
records will show that voter as unregistered.14 An inactive voter, in contrast, is one
for whom a verification of address has been sought, and if such a voter appears at
his or her polling place, he or she will vote a regular ballot in the voting machine
after affirming continued residence.15
A voter can be purged for any one of a number of legitimate reasons, among
• The voter has moved out of the jurisdiction (i.e., the county) and has
not either updated his or her address or filed a new voter registration;
• The county commissioner of registration has sent a mailing requesting
that the voter confirm his or her home address, and the voter has
neither responded to the confirmation notice nor appeared to vote
during the period ending on the day of the second federal general
election following the mailing of the confirmation notice;
• The voter has requested to be removed from the rolls;
• The voter has died;
• The voter’s registration record is inconsistent with other records kept
in other State databases, or is duplicative of a voter registration in
another county; 16
12 N.J. Stat. Ann. § 19:31-32(b).
13 N.J. Stat. Ann. §§ 19:31-32(d), -34.
14N.J. Stat. Ann. § 19:53C-13. Therefore, even assuming that a wrongfully purged voter was
supplied with the required provisional ballot at his or her polling place, existing provisional ballot
laws do not meaningfully mitigate the effect of a wrongful purge on such voters.
15 N.J. Stat. Ann. § 19:53C-3(f).
16This memorandum addresses the elimination of already-registered voters from registration lists.
Accordingly, it does not address the related issue of election officials’ use of a mismatch in
• The voter has been convicted of an indictable offense, and either
remains incarcerated or on probation or parole for such offense, or has
not re-registered to vote since the term of incarceration, probation, or
parole ended; or
• The voter is the subject of a judicial finding that he or she lacks the
capacity to understand the act of voting.17
Purges, if done properly, are an important way to ensure that voter rolls are
dependable, accurate, and up-to-date. Precise and carefully conducted purges can
remove duplicate names, as well as people who have moved, died, or are otherwise
ineligible. Lawful purges, therefore, have salutary effects, including reducing the
opportunity for wrongdoers to engage in some kinds of voter fraud; keeping
government, campaigns, or others, from wasting money and paper by mailing
documents to voters no longer residing there; and ensuring that people who collect
petitions, the sufficiency of which is based on a percentage of registered voters, are
not unduly burdened.18
In contrast, unlawful or careless purges harm individual voters by
disenfranchising them; they risk the actual integrity of the election system; and
they undermine voters’ justifiable confidence in the election system. They also put
the State at risk of financial losses, as noncompliance with federal anti-purge laws
jeopardizes the State’s continued ability to receive federal election assistance
information between a voter registration application and other databases in order to reject that voter
17See N.J. CONST., art. II, § I, ¶ 6. The amendment to this section adopted by the voters in 2007
rendered unconstitutional N.J. Stat. Ann. § 19:4-1(1), which bars a person “[w]ho is an idiot or is
insane” from voting. The State has represented to the EAC that 118 people were removed from voter
rolls in New Jersey between November 2006 and November 2008 on the grounds of incapacity. See
U.S. ELECTION ASSISTANCE COMM’N, THE IMPACT OF THE NATIONAL VOTER REGISTRATION ACT OF 1993
ON THE ADMINISTRATION OF ELECTIONS FOR FEDERAL OFFICE 2007-2008: A REPORT TO THE 111TH
CONGRESS, 63 (2009), available at http://www.eac.gov/program-areas/research-resources-and-
18 See, e.g., N.J. Stat. Ann. § 19:27A-5 (recalls) (“25% of the persons registered to vote in that
jurisdiction”); N.J. Stat. Ann. § 40:69A-1(a) (adoption of Faulkner Act form of local government)
(“The petition . . . shall be signed by the following per centum of registered voters of the
municipality:”); N.J. Stat. Ann. § 40:41A-104 (voter initiatives in certain counties) (“15% of the
registered voters of the county”).
1942 U.S.C. § 15403(a) and (b)(3); 42 U.S.C. § 15545 (requiring the State to affirm compliance with
various federal laws, including those prohibiting purges, as a condition of receipt of HAVA funds).
See also UNITED STATES ELECTION ASSISTANCE COMMISSION, INSTRUCTIONS FOR OBTAINING
Prevalence of unlawful purging
As noted above, since 2006, HAVA has required periodic voter purges, but it
also requires “provisions” in the state election system that “safeguard” against
wrongful purges. Prior to the 2006 effective date of HAVA’s “safeguards” provision,
there were a variety of wrongful voter purges.20 Unlawful purges that occurred
after the 2006 effective date of the “safeguards” provision, however, are more salient
in determining the current prevalence of the practice.
In general, the Brennan Center’s report identified purges of thousands of
voters in various jurisdictions including Louisiana, Missouri and Mississippi in and
after 2006, but it does not identify how many of those purges resulted in wrongful
disenfranchisement.21 It also related that in some jurisdictions, there is a practice
of purging voters on the grounds of mental incapacity that relies on reports of
incapacity other than court adjudication.22
Other jurisdictions have also been accused or wrongful purging. A Michigan
court held that the NVRA prevents a state from purging a resident’s voter
registration when the resident obtains a driver’s license from another state.23 And
in October 2008, Colorado was accused of wrongfully conducting a systematic purge
of 12,000 to 20,000 voters less than 90 days before a federal election,24 which the
NVRA also bars.25
Our research also revealed instances of more prudent purging practices,
however. For example, one Texas county sent notices to voters or their kin about its
proposed removal of 140 names from the voter rolls on the ground that the voters
REQUIREMENTS PAYMENTS, available at http://www.eac.gov/election/requirements-
payments/instructions-for-obtaining-requirements-payments (“to receive a requirements payment,
you must certify to EAC that your State has . . . [c]omplied with the six laws listed in Section 906 of
HAVA [42 U.S.C. § 15545]”).
20 Pérez, supra note 2, at 1, 6, 21.
21 Id. at 6, 18, 21, 28.
22 Id. at 19-20.
23 United States Student Association Foundation v. Land, 585 F. Supp. 2d 925, 939-41 (E. D. Mich.),
stay denied, 546 F.3d 373 (6th Cir. 2008). The Court noted that only a relatively small class of people
was affected, such as students and military servicemembers who could retain their Michigan
residency for voting purposes while also having the right to obtain a driver’s license in the other
state. Id. at 943.
24Complaint at ¶ 2(a), Common Cause of Colorado v. Coffman, available at
25 42 U.S.C. § 1973gg-6(c)(2)(A).
were deceased. A subsequent investigation found only 47 were actually dead.26 Of
course, precisely because this county extended notice to voters before acting on it,
there was some embarrassment – but no wrongful disenfranchisement. And in a
Mississippi case, the Secretary of State, who was on notice of a local official’s purge
of 10,000 voters less than 90 days before a federal election, was able to reverse it.27
We also reviewed limited evidence to determine the prevalence of unlawful
voting purges in New Jersey, and how many of those purges resulted in
One of the most disturbing findings in our investigation relates to the
removal of 75 voters between November 2006 and November 2008 from voter lists
on the grounds of incapacity. In our investigation, we found evidence that officials
in six counties had purged approximately 40 of those voters based on a combination
of doctors’ notes, family requests, postcard notices from the Public Guardian, and
other material, that fell short of the documentation required to remove a voter on
incapacity grounds. In New Jersey, only a signed judicial order that expressly finds
the voter lacks the capacity to understand the act of voting suffices.28 Since there
was not sufficient proof of incapacity, none of those voters should have been
While most county officials acknowledged that the removal of voters based on
these papers was incorrect, and in fact restored the voters to the rolls when it was
brought to their attention by the Department, the fact that it happened at all
highlights one of the problems of current practices regarding voter purges: we found
no regulatory or training documents that instructed election workers that
26Danny Yadron, Some ‘dead’ voters in Travis remain very much alive, AUSTIN AMERICAN STATESMAN
(April 8, 2009), available at
27 Pérez, supra note 2, at 21, 28.
28See N.J. CONST., art. II, § I, ¶ 6 (establishing voting qualifications); N.J. Stat. Ann. § 30:4-24.2a
(providing that persons committed to institutions as a result of mental illness or developmental
disability are not thereby “deprived of any civil right . . . including but not limited to the right to
register and to vote at elections . . . .”); In re Ballots Cast by Five Residents of Trenton Psychiatric
Hosp., 331 N.J. Super. 31, 37 (App. Div. 2000) (holding that mental incapacity to vote may be
established only by “a separate adjudication of incompetence” based on expert testimony); Carroll v.
Cobb, 139 N.J. Super. 439, 447-49 (App. Div. 1976) (holding that no presumption of
disenfranchisement arises from residence in a facility for people with developmental disabilities, and
municipal clerk is “completely unequipped” to determine incapacity to vote).
29Most of the remaining voters were listed as having been removed on grounds of incapacity, but
further investigation revealed that they had been purged for another, legally permissible reason
such as an out-of-county move. While this error might have burdened these voters in an attempt to
re-register in another county, this was fundamentally a coding error, not a wrongful purge.
incapacity purges could only be based on a court order. In the absence of such
guidance, the clerks who removed these voters from the rolls apparently relied on
something other than clear, uniform regulatory guidance that was a part of their
With respect to purges for reasons other than incapacity, our investigation
was not conclusive as to the number or extent of wrongful purges in New Jersey.
Nevertheless, some risk of wrongful purges remains.
Our investigation revealed that with respect to purges for reasons of the
voter’s death or the voter’s criminal conviction, the state election system functions
basically as follows. The State receives, from vital records, corrections, parole, and
judiciary databases, the names, addresses and certain other identifying information
(including social security numbers) of individuals who have died or who have had
involvement with the criminal justice system that would cause their
disenfranchisement. The SVRS then analyzes these records to determine whether
there is a sufficient match between the person named in a death or conviction
record and a person named in a voter registration. The system then forwards an
electronic notice to the county commissioner of registration where that person is
registered to vote stating that he or she is potentially ineligible to vote. The county
commissioner must then investigate and determine whether this potential match
actually reflects an ineligible voter and if so, that person must be deleted from the
voter records. However, we identified no documentation that describes the nature
or amount of proof that is required to satisfactorily establish the potentially
ineligible voter is in fact ineligible. The result is a process that lacks transparency,
probably lacks statewide uniformity, and can result in wrongful purges.
A December 30, 2009 story in the Jersey Journal describes such a situation.30
According to the report, an individual in Hudson County signed a recall petition in
late 2009, but his signature was disqualified because some two years earlier he had
been purged from the voter rolls on account of his purported death. According to
the story, county officials had received notice from the SVRS that this gentleman
had passed away; upon receipt of this notice, “[a]n investigation at the county level”
should have occurred to “confirm if the voter is deceased and if removal from the
system is in order.”31 In this instance, the voter was alive and well, and residing at
his same address, leaving one to wonder exactly what kind of investigation, if any,
was undertaken. In any event, our investigation did not reveal what protocols, if
any, were in effect for this county’s confirmation investigation, but the result –
wrongful disenfranchisement of a voter – suggests the absence of federally-
mandated “safeguards” against wrongful removal from the rolls.
30 ‘Dead Man’ not dead, JERSEY JOURNAL, December 29, 2009, at A3.
This is not the only reported instance of a voter purge that was potentially
wrongful. For example, in their sweeping report on New Jersey election practices
during the 2008 presidential election, the League of Women Voters and ACLU-NJ
identified “nearly 60 citizens . . . whose names were missing from the rolls despite
having voted at their precinct in previous elections.” The LWV/ACLU report does
not detail how long ago any of these 60 people last voted in their precinct, or
whether they received any confirmation notices, and in any event attributes the
deficiency not to intentional purging but to “glitches in the SVRS [Statewide Voter
Registration System] registration function.”32
A March 27, 2008 story in the Star-Ledger recounted the story of a candidate
who failed to collect a sufficient number of signatures in a bid for local office.
According to the story, the candidate submitted petitions signed by some voters who
had not voted in “two consecutive general elections” and were therefore “dropped”
from the rolls.33 If Essex County is in fact purging the names of voters merely for
not voting in two general elections, this would be a violation of both the NVRA and
state law. If instead Essex County is placing those voters on inactive lists, it
generates the question of whether inactive voters are eligible to sign nominating
Finally, the Public Advocate’s Election Day activities also point to isolated,
unquantified, instances of voter purging. In the 2008 general election, the
Department assisted more than 500 voters. While other voter problems far
outpaced instances of previously registered voters missing from the voter rolls, the
Department “successfully represented a few voters whose names had been purged
from voting rolls.”35 The reason for these isolated purges was not clear and they
could have been the result of SVRS malfunctions, intentional purges, or other
reasons. One case, which came to the Department through a legislative referral,
revealed that an institution of higher learning wrongfully returned a confirmation
notice confirming an out-of-county address change in the name of the voter.
Although the notice was unsigned, county officials processed it and it resulted in the
voter being purged from the rolls and needing a court order to cast a ballot in the
November 2008 election.
AMERICAN CIVIL LIBERTIES UNION OF N.J. AND LEAGUE OF WOMEN VOTERS OF N.J., MAKING EVERY
VOTE COUNT: A REVIEW OF THE 2008 ELECTIONS IN NEW JERSEY 13 (May 2009).
33 Philip Read, Mayoral hopeful ends her campaign, STAR-LEDGER, Mar. 27, 2008, at 23.
34 See supra note 18.
35 N.J. DEPT. OF THE PUBLIC ADVOCATE, REPORT ON 2008 PRESIDENTIAL ELECTION ACTIVITY 2,
Legal constraints on purges
Federal law constrains voter purges in three major ways: section 8 of the
NVRA; section 303(a)(4)(B) of the Help America Vote Act; and the constitutional
requirement that government extend due process to persons before depriving them
of a fundamental right like voting.
A. The NVRA
The NVRA was signed into law by President Clinton in May 1993, and
became effective in 1995. The NVRA imposes a variety of voter registration
requirements on state government, but this memorandum focuses on Section 8,
which constrains states from purging voters.
The act gives several directives regarding the maintenance of voter rolls:
1. “A state shall complete, not later than 90 days prior to the date of a
primary or general election for Federal office, any program the purpose of which is
to systematically remove the names of ineligible voters from the official lists of
eligible voters.”36 Systematic purges must be concluded prior to the 90-day pre-
election period, but a purge based on individualized information, e.g., a voter’s next
of kin sends a death certificate to an election office, is not prohibited by the 90-day
2. Purge programs that are part of a “State program or activity . . . shall be
uniform, nondiscriminatory and in compliance with the Voting Rights Act of
3. Purging a voter solely because of a failure to vote is prohibited.38
4. If “information provided by the Postal Service” to election officials shows
that a person has moved within the election jurisdiction, i.e., the county, the
person’s voter registration is to be updated to the new address.39
5. If the information supplied by the Postal Service shows the person moved
out of the election jurisdiction, and the person has not notified the election registrar
of the move, the move must be confirmed by a detailed notice mailed to the voter.
36 42 U.S.C. § 1973gg-6(c)(2)(A).
37 42 U.S.C. § 1973gg-6(b).
38 42 U.S.C. § 1973gg-6(b)(2).
39 42 U.S.C. § 1973gg-6(c)(1)(B) and -6(f).
This notice must advise the voter to return a confirmation card either confirming an
unchanged home address or a new move, and must further advise that the voter’s
name will be purged from the rolls unless he or she returns the card or votes by the
second general federal election following the mailing.40
6. A voter can be removed from the voter rolls at his or her request and can
be removed “as provided by State law, by reason of criminal conviction or mental
The NVRA expressly provides that with limited exceptions not relevant here,
all records concerning voter purging, including the names and addresses of people to
whom confirmation notices are sent, are public records available for inspection and
photocopying.42 By virtue of the Supremacy Clause, this provision would pre-empt
any more restrictive state rule on records access.
The anti-purging provisions of HAVA (effective in 2006) provide protections
beyond those in the NVRA and offer some additional guidance about voter purge
practices. HAVA affirmatively directs states continuously to update voter rolls to
keep them accurate, and to remove “registrants who are ineligible to vote.” At the
same time, it requires the “State election system” to have “provisions” that
“safeguard” against the erroneous removal of eligible voters.43 This in turn means
that states can remove voters on grounds other than those enumerated in the
NVRA (for example, an individualized investigation showing that a voter is a
noncitizen, or that the dwelling from which he or she claims registration does not
exist or has been torn down), so long as there are “provisions” establishing
safeguards against erroneous removal.
On October 12, 2006, New Jersey promised in a consent decree with the
United States Department of Justice that by May 2007, its statewide voter list
would “compl[y] fully with Section 303(a) of HAVA, including” its provisions about
safeguards against erroneous removal from voter lists.44
In our view, the requirement that the “State election system” include
“provisions” to ensure against wrongful purges does not necessarily mean that there
40 42 U.S.C. § 19733gg-6(d).
41 42 U.S.C. § 1973gg-6(a)(3)(B).
42 42 U.S.C. § 1973gg-6(i).
43 42 U.S.C. § 15483(a)(4). These protections are cumulative to those in § 15483(a)(2).
44 Stipulation and Order § 2, United States v. State of New Jersey, No. 06-4889 (Oct. 12, 2006).
must be laws or regulations. While there is no case law interpreting this
requirement of HAVA, we believe that “provisions” could include laws or
regulations, but could also include terms of written documents that are
unambiguous, specific, and precise.45
Therefore, if we had found in the SVRS documentation or elsewhere,
directives that unambiguously laid out safeguards against the wrongful removal of
voters, in a uniform manner throughout the State, then we would have concluded
that the State was in compliance. However, since we did not find any express,
uniform guidance to county election officials as to what standards or procedures to
follow when they proposed to remove to remove a voter, based on information from
the SVRS or otherwise, we cannot conclude whether the State is in compliance with
this term of HAVA.
C. The United States and New Jersey Constitutions
Procedural due process norms of the federal and state constitutions also
constrain government from conducting purges.
The landmark case of Mathews v. Eldridge held that before an individual is
deprived of a fundamental or statutorily granted right there must be notice and
opportunity to be heard.46 Voting is precisely the kind of right that cannot be
denied without due process.47 Therefore, to strip a citizen of the right to vote
without notice and an opportunity to address the contention would run afoul of the
United States Constitution.
In determining the amount of process due, the court evaluates (1) the
interests of the individual in retaining their right, and the injury threatened by the
official action; (2) the risk of error through the procedures used and probable value,
45See, e.g., In re Tucker, 231 B.R. 284, 286 (Bankr. E.D. Tenn. 1999) (interpreting the meaning of
“provision” in the context of bankruptcy); see also Barrett v. Vaughan & Co., Bankers, 178 S.E. 64
(Va. 1935) (interpreting the meaning of “provision” under state contract law); Snyder v. Dwelling-
House Ins. Co., 59 N.J.L. 544 (E. & A. 1896) (same).
46 424 U.S. 319, 332-34 (1976).
47 N.J. CONST., art. II, § 1, ¶ 3(a); Worden v. Mercer County Bd. of Elections, 61 N.J. 325, 346 (1972)
(“[T]he current judicial approach recognizes the right to vote as very precious and fundamental and
carefully and meticulously scrutinizes efforts to restrict it . . . .”) (citing, inter alia, Reynolds v. Sims,
377 U.S. 533, 561-62 (1964)); Afran v. County of Somerset, 244 N.J. Super. 229, 232 (App. Div. 1990)
(“[T]he right to vote is the bedrock upon which the entire structure of our system of government rests
. . . .”); Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1357 (D. Ariz. 1990) (as
a fundamental right, the right to vote is a “liberty” interest which may not be confiscated without
if any, of additional or substitute procedural safeguards; and (3) the costs and
administrative burden of the additional process, and the interests of the
government in efficient adjudication.48
In the voting context, courts have required individualized notice in
connection with the denial of the franchise and an opportunity to contest its denial.
For example, in Raetzel, a district court in Arizona court stated that an election
board “cannot disqualify ballots, and thus disenfranchise voters, without . . . notice
to an individual whose absentee ballot has been disallowed, advising the individual
of the disqualification and the reason therefore, and providing some means for the
individual to make his or her position on the issue a matter of record before the
appropriate election official.”49 If the right to have a ballot counted is a
fundamental right, the right to originally cast that ballot must be as well. Because
the revocation of a voter’s registration impairs the right to cast the ballot, notice
and an opportunity to be heard are required in advance of a voter purge.
In addition, even if the federal constitution did not require a meaningful
notice and opportunity to be heard prior to a voter purge, the New Jersey
Constitution would, as it affords even “greater protections.”50 New Jersey law
requires the availability of appropriate review in addition to notice and an
opportunity to be heard. Further, New Jersey’s doctrine of fundamental fairness
“serves to protect citizens generally against unjust and arbitrary governmental
action, and specifically against governmental procedures that tend to operate
arbitrarily. [It] serves, depending on the context, as an augmentation of existing
constitutional protections or as an independent source of protection against state
action.”51 The right to vote is guaranteed by the New Jersey Constitution and
accordingly, a liberty interest which may not be withheld or withdrawn without due
As a result, the State Constitution requires that any purge of a voter be
preceded by individualized notice to the voter that describes the intended purge, the
consequences of that purge, how to object to or seek reconsideration of that decision,
the deadlines for making an objection, and how that decision may be appealed to
Our investigation revealed that New Jersey may fall short of this
requirement in various respects. First, while we found that the SVRS has the
48 Mathews, 424 U.S. at 335.
49 Raetzel, 762 F. Supp. at 1358.
50 Montville v. Block 69, Lot 10, 74 N.J. 1, 18 (1977).
51 Doe v. Poritz, 142 N.J. 1, 108 (citation omitted; alterations in original).
capability of sending a letter to voters (or their kin) who are purged for reasons of
death, criminal disqualification, or other reasons, we did not find documentation
that actually required such letters to be sent. While many – perhaps most – voters
purged for this reason may be receiving such a notice, the practice should be
codified by regulation. Next, with regard to voters who are being proposed for
deletion from the rolls due to a combination of returned mail and not voting, a
notice is required, but the notice comes anywhere from 2 to 4 years before the actual
purge occurs, and as such, is not the kind of meaningful notice that due process
requires. Third, to the extent letters are sent to voters, they are sent after the
deprivation, not before, and the model letter we were furnished with invites voters
to call the election office with “questions” but does provide a deadline or information
about how to seek reconsideration of, or appeal, the decision to purge the voters.
This also falls short of due process requirements.
D. New Jersey state law
These federal and constitutional standards establish overriding principles,
but they are too general to govern the actual conduct of voter purges. And even
when these laws are specific, they are inconsistently so. Just to cite a few examples,
the NVRA provides in detail what happens when an election official believes a voter
has moved based on information supplied by the Postal Service, but does not
address what happens when information about a voter’s suspected move has come
from another source; HAVA requires “safeguards” to protect against wrongful
removal but does not state what they are; and the constitution requires notice
reasonably calculated to apprise the voter and provide an opportunity to be heard,
but does not elaborate further. Overall, this means that a voter’s risk of being
purged depends in part on where he or she lives. In sum, loose standards – or no
standards – for making purge decisions mean that some number of eligible voters
may be disenfranchised.
When the New Jersey Legislature enacted the SVRS it directed the Executive
Branch to fill the gaps that existed in protections against the wrongful removal of
voters. N.J. Stat. Ann. § 19:31-32(d) instructs the Secretary of State to “develop
minimum standards to safeguard the accuracy” of the SVRS, including standards
that will “ensure that eligible voters are not removed in error from the system.”
Other statutes either authorize or direct the Secretary of State to issue regulations
to control the purging of voter information from the SVRS.52
52N.J. Stat. Ann. § 19:31-34; see also N.J. Stat. Ann. §§ 19:31-6.4a, -6.9, -30. The latter provision
states that the chief election officer “shall promulgate . . . such rules and regulations as are
necessary” to implement those provisions of New Jersey election law adopted in 1994 in the wake of
the passage of the NVRA (emphasis added).
We did not locate and were not furnished with any published standards or
regulations beyond the evidence that the SVRS engages a matching protocol to
identify potentially ineligible voters. As we noted above, we found no evidence
detailing the investigation necessary to determine that a voter actually matches the
identity of a potentially ineligible one. We were also unable to locate any
educational materials for county officials about the purging process, beyond
descriptions of what the SVRS does to perform initial matches.53
What we did find was a hodge-podge of statutes that do not cover all of the
realistic scenarios an election official faces in maintaining voter lists, including the
1. The state statutes about the responsibility and authority to maintain the
accuracy of the SVRS conflict with one another, with some statutes
granting extensive and unconstrained authority, while others set forth
carefully delineated procedures.
a. For example, N.J. Stat. Ann. §§ 19:31-2 and -32(b) grant extensive
authority to county commissioners of registration to add, maintain,
delete, and amend voter files, including “verifying the accuracy” of
records on an ongoing basis. And in those counties where the
commissioner of registration is also superintendent of elections, the
commissioner enjoys the additional “power and authority to visit
and inspect any house, dwelling, building, inn, lodging house or
hotel and interrogate any inmate, house-dweller, keeper, caretaker,
owner, proprietor or landlord thereof or therein as to any person or
persons residing or claiming to reside therein or thereat; to inspect
and copy any books, records, papers or documents relating to or
affecting the elections . . . or the registration of voters.”54 These
statutes suggest there are few constraints on the investigatory
power or the power to purge voters from the rolls.
b. In contrast, other statutes seem to curtail this discretion in
enumerated circumstances, although it is an open question how to
read these statutes together. For example, when a county election
official receives a periodic list of deaths from local health officials in
the jurisdiction, the list must include the name, age, and address of
the deceased, whereupon the election official is obligated to “make
such investigation as is necessary to establish to his satisfaction
53But see N.J. Stat. Ann. § 19:50-1(b) (directing the chief state election official to “design, prepare
and distribute training materials for members of county boards of election”).
54 N.J. Stat. Ann. § 19:32-5.
that such deceased person is registered as a voter in the county. If
such fact is so established,” the commissioner is to remove the
person from the active list and transfer the registration to the
death file.55 Similar provisions apply to the purging voters on the
ground that they were convicted of a crime.56 The statutes do not
speak to what level of factfinding is required when a death or
criminal conviction is suspected from a source other than the local
health officials or prosecutors.
2. For voters who may have moved, where the elections office learns of the
move pursuant to an “agree[ment] with the United States Postal Service
or its licensee” to receive address-change information, the statute sets
forth in detail what happens next: in-county movers’ addresses are
updated and the voter is informed (though at which address is not stated);
out-of-county movers are mailed a confirmation notice (again, at which
address is not stated) to confirm the change of address. Pending a
response from the voter who moved out-of-county (which will either be
confirmation of continued residence or confirmation of the move), the
voter is placed into an inactive file but remains registered until the second
general federal election following the mailing, at which time the voter’s
registration can be purged without further notice.57 Missing from this
statute is any guidance about what happens when an official has reason to
suspect a voter has moved or is otherwise ineligible based on a source
other than the Postal Service. The statute is similarly silent about what
other events may trigger a confirmation notice – for example,
undeliverable election or other mail without a forwarding address or
failing to vote over a set number of elections.
3. While the statutes require notice to a voter when a voting address is
changed, we did not find any statutes requiring notice to a voter, state
officials, or others, that the voter is about to be or has been purged from
the rolls. The only exceptions are: (1) a statute providing for judicial
cancellation of a registration, which requires post-purge notification to the
voter by registered mail, but this statute appears to have gone unused for
70 years; 58 and (2) in instances in which a confirmation notice is sent,
55N.J. Stat. Ann. § 19:31-16. Despite this antiquated terminology, this is tantamount to a purge of
the voter’s registration.
56 N.J. Stat. Ann. § 19:31-17.
57 N.J. Stat. Ann. § 19:31-15(c).
58 N.J. Stat. Ann. §§ 19:33-1 and 19:31-19; In re Sullivan, 17 N.J. Misc. 42 (Co. 1939); but see
Stephens v. Yeomans, 327 F. Supp. 1182, 1183 (D.N.J. 1970) (stating that a voter had been “stricken
from the voting list pursuant to N.J.S. 19:4-1(4) and 19:33-1”).
voters are apprised at least 2-4 years before they are actually purged if
they do not take certain steps.59 In all other instances, the statutes do not
guarantee notice to a voter that they are about to be purged or have been
4. The statutes do not expressly address the procedures for purging voters on
capacity grounds, although the substantive standards addressing whether
such voters may register to vote have been addressed in case law.60
5. New Jersey law does not expressly bar systematic purges of voters within
90 days of a federal election (as required by HAVA) or indeed, any
election. As reported in a September 2008 study, a voter advocacy
organization contacted New Jersey’s election administrators, and reported
that the “election official was unaware of” the deadline.61
6. In the case of non-federal elections, such as the 2009 general or primary
election, New Jersey law is silent as to the deadline by which systematic
purges may be conducted.
7. Under N.J. Stat. Ann. § 19:31-33, a comprehensive annual report from the
chief state election official on the SVRS was first due on January 1, 2008,
and every January 1 after that. We could locate no published reports for
2008 or 2009.
In sum, some at least theoretical risk of wrongful purges, contrary to federal
law, and unconstrained by uniform standards and procedures, continues to exist for
New Jersey voters.
How government might respond to bring the state into compliance with
federal and state law and to mitigate the risks of wrongful purges62
In order to bring New Jersey into compliance with the mandates of NVRA
and HAVA, to harmonize the requirements of its own state laws, and to provide
59 N.J. Stat. Ann. § 19:31-15(c), (d).
60 Carroll v. Cobb, 139 N.J. Super. 439 (App. Div. 1976).
61GARY KALMAN, U.S. PIRG EDUCATION FUND, VANISHING VOTERS: WHY REGISTERED VOTERS FALL
OFF THE ROLLS 7, n.2, 12 (Sep. 2008), available at
62Most of these proposals are drawn from either the Brennan Center report, supra note 2, at 26-33
and/or the PIRG report, supra note 61, at 10-11.
uniform statewide procedures that will better protect voters from being wrongfully
purged from the voting rolls, we recommend a comprehensive set of regulations to
promote the democratic process and help ensure that citizens who are entitled to
vote have the opportunity to do so. As we noted above, while regulations would
probably not be necessary to comply with HAVA, and a precise, detailed, and
unambiguous document might suffice, regulations undergo a rigorous rulemaking
process that allows maximum public input for their development, and are
ultimately published in law books. For these reasons, regulations are a method of
compliance that is far superior to an unpublished directive, although such a
directive is certainly the bare minimum required for compliance.
Permanent regulatory reform
The Department would support the adoption of regulations governing voter
purge practices, whether initiated by the Secretary of State, or by a citizen
rulemaking petition filed pursuant to N.J.S.A. 52:14B-4(f). The process for adopting
rules ensures transparency and permits public engagement, and regulations would
fulfill the requirement that election rules be substantively and procedurally uniform
– and uniformly enforceable – throughout the State. We outline below the general
topics for these rules.
1. The regulations should address the documentary proof
required for each and every kind of voter purge that can
The required proofs may vary depending on the reasons for a purge
and should be tailored accordingly. By way of example, where a voter
is proposed for purging based on a duplicate registration, or death,
election officials should employ strict matching criteria across several
data fields – such as first name, last name, generational suffix, gender,
address, date of birth, last 4 digits of SSN – and ensure that only
matches between multiple data points result in a purging. In a similar
vein, the regulations should address what death records beyond those
mentioned in N.J. Stat. Ann. § 19:31-16 and supplied in the manner
therein described, if any, can result in a voter purge based on death.
Likewise, where a voter is proposed for disenfranchisement based on
incapacity, only a court order finding a lack of capacity to understand
the act of voting, and with language expressly directing
disenfranchisement can suffice, and it ought to bear a court seal. In
addressing appropriate documentation and matching protocols, the
63 References in this section to a “purge” apply to both systematic and nonsystematic purges, unless
the context clearly shows otherwise.
regulations should also address which inter-state records (e.g. driver’s
license or voter databases from other states) may be used for voter list
maintenance, and how those records can be responsibly used to
perform legitimate purges and prevent illegitimate ones. In addition,
where a county election official receives a request to remove a voter
from the rolls based on the voter’s request or the return of a card
confirming an out-of-county move, the signature on the request or card
should be compared against the signature of record, and the request
processed only if the signatures match.
2. The regulations should define an evidentiary standard of proof
necessary to conduct a purge.
As we described above, when an election official receives a death record
forwarded by a local health or vital statistics officer, or a criminal
conviction record from the United States Attorney or county
prosecutor, the official must conduct an “investigation,” and the
investigation must “establish” the “fact” that the deceased/convicted
person and the registrant are one and the same individual. Such
procedures, however, are not required with regard to other grounds for
the purging of voter registrations. In our view, the regulations should
expressly state that the documentary evidence for any such purge
must show by clear and convincing evidence that the records match
before a purge is authorized. In cases of doubt, the mailing of a
confirmation notice or similar document should be authorized.
3. The regulations should define the universe of events that
trigger the mailing of a confirmation notice.
Where a voter registration official has an “agree[ment]” with the postal
service to receive information about address changes, and receives
unambiguous information about an address change, the law requires
the election official to send a confirmation notice. Transferring that
voter to the inactive list pending confirmation is appropriate. What is
not clear, however, is whether other events, and if so which events,
should trigger the mailing of the confirmation notice. While we believe
a limited list of other events is appropriate, the regulations should
expressly define them.
4. The regulations should address the notice that is required for
each and every kind of voter purge that can occur.
We have noted previously that with the exception of the apparently
unused judicial cancellation statute described above, there is no
regulatory requirement for voters to receive individualized notice that
their registration has been purged or is about to be purged, much less
information about how the voter can object to, seek reconsideration of,
or appeal, that decision. While many – perhaps most – purged voters
may be receiving such a notice, it should be codified by regulation.
Aside from being a desirable practice that keeps voters informed and
mitigates the risk of wrongful purges, sending such a notice prior to
carrying out a purge is required by constitutional norms of procedural
due process. Accordingly, it is our view that the regulations should
expressly mandate that individualized notice be sent to a voter a fixed
amount of time before his or her registration is purged. This notice
should give the voter an opportunity to object, and describe appeal
rights and deadlines. Likewise, the regulations should lay out the
substantive standards to be applied when a voter or interested party
contests a purge, including whether the time to contest a voter purge
runs from the notice or the first election thereafter (i.e., when the
consequences of the purge may first adversely affect the voter).
5. The regulations should limit the times when systematic voter
While federal law prohibits only systematic purges when conducted
within 90 days of a federal general or primary election, the reasons for
this prohibition are sound and ought to be applied to state general or
primary elections as well. Taking into account these requirements,
best practices, the state election calendar, and a consideration of which
months are especially busy for county election officials, we would
suggest that systematic purges should be authorized only during the
months of January to March, July, or December (with appropriate
adjustments in presidential primary years).
6. Systematic voter purges should be subject to state audit.
To reduce the risk of error, we recommend that the regulations require
the counties to send information about systematic purges, which can
affect thousands of people, to either the Division of Elections or
another appropriate state official, for an audit.
7. The regulations should reinforce the recordkeeping
requirements of federal and state law.
With limited exceptions, the NVRA provides that all purge records are
public records available for inspection and copying.64 The regulations
should reinforce this, along with the time period during which such
records should be preserved in a manner that is consistent with federal
and state elections recordkeeping laws.
8. The regulations should provide for public notice of a purge.
To reinforce both the notice to voters requirement and the
recordkeeping requirement, we recommend that county officials be
required to notify the public when purges occur. They should also have
available the name, birth year, and municipality of all purged voters,
and advertise their availability on a state and county website. Aside
from generally promoting transparency, public notice of a purge on a
website also mitigates the problem that arises from errors in how a
voter’s address is recorded, or how mail is delivered, a problem that
has a disparate impact on lower-income registrants.65
9. Clarify that inactive voters are eligible to sign nominating
State statutory reform
In our view, the reforms described above can all be implemented without
staututory amendments, because (1) there is ample regulatory authority to
implement them, and (2) none is inconsistent with existing law. However, as the
discussion above makes clear, our statutes contain contradictions and
inconsistencies that should be appropriately addressed in the long term.
The New Jersey election system – both the provisions in it and the provisions
missing from it – may be inconsistent with the governing federal law, and continues
to present a risk of wrongful voter purges. By adopting the kinds of regulations
64 42 U.S.C. § 1973gg-6(i) (designating as public “all records concerning the implementation of
programs and activities conducted for the purpose of ensuring the accuracy and currency of official
lists of eligible voters,” including “lists of the names and addresses of all persons to whom [address
confirmation] notices . . . are sent . . . .”). To protect their privacy and safety, New Jersey law allows
certain victims of domestic violence or stalking to register to vote without listing their street
addresses. N.J. Stat. Ann. § 19:31-3.2.
65 See generally Pérez, supra note 2, at 10-12, 82-83.
described above, the State will come into compliance with federal law, internally
harmonize the inconsistent requirements of state law affecting voter purges, give
voters justifiable confidence in efficient and transparent election administration,
and protect individual voters at risk of wrongful purges.