Trump and GOP push for aggressive voter roll purges up until Election Day, testing precedent

(CNN) — For decades, it’s generally been assumed that any mass purges of voter rolls had to be completed at least 90 days out from an election.

But Republicans and the Trump administration are now testing the scope of the federal law that imposes that ban on “systematic” removal programs within three months of an election, as President Donald Trump pushes for more aggressive reviews of voter rolls for non-citizens and other ineligible voters.

The Justice Department has launched a sprawling effort to obtain nearly every state’s voter registration file and to review those files for suspected non-citizens. For its review, the DOJ is using a federal immigration database tool known as SAVE – or the Systematic Alien Verification for Entitlements – which has shown itself prone to produce false positives.

Some state election officials have indicated they want the freedom to remove names in the months or weeks before an election, but other election officials – along with voter advocates – are concerned that eligible voters are at risk of being disenfranchised with the ramp up in the purge programs, especially as Trump tries to get more involved. They say that the so-called “quiet period” is needed to give eligible voters who are mistakenly caught up in such removals adequate time to get back on the rolls.

Trump and top officials in his administration been relentless in their claims that a flood of foreigners on the voter rolls have polluted elections, even though studies have shown non-citizen voting to be very rare.

That the Trump administration is attempting to insert the federal government more directly in the voting process makes the Republicans’ legal arguments about the quiet period “more concerning,” said Brent Ferguson, the senior director of strategic litigation at Campaign Legal Center, which has successfully sued states for violating the National Voter Registration Act’s 90-day “quiet period.”

“It sets up a situation where the federal government itself is the actor trying to purge voters from the rolls in the days before the election, which is clearly illegal,” Ferguson said.

An appeals court ruled in 2014 that Florida could not use the SAVE data system to purge its rolls within 90 days of the election because of the quiet period provision in the NVRA.

The Trump administration and Republicans argue that the ban does not apply to purges aimed at non-citizens and other people who should have never been registered in the first place.

Another appeals court rejected that argument when it was made by Republican state officials in Virginia. But the Supreme Court in 2024 issued an emergency order in that case that let then-Virginia Gov. Glenn Youngkin restart a voter removal program just days before the election that used state records to identify alleged non-citizens. (Democratic Gov. Abigail Spanberger formally ended the program when she took office this year and the lawsuit was settled.)

Now the Republican National Committee is asking the Supreme Court to take up the question on the merits in a case arising from Arizona. The Justice Department has claimed in the litigation over its demands for state registration files that the quiet period doesn’t apply to voter roll review it is undertaking. And in Ohio, Republican Secretary of State Frank LaRose is making similar arguments to defend his list maintenance programs that use SAVE and state DMV data.

Advocates for more aggressive list maintenance programs say that there are fail-safes in place to protect against disenfranchisement.

“The argument that states – and especially election officials – shouldn’t do their jobs or maintain accurate voter rolls because of a technicality is absurd,” RNC spokesperson Zach Parkinson told CNN.

Parkinson said he rejects the idea that “we can’t have election integrity because an imagery person might be disenfranchised.”

Flawed data-matching programs

Already, Republican election officials have embraced more aggressive voter list maintenance programs, with several states taking advantage of the overhaul Trump did to SAVE to expand the federal databases it draws upon, and to make it easier for states to use. But those officials have found that a significant number of the people that SAVE has flagged as likely non-citizens in the comparison are in fact citizens.

For instance, an Idaho review of its voter rolls last year using the SAVE system initially found 760 potential noncitizens among its nearly 1.1 million registered voters.

But after further investigation, only about three dozen were referred to law enforcement to be probed for non-citizen registration or voting activity, Idaho Secretary of State Phil McGrane told CNN.

In the meantime, local election clerks have complained that they’ve received little or no guidance from their state election chiefs who have passed along lists of people SAVE has tagged as likely non-citizens.

According to a lawsuit challenging Texas’ use of SAVE, what local officials do with those lists varies greatly county-by-county. Some counties do additional investigations into those matches – using state records that document citizenship records – to narrow the pool of voters who are then notified they will have their registrations cancelled unless they show proof of citizenship. Other counties are sending notices to every voter identified by SAVE as a suspected non-citizen.

Conservatives stress that there are backup options to protect eligible voters who miss the notice from their election officials that their registrations are being cancelled unless they provide proof they’re citizens.

In the Virginia case, for instance, the state argued at the time that any citizen who was wrongly removed could re-register when they showed up at the polls, under the state’s same day registration laws. In states without same day registration, such voters would have access to provisional voting, which allows voters to cast ballots that are set aside and only counted once the eligibility issues are resolved on the back end.

The Department of Homeland Security told CNN earlier last month that as part of its revamp of the SAVE program, it’s tasked 150 employees to conduct “manual checks” of the matches produced by the program for “inconsistencies” before sending those results to the state.

As of early April, DHS had identified 21,000 individuals as a potential non-citizens on the voter rolls out of 60 million cases submitted – a rate of 0.035%. However, a larger share – about 3% of all comparisons – have come back as inconclusive, according to Wren Orey, the director of the Bipartisan Policy Center’s Elections Project.

“When you’re doing that within that 90-day period, that risk is just higher that those voters won’t have adequate time or notice to be able to provide the documents that they’ll need ahead of the election,” Orey told CNN. “Maybe their birth certificate doesn’t meet the requirements. Maybe they don’t have one handy, maybe they don’t have a passport. That could take months to get.”

In addition, ending the quiet period for those types of purges could “dump” more work on election officials who will have to investigate whether the data matches are accurate while they’re in the final sprint to prepare for an election, said Charles Stewart, an MIT professor who studies election systems.

“There is a reason why you do these investigations away from the election,” Stewart said.

The bubbling legal fight

The Arizona case asking the Supreme Court to resolve the scope of the NVRA’s quiet period is unlikely to be resolved before the midterm elections. But it’s possible that emergency litigation could force courts to weigh in on any removal programs conducted weeks or days before November’s vote, as was the case with lawsuits challenging Virginia’s and Alabama’s efforts to remove voters just before the 2024 election.

As Trump’s national citizenship voter verification bill has floundered in Congress, states have passed laws requiring regular checks of the voter rolls against SAVE, setting up the potential that the issue will be back on the Supreme Court’s emergency docket this fall.

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