Senior U.S. District Court Judge John L. Kane, Jr., a registered independent, will hear arguments today on whether to issue a temporary restraining order that would prevent the Colorado secretary of state from removing voters from registration lists between now and Election Day and would reinstate those who were removed after July 21, 2008.

The lawsuit was brought by Common Cause of Colorado, Mi Familia Vota Education Fund, and the Service Employees International Union. The groups allege that Colorado has removed more than 20,000 voters from registration lists in the 90-day period before Election Day. A federal law, the National Voting Act, prohibits removals in this 90-day window, except in the event of death, incapacitation, a felony conviction, or if the voter asks to be removed.

Secretary of State Mike Coffman says there has been no malfeasance, just perhaps some mistakes.

Is that really the cast? To find out, I downloaded a copy of both sides’ motions and briefs, read them, and checked their source documents. It’s a lot of paperwork. Nonetheless, having declared myself a victim of Sudden Election Fatigue Syndrome, I volunteered.

I’m going to break it down into terms the average voter can understand. Policy wonks are free to talk amongst themselves.

First, why the rush for a hearing? Common Cause and their fellow plaintiffs write, in their motion for a temporary restraining order(pdf):

With the November 4, 2008 election only 11 days away, any delay will result in thousands of Coloradans being turned away from the polls, irrevocably preventing public participation in the electoral process and undermining the legitimacy of our most valued democratic institutions. There is no way to give a voter back their right to vote in this election, once the day has passed. Without expedited consideration, thousands of Colorado voters will be prevented
from vote on election day.

Second, what exactly are they asking for? From their motion, these are their demands:

  • (1) to immediately desist removing or cancelling the names of any voters from the
    official list of eligible voters for any reason not provided for in [a specific statute]
  • (2) to immediately desist removing or cancelling the names of any voters from the
    official list of eligible voters in violation of [a specific statute];
  • (3) to reinstate the names of any and all voters who were removed or cancelled from the official list of eligible voters since May 13, 2008 for any reason not provided for in [a specific statute]; and
  • 4) to reinstate the names of any and all voters who were removed or cancelled
    from the official list of eligible voters in violation of [a specific statute].

Is emergency action really necessary? Yes, according to Professor Jonathan Nagler, a political science, campaign and elections expert who teaches at New York University. Nagler was retained to analyze the data for groups bringing the lawsuits.

In his affidavit (pdf), attached as Exhibit 4 to the groups’ brief, Nagler states his job was to determine if voter registrations were being purged between August 5 and November 4, the 90-day period before the national election, when federal law allows removals only for reasons similar to the ones I named above. If Nagler found voter records had been purged, his next task was to determine why they were removed.

First, he looked at the cancellations for July, August, and October. He found that 14,859 voters’ names on the July 15 list were no longer on the list in October.

Nagler set out to find out why. Using death and felon records, and the numbers provided by Coffman, he was able to determine that 1,145 had died, 544 were felons, and 203 had asked to be removed. Subtracting these numbers from the 14,859 names that had been purged, he was left with 12,067 purged voters and no explanation as to why their voter registration records were canceled.

He used age and other records as factors in the death analysis and didn’t find that the 1,145 deaths were underrepresented. He moved on to felons. The Colorado Department of Corrections reports that 90 percent of our inmates are men and 10 percent women. But he found that of the purged voters, 48.2 percent were men and 51.8 percent were women. If a much greater number than 544 were felons, there should have been fewer females and more men.

Bottom line: Nagler found that 12,967 voters were not removed due to death, a felony conviction, or because they asked to be removed.

He then worked with postal records to see who might have changed their addresses. He searched for duplicate voting records. He found no more than 197 of the 12,2967 purged voters were duplicates.

After running more tests, he concluded that most of the 14,859 voters with missing registrations are truly missing and cannot be accounted for.

His final breakdown: Of the 14,859 Colorado voters purged from voter registration lists, the secretary of state’s office provided numbers showing that 1,892 had died, been convicted of a felony or removed their name from the list.

That leaves 12,967 who were removed for other reasons. Of this group, 3,118 may still be on the list under another name; 197 may represent duplicate records.

That leaves 9,652 voters with no explanation as to why they have been removed.

Nagler then proceeded to examine the voters on the August 15 to October 20 lists.His conclusions:

  • 12,072 purged voters between July 31 and August 15
  • 14, 859 purged voters between August 15 and October 13.
  • The total number of purged voters is 26,931, which is quite higher than the 14,049 number provided by Secretary of State Mike Coffman.

Here is Coffman’s breakdown, from his press release, which is included in Nagler’s affidavit:

Reason for Cancellation

Moved out of County/State ****** 6,572
Duplicate ******* 4,434
Failed 20-day period ******* 1,136
Deceased ******* 1,145
Convicted Felon ******* 544
Withdrawn ******* 203
Not a Citizen ******* 13
Voter Fraud ******* 2
TOTAL ******** 14,049

With the above analysis, and this report on voter purging by the Brennan Center for Justice, you should now have all you need to follow the hearing and be able to decide how you would rule if you were the judge.

If you’d like to read more of the legal documents, you can find the following available in pdf: Complaint, Motion for Temporary Restraining Order, Plaintiff’s Brief and Supplement, Secretary of State’s (Opposing) Brief.

As an added bonus, here is a chart (pdf) showing all Colorado voter registration on July 31, 2008.