The Department of Justice issued guidance to the states about how to carry out list maintenance responsibilities under Section 8 of the NVRA.  The guidance, which we posted here , very clearly informed states when they may NOT strike a voter from the rolls.  One may debate the motivation behind this emphasis, but for now, we will only point out some omissions in the guidance regarding when a state must strike a federal felon from the rolls.  For the published guidance is not as complete as it could have been.

One place where the guidance omits important information regards striking felons convicted in Federal court.  The Civil Rights Division did not provide any guidance, possibly because the law is so clear, but perhaps not.

The NVRA is clear that the US Attorney shall give written notice to the chief State election official and that official (usually the Secretary of State) shall notify the local jurisdiction in which an offender resides of the conviction information.  The actual process of removing should be automatic and seamless, depending on whether the individual has a right to hearing or particular notice under state law.  Some jurisdictions, usually small ones, may not be very efficient at removing due to the potential cost of notice to the hearing.  But if the notice has been properly provided to the local jurisdiction, “reasonable efforts” should include removing the identified voter if state law disqualifies convicted felons.  The hard process is actually acquiring the proper disqualifying information on the voter.  But the law requires (“SHALL”) all United States attorneys to notify chief State election officials of felony convictions and they, in turn, shall contact local election officials to remove the voter.  There is no discretion.

I think HAVA is more clear that non-qualified voters and dead voters shall be removed once identified, and HAVA and NVRA act in conjunction in many ways, except for address list maintenance.  Bottom line, there isn’t much discussion in the guidance about removing federal felons from the voter rolls.  Perhaps a supplement to the guidance might issue to remedy this omission and make sure states know what to expect from US Attorneys and how to remove felons from the rolls.  Or, perhaps not.  The law says:

 
“g) Conviction in Federal court
(1) On the conviction of a person of a felony in a district court of the United States, the United States attorney shall give written notice of the conviction to the chief State election official designated under section 1973gg-8 of this title of the State of the person’s residence.
(2) A notice given pursuant to paragraph (1) shall include -
(A) the name of the offender;
(B) the offender’s age and residence address;
(C) the date of entry of the judgment;
(D) a description of the offenses of which the offender was convicted; and
(E) the sentence imposed by the court.
(3) On request of the chief State election official of a State or other State official with responsibility for determining the effect that a conviction may have on an offender’s qualification to vote, the United States attorney shall provide such additional information as the United States attorney may have concerning the offender and the offense of which the offender was convicted.
(4) If a conviction of which notice was given pursuant to paragraph (1) is overturned, the United States attorney shall give the official to whom the notice was given written notice of the vacation of the judgment.
(5) The chief State election official shall notify the voter registration officials of the local jurisdiction in which an offender resides of the information received under this subsection.”

It has been reported that not all US Attorneys are following these requirements.