On Sept. 27, 2023, Restoring Integrity and Trust in Elections (RITE) sent a litigation notice to the Maryland State Board of Elections (MDSBE) because of its decision to adopt regulatory language in an NDA that could "make it illegal for a citizen to request voter registration lists from the state." RITE states that MDSBE is "violating the National Voter Registration Act (NVRA)" with its decision to add intimidating language to the NDA. The referenced NDA is the oath a citizen must sign to ensure said citizen understands that voter lists are not to be used for personal gain or commercial solicitation, nor can they be published, distributed, or republished. According to RITE, "This is not the first time Maryland has tried to shield its lists from public scrutiny."
Justin Riemer, represents the two Maryland residents named as Petitioners in the litigation notice. He brings extensive experience to the table on "election law matters," according to his bio, and has recently served as Chief Counsel for the RNC. He now serves as outside counsel to the RNC, but it is unclear whether the RNC is intimately involved in this case.
UncoverDC has spoken with one of the Petitioners, Kate Sullivan*, who raised concerns about the NDA's amended language during Baltimore County's Board of Election meeting on Jul. 26, 2023. Sullivan believes the change could discourage citizens who might legally purchase voter registration lists for activity related to the electoral process, such as canvassing.
Sullivan is very close to completing a months-long, all-volunteer, and fully compliant state-wide canvassing of the state's voter registration rolls. The canvass data thus far is disturbing, and UncoverDC will report the results when all data has been collected and adequately analyzed.
According to reporting from UncoverDC in August, the full memorandum on the amendment shows a change to an NDA under Regulation .06 in the Code of Maryland Regulations (COMAR). The Board added what some citizens in the state perceive to be intimidating or threatening language to an NDA related to the purchase of voter registration lists. Access to voter registration lists is a protected electoral process activity and should be unencumbered with language that would discourage citizens from participating in the electoral process.
Unfortunately, the 2020 election seems to have ushered in a highly politicized environment where citizens who dare question any part or process of the election administration are deemed to be "a threat to democracy." Those who hold power have often been capricious in their determination of not only what the rules are but to whom the rules apply. Those types of politicized concerns are, in fact, discussed in the MDSBE meeting on Sept. 28.
To that point, at approximately 7:45 minutes into the meeting, Jared DeMarinis, State Administrator of Elections, discusses the prevalence of "mis-, dis, and mal-information" concerning elections. DeMarinis states misinformation "is still prevalent and spreads a lot faster in communities where English isn't their first language." Then later in the meeting, Board Member Yaakov (Jake) Weissmann attempts to link the "high turnover of election directors throughout the country" to "threats to election directors and others." Sullivan believes Weissmann's concerns are unproven and were only offered to justify the changes made in the oath. Sullivan said:
"I will tell you, sitting in the SBE meeting, it was eminently clear [that] their first priority was protecting them against fictional threats. First, the director began the meeting [by] talking about the biggest threat to our elections was the spread of mis, dis, mal information—you know, that old trope.
Secondly, Yaakov, to this day, has never offered any specifics about the threats. Threats, might I add, which to this day have never been documented, yet they are serving as the alleged predicate for the oath language change."
Sullivan raised concerns about the amended NDA in the Jul. 26 Baltimore County BOE (BCBOE) meeting because she believes it could give the Board elevated discrimination to determine what constitutes the "electoral process" and what actions might constitute "illegal" use of voter data. Sullivan asked the Board to either better define the added language or revert it to the original NDA language that has been used without issue for years. The Board failed to do either. Both the old and the amended NDAs are pictured below:
After the new language became effective, Sullivan asked the SBE to address her concerns about the changed oath. She had hoped the Board would be amenable to her concerns. However, during its Sept. 28, 2023, recorded meeting, it became clear the BOE was unsympathetic. Instead, Sullivan believes the Board was more interested in serving its own interests than it was in serving citizens in the state.
Sullivan asserts the September meeting showed members conducting nothing more than "the typical wink-wink, morse code kind of insider discussion" among colleagues whose focus was to stay the course on the amended oath. The Board's discussion centered on keeping the amended language while pretending to be concerned about how citizens might be affected by the change. The Board concluded the language could remain because citizens can still petition the Board if they have an issue.
The lengthy discussion about what parts of elections constitute the "electoral process" and exactly how much "regulatory and determinative power" the SBE wields over the process was a significant "tell." The Board dances around the matter of its "determinative power" with the kind of "word salad" discussion that usually suggests members well know how legally difficult it may be to reconcile citizens' rights with the Board's own agendas. There were lots of loosely connected words with very little substance that would assuage the fears of an earnest citizen.
Case in point, during the recorded meeting, Vice Chair Bill Voelp asks Dan Kobrin, the Board's assistant attorney, to "speak into" whether and how the Board might legally hold the "regulatory and determinative power" to dictate which electoral process actions by a citizen could be disrupted. Kobrin confirms the Board's authority with regard to the process involved with a submitted petition, citing what he called "33121." More precisely, 33.01.02.01 refers to the COMAR state regulation giving the citizen or interested party the "right to petition the Board for a Declaratory Ruling on a case by case basis." By the way, the petition is almost impossible to find for the average citizen, and the Board has the final say on whether the contents of the petition are accepted.
From Sullivan's point of view, the Board's discussion was a not-so-veiled attempt to cover its rear end, not a good-faith discussion of the merits or potential prosecution outcomes of the added NDA language. Instead, the chilling language was retained with the excuse that citizens had recourse to the discussed petition. All is well and good, I guess, if the Board sincerely plans to operate in good faith to uphold a citizen's right to purchase voter lists without fear of intimidation or prosecution. Sullivan wants no part in a process that would allow the Board to make the final determination about the intentions of a citizen who is merely performing a legal electoral process function. In fact, she believes that citizens who participate in the electoral process in compliance with the NVRA shouldn't have to petition in the first place.
RITE agrees, reiterating in its press release that federal law mandates "public access to certain registration information and to use that data to help ensure that registration lists are both accurate and current. State efforts to restrict citizen access and use violate the National Voter Registration Act, which was designed, in part, to improve the accuracy of registration rolls." Derek Lyons, the President and CEO of RITE, said:
In notifying the State Board of Elections that it has violated the federal National Voter Registration Act, RITE also identified several additional legal problems with its anti-democratic scheme. In particular, RITE notes that the board’s conduct also violates the First Amendment by infringing on the public’s right to speak to their fellow citizens, as well as critical provisions of state election law.
Why Voter Rolls? Why a Canvass?
Inaccurate voter rolls are a key vector for illegally conducted elections. When voter rolls are bloated, it gives bad actors an easy avenue to inject "voters" who are not actually on the rolls. In addition, there are ways to verify legitimate voters on the rolls without having to use ERIC. Many states have left ERIC because of its data policies and political leanings, a subject better left for another day.
One of the best ways to start the process of cleaning voter rolls is to conduct a proper canvass. Having directed a state-wide canvass in Maryland, Sullivan is now convinced "inactive" voters may play a significant role in fraudulent results and illegal election administration. Sullivan explains her yet-to-be-disclosed canvass results show a troubling trend:
"'DNV' means the registered voter we are speaking with at the door is listed as having voted but when we ask them to confirm they voted in 2020, they tell us they did not.
This becomes even more significant if you understand that this statistically representative and fully randomized sample size we’re using for the canvass was created from a universe of voters who we felt we had good reason to suspect we’re at risk for someone (we don’t know who) using their registration. They are voters who have not voted in decades yet voted in 2020 and then immediately after the 2020 election were moved back to ‘Inactive’ status. There is a difference between Inactive vs inactive (there is a difference) but Inactive takes years to achieve that status. Yet, these people are suddenly Inactive after having been “active” (voted) just 9 months later?
We always thought there was more to their story, so we chose that category to canvass, in addition to several others.
Our theory is people with real registrations who do not typically vote are GOLD to bad actors. These are ‘live’ registrations they can use to vote any way they want without triggering an alarm. For example, if you vote and someone uses your registration to vote, it would trigger a double vote. The key is to use registrations of people who don’t typically vote because no one would ever figure it out. This is why ERIC is so dangerous because it helps bad actors identify these voters easily.
Also, it’s why dead voters are a pathway to fraud. Our numbers clearly show there is something more than a clerical error here."
*Kate Sullivan is the sister of the author of this article.
