During the 2020 election cycle, the Wisconsin Voter Alliance (WVA) and the Thomas More Society (TMS) discovered that government-maintained voter data in Wisconsin was being accessed by non-governmental, partisan organizations. The purpose was to target selected voters for get out the vote and micro marketing campaigns. As an example, contracts between the Center for Tech and Civic Life (CTCL) and the five largest cities in Wisconsin in 2020 required that voter data from the government database (WisVote) be made available to CTCL without charge while other private organizations were charged over $10,000 per data set.

Further investigation since the 2020 election cycle has revealed that many (33) states have entered agreements with a private, non-profit organization called the Electronic Registration Information Center (ERIC) to share data. ERIC’s stated purpose is to assist states to manage and ensure accuracy of state voter rolls. ERIC is funded by state election agencies and taxpayer dollars with state election officials staffing its board of directors. While purportedly non-partisan, ERIC is viewed by some as a tool of the progressive left, used to register unregistered voters so they can be motivated to vote for progressive causes.

Information about contracts between ERIC and states is not easy to come by because confidentiality agreements bar disclosure of information about the relationships.

WVA’s and TMS’s research has revealed that the contracts between ERIC and state agencies may violate federal law, including provisions of the Help America Vote Act (HAVA), the National Voter Registration Act (NVRA), and the Driver Privacy Protection Act (DPPA).

To receive government funding through HAVA, states are required to “maintain” an electronic statewide voter registration database. According to TMS’ legal analysis, states may not outsource this responsibility to non-governmental third-party organizations like ERIC. And state voter databases contain confidential information that may not lawfully be revealed to non-governmental third parties. Such data includes individuals’ social security numbers, driver’s license numbers, and state identification numbers.

For example, section 20504(c)(2)(D)(ii) of the NVRA provides that the records of citizens who choose not to register to vote are confidential and may not be disclosed. Exceptions exist, but do not cover sharing confidential data with ERIC.

State election officials use motor vehicle department data to update their voter databases. But the DPPA does not allow private information in motor vehicle records to be shared with non-governmental entities, such as ERIC. Contracts with ERIC requiring such sharing means that state election officials are not maintaining their databases in compliance with HAVA.

ERIC uses the information it gathers from member states to create various reports, including an Eligible but Unregistered (EBU) list for each state. ERIC gives the EBU list to state election officials who are then contractually obligated to contact every individual on the EBU list to encourage them to register to vote. In the meantime, ERIC has also shared EBU lists with at least one other third party organization, the Center for Election Innovation Research (CEIR).

Providing a third-party entity such as ERIC, with non-public voter data and non-registered voter data provides a basis for misuse, particularly, the possibility of partisan systematic advantages in elections.

To date, TMS has filed HAVA complaints in Wisconsin, Pennsylvania, and Minnesota. In Wisconsin, the Wisconsin Election Commission refused to render a ruling on the grounds that it could not investigate itself. In Pennsylvania, an administrative hearing was held on November 21st and post-hearing materials were filed on December 9th. In Minnesota, a hearing was held on December 15, 2022. Decisions are expected shortly. TMS is planning more such complaints in five or six additional states.

TMS and WVA are raising a significant election integrity issue. Confidential information must be protected, and not be made available to the public, let alone for partisan political purposes. TMS’ and WVA’s aim is to remove such partisan election advantages, which will make our elections fairer.

Zak Niemierowicz – Reporter