DOJ's new voter-roll guidance quietly issued; critic warns it may 'intimidate' election workers

The Department of Justice (DOJ) quietly published new guidelines addressing limits on when and how jurisdictions may remove voters from their voter rolls last week, a move to "intimidate" state and local election officials, says former DOJ attorney Gene Hamilton. 

"This is what I perceive as an attempt by the Department of Justice and Civil Rights Division to intimidate state and local jurisdictions and state and local election officials from doing their jobs," Hamilton told Fox News Digital.

The DOJ issued a new guidance document on Sept. 9 to remind states ahead of the election that "voting rolls must be accomplished in compliance with federal law and in a nondiscriminatory manner."

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(Elijah Nouvelage/Getty Images/File)

"Ensuring that every eligible voter is able to [vote] and have that vote counted is a critical aspect of sustaining a robust democracy, and it is a top priority for the Justice Department," assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division said in a statement. "As we approach Election Day, it is important that states adhere to all aspects of federal law that safeguard the rights of eligible voters to remain on the active voter lists and to vote free from discrimination and intimidation."

The guidance follows the National Voter Registration Act guidelines, clarifying that it does not prevent states from removing ineligible voters, such as those who committed fraud or are noncitizens. The guidance also confirms that states can remove voters who have died, been convicted of a felony or declared mentally incompetent, according to an analysis by the Heritage Foundation's Hans A. von Spakovsky. 

But Hamilton, the senior counsel of America First Legal, said the guidance may discourage local officials from using lawful tools to verify voter eligibility. It suggests that while the guidance is meant to ensure compliance with legal standards, it may be interpreted as overly restrictive or as a way to hinder efforts to accurately maintain voter lists, which "must be uniform and nondiscriminatory," the DOJ stated.

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Voters fill out their ballots. (File)

"What they're trying to do is they're trying to chill people from actually doing the very things that are common sense and that makes sense," Hamilton said.

The updated guidelines also prohibit removals from voter lists within 90 days of a federal election. These rules apply to both state-initiated and third-party-driven processes.

Last month, Hamilton's watchdog group sued 15 counties in Arizona for allegedly refusing to remove thousands of illegal immigrants from its voter rolls. The lawsuit claims that, as of April 2024, more than 35,000 registered voters in Arizona had not provided proof of citizenship, limiting them to voting only in federal races, according to the Arizona Secretary of State’s Office.

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(Allison Joyce/Bloomberg via Getty Images/File)

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And on Tuesday, nearly 100,000 Arizona voters' citizenship status was in question due to a state error just before mail ballots were scheduled to be sent out. Also on Tuesday, House Speaker Mike Johnson, R-La., said he will advance a chamber-wide vote to avert a government shutdown with a bill to address noncitizen voting.

"The problem is is that this Department of Homeland Security, in particular, doesn't seem to care and doesn't seem to want to help people find ineligible voters on their voter rolls, and you have a lot of state officials across the country who don't seem to be willing to do their jobs," Hamilton said.