The Missing Biennial Report and the 90-Day Notice
The State Election Director files the biennial NVRA report with the U.S. Election Assistance Commission. The report certifies that all 67 county public assistance offices received training and distribute voter registration forms. A subsequent review finds 14 counties held no training, have no forms, and cannot produce transmittal logs. A nonprofit sends written notice to the chief state election official and the attorney general documenting 22,000 SNAP and Medicaid applicants who were not offered registration over 18 months. State counsel responds that 'the NVRA has no private right of action, and counties are independent.' Forty-five days later, the state has not investigated or corrected the practices. The nonprofit is preparing to sue.
1. Evaluate the state’s reporting obligations and the effect of the 90-day notice.
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The state’s biennial report must be accurate. If the state certified that all 67 counties trained staff and distributed forms when 14 counties did not, the report is misleading and undermines the oversight purpose of the NVRA reporting provisions. The state cannot rely on county self-certification without verification, especially when the report is submitted to the EAC as the state’s official account.
The 90-day notice is the key enforcement trigger. Section 11 permits an aggrieved person to provide written notice of an alleged violation to the chief election official; if the violation is not corrected within 90 days, the person may bring a civil action. State counsel’s claim that there is no private right of action is wrong once the notice requirement is satisfied. The argument that counties are independent is also not a defense: the state is responsible for ensuring that covered agencies comply, and it cannot contract away its NVRA obligations. At 45 days, the state still has time to cure, but it must act rather than wait for litigation.
2. What enforcement options exist after the 90-day period, and what should the state do now?
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After the 90-day period, the nonprofit may sue in federal court for declaratory and injunctive relief, and the U.S. Attorney General may also enforce the NVRA. A court can order the state to bring the 14 counties into compliance, submit compliance plans, and report progress. Litigation is not the only path: the state should immediately investigate the 14 counties, audit a sample of SNAP and Medicaid applications, distribute forms, train staff, and create transmittal logs.
The state should also correct the EAC report or file an amendment explaining the discrepancy. It should designate a state-level NVRA coordinator, require county certifications supported by records, and set a timetable for compliance. The state should communicate with the nonprofit about corrective steps before the 90-day deadline expires. Preserving records is essential because the state will need to show what happened at each office. A prompt, documented cure is both a legal strategy and a voter-protection measure.
3. What records and reporting controls should the state maintain?
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The state should maintain county-level training rosters, distribution logs, transmittal logs, declination data, complaint records, and corrective-action reports. It should not accept bare county certifications; it should require sample documentation and conduct random audits. The state should reconcile the number of covered applications with the number of voter registration forms distributed and transmitted, and it should track whether offices are using the correct form and providing assistance.
For EAC reporting, the state should create an internal review before submission, with a named official responsible for accuracy and a process for correcting errors. The state should also keep records of the 22,000-applicant allegation and its investigation. If the state enters a settlement or consent decree, it should build reporting metrics into the agreement. These controls answer the 'counties are independent' problem: the state may not control every county employee, but it must monitor, train, and correct covered agencies.