COLUMBUS — A Cincinnati appeals court Friday ruled that the process used by Ohio Secretary of State Jon Husted to flag inactive voters for possible purging from the registration rolls violates the National Voting Rights Act.
In a 2-1 decision, the U.S. 6th Circuit Court of Appeals overturned a lower-court ruling that dismissed a suit brought by the Northeast Ohio Coalition for the Homeless, the A. Philip Randolph Institute, and a voter.
The court sent the case back to U.S. District Court.
“With today’s ruling, the court will effectively force us to put voters back on the voter rolls who have died or long since moved to another address,” Mr. Husted said. “This ruling overturns 20 years of Ohio law and practice, which has been carried out by the last four secretaries of state, both Democrat and Republican. It also reverses a federal court settlement from just two years ago that required exactly the opposite action.”
Carrie Davis, executive director of the League of Women Voters of Ohio, applauded the ruling.
“We’re pleased the court recognized that voter inactivity is not sufficient reason to block properly registered voters from making their voice heard in this year’s presidential election,” she said.
Roughly 2 million voters, 400,000 of them last year, have been purged from the rolls since 2011. It’s unclear how many will be restored as a result of this decision.
“Unfortunately, it’s unclear whether these voters’ rights will be automatically restored since the state treats deceased voters the same as people who sit out a few elections,” Ms. Davis said. “If the state is intent on managing the voter rolls effectively, why wouldn’t they have the ability to make such an important distinction?”
At issue is a supplemental process used by the Republican secretary of state in which county boards of elections are directed to compile a list of those on its registration rolls who have not voted in the last two years.
A confirmation notice is then sent to the voters’ last known addresses, and the voters are flagged as inactive if they do not respond. If that voter remains inactive another two years, he is removed from the database.
This process is supplemental to the secretary’s routine comparison of names in the registration database to the National Change of Address database to see if a voter’s address has changed. In recent years, Mr. Husted has also begun using data from the Ohio Bureau of Motor Vehicles for that purpose.
The court’s majority found that the supplemental process, as triggered solely by voter inactivity, is illegal.
“... a state cannot avoid the conclusion that its process results in removal ‘solely by reason of a failure to vote,’ by providing that the confirmation notice procedure is triggered by a registrant’s failure either to vote or to climb Mt. Everest or to hit a hole-in-one,” wrote Judge Eric L. Clay, a 1997 appointee of Democratic President Bill Clinton.
The court rejected Mr. Husted’s argument that the case is now moot, given that the state has changed the confirmation form sent to flagged voters.
“As plaintiffs note, the secretary’s newly issued form does nothing to correct the fact that Ohio has, for years, been removing voters from the rolls because they failed to respond to forms that are blatantly noncompliant with the NVRA,” Judge Clay wrote.
Mr. Husted said his office will appeal the decision if it has the effect of restoring voting rights to people who have died or moved out of state.
Judge Eugene Siler, a 1991 appointee of Republican President George H.W. Bush, partly agreed with the majority’s ruling, but he dissented in opining that Mr. Husted had been reasonable in his approach.
“The state cannot remove the registrant’s name from the rolls for a failure to vote only, and Ohio does not do so,” he wrote. “It removes registrants only if 1) they have not voted or updated their registration for the last two years, 2) also failed to respond to the address-confirmation notice, and 3) then failed to engage in any voter activity in four consecutive years, including two consecutive federal elections following that notice.”
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