The Independent View: Ohio Voter Purge Case to 6th Circuit

Ohio voters who haven’t cast a ballot in the past six years could be out of luck if they go back to the polls in November.

The State is preparing to purge voter registration rolls of everyone who hasn’t voted since 2010, unless they’ve updated their registration or responded to queries seeking to confirm their address.

Opponents of the annual purge went to court Wednesday in Cincinnati to stop it, arguing it could violate the rights of tens of thousands of Ohioans who should be eligible to vote.

As always in an Election year, the stakes are especially high in Ohio. The swing State could be crucial in a close Presidential election this fall, and partisans on both sides are closely watching the case.

Adding to the drama is uncertainty over the fate of voters who already have been purged from the rolls, including those who last voted in 2008, the year Barack Obama first won the Presidency.

Because huge voter registration drives occurred that year, some Democrats worry their Party will be hurt if those voters return to the polls this year only to find they can’t cast a ballot.

A Reuters analysis found that as many as 144,000 names were struck from Ohio’s voter rolls in last year's purge.

“This is a major issue,” said Mike Brickner, a Senior Policy Director for the American Civil Liberties Union in Ohio. “The mere fact that a person has not voted should not be the trigger for removing them from the rolls.”

The ACLU and the Advocacy Group Demos sued Ohio Secretary of State Jon Husted over the purge, and the U.S. Department of Justice filed a brief supporting their arguments.

A Federal Judge ruled against them earlier this year, but they took their case to the U.S. 6th Circuit Court of Appeals in Cincinnati on Wednesday.

Husted, who oversees Ohio's Elections, says he’s just doing his job and is enforcing the same law that previous Secretaries of State have enforced for more than two decades.

Maintaining accurate registration records, his lawyers say, is necessary to protect the integrity of the system and to prevent voter fraud. “Not having a process like this at all would be a violation of federal law,” said Josh Eck, Husted’s spokesman.

While both sides agree the State needs some process for keeping its voter rolls accurate, the ACLU and others argue Ohio’s method is more aggressive than most.

Only a few States have used a failure to vote as the trigger to knock someone off the voter rolls, said Stuart Naifeh, an Attorney with Demos. Most states, he said, rely on the postal Change-of-Address system to identify registered voters who may have moved and, therefore, have become ineligible to vote under the addresses listed on their registration.

In court Wednesday, Naifeh told a panel of three 6th Circuit Judges that Ohio relies on a failure to vote in six years as a trigger to start the process of removal. He said that violates Federal law barring removal solely because of a failure to vote.

He said that’s what happened to the ACLU’s client in the case, a Portage County resident who attempted to vote in 2015 after years of inactivity. His address hadn’t changed, but he was not considered an eligible voter. Under the law, Naifeh said, the State can use a failure to vote to help confirm a voter’s ineligibility, but it cannot use it to begin the process of removal. “You have to have evidence of a move,” Naifeh said. “A failure to vote can’t be the first step.”

Husted’s lawyer, however, told the Judges that the failure to vote is only part of the process. He said voters also are sent a postcard alerting them to the possibility they will be purged from the rolls if they do not confirm their address is correct.

Voters also have the opportunity to update their registration when they renew their driver’s licenses, Eck said, and they periodically receive other notices in the mail from the Secretary of State, including Absentee Ballot applications. “What all of this is driven by, is maintaining accurate voting records,” said Mike Hendershot, Husted’s lawyer.

The big question in the case is how to interpret two Federal laws, the National Voter Registration Act and the Help America Vote Act. The laws require States to expand and simplify the Voter Registration process, but also to ensure voter rolls include only eligible voters.

Like many Election year Legal fights, this one is partisan. Democrats say a more aggressive purge process hurts poor and minority voters, while Republicans say the integrity of the system is at stake.

“I agree wholeheartedly with Secretary Husted,” said Alex Triantafilou, Hamilton County’s GOP Chairman and a member of the Board of Elections. “It’s completely normal to purge the voter rolls to avoid all the problems that go with it.”

Democrats, though, say those problems often are exaggerated. They say In-Person Voter fraud is rare and efforts to purge registrations and to require Voter ID cards do more harm than good.

Husted doesn’t dispute fraud is rare, but has said it’s important to stay vigilant.

In the last Presidential Election, during which 5.6 million Ohioans voted, Husted’s Post-Election Voter Fraud Report found 135 cases of potential fraud had been referred to law enforcement for investigation.

“More people are being purged than probably should be,” said Tim Burke, the County’s Democratic Party Chairman, who also is a member of the Board of Elections.

He and other opponents of Ohio’s process want the Judges to stop the State from purging the rolls under the current system and to allow eligible voters who have been purged under that system to cast ballots in November.

The three 6th Circuit Judges quizzed both sides about the case Wednesday, but they could take weeks to make a decision.

Judges Eugene Siler Jr. and Julia Smith Gibbons were appointed by Presidents George H.W. Bush and George W. Bush, respectively. Judge Eric Clay was appointed by President Bill Clinton.