The 6th U.S. Circuit Court of Appeals ruled Friday that Ohio’s reliance on lack of voting activity as a trigger for purging people from the voting rolls violates federal law.
In a 2-1 opinion, the Appellate Court reversed U.S. District Judge George C. Smith's decision and struck down the state's process, which involved sending notifications to inactive voters.
The dissenting Judge said he rushed his dissent so there would be time for Supreme Court review, if requested by Ohio. Ohio getting a reversal on this on an emergency basis is a long shot given that this is a 2-1 ruling, and given that both the majority and dissenting opinions’ interpretations of the interactions of two Federal statutes (the NVRA and HAVA) seem plausible.
In April the American Civil Liberties Union (ACLU) of Ohio, the Ohio A. Philip Randolph Institute and the Northeast Ohio Coalition for the Homeless sued Ohio Secretary of State Jon Husted over the way the State conducts voter roll maintenance.
The process is used to help weed ineligible voters, those who have died or been found incompetent or convicted of felonies or who have moved from the voting jurisdiction, from the voting rolls. But it also was triggered by lack of voting.
They argued Ohio's process was improper because it violates specific provisions in the National Voting Rights Act of 1993 and the Help America Vote Act of 2002.
Those two laws were enacted to encourage greater participation in Federal elections.
The laws provide states with a means to clear their voting rolls of ineligible voters only under certain circumstances. Part of that procedure must include a notification process that gives a voter a chance to confirm they are still eligible. But the law specifically says registered voters may not be disqualified simply because they have not voted.
The State of Ohio follows a notification process outlined in the Federal statutes. It sends a notice to voters informing them that that their registration may be cancelled if they don't take action to confirm they are indeed eligible electors. A person can confirm eligibility by responding to the notice or by voting within a four year period.
One of the triggers for the notice, though, is if a person has not voted within two years.
The plaintiffs argued that was a violation of Federal law. The State argued that since it included a notification process outlined in the Federal parts of the statue it was complying with the law.
The Court acknowledges that there is some ambiguity in the law, and that the exceptions that allow voters to be removed from the rolls appear to clash with the general law. But it said that ambiguity must be resolved in favor of the goals of the statue as a whole, that no voter should be disqualified simply for not voting often enough.
Ohio's process violates that provision, the Court said. And the provision would have no teeth if the State simply could circumvent it by listing ways a voter could confirm their eligibility. "A state cannot avoid the conclusion that its process results in removal 'solely by reason of failure to vote' by providing that the confirmation notice procedure is triggered by a registrant's failure either to vote or to climb Mount Everest or to hit a hole-in-one."
The majority opinion was written by Judge Eric Clay, who was appointed by President Bill Clinton. He was joined by Judge Julia Gibbons, who was appointed by President George W. Bush. Judge Eugene Edward Siler, who was appointed by President George H.W. Bush, dissented in part. He would have upheld the Lower Court's ruling except on an issue of whether Ohio adequately notifies electors how to remedy their voting registration if they move from Ohio.
The case is returned to the District Court for further proceedings.
It is unclear what impact it may have on voters whose names already were removed from the voting rolls. That will be addressed by the district court.
The law bars removal of any names from the voting rolls if there are less than 90 days before a Primary or an Election that includes Federal officeholders.
Husted, in a statement, criticized the ruling. "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," he 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," Husted said. "It also reverses a federal court settlement from just two years ago that required exactly the opposite action."
Mike Brickner, Senior Policy Adviser for the ACLU, had a different perspective. What was practice in Ohio was also illegal, in the Court's view, he noted. "We are very happy that the court found that Secretary Husted's process of purging voters in Ohio is illegal and must stop," Brickner said "We hope that a plan will emerge soon to allow the tens of thousands of voters illegally purged from the rolls to vote in the upcoming presidential election."
Rep. Kathleen Clyde, a Kent Democrat who often has been at odds with Husted over voting regulations, said the ruling is a victory for the fundamental right to vote.
"Today's decision is a victory for voters, voting rights and common sense," Clyde said. "Now, Ohioans who are registered and show up to vote can be confident that their ballots will be counted instead of thrown out."
Catherine Turcer of Common Cause Ohio said the case is a reminder that voters should check their registration status. "Election Day is still a long way away but it's coming up quickly. So take charge now and verify your vote," Turcer said. "And with early voting open to all Ohio voters, you can cast your ballot anytime from Oct. 12 to Election Day on Nov. 8."
NYC Wins When Everyone Can Vote! Michael H. Drucker
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