Another Elect'n, Another Suit: New Challenge to Ohio Voter List Maintenance Practices

[Image via richardthanson]

You cross your fingers and hold your heart,
It’s curtain time and away we go!
Another op’nin’,
Just another op’nin’ of another show. – “Kiss Me Kate”

While many things in the world of elections are unpredictable, others work like clockwork. To that list, I think it’s time to add “election litigation in Ohio.”

Yesterday, the ACLU of Ohio – on behalf of other plaintiffs – sued the Ohio Secretary of State over voter list maintenance procedures that they say violate federal law. SoS Jon Husted says the lawsuit is purely political and without merit. Cleveland.com has more:

A federal lawsuit filed Wednesday is suing Ohio Secretary of State over how state officials remove inactive voters from the rolls. 

The lawsuit, filed by the American Civil Liberties Union of Ohio on behalf of Ohio A. Phillip Randolph Institute and Northeast Ohio Coalition for the Homeless, argues people are removed from Ohio voter rolls in violation of the National Voter Registration Act [NVRA] of 1993, also called the “Motor Voter” law.  

Ohio Secretary of State Jon Husted said the state manages its voter rolls in compliance with both federal and state laws and has been complying a 2012 settlement requiring voter rolls to be scrutinized and maintained. 

“This lawsuit is politically motivated, election-year politics, is a waste of taxpayer dollars, and opens the door for voter fraud in Ohio,” Husted said in a statement. 

At issue is something called the “supplemental process” that marks voters for removal after years of non-voting and non-response:

The federal Motor Voter law prohibits states from removing voters for failing to vote. But it also allows states to establish a supplemental process for removing voters who have moved without updating their addresses. 

In Ohio, the secretary of state’s office sends a notice to registered voters who don’t vote in elections for a period of time, generally two years, or change their address through the U.S. Postal Service asking them to confirm their registration.  

If the voter does not respond to the notice or update voter registration information and does not vote or sign a petition within four years, the secretary of state can cancel the voter’s registration. 

For example, someone who did not vote in the 2011 election to repeal Senate Bill 5 nor the 2012 presidential election (primary or general) nor the 2013 primary election would have received a notice that year. If that voter doesn’t update or confirm his or her address or does not vote in any election after that, including the 2016 presidential election, the registration would be canceled in 2017.

Plaintiffs say that removing such voters violates the NVRA:

The suit, in the U.S. Southern District Court of Ohio, argues the state is wrong to assume voters are inactive because they have moved. They point to part of the Motor Voter law that requires “reliable second-hand information” to determine someone has moved. 

The notice sent to inactive voters is more like a voter registration form, the complaint says, and is confusing to voters. As a result of a statewide purge last summer, thousands of Ohioans had to cast provisional ballots on Election Day and their votes were later not counted because they weren’t registered, according to the complaint.

“In Cuyahoga County alone, approximately 40,000 individuals were unlawfully purged merely for choosing not to vote, and a disproportionate number came from low-income neighborhoods and communities of color,” Andre Washington, the President of the Ohio APRI chapter, said in a news release.  

The suit seeks a court order that Husted and boards of election immediately stop the supplemental process and restore all voter registrations that were canceled through the method.

Husted (whose office settled a lawsuit back in 2014 alleging that the voter rolls were bloated) responds is that he is merely following longstanding practice and that voters are never removed if they engage with the election process in any way:

Previous secretaries of state dating back to Bob Taft in the 1990s used the same process to identify potentially ineligible voters, according to Husted’s office. A 2009 directive from then secretary of state Jennifer Brunner, a Democrat, instructed boards of election to cancel registrations if the voter did not update his or her registration or vote during the two election cycles following the notice.

In 2015, Husted directed boards of election to keep voters on the rolls if they had engaged in any voter-related activity such as signing a petition.

As this case proceeds, I’ll be interested to see what data/evidence emerges on a few different topics, especially –

1. How many of the voters “purged” (e.g. the 40,000 alleged in Cuyahoga) have actually offered to vote and been given provisional ballots – after not voting for six years?
2. Also, the state has been using an online address update portal as it waits for OVR (prominently featured in the confirmation Form 10-S); mow many, if any, of the flagged voters confirmed or updated their addresses in this manner?
3. How does Ohio’s process compare to other states, both in terms of how voters are identified as well as how (if at all) they are removed?

If nothing else, it’s the latest courtroom drama in one of the nation’s mostly closely-watched states. Don’t be surprised if it’s not the last this year, though; there always seems to “another elect’n, another suit” in Ohio … stay tuned!