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Last week, the Commonwealth of Kentucky entered into a settlement with the U.S. Department of Justice regarding required maintenance of its voter rolls under the National Voter Registration Act (NVRA, or “motor voter”). Here’s the relevant excerpt from the DOJ’s release:

The Department of Justice today announced that it recently entered into a settlement with the Commonwealth of Kentucky, the Kentucky State Board of Elections, and the Kentucky Secretary of State, resolving the Department’s claims that Kentucky was not complying with the voter registration list maintenance procedures set forth in Section 8 of the National Voter Registration Act of 1993 (NVRA). Under the terms of the settlement, Kentucky will develop and implement a general program of statewide voter list maintenance that makes a reasonable effort to remove the names of registrants who have become ineligible due to a change in residence in accordance with Section 8 of the NVRA and state law.

The NVRA includes requirements for maintaining voter registration lists in elections for federal office. One of these NVRA requirements is that states make a reasonable effort to remove registrants who have become ineligible due to having died or moved. At the same time, the NVRA has protections to ensure that eligible voters remain on the rolls, including specific procedures that states must follow before removing voters who have moved to a new jurisdiction.

The Justice Department’s investigation found that, since 2009, Kentucky has not sent statutorily-required notices to registrants under the change-of-address process contemplated by the NVRA and state law. The investigation also found that, since 2015, Kentucky has not removed registrants through this statutorily-prescribed process when the registrants have moved to a new jurisdiction without notifying election officials.  

The settlement requires the Kentucky State Board of Elections to create and implement a comprehensive plan, setting forth specific list maintenance procedures to be followed in the future, in accordance with the requirements and voter protections set forth by the NVRA. Such procedures must include a plan to obtain and use change-of-address information at least once per year. The comprehensive plan must also include procedures for sending a canvass mailing this summer to identify through returned mail those registrants who may have moved, as well as public outreach practices to educate voters about the importance of updating their voter registration when they change residences. The agreement also requires reporting of various information and data relating to the State Board’s list maintenance activities. The parties will submit the settlement to a federal judge for court approval.

There had been some concern about the DOJ’s action when news of this case first emerged on the heels of the U.S. Supreme Court’s decision in an Ohio case permitting states to be more aggressive in identifying and removing inactive voters from the rolls. But veteran voting rights attorney Justin Levitt suggests that this case is actually not as bad as feared – and is actually good news for states seeking funding and assistance to manage their voter rolls:

Both federal law and Kentucky law obligate the state to use reliable information — more reliable than the Ohio standard at issue in the Supreme Court case — to clean the rolls.  But since 2009, state entities hadn’t been given the funding to clean up voters who had moved. 

And while overvigorous purges are deeply troubling, so is complete abdication.  Going too long without reasonable maintenance can lead to resource misallocations, and massive overcorrections, both of which hurt real eligible voters.  Consider, for example, Brooklyn in early 2016 (where DOJ also intervened to foster good list hygiene). [Full disclosure: I was serving at the DOJ and involved in the Brooklyn intervention.] 

So DOJ seems to have steered the Kentucky case to pry loose some money for what the state wasn’t funded to do all along.  The agreement itself essentially just requires that Kentucky abide by federal law, using reliable sources to clean up the rolls (including updating the address of someone who moved within the county, which will help eligible voters at the polls).  It specifically flags ERIC, a bipartisan program far more reliable than [Kansas’] Crosscheck system, and one that builds accuracy by obligating member states not only to clean ineligible voters off of the list, but also to affirmatively reach out to potential eligible voters who aren’t registered.  And the agreement obligates Kentucky to make the coming maintenance public.

Those are all good things.  In voting rights, as elsewhere, there’s plenty of reason to stay woke.  And every Kentucky voter — heck, every American voter — should set a clock to double-check their voter registration two months before each election, just in case.  But if you’re looking for evidence of the crumbling of the Republic, the settlement in Kentucky isn’t the place to start.

This case is the latest reminder that it sometimes takes a federal court – whose orders have priority over just about anything else – to spur action on (and resources for) otherwise-stalled voter list maintenance processes at the state and local level. I’ll be watching to see how this settlement plays out in the Bluegrass State – and if any other states are on deck for the same treatment. Stay tuned …

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