Appeals Court Blocks Ohio Law on Voter Roll Maintenance


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Back in April, I wrote about what was then the latest lawsuit regarding Ohio’s election laws – a challenge to the state’s practice of notifying voters who have failed to vote in two years and then giving them an additional four years to affirm their eligibility by updating their registrations or casting a ballot before removing them from the rolls.

Last Friday, the U.S. Circuit Court of Appeals for the Sixth Circuit ruled that Ohio’s law violates both the National Voter Registration Act (NVRA) and the Help America Vote Act of 2002 (HAVA) because it relies too heavily on an individual’s failure to vote as a condition of starting the notification and removal process. The law had been upheld by a trial court, but a panel of appellate judges divided 2-1 on an opinion blocking the law.

The underlying dispute involves how to interpret federal law, which prohibits removing voters from the rolls simply for failing to vote. The state argued that it is the failure to respond, not the failure to vote, that results in removal. has more:

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 recognized that the statutory language was unclear, but ultimately decided to resolve it in favor of voters:

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 full opinion and dissent can be found here.]

The panel’s decision was a 2-1, with one dissenting judge saying he thought Ohio’s process did comply with federal law. Secretary of State Jon Husted blasted the ruling:

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.”

The case now goes back to the trial court for further action consistent with the Sixth Circuit’s order – but will almost certainly be appealed to the U.S. Supreme Court first. Election Law Blog’s Rick Hasen says he expects “Ohio getting a reversal on this on an emergency basis to be a long shot given that this is a 2-1 ruling … and given (at least from my initial read of the case) that both the majority and dissenting opinions’ interpretations of the interactions of two federal statutes (the NVRA and HAVA) seem plausible”, which is likely to once again even divide the 8-member high court. That would mean the decision stays in place unless and until it is overruled by a full-strength bench of Justices sometime in the future.

It still isn’t clear how many actual voters are involved in this controversy, but it’s certainly an issue that other states will be watching as fights over the accuracy of voter rolls continues. I’ll be watching as well … so stay tuned.

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