On Monday, June 11, the Supreme Court ruled that Ohio’s method of removing voters from the voter rolls was acceptable. On the same day, Secretary of State Allison Grimes and the Kentucky Board of Elections agreed to a settlement of a voter rolls lawsuit that looks like the same process. There’s more to the story, though.
In November 2017, Judicial Watch (JW), a conservative activist group, sued the state of Kentucky over what JW said was a failure to properly maintain the state’s voter rolls. Being sued by Judicial Watch is not unusual; they sue all the time, mostly Democrats, and most of their lawsuits are ultimately dismissed. However, in the lawsuit against the state of Kentucky, they were eventually joined by the Trump Department of Justice.
The law driving all of this: the NVRA
The National Voter Registration Act of 1993 is the law behind both the Kentucky suit and the Ohio case. Essentially, the NVRA was set in place to both encourage voter registration and voting, and to put some standards in place as to voter roll maintenance.
One of the ways that the NVRA says to maintain voter rolls is sending a card to someone you suspect of having moved, while making sure the card is automatically forwarded to the voter if they have moved. The voter is then supposed to return the card saying either they have moved or they haven’t, so the rolls can be corrected. BUT, in addition to the card, the voter must also have failed to vote in a certain number of elections.
The Ohio voter rolls lawsuit
In the Ohio voter rolls lawsuit, the state of Ohio interpreted the NVRA as allowing them to use failure to vote in ONE election as a reason to send the card. If the card was not returned AND the voter failed to vote in the next election, they would be removed. In other words, the failure to vote was the trigger.
The Ohio process is the most aggressive voter roll “cleansing” process in the country. Other states use similar processes, including Kentucky (as we explain below), but few use the failure to vote as the trigger. Voting rights groups worry that this Supreme Court decision will lead to wholesale removal of voters from the rolls across the country, especially among groups that traditionally vote for Democrats.
The Kentucky lawsuit
In the Kentucky lawsuit, Judicial Watch argued that Kentucky had been lax in its efforts to maintain its voter rolls. Specifically, JW argued that Kentucky had not followed the process set forth in the NVRA and in Kentucky statute.
Here are the pertinent points regarding removal from the voter rolls, as outlined in the lawsuit settlement. (You can read the settlement document for yourself if you want to check the details below.)
- The state may not remove someone from the voter rolls simply for not voting, EXCEPT as noted below.
- The state may remove someone if the voter requests to be removed, or for mental incapacity or for criminal conviction. The state should also make a reasonable effort to remove persons who have died.
- The state may remove persons from the rolls on the grounds of a change of residence, if the person confirms that they have moved.
- The state may also remove persons from the voter rolls on the grounds of a change of residence, IF both of the following conditions are met:
- The person fails to respond to a notice asking if they have moved, AND
- The person fails to vote in the next two federal elections.
You are probably wondering, How does the state know to send the card asking if the person has moved? Well, that’s up to the state to figure out; but, the NVRA has an example process where the state uses data from the postal service’s change of address database to figure out which voters have moved.
Kentucky’s response to the lawsuit
As you can imagine, putting such a process in place is complicated and expensive. There’s the technical work of setting up data feeds and queries, then manipulating the resulting data and generating postcards to all the persons who MIGHT have moved. There is the problem of false positives, of course. And then, there is the cost of mailing the cards, and the additional cost of forwarding the cards. And finally, there’s the staff cost of processing the cards, AND keeping track of who has not responded through the next two federal elections. And repeating the entire cycle every year.
Kentucky’s response to the lawsuit notes that state law requires, in fact, the use of the USPS change-of-address database. In addition, though, state law also requires that persons who do not respond and do not vote are not removed from the rolls, but are placed on an “inactive” list. Persons on that list are allowed to vote, but are not counted for such things as creating precincts.
However, here’s the rub: since 2008, the state Board of Elections has requested funding for such a maintenance process every year, and every year, that funding has been cut from the budget. As a result, there are no voters listed on the inactive list, and no notices have been sent since 2009.
It should be noted that the state HAS removed 424,429 individuals from Kentucky’s voter rolls due to death, felon status, mental incompetence, the voter moving out of state (with the voter’s written confirmation), or at the voter’s request. But, the process outlined above has not been done, due to lack of funding.
The budgetary problems were acknowledged in the settlement. But, not to put too fine a point on it, the court said “Sorry about your luck. You have to follow the NVRA anyway.”
The bottom line on the settlement
In the settlement document filed on Monday, all the sides agreed to work together on putting in place just such a program as described above. The KY Board of Elections has 45 days to draft a plan for putting this in place, which they then will deliver to the DOJ, which will then have 30 days to respond as to whether they accept the plan.
BUT – in addition to drafting a plan for the future, the KY BoE must put together the “have you moved mailing” this year, and must send it out before August 8, 2018. Once the mailing is complete, the results must then be used as outlined above to begin removing people from the voter rolls who do not respond AND do not vote. The state also has to supply a list of persons to whom they have sent the cards.
AND – by July 11, the KY BoE must put on its website any documentation it has for this process, must update that documentation as the process is built out, and must send a link to that documentation to both Judicial Watch and the DOJ.
AND FURTHER – the BoE must report the results of this process on its website by September 30 of this year, and again each year by September 30. The report must include a fairly long list of details, which you can find in the settlement document.
So, the bottom line is that the Kentucky Board of Elections agreed that it will follow the send-a-card-and-start-tracking-through-two-elections process, and will begin this summer.
The statement from the Secretary of State’s office
Secretary of State Grimes issued a statement through her communications spokesperson, Bradford Queen:
“On the heels of the Supreme Court’s decision today greenlighting Ohio’s “use it or lose it” strategy for the removal of voters, Kentuckians can rest assured Secretary Grimes and the State Board of Elections will not waver in their dedication to protecting Kentuckians’ fundamental right to vote. Under the Grimes administration, unlike others, voters have never been unilaterally kicked off the rolls, especially for simply not voting, and that will not change. Since 2011, Kentucky has properly removed nearly half a million voters. The DOJ and Judicial Watch both now rightly recognize maintenance of Kentucky’s rolls requires proper funding. The General Assembly should be on notice that it cannot continue to underfund Kentucky elections. This agreement makes it abundantly clear – and the DOJ and Judicial Watch both agree – Kentucky has and will continue to be diligent in ensuring its voter rolls are accurate while protecting voters’ rights.”
The bottom line for Kentuckians
As we move toward the 2018 midterm elections, both the Supreme Court decision and the Judicial Watch lawsuit settlement make it clear that we have some work to do with regard to voting rights.
First of all, we need to remind all citizens of Kentucky that voting is a right to be protected, and that includes paying attention. If you move, update your voter registration. If you get a card from the SoS office, respond to it.
Second, we need to remind people to check their registration before an election. You may have turned in a voter registration card, or returned the “have you moved” card, or updated your registration with your county clerk. How do you know that it got recorded properly, though, if you don’t check? You cannot wait until the day of the election to be sure.
And third, what’s the simplest way to make sure you will be allowed to vote in each election? Show up to vote! All of these processes are triggered in part by skipping an election.
Finally, we should make sure everyone in Kentucky knows this key web site: GoVoteKY.com. Our Secretary of State and the Board of Elections have made it super-easy to get registered to vote, and to stay registered. Any time you are talking with potential voters, point them to that site.Want to protect voter rights in Kentucky? Memorize this web address, and share it with everyone so they can be ready to vote this fall: GOVOTEKY.COM. Click To Tweet
If we do these things, we will bring more people to the polls AND protect their right to vote. If we do THAT, this lawsuit will go from being a worry to an historical footnote.