the Beacon Journal editorial board
On the heels of other election rulings, the federal appeals court in Cincinnati reshaped another aspect of voting in this battleground state last week. The court held that voters cannot be removed from the rolls merely because they recently have not cast a ballot.
The case involves the task of maintaining voter rolls, a goal of the federal “motor voter” law of 1993. Ohio has used a supplemental process triggered by voter inactivity. Voters are notified after two years, then, if they fail to respond to a mailing, removed from the rolls after four more years that include two federal elections, a narrow time frame. The lawsuit, brought by the American Civil Liberties Union and Democratic-leaning groups concerned with the impact on poor and minority voters, dealt solely with inactive voters, who can be removed even if they live at the same address.
In a 2-1 ruling that reversed a lower court, the appeals panel recognized the “sometimes conflicting mandates” of the motor voter law, which seeks to increase participation and maintain accurate lists. The court correctly found that the law’s language barring removal simply for not voting would be a “paper tiger” if changes made in 2002 under the Help America Vote Act, allowing the supplemental process, were interpreted the way they have been in Ohio.
The court rejected arguments by Jon Husted, the secretary of state, that various types of voter inactivity, such as failing to file a change of address or a voter registration card, also could trigger a notice. The majority found: “The state cannot avoid the conclusion that its process results in removal ‘solely by reason of a failure to vote.’?” It isn’t enough, as Judge Eric Clay pointedly argued, that “the confirmation notice procedure is triggered by a registrant’s failure either to vote or to climb Mt. Everest or hit a hole-in-one.”
The majority also rejected the secretary’s argument that removal involves a combination of inactivity and failure to respond to a mailed notice.
During the litigation, the secretary did change the notice to make it easier for voters still at the same address. Instead of providing details, voters can sign, date and return the prepaid form. Still, the court held, such changes did nothing for voters already purged, essentially describing them as victims of a process that goes too far.
The secretary objects that the ruling overturns 20 years of practice by his Republican and Democratic predecessors, reverses a settlement and opens the door to dead people and those long removed from the state being put back on the rolls. Yet past practice doesn’t guarantee a correct course, and the secretary himself long has noted that he has moved more aggressively during his tenure to clean up voter rolls, often warning about fraud. A separate process purges the dead from voter rolls, and the secretary’s investigations have found fraud practically nonexistent in the state.
Most important, his arguments fail to square with the principle of deciding in favor of the voter whenever possible. Which is what the appeals court rightly ordered the lower court to do, with time enough to put remedies in place for this election year.