At Issue in Husted Case: How Are States Supposed to Keep Clean Voter Rolls?

The Supreme Court heard oral arguments Wednesday in a case on voter registration list maintenance, Husted v. A. Philip Randolph Institute.  At issue is Ohio's procedure for removing voters from the voter registration list:

In that process, in place since 1994, the state regularly identifies those on the voter list who haven’t voted in the previous two years (including at least one federal general election), and sends them a “confirmation notice.” If the voter does not respond to the notice (and the majority do not), the voter is kept on the voter list but moved to “inactive” status, where they can still vote. If such a voter does not vote or engage in any other voter activity during the next four years, they are removed from the voter list. The primary legal question is whether this constitutes “removal … from the official list of voters … by reason of the person’s failure to vote,“ as prohibited by Sec. 8 of the NVRA.

The justices questioned what states would be able to do to maintain the accuracy of their voter registration lists if the plaintiffs were successful.  As David Becker of the Center for Election Innovation and Research explains:

Justice Breyer asked plaintiffs’ counsel, Paul Smith, “what are they [the state] supposed to do? That is, every year a certain number of people die and every year a certain number move…. All right. We don’t want them on the voter roll.” He went on to say: 

“Look, the reason I’m asking these questions is because I don’t believe Congress would have passed a statute that would prevent a state from purging a voting roll of people who have died or have moved out of the state. So I’m trying to reconcile the two. And, therefore, I ask you what the state’s supposed to do for that latter objective.” 

This is really the crux of the whole case, and the challenge with maintaining voter lists. The plaintiffs are quite right in that they don’t want anyone removed from the list who shouldn’t be, if they’re still eligible to vote and have simply chosen not to vote in some previous elections. I don’t know anyone who wants that. But the state is also right, as Justice Breyer recognizes, that accurate voter lists are essential to a functioning democracy, and that the state needs to figure out who’s moved within the state, moved out-of-state, or died, since the last election.

State and local election officials have difficult but important work to do maintaining accurate voter registration lists.  As Mr. Becker points out, interstate voter registration data sharing is one of the best ways for states to identify errors in their lists.  But states also need the ability to use other tools, such as the notice and waiting procedure used in Ohio.  Stay tuned for the release of this opinion, which will have major implications for election administration, later this term.

82 Non-Citizen Voters and 385 Non-Citizens Registered to Vote Found in Ohio

To further prove the point that elections have consequences and we are in a new world of election law and litigation, compare two news stories from this week.  First, the Trump administration has dropped the Department of Justice's opposition to Texas' voter ID law on the basis that it is intentionally racially discriminatory, to give the state time to amend the law.  Second, North Carolina's new Democrat governor and attorney general are attempting to withdraw (potentially unethically) the pending petition for certiorari with the Supreme Court regarding the Fourth Circuit's decision last summer striking down North Carolina's voter ID law. 

Opponents of voter ID laws claim that they are not needed because vote fraud doesn't happen, but when voting and voter registration records are investigated, both illegal voting and the potential for it are uncovered.  An investigation by Ohio Secretary of State Jon Husted has uncovered hundreds of non-citizens registered to vote in the state, 82 of whom have voted in at least one election in the last year:

“In light of the national discussion about illegal voting it is important to inform our discussions with facts. The fact is voter fraud happens, it is rare and when it happens, we hold people accountable,” Secretary Husted said. . . . 

“I have a responsibility to preserve the integrity of Ohio’s elections system,” Secretary Husted said. “When you consider that in Ohio we have had 112 elections decided by one vote or tied in the last three years, every case of illegal voting must be taken seriously and elections officials must have every resource available to them to respond accordingly.” 

Husted added that none of the cases where a non-citizen cast a ballot occurred in jurisdictions where an election was decided by one vote or tied. 

It’s possible for a non-citizen to register to vote in Ohio if they lie about their status on the voter registration form.

And there may be more non-citizen registered voters and actual voters than what this investigation found:

Husted’s review is able to identify people who have registered to vote as citizens but obtained a driver’s license as a non-citizen. . . . And Husted admits there are likely other non-citizens registered to vote in Ohio but are not in the BMV’s system. 

That’s why he has appealed to Washington for access to a federal Homeland Security database… 

“If we had access to that information we could prevent this in advance and we could find out what the probably bigger number is of people who are on the voter rolls or who have voted and shouldn’t be.”

We applaud Secretary Husted for taking the problem of non-citizen registration and voting seriously and endeavoring to keep Ohio's voter registration records clean.  And we look forward to the Trump administration cooperating with states' efforts to ensure the integrity of their elections, instead of fighting them as the federal government has for the past eight years.

Bloated Voter Rolls in Crucial Swing State

In Ohio, more than one out of every five registered voters is probably ineligible to vote. In this key swing-state that can make a big difference in determining who both national and state elected officials will be.  Two Ohio counties had more voters registered than were eligible to vote. Further, another 31 counties currently have registration numbers at more than 90 percent of those eligible, which is seen as unrealistic by voting experts with the national average being slightly above 70 percent.

In Presidential elections, it will be difficult to determine which votes to count and lawsuits concerning the results will surely ensue.  Ohio Secretary of State Jon Husted has attempted to clean up the rolls, but it appears he does not have the power to completely fix the problem.

“Common sense says that the odds of voter fraud increase the longer these ineligible voters are allowed to populate our rolls.”

Husted contacted Attorney General Holder’s Office in an effort to discuss balancing seemingly conflicting federal laws in an effort to clean up Ohio’s dirty voter list without removing eligible voters. However Holder’s office has not responded. Husted stated:

“As Ohio’s chief elections official, it is my responsibility to ensure the votes of every eligible voter are counted and ensure the integrity and accuracy of the results.” He went on to say that “This is a difficult task when federal regulations limit Ohio’s ability to remove ineligible names, thereby increasing the chance for voter fraud.”

Additionally, there is the problem of inactive voters. An inactive voter is someone who has not voted in at least four years or has likely moved out of state. Tom Fitton, president of Judicial Watch stated “Those (inactive voters) are all potential names that could be used for voter fraud.” Currently under federal law, elections officials are not allowed to remove an inactive voter unless they can present a prima facie evidence that he or she is no longer eligible.  Of Ohio’s 7.8 million registered voters, nearly 1.6 million are regarded as “inactive.”

           

According to the Columbus Dispatch, of the inactive voters identified with a party, 53 percent are Democratic and 45 percent Republican. Additionally, roughly 750,000 haven’t voted in Ohio since at least 2007.  Even registered voters who have informed the U.S. Postal Service that they are moving out of state cannot be purged, according to Husted spokeswoman Maggie Ostrowski. The secretary of state instead can only send these voters letters asking them to voluntarily withdraw their Ohio registration; but if they don’t they continue to be listed on the rolls.

           

The process for removing inactive voters usually takes several years. Husted has partnered with the state Bureau of Motor Vehicles to improve the state’s voter registration database so election workers could cross-check the identities of voters. Last week, Husted released the first ever-statewide report on voter fraud based on a review of cases by Ohio’s 88 county boards of elections and the Secretary of State’s office following the 2012 Presidential Election. The report lists that 135 cases of voter fraud have been referred to law enforcement for further investigation. With these numbers it is likely that more fraud exists. Hopefully something can be done before the next Presidential election because although Ohio has lost population in recent years it remains one the few states that is in play for both parties in all national elections.