Ohio Secretary of State Jon Husted came into office in the key swing state of Ohio promising to get elections under control. But this week, he lost another voter rights case, this time at the appeals level. Jon Husted did everything he could to purge as many citizens from voting as possible until federal law finally caught up with him and his “use it or lose it” purging process.
But as of yesterday, Jon Husted still has not mailed ballots to some 385,065 voters who were illegally purged.
This report looks extensively at the latest case, where Jon Husted purged voters by the thousands just for choosing to skip a few elections. Some of the Ohio voting laws and pre-litigation discussions are reviewed. Next, selected reasoning by the lower court judge is scrutinized. Finally, the entire Ohio voter notice and purge system is legally analyzed with some help from the appeals court.
But first, take a look at this study by Reuters which found high levels of voter purging in Ohio:
In Cleveland’s Cuyahoga County, 5 percent of voters in neighborhoods that backed Obama by more than 60 percent in 2012 were purged last year due to inactivity, according to the Reuters analysis of the voter lists. In neighborhoods where Obama got less than 40 percent of the vote, 2.5 percent of registered voters were removed for that reason.
In Franklin County, home to the state capital Columbus, 11 percent of voters in Democratic-leaning neighborhoods have been purged since 2012 due to inactivity. Only 6 percent of voters in Republican-leaning neighborhoods have been purged.
Overall, 30,000 voters have been removed due to inactivity since 2012, a larger figure than Obama’s margin of victory that year.
Extraordinary numbers of voters have been purged from the voter rolls, and purges have hit Democratic voters the hardest. Jon Husted happens to be Republican.
OHIO VOTING LAWS
The Ohio Secretary of State (SOS) may change voter registration procedures by issuing “directives.” Jon Husted issued Directive 2011-15 ordering the Board of Elections (BOE) to send a forwardable “confirmation notice” to every citizen who was registered to vote but who had not voted in two years. This was called the “Supplemental Process.”
The notice required registered voters to reply with additional information or additional documents to remain eligible to vote. The notice also provided a website address where voters could “update [their] Ohio residential address online.”
Once the notice went out, the voter was reclassified as “inactive.” If the voter did not respond to the notice and did not engage in “voter activity” for two more federal elections, the “inactive” voter would automatically be purged from the Board of Election (BOE) rolls and lose the right to vote. As per the form:
If you do not take immediate action as described above and do not vote in Ohio by the second regular general election for federal office that occurs after the issue date on this notice, your voter registration in Ohio may be cancelled pursuant to federal and state law.
Previously, the federal government passed laws that both (1) protected the rights of voters by preventing excessive purges and (2) protected the integrity of elections by providing for proper purging processes. These rules came from two major national laws: the 1993 National Voting Rights Act (NVRA) and the 2002 Help America Vote Act (HAVA).
In 2015, voters showed up at the election polls only to find they were automatically removed from the voter rolls. Some said they did not see the notice at all.
Three times, voting rights groups wrote to Secretary of State Jon Husted to tell him that the Ohio directives did not comply with federal laws. Each notice analyzed the laws in detail, and each asked for a meeting to discuss the situation.
- December 17, 2015, Demos and ACLU Ohio told Jon Husted that voter rolls could not be purged just because voters missed a few elections.
- February 23, 2016, voting rights groups told Jon Husted that they intended to sue the Secretary of State about the violations. (See page 7)
- April 6, 2016, Jon Husted was told that the notice in the “confirmation” letter did not comply with federal law: “We are prepared to meet … to develop a comprehensive plan that will bring Ohio’s [process] into compliance with [federal laws]… In the absence of such a plan, we will have no alternative but to initiate litigation.”
A meeting took place but Jon Husted would not budge on the purge. It was time for the lawsuit. Having failed to reach a resolution, the case was filed in federal court.
JUDGE GEORGE C. SMITH DECIDED FOR JON HUSTED
Federal District Court Judge and Ronald Reagan appointee George C. Smith heard the case. Judge Smith issued an Order for Jon Husted and against voters on every issue. Specifics of the legal issues will be covered in the appeals court section of this report below.
Some of the reasoning used by Judge George C. Smith to support Jon Husted and the State of Ohio over the voters is worth a review here because it is so convoluted.
- JUDGE GAVE “CREEDENCE” TO CASE SETTLEMENTS REQUESTING MORE VOTER PURGING
To support his case, Jon Husted mentioned three settled cases and complained that a court decision in this case would upset those agreements. Judge George C. Smith noted:
While there is a general lack of actual case law analyzing [federal voting rights laws], it bears mentioning that both parties have cited several cases in which the statute has been litigated and resolved without a final court order…
These agreements are not controlling in the instant matter, but they do lend credence to the fact that Ohio’s voter roll maintenance processes comport with the NVRA’s requirements. (Emphasis added, Page 15)
Judge Smith failed to note that these three decisions involved plaintiffs with opposite interests. Two cases involved the Republican George W. Bush administration and the third involved Judicial Watch, the conservative organization that once pushed for impeachment of Bill Clinton. All three lawsuits came from the other side of the spectrum – they wanted states to purge more voters. None of these cases ever represented the rights of voters to avoid being purged.
- JUDGE ADDED UNREASONABLENESS TO THE LAW
Usually, when interpreting laws, reasonableness is read into them. Judge George C. Smith actually read reasonableness out of the voter law by breaking basic English rules.
Federal law required “a general program that makes a reasonable effort to remove the names…” Judge George C. Smith interpreted the language:
The language of the statute is clear that the “program” shall be “general” and the “effort” shall be “reasonable.” Notably, the statute does not say that the “program” must be “reasonable.” (Page 16-17)
In English, a clause that begins with the word “that” is essential to the subject matter. The subject matter above is the “program.” The program must provide for a “reasonable effort.” A reasonable effort does not provide for itself.
Not only did the judge misinterpret the basic English – the result was ridiculous. When the judge said that reasonableness was not required, he was also implying that unreasonableness is acceptable.
Rewriting the language the way Judge George C. Smith saw it: “either a reasonable or unreasonable general program that makes a reasonable effort … “ What kind of unreasonable program could make a reasonable effort at anything?
- JUDGE SAW NO SUCH THING AS “WRONGFULLY” PURGED VOTERS
Voters complained that each Ohio county handled the purge process differently thereby violating the “uniform” standard of the National Voting Rights Act. Judge George C. Smith answered that the counties were different and that state laws allowed them to be different. Then he made this strange statement:
Accordingly, the effective disparity is not that some voters were purged wrongfully, but rather, that some voters improperly remained on the rolls and should not have had the right to vote…. [because federal law says] that “registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters …” (Emphasis in original, Page 19)
In the one-sided view of Judge Smith, the only thing a court could do was to make sure more voters were purged. It could not assure voters were not purged.
In a prior situation, Jon Husted actually fired election workers who did not comply with his demand to shorten voting hours. In that case, Jon Husted supported uniformity. In this case, he opposed uniformity.
- JON HUSTED CHANGED THE PURGE NOTICE TO AVOID A RULING
Late in the lawsuit in his third legal brief, defendant Ohio Secretary of State Jon Husted suddenly changed the “Supplemental Process” notice to repair some of his violations of National Voting Rights Act (NVRA). Specifics of notice issues will be covered in the appeals court section below.
He made changes and claimed “mootness” to avoid a court decision. A court throws a case out without deciding the issues involved where it is “moot.” When the controversy that gave rise to the lawsuit no longer exists and is not likely to recur, then the court will simply dismiss the case. Judge George C. Smith agreed that the case was moot:
After Plaintiffs brought this issue [of federal law violations in the notice] to the attention of the Secretary of State, he has made changes to [the form] so that it is now in compliance with the requirements of the NVRA … Defendant voluntarily made changes to [the form] upon receiving notice from Plaintiffs that it was not in compliance with the NVRA … (Pages 21-22)
Actually, it took three letters, a meeting, a lawsuit, three briefs, a deadline and a looming court decision before Jon Husted finally bothered to “voluntarily” change the notice. This is far more than merely bringing the issue to his attention.
- BUT JUDGE SMITH DECIDED AGAINST JON HUSTED BEFORE
The strange reasoning of Judge George C. Smith above appears to indicate that he was looking very hard to find against voters and for Jon Husted; but just last May, this same judge found for voter rights and against Jon Husted in another case.
In a case where blind voters sued the state for violating federal law that guaranteed “independent” access so that blind people could vote for themselves, Judge Smith found against the state.
Judge Smith did not have much choice. A prior court case had already found that states must provide appropriate technology so that blind people could vote without assistance. Still, Judge Smith permitted the violation to continue right past the 2016 election anyway!
THE APPEALS COURT OVERTURNS JUDGE GEORGE C. SMITH
Voters appealed this vote purging case to the Federal Circuit Court. A three-judge panel of the appellate court overturned the Judge Smith ruling in a 2-1 decision. The judges who decided for the voters were appointed by Democrat Bill Clinton and Republican George W. Bush. The one who partially disagreed was appointed by George Bush.
The appeals court found that the state purge notice was illegal under federal law both before and after Jon Husted suddenly made changes. The court further found that the entire purge system itself was illegal.
- THE PURGE NOTICE SYSTEM
First, the appeals court overturns the decision by Judge George C. Smith that the issue of the old notice is “moot.”
To begin, the new confirmation notice was issued pursuant to the Secretary’s “directive,” rather than any legislative process. Thus, this is not a case in which reversing the cessation would be particularly burdensome. Indeed, it appears from the record that the confirmation notice form is revised on a relatively frequent basis … And because the Ohio Secretary of State is an elected official, there remains a distinct possibility that a future Secretary will be less inclined to maintain the notice in its current form. Finally, we note that the circumstance of the Secretary’s issuance of the new form do not inspire confidence … he issued that form on the same day as the parties’ final merits briefs were due … This fact makes the Secretary’s voluntary cessation appear less genuine. (Page 18)
The appeals court rules on both the older notice form and the newer one.
On the older notice form, the appeals court finds that the notice system was the equivalent of a whole new registration process, which was not permitted under federal law.
Supplemental Process required that voters provide their name, current Ohio address, date of birth, and either their Ohio driver’s license number, their Social Security number, or a copy of a document verifying their identity and address. The notices required that voters provide such information regardless of whether they had changed address or were merely confirming that they still lived at the same address. (Page 4)
The appeals court also finds that the old form was inadequate to protect voting rights under federal law.
Moreover, the notices did not adequately inform voters of the consequences of failing to respond to the notice; rather, the form indicated that the recipient’s registration “may” be canceled if he or she did not respond, or re-register, or vote in the next four years. Finally, the form failed to inform voters who had moved outside of Ohio on how they could remain eligible to vote in their new state. (Page 4)
On the newer notice form, voters confirm that they have not changed address by simply signing, dating and returning the postage prepaid form. The new form also provides voters with specific dates to either return the form or vote to avoid being purged. (See page 19)
Notably, however, the new form still lacks information on how voters who have moved to another state can register to vote in their new state. This all turns on the meaning of the word “continue.”
Federal law requires that notices sent to verify voter registrations include information on how to “continue” to vote when a citizen moves. Including a simple website link on the notice form meets this requirement. The new notice includes a web link for those moving within the state but not for those moving out of state.
When confronted with this federal law violation, Jon Husted tries to argue over what the word “continue” means. Clever Jon Husted tells the court that a person does not “continue” to be eligible to vote when the person leaves the state because the person must re-register in the new state. Re-registering is not “continuing.”
There are two plain problems with his view that an educated lawyer and top state official should know.
- When a person moves out of a precinct, that person must re-register — always. Re-registration is re-registration whether it takes place within a state or across state lines. The line Jon Husted draws is an imaginary distinction.
- If the word “continue” in the federal law means ‘but not really until you re-register,’ then the law requires no information to those who move either out of precinct or out of state. Laws are not written to require nothing. This is one of the most basic rules of “statutory construction,” covered thousands of times by courts at all levels from the beginning of time.
The appeals court is forced to detour to the dictionary to address the word game, finding the notice deficient and the argument over the meaning of the word “unavailing”:
“Continue” means to “keep up or maintain esp[ecially] without interruption a particular condition.” Webster’s Third New International Dictionary 493 (1996). Certainly, a registrant can “keep up or maintain … without interruption,” her condition of being “eligible to vote.” (Some citations omitted, Page 20)
- THE PURGE SYSTEM ITSELF
Recall that the “Supplemental Process” purge system allows the state to send a “confirmation notice” to each and every voter who does not vote for two years and to place the voter in “inactive” status. Then, if two federal election cycles go by without the voter responding or engaging in “voter activity,” the registration to vote is canceled. The appeals court finds this process illegal under federal law with a hefty ten pages of analysis, from page 7 to page 16 of the decision.
Federal law includes four subsections of “Requirements with respect to administration of voter registration.”
Subsection A says that states must conduct a “general program” to remove “ineligible voters.”
In the administration of voter registration for elections for Federal office, each State shall … conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of … a change in the residence of the registrant …
Subsection B says that states cannot purge voters for “failure to vote … except [as] described in subsections (c) and (d).”
Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office … shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote, except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) … (bold added)
Subsection C says that a state may use “change-of-address information supplied by the Postal Service” to “identify” those who may be subject to eligibility review. In other words, there is an actual source of information to indicate a voter has moved.
A state may meet the requirement of subsection (a)(4) by establishing a program under which … change-of-address information supplied by the Postal Service through its licensees is used to identify registrants whose addresses may have changed; and … if it appears from information provided by the Postal Service that … moved …
Subsection D prohibits a state from removing voters from the rolls unless a specific notice process is followed.
A State shall not remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence unless the registrant … has failed to respond to a notice …
Everyone agrees that the state’s “Supplemental Process” notice meets the specific criteria of the Subsection D notice requirements. The question is whether the state can use this process alone to remove voters from the rolls.
The parties argue with many words and great pain the implications of the bolded exception above. Jon Husted says that he can go right to Subsection D and send those notices to anyone and everyone who has not voted in two years regardless of everything else in the law. Voter rights groups say that there is a “trigger” or some reason to send out the notice before the state can jump ahead to the Subsection D process. Jon Husted says that the voter rights groups are reading words into the statute. Voter rights groups say that if Jon Husted can jump right to Subsection D, then some of the other language in the law has no unique meaning. And so it goes on for pages.
The appeals court decides in favor of the voter rights groups, overturning Judge George C. Smith. The “Supplemental Process” is illegal and the state may not send notices to everyone who has failed to vote for two years in his effort to purge voters.
After reading all the cases and many of the briefs, this decision could have been simpler. The exception permitting a state to remove a person for “failure to vote” applies to “subsections (c) and (d).” Subdivision D does not stand alone — it goes together with Subsection C which requires some outside source of information like the Postal Service, the given example. First, the state must use some source to indicate that a voter moved, then the state may send the notice.
So why is the exception there at all? Once a person has been removed from the voter rolls through a proper notice based upon information like the Postal Service change of address system and a failure to respond to that notice, then the voter cannot claim that the state acted illegally. Now, it all makes sense.
If Supreme Court Justice Antonin Scalia were still alive, this case would likely go to the Supreme Court, where, based upon recent voter rights decisions, it could very well have decided to allow the Jon Husted voter purge to continue.
VOTERS ARE STILL PURGED
In the meantime, the case goes back to the lower court where Judge George C. Smith may have to implement the appellate decision that overruled him. Purged voters need to be returned to the list. Somebody else should handle this.