ATLANTA (CN) — Attorneys for the Georgia NAACP and Common Cause sought to convince the 11th Circuit on Wednesday that their lawsuit challenging the state’s removal of certain names from its voter registration rolls was improperly dismissed by a lower court.
In Georgia, registered voters who have not been in contact with elections officials for a period of three years are sent an address confirmation notice by mail. If the individual fails to return the confirmation within 30 days, his name is moved to a list of inactive voters.
If no contact is recorded for two consecutive federal general election cycles, the individual’s name is removed from the voter registration roll.
But in a federal lawsuit, the NAACP and Common Cause, a government watchdog group, claim that deciding not to vote is a form of expression protected by the First Amendment.
As a result, they argue, Georgia’s process for determining which voters are subject to potential removal from registration rolls may violate the National Voter Registration Act.
The groups question whether Georgia has the authority to send residency confirmation notices to registered voters based on their failure to vote.
But these arguments gained little traction before a federal judge in Atlanta, who dismissed their claim, setting in motion Wednesday’s oral arguments on appeal.
Representing the plaintiffs, attorney Ben Thorpe acknowledged the National Voter Registration Act does not explicitly tell states when and how to send out address confirmation notices.
But he argued the 11th Circuit panel should focus on determining whether Georgia’s voter removal practices violate the First Amendment.
“There is political value in a [person’s decision] to express their displeasure with the candidates on the ballot by not voting,” Thorpe said.
But the three-judge panel voiced doubts that the 11th Circuit is the proper venue for the case.
“The Supreme Court recently granted certiorari on a case with similar questions,” said Senior U.S. Circuit Court Judge Joel Dubina, referring to Husted v. A. Philip Randolph Institute. “It seems to me that we could vacate [the district court’s] judgment, send it back to the district court and tell them to wait to see if the Supreme Court affirms Husted. ”
“If Husted is affirmed, I think you win,” Dubina told Thorpe.
Husted v. A. Philip Randolph Institute is a challenge to Ohio’s voter removal program. The case was argued in front of the Supreme Court on Jan. 10, 2018.
U.S. Circuit Judge Charles Wilson agreed with Dubina, asking Thorpe, “The Supreme Court is going to decide [Husted] soon. We could get an answer any day now. Why shouldn’t we wait?”
“Because Georgia elections are already underway … it would cause irreparable harm if someone shows up to vote and they can’t,” Thorpe said.
A primary election for Georgia governor is scheduled for May 22, 2018.
Georgia Assistant Attorney General Josiah Heidt encouraged the panel to uphold the district court’s dismissal of the case and rule in the state’s favor on the First Amendment issue.
“The outcome of Husted will only affect the statutory question,” Heidt said. “On the First Amendment claim, Common Cause failed to make a viable claim … The state is merely adhering to NVRA to keep updated voter rolls. We believe that they’re asserting the right not to vote but still remain on the voter rolls. We argue that if that’s what’s on issue, if they’re seeking to express themselves on the voter roll list by not voting, it isn’t a public forum.”
Heidt went on to discuss the standard of review the district court relied on in rendering its decision. “We argue that forum based analysis is proper and voter rolls are not public forums. The district court found that there are alternative avenues for expression,” he said.
A representative for Georgia Secretary of State Brian Kemp did not immediately respond to a request for comment.