Ohio Argues Its Right |to Purge Voting Rolls

CINCINNATI (CN) — The state of Ohio, a key battleground state in this year's presidential election, told a Sixth Circuit panel on Wednesday that it believes it has the right to purge from voter registration rolls anyone who hasn't voted in consecutive federal elections and did not respond to inquiries about a change in their address, regardless of the reason.

The Northeast Ohio Coalition for the Homeless and the A. Philip Randolph Institute argued against the state of Ohio's decision to remove thousands of voters from the rolls after they failed to vote in consecutive federal elections.

Attorney Stuart Naifeh, of the public policy organization Demos, argued on behalf of the appellants, and reminded the panel that the NVRA established a general rule that "failure to vote cannot be the basis for removing a voter from registration rolls."

"There is only one exception," he continued, "and that is a two-step process that involves change of address and [a mailed] notice, along with a failure to vote in the next two federal elections."

U.S. Circuit Judge Eric Clay asked Naifeh if his argument meant that failure to vote could not be considered at all when purging voters from the registration rolls.

"Failure to vote cannot be used as the first step," Naifeh responded, and added that there has to be evidence of a change in address to begin the process.

In their lawsuit, Naifeh and his clients claimed thousands of voters were purged from the rolls when they chose to stay home on election day as a form of protest.

When these voters went to the polls in 2015, they discovered they had been removed from the rolls and were given provisional ballots.

According to Naifeh, the state used these ballots as registration forms but did not count the votes.

U.S. District Judge George Smith ruled that Ohio's policy does not violate the NVRA, and that "the unambiguous text of the NVRA specifically permits the ... process" used by the state to purge voters from registration rolls.

Attorney Michael Hendershot, representing Ohio Secretary of State Jon Husted, argued that the voters were removed from the rolls because of a failure to vote and a failure to respond to a mailed notice that requested confirmation of their addresses.

"Ohio is doing exactly what the statute allows," he said. "The front end of the process [of purging voters from the rolls] is left to the discretion of the state."

Hendershot pointed to an exception in the statute's language that allows for removal for failure to vote "when coupled with the failure to respond" to a change of address inquiry.

He also pointed out that Tennessee and Georgia use systems similar to the one adopted by Secretary of State Husted.

In his rebuttal, Naifeh urged the panel to adopt a more narrow reading of the NVRA.

"You don't have a prohibition on failure to vote [as a starting point for purging voters] if you read the exception [in the statute] as broadly as the appellees seeks."

Naifeh concluded that "the statute should be targeting ineligible voters, and [using] failure to vote [as the first step] doesn't do that."

Judges Eugene Edward Siler Jr. and Julia Smith Gibbons were also on the panel.

No timetable has been set for the panel's decision.

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