CINCINNATI (CN) – The Sixth Circuit ruled Wednesday that Ohio’s elections board must count provisional ballots cast in next week’s midterm election by residents who were purged from voter rolls between 2011 and 2015.
The Cincinnati-based federal appeals court found that the subset of voters who moved outside their previous voting district received confirmation notices that likely did not clarify they would be removed from voter registration rolls if they didn’t vote or change their voter registration within four years of receiving the notice.
“A statement that the individual ‘may be removed’ is not a statement that the individual ‘will be removed’ and a confirmation notice with such language appears at least in tension with, and likely in violation of, the [National Voter Registration Act],” according to the unsigned opinion.
Some Ohio voters claim they showed up to the polls for the 2015 statewide election, learned they were not on the registration roll, and were given provisional ballots that were not counted.
The Sixth Circuit panel granted in part an emergency injunction sought by The Northeast Ohio Coalition for the Homeless, A. Philip Randolph Institute and voter Larry Harmon against Ohio Secretary of State Jon Husted.
“Assuming there is harm in not accepting these provisional ballots (which there is if the voters were purged from the rolls due to defective confirmation notices), the harm would be irreparable,” the ruling states. (Parentheses in original.)
However, the judges denied the plaintiffs’ request for an injunction to prevent Ohio from removing voters from the rolls after next week’s election under a “supplemental process” in cases where a confirmation notice was sent before August 2016.
“This request for relief does not affect the upcoming election scheduled for November 6, 2018; and this issue can be addressed by the courts following the November 6, 2018 election,” the ruling states. “Though removal of voters from the rolls is certainly a great harm, it is not the kind of imminent, irreparable harm (like failure to record provisional ballots) that justifies relief under an emergency motion like this.”
It all started in 2016 when the plaintiffs filed a complaint in Columbus federal court claiming the state’s voting process blocked more than 7,500 qualified Ohioans from voting in the election that year.
They said the National Voter Registration Act and its amendments forbid states from removing voters from registration rolls if they didn’t vote or change their registration within four years of receiving the confirmation notice.
The case made its way to the U.S. Supreme Court, where a 5-4 majority ruled in June that Ohio’s method of pruning its voter rolls – a multistep process that involves checking change-of-address information and sending notices to people who have moved – comports with federal law.
The dispute over the confirmation notices was then sent back to the district court, which denied the plaintiffs’ motion for a permanent injunction, prompting an appeal to the Sixth Circuit.
U.S. Circuit Judges Eric Clay and Julia Gibbons delivered Wednesday’s majority opinion.
Senior U.S. Circuit Judge Eugene Siler, a George H.W. Bush appointee, concurred in part and dissented in part.
He agreed with denying an injunction related to removing voters who received their notice before August 2016. However, he disagreed about the notice language being problematic, calling the difference between “may be removed” and “will be removed” an “irrelevant distinction.”
“The plaintiffs apparently have not identified a single eligible person who did not respond to the notice because he or she lacked certain information. Moreover, the public interest is not in granting the stay at this time, because early voting has commenced, and the state has issued its preliminary orders to the election authorities in their respective counties,” Siler wrote. “There is no evidence that others will be harmed if the court grants or denies the stay. It is all speculation.”
The plaintiffs are represented by the American Civil Liberties Union of Ohio and liberal public policy group Demos in New York. Secretary Husted is represented by the Ohio attorney general’s office.
Attorney Naila Awan with Demos expressed satisfaction in an email Wednesday.
“Today’s decision upholds the fundamental principle of our democracy—the idea that people should have a say in who and what laws govern,” she said. “It ensures that qualified Ohio voters who were purged from the registration rolls without ever receiving appropriate notice are able to cast a ballot this November and have their vote counted.”
Husted said in a statement that he will not appeal the decision.
“While I disagree with the Court’s decision, it is temporary and narrow in scope,” he said. “I will not appeal the decision because that would serve as an unnecessary source of contention with an election only five days away.”
Freda Levenson, legal director for the ACLU of Ohio, called the ruling a victory during a phone interview late Wednesday.
“We’re just very gratified, this is a real win for democracy in Ohio… this is one step towards making it easier for an eligible voter to cast a ballot,” she said.