After Voters Purged From Rolls, Ohio Ordered to Count Some Provisional Ballots in Midterms

by | November 1, 2018

By Eric Heisig

A federal appeals court on Wednesday ordered boards of election in Ohio to count provisional election ballots for the 2018 midterm elections that are cast by certain people previously purged from the state's voter rolls.

A three-judge panel from the 6th U.S. Circuit Court of Appeals ruled 2-1 that votes cast by people purged from the rolls between 2011 and 2015 must be counted if they still live in the same county of their last registration and if they are not disqualified from voting because of a felony conviction, mental incapacity or death.

(You can read the ruling here or at the bottom of this story.)

The panel's injunction comes as progressive advocacy groups appeal Senior U.S. District Judge George Smith's decision to dismiss a lawsuit against Secretary of State Jon Husted that said notices the state sent to inactive voters were inadequate under federal law.

Should the groups be successful on appeal, some voters may be wrongly denied the ability to vote unless the injunction is in place, the panel wrote.

It comes six days before the Nov. 6 election date and well into the period where Ohio residents can vote early.

Naila Awan, an attorney for the legal group Demos representing two groups that sued Husted over the voter purge, said the injunction could affect a few thousand voters whose ballots would otherwise not be counted. More than 7,500 voters had their provisional ballots counted under the aforementioned guidelines in the 2016 presidential election, the 6th Circuit judges wrote.

She said all people who think they are eligible to vote should cast provisional ballots, in the chance the ballots may be counted. She also noted that many races in Ohio have been decided by slim margins.

Husted, a Republican running for lieutenant governor on a ticket with Attorney General Mike DeWine, said Wednesday that he disagreed with the ruling but that it is "temporary and narrow in scope." He said he will not appeal to avoid "an unnecessary source of contention with an election only five days away."

"Ohio is, and will remain, a leader in elections administration because of our commitment to making it easy to vote and hard to cheat," Husted said.

Kathleen Clyde, a Kent Democrat vying to be secretary of state, issued a statement applauding the ruling.

"I am happy Ohioans who were wrongly purged from the rolls will be allowed to cast a ballot and have that ballot counted," she said in a statement issued by her campaign.

The Ohio A. Philip Randolph Institute and the Northeast Ohio Coalition for the Homeless, which sued in 2016, claimed the state's voter purge processes were illegal under federal laws that bar states from using voter inactivity to spark removal from the rolls, and contended it amounted to voter suppression.

A divided U.S. Supreme Court ruled in June that Ohio's voter purging processes were constitutional. The latest legal dispute focuses on the forms the state sent to inactive voters.

The groups said all voters the state deleted from its rolls from 1995 through 2016 through a disputed process were actually removed unlawfully because the state's notices to inactive voters didn't comply with the National Voter Registration Act of 1993.

Smith disagreed in an opinion issued earlier this month and said the forms complied with federal law.

The 6th Circuit panel did not fully rule on Smith's decision but said the advocacy groups have a good chance of winning at the appellate level. The groups argue that inactive voters weren't definitively told that their registrations would be cancelled if they didn't respond to the notice or vote within a four-year period.

Federal law says such notices must say a voter "will be removed," or something to that effect, if they do not confirm their current information or vote, the judges wrote. Ohio's notices say that a voter's name "may be removed" or their registration "may be cancelled" if they do not respond or vote, the order states.

While Smith ruled against this argument, the appellate judges wrote that they were "less sure that the district court came to the correct legal conclusions."

The panel rejected another request from the groups to bar the state from purging any voters who received notices prior to August 2016, reasoning that it will not affect next week's election.

(c)2018 Advance Ohio Media, Cleveland