It looks like Alabama violated federal law with its “inactive” voter scheme.

It Looks Like Alabama Violated Federal Law With Its “Inactive” Voter Scheme

It Looks Like Alabama Violated Federal Law With Its “Inactive” Voter Scheme

The law, lawyers, and the court.
Dec. 14 2017 3:51 PM

Did Alabama Just Violate Federal Voting Law?

Assessing the state’s “inactive” voter scheme.

Beulah Baptist Church polling station in Montgomery, Alabama
Voters arrive at a polling station to vote after standing in a long line that leads out the doors of the Beulah Baptist Church in Montgomery, Alabama, on Tuesday.

Jim Watson/AFP/Getty Images

“As long as I’m secretary of state of Alabama,” John Merrill proclaimed in 2016, “you’re going to have to show some initiative to become a registered voter in this state.”

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern covers courts and the law for Slate.

Merrill, a Republican, is still secretary of state. But Tuesday’s special election proved his declaration was incomplete. In Alabama, showing initiative isn’t always sufficient to become a registered voter.

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Under Merrill’s regime, a multitude of voters—most of them in majority-black counties—struggled to cast their ballots in the race between Roy Moore and Doug Jones. Unprepared poll workers spread misinformation. Bewildered citizens were forced to fill out confusing, redundant paperwork. Qualified voters were told they could not vote. And the state may well have run afoul of federal law.

Shortly after polls opened in Alabama, many voters reported being told that they had been moved to the “inactive voter list.” This additional hurdle to casting a ballot seems to have resulted from a project Merrill undertook this year to “refresh” Alabama’s voter lists. According to Merrill’s office, the state government first sent nonforwardable postcards to all 3.3 million Alabama voters containing their voter registration information. If the information was accurate, voters were asked to merely “retain” the card. If the information was inaccurate, they were asked to mark return to sender and drop it back in the mail. The state then sent a second, forwardable postcard to everyone whose first card was returned by the post office as undeliverable. That second postcard asked voters to update their information.

Alabamians who did not respond to this second postcard were, per Merrill’s plan, to be placed on the inactive list. Inactive voters can still cast a ballot on election day, but they are required to reidentify themselves and update their information at the polls. If inactive voters don’t cast a ballot for four years, they may be purged from the rolls. Inactivity, then, is essentially the beginning of the removal process.

Theoretically, voters who received the first postcard and did nothing (as instructed) remained active and received no further correspondence. Stuart Naifeh, a voting rights attorney at Demos, told me that, under the federal National Voter Registration Act, states cannot begin to remove voters from the rolls without some initial indication—such as bounced mail—that they have changed addresses. To put it another way: If Alabama is listing voters as inactive because they didn’t respond to one or both postcards—but neither was returned to sender—it is probably breaking federal law.

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On Wednesday, the secretary of state’s office told me that voters who received the first postcard—that is, voters whose postcards didn’t bounce in the mail—but didn’t respond “remain in active status because it is assumed they received the card based on the instructions.” But Coty Montag, deputy director of litigation at the NAACP Legal Defense and Educational Fund, told me that many voters were in fact told they were inactive even though they voted in 2016 and have lived at the same address for years. There is no legal reason why these individuals should have been considered inactive. But, Montag said, the NAACP LDF’s election monitors fielded complaints from voters who were bumped to the inactive list for no apparent reason other than their failure to return the card. I told Montag that the secretary of state’s office insisted these voters would remain active. “That’s just not what we were seeing,” she told me. If Montag is correct, it seems likely that Alabama violated the NVRA.

These voters’ inactivity wouldn’t be a serious snag if poll workers, and the secretary of state, dealt with it correctly. In many cases, they did not. Under state law, inactive voters can become active and cast a regular ballot once they reidentify themselves, which should be as easy as presenting their photo IDs. (Alabama requires an ID to vote.) But on Tuesday, these voters were compelled to fill out a lengthy, complex form that required them to list, among other things, their county of birth. Montag and Naifeh believe this requirement may also violate the NVRA.

According to the NAACP LDF, some poll workers were uncertain whether they could accept reidentification forms from inactive voters who forgot the county in which they were born. Others gave inactive voters provisional ballots even if they filled out the entire reidentification form correctly. (Individuals who cast provisional ballots have until Friday afternoon to plead with the probate office to count their votes.) In Montgomery County alone, the NAACP LDF says, as many as 40 inactive voters who properly reidentified themselves were forced to cast provisional ballots. And at least one poll worker in Tallapoosa County reportedly informed a man in the inactive list that he could not vote at all.

Election monitors also fielded complaints on Tuesday about police officers hanging around near polling stations. In Democratic-leaning, majority-black Jefferson County, a voter told Montag that police were stationed outside of a polling place pulling people over for making illegal turns. Officers held at least one woman, who was on her way to vote, for nearly an hour while writing her up. Montag also received a call from a Jefferson County voter noting that police were stationed at the polling place checking IDs for outstanding warrants, a once-common voter suppression scheme. When election monitors dropped by the precinct shortly thereafter, the police promptly left.

A final, overarching problem on Tuesday—and one that can be traced back to Merrill—was lack of preparedness. Although polls consistently showed widespread voter enthusiasm, Merrill repeatedly asserted that he anticipated low voter turnout and refused to prepare local election officials for a high-turnout scenario. As a result, many precincts, particularly those in heavily black counties, were egregiously unprepared. At least one polling place ran out of ballots. Others had far too few poll workers, forcing voters to stand in line for much longer than anticipated.

The United States is the only developed country in which these kinds of problems consistently plague elections. Voters who cast ballots in every election should not be told that they have abruptly become inactive; the right to vote should not depend upon one’s ability to recall her county of birth; citizens should not fear arrest on their way to cast lawful ballots. But Alabama’s muddled, mystifying system seems designed to trip up voters at every possible turn; it is a testament to the tenacity of Jones’ supporters that they were able to elect him in spite of state-sanctioned chicanery. Alabama’s electorate already has plenty of initiative. What it needs now is a secretary of state who conducts truly free and fair elections.

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