A few weeks ago, we published a fairly long piece on the move by the State Board of Elections (SBOE) to move about 175,000 voters off the active voter rolls and onto an “inactive voters” list. If you didn’t read that article when it came out, you should go read it now for context and background, before reading this one.
Now, after some more research and hearing from both readers and others involved in the issue, we have some additional questions and observations to share. Some are speculative (“how big an impact could this be?”), while others are pretty concrete.
Herewith, then, some new issues to consider in the “inactive voters” story.
There’s actually a statute, and the current process breaks it.
As pointed out by Susan Perkins Weston in one of the comments under the previous story, Kentucky law already spells out a program for voter roll maintenance, including the use of an inactive voters list. It’s in Kentucky Revised Statutes 116.112.
The statute (which you can read here on the LRC site, or at the bottom of this article) is both very specific and very vague. It’s specific on how you build the inactive list; it’s vague on just what to do with it once you’ve got it.
But one thing it’s very clear on: once people fail to respond to the second post card (the forwardable one), you add them to the inactive list AFTER two federal elections have passed.
The current process doesn’t do this. Instead, it adds them to the inactive list, then waits two election cycles to see if they can be removed. But in the meantime, they are on the inactive list, and have to do that whole Oath-of-Voter thing.
So, if this process was following the statute, here’s how it would work:
- If the second card was sent before the 2018 election, voters couldn’t be added to the inactive list until after the 2020 election.
- If the second card was sent after the 2018 election, voters couldn’t be added to the inactive list until after the 2022 election.
But no reading of the statute supports adding them now.
Has this process been formally approved by the SBOE, or just implemented by the staff?
I have had one source tell me that this process was never formally voted on by the state Board of Elections. I’ve not been able to confirm or dispute that at this point. (I did reach out to the SBOE on this question, but have not heard back.)
If this is accurate, though, that’s a problem, as the statute specifically says “the Board of Elections” shall institute a voter roll maintenance program, and not the staff.
Has anyone thought about the implications of all this for redistricting?
The statute specifically says that inactive voters can’t be counted for the drawing of voting districts. That makes sense, of course; redistricting should be based on actual registered voters in the district, and should not include people who have moved away.
BUT – this is the first time this process has been executed in almost a decade. Some districts could see dramatic changes in their voter totals. AND, the inactive list is not supposed to be put in place until after (at least) the 2020 election, if not the 2022 election.
Think this isn’t a big deal? Here are the top 10 counties by number of inactive voters, and what percentage that is of their total registration:
| County | Registered | Inactive | %age |
| Jefferson | 580,498 | 25,084 | 4.32% |
| Fayette | 221,642 | 16,117 | 7.27% |
| Kenton | 127,134 | 8,198 | 6.45% |
| Christian | 45,442 | 7,205 | 15.86% |
| Hardin | 79,789 | 6,434 | 8.06% |
| Boone | 100,145 | 5,755 | 5.75% |
| Campbell | 70,991 | 5,269 | 7.42% |
| Warren | 77,403 | 4,663 | 6.02% |
| McCracken | 52,050 | 3,710 | 7.13% |
| Calloway | 27,784 | 2,986 | 10.75% |
As you can see, doing this before the 2021 redistricting could have an impact on representation. Without knowing the party makeup and the precincts, though, it’s hard to say how much impact it would have. BUT, it seems to me that it is something people should be talking about.
And what about the impact on election day?
As you can see, some counties have a pretty large number of inactive votes. What kind of confusion could this cause on election day? Are all the poll workers trained on what to do? Are there extra election judges lined up?
Again, we don’t know if they are concentrated in certain precincts, so it’s possible that the impact will be spread out across the state. But for every inactive voter that shows up, there is going to be confusion and delay right at the sign-in table.
Have the poll workers been trained on using the Oath of Voter cards, including warning people that if they fill it out incorrectly they could be prosecuted? How about answering the questions voters will no doubt have? And knowing when to escalate the questions to the local board of election?
The combination of general lack of information across the state about this process, plus the use of the Oath of Voter cards, plus the possible impact and confusion in certain precincts, could turn the election process itself into the lead story on November 6.
So what now?
Adding the above issues to the ones already identified in our last article leads me to the same conclusion as before: we need to put everyone back on the regular rolls for this election (at least), then both re-think the process and re-implement it. There has to be significant communication with all voters and stakeholders, and there needs to be a better tool than the Oath of Voter card.
We have to have a voter roll maintenance process – we agreed to that when we signed the consent decree. What we DIDN’T agree to was implementing the inactive list before two elections had passed, or putting voters in the position of being prosecuted simply for voting. This process needs to be pulled before the November election. There are two many issues for it to stay in place as it is.
(For more on the latest developments see this post KDP sues SBE over inactive voters)
Resources
The Inactive Voter Statute from KRS (PDF)
Inactive Voters by County (XLS)
Consent Decree (PDF)