Written by: Bruce Maples | October 3, 2019

How 175,000 Kentucky voters got moved to an “inactive” list, why it happened, what the implications are, and what next steps should be.

If you’ve been following the Kentucky election news, you know that about 175,000 voters have been moved from the active voter rolls to something called the “inactive voter list.” The Kentucky Democratic Party was the first to raise concerns about this, after they noticed their latest voter file was missing thousands of names that were on an earlier file.

After speaking with numerous people both inside and outside state government, I think I have a fairly good handle on this story, which is an important story for anyone that cares about our elections. But before I get into the details, as well as my own analysis and thoughts about it, there is a public service announcement I need to make:

Public Service Announcement – Please Read and Heed!

Stop what you are doing and check your voter registration at GoVoteKY.com. It won’t tell you if you are on the inactive list (more on that later), but at least you will know if (a) you are registered to vote, and (b) your registration information is correct.

Tell everyone you know to go check THEIR registration info, and to do it BEFORE October 7. That is the deadline to register to vote in November, and it’s critical that everyone be sure their registration is good to go before then.

Go vote on November 5, and get everyone you know to go vote with you. As you will see below, voting is sort of like love – it covers a multitude of sins.

OK, now that you’re back from checking your voter info, let’s get into the details of this. If you are a regular reader of Forward Kentucky, you know we make a big distinction between stories marked News, which we try to do as straight-up as possible, and stories marked Commentary, which are usually from our progressive viewpoint and are essentially editorials.

If you are eagle-eyed, you may have noticed that this story is marked both News and Commentary. That’s because the first part is my attempt to lay out the facts as clearly and fairly as possible. Then, there’s my analysis of the implications. And finally, my thoughts as to what should happen next.

This is a fairly long and involved story, with lots of details that are important if you want to really understand it. So get a cup of coffee, put your feet up, and let’s look at how 175,000 voters got moved to an “inactive” list, why it happened, what the implications are, and what next steps should be.

The Background

Both the National Voter Registration Act (1993) and the Help America Vote Act (2002) require states to do voter roll maintenance. This includes removing ineligible voters and duplicate names.

Kentucky has always done some maintenance, including removing the names of person who have died, been declared mentally incompetent, or convicted of a felony. In fact, about 500,000 such names have been removed from the voter rolls during the Grimes administration.

However, the state had not done the much harder work of tracking down and removing all ineligible voters. This would include, but not be limited to, persons who had moved outside their precinct, or registered in another state.

Why had Kentucky not done this work? Two main reasons:

Funding. The Secretary of State requested funds each budget cycle to add the staff and systems to do this work, and each budget cycle that funding was removed from the budget.
Partisan purging. In a number of other states, this process had been used by Republican secretaries of state to remove thousands of voters, with the majority of them being registered as Democrats. As someone dedicated to seeing as many people as possible exercise their right to vote, Secretary Grimes was not keen on possibly throwing persons off the rolls who were actually eligible to vote. Without the funding and staff to do it right, that was a real possibility.

The lawsuit and consent decree

In 2017, the conservative activist group Judicial Watch brought a lawsuit to force the state to start doing this further level of voter roll maintenance. Eventually, the Trump Department of Justice joined in the suit.

At the time, other states were seeing similar court cases decided in favor of the plaintiffs, resulting in fairly draconian measures being put in place to purge the voter rolls, such as throwing someone off the voter rolls who had missed only one election. When the Trump DOJ joined the suit against Kentucky, it looked like we might be in for the same fate.

Instead, SOS Grimes and her office were able to negotiate a consent decree that enabled Kentucky to devise its own process for voter roll maintenance. However, the court was clear: you’ve got time to do this, but you HAVE to do it.

Grimes hoped that the General Assembly would realize the need for increased funding to deal with the extra work generated by the consent decree. That didn’t happen.

At the time, we wrote a fairly long piece explaining the decision and the consent decree. You can read it here for more background.

Note that by the end of the consent decree (2022), the state must be able to prove that its voter rolls are accurate.

The maintenance process

The Board of Elections staff began working the maintenance process in 2018, after the consent decree was signed. The process involved multiple checks to see if the registration was valid, with voting in an election being the most important. In other words, if you voted at least every second federal election, you were good to go.

This was a significant departure from the process being used in other states. In some states, if you missed voting in even one federal election, you were removed from the rolls. In other states, if you failed just the first postcard check (below), you were removed.

Kentucky’s process is much more thorough, and much more forgiving:

Make a list of people who haven’t voted in recent federal elections.
Send them a postcard (Postcard #1) at the address shown in their voter registration. This postcard is marked “non-forwardable,” so it will come back if the person is not at that address.
- If Postcard #1 doesn’t come back, then the address is good, the registration is deemed valid, and the person is removed from the initial list.
- If Postcard #1 DOES come back, then it wasn’t delivered, and the registration is questionable.
Send them a second postcard (Postcard #2) telling them that their voter registration is in question, and they need to check it on the GoVote site, or re-register at their county clerk’s office. This postcard IS “forwardable,” so it should get to the person no matter where they are.
If Postcard #2 also comes back (because it can’t be forwarded – even the post office can’t find them), then put the voter registration into Inactive status, and then watch to see if they do something to get “voter credit” – a term of art including any of the following actions:
- Vote in an election. (Note that voters on Inactive status are still allowed to vote – but see the note below about Oath of Voter cards.)
- Update their registration information in any way (while updating their driver’s license, or at the county clerk’s office, or through GoVoteKY.com).
- Re-register completely.
If they do something to get “voter credit,” then they are moved back to Active status. But if, after they go onto the inactive list, they fail to vote in the next two federal elections, they are removed from the voter rolls completely.

So, the SBOE began working the process.

They began by pulling a list of everyone who hadn’t voted in 2014 and 2016 (the last two federal elections). This first-cut list came to about 600,000 names.
They also looked at the 2015 election, even though it was not a federal election, and if someone had voted in that election, they were removed from the first-cut list.
They sent Postcard #1 to all 600,000 persons, and about 300,000 came back as undeliverable.
The SBOE then sent Postcard #2 to those 300,000. Of that group, some wrote back and said “Got your card; I’ve moved out of state” or “Forgot to update my registration info; it’s all good now.”
But, about 175,000 didn’t respond at all. So, those people got moved to the Inactive list, to see if they will do something in the future to get them some “voter credit.”
Note, though, that at this point, the voter doesn’t know they are on this list (since they apparently didn’t get either of the first two postcards). And, the screen at GoVoteKY doesn’t include Active or Inactive, so they wouldn’t know even if they checked.

Voting if you’re on the Inactive list

If a voter is on the Inactive list, their name will not be on the main voter roster at their polling place. Instead, it will be on a supplemental roster of all Inactive voters in that precinct.

If an Inactive voter shows up to vote, they will still be able to do so – BUT, they will have to sign an Oath of Voter card, affirming that they are indeed eligible to vote in that precinct.

Those Oath of Voter cards will then be sent by the county clerk to the Commonwealth’s Attorney for that region of the state, for investigation as to the truth of the voter’s claim.

The Commonwealth’s Attorney can then choose to prosecute the voter for voter fraud, if they think the voter gave incorrect information or is not really registered in that precinct.

Recent events

All political parties have the right to get the complete voter rolls from the state SBOE, for a price. The parties use this data to update their internal tracking systems, and to then do voter outreach. That request for updated voter rolls is what triggered the current imbroglio:

The Kentucky Democratic Party asked for an updated voter roll in April, before the primary.
They then asked for another updated list in August.
When they compared the August list to the April list, they saw that thousands of names had been removed from the list.
They then asked the SBOE what was going on, and found out about the existence of an “inactive voter” list.
They asked why the inactive voters had not been included on the rolls they were given, and were told that by law, inactive voters could not be included on the active voters list. However, the KDP could request the list of inactive voters through an Open Records request.
KDP started raising sand about this change to the process, and demanded that all the inactive voters be moved back to active status. The SBOE said no.

Meanwhile, the SOS office heard about this, and started looking at individual voter records. (Note that the SOS office has always had only “read” access to the voter data. The SOS herself does not have access to the system at all. And, the SOS staff have never had the ability to look at more than one record at a time, or to pull any list of voters; only the SBOE staff could do that.)

In going through a sample of individual records, the SOS staff found that some records had been changed from Inactive back to Active.
The staff also noticed that the change log on some of the records seemed to have been altered.
All the changed records they looked at had been moved to Inactive status at midnight of July 1, 2019.

Other Notes and Explanations

Here are some additional notes from people we talked with, including some explanations for the details above.

One of the key accomplishments of Secretary Grimes’s tenure has been the development of the current Voter Registration System. It is a web-based system that enables hundreds of persons across the state to input and update millions of voter records. Before this system was built, all of this work was done on a mainframe system with green screens.

Some persons we spoke with felt that the use of an inactive list is actually a benefit to the voter. Other states threw people off the list simply for not voting at all. The Kentucky process is much longer and more forgiving, and actually is based on one simple premise: if you make sure to vote, you’re good.

The process outlined above means that the data is constantly changing. Believe it or not, postcards from the previous mailings are still being received. There are updates to voter records every day.

The changes caused by the post cards are run in batches, and don’t trigger the change log. That’s why all the records examined by the SOS office were marked Inactive as of July 1 – they were all part of that one inactive group.

The July 1 inactive group has two federal election cycles in which to vote. Another inactive group would be created after the 2020 cycle, with their own two-cycle time limit. This ensures that each group is given the full two cycles in which to vote (or get voter credit some other way).

My analysis of this

First of all, let me note that I’m not going to get into the Alison Grimes – Board of Elections imbroglio. It’s a mess in its own right, exacerbated by some state legislators (looking at you, Senator Thayer), and discussing it would distract from the issue at hand. And besides, most people I’ve spoken to have their mind made up one way or the other. Let’s just put that part of the story to the side.

Having done that, then, here are some thoughts I have on the implications of all of the above.

The inactive list, in and of itself, is not the issue. If you’re going to comply with the consent decree, you have to have some way to discover, track, and then remove ineligible voters. While you are working the process, those voters have to be flagged in some way and put into a “holding bucket” until they either get some voter credit and get un-flagged, or run out of time and get removed. Putting a voter on that list is not a problem – it’s a way to give that person time to respond, and ensure they get their full allotment of time.

The rollout of this process, though, was a train wreck. You have to comply with a consent decree, so you come up with a process that winds up dropping 175,000 people from the active voter rolls, and you don’t tell anyone? Especially, you don’t coordinate it with the Secretary of State, who is the constitutionally-appointed chief election officer of the state? And even more, you don’t inform the public what you are doing, so the only way we know about it is that one political party discovers it and blows the whistle?

Look, I think the process itself is about as fair as the SBOE could make it. But they should have hired a PR firm last year to get the word out across the state about the process. They should have had multiple press conferences, at every step of the way. Instead, if the KDP hadn’t alerted the media to the story, when would people have found out? When they went to vote. And that’s unacceptable.

The addition of another roster at the local precinct is going to cause delays and confusion. I can imagine some precincts having a good number of people on the inactive list. The turnout for this year’s election may be low enough that the precinct workers can keep up – but can you imagine the mess this will be in 2020, during a presidential election?

A critical point – the Oath of Voter card is a deal-breaker. Requiring an inactive voter to sign a card that could get them prosecuted is just a non-starter. I know the use of the card is in the statutes. But it was intended for use by a local election official, not a state agency – and only if the local official thought the voter was lying. Plus, when it was written, the assumption was that it would be used rarely – not 175,000 times.

And if you think “it’s no big deal,” then you don’t understand the implications for poor and minority voters. You think a person who has already had some unpleasant experiences with the criminal justice system is going to be glad to sign a card that can land them in jail? No, if they think there’s even a chance that they could be on “the list,” they will just stay home. Once word gets out about this new process at the voting booth, it will depress turnout.

Where is the Republican Party of Kentucky on all this? If they have raised any concerns, I haven’t heard about it. Historically, Democrats have wanted more people to vote, and Republicans have wanted to make it harder to vote, for political reasons. (Lots of reasons for this, but one factor is that the Republican base, while smaller, is much more consistent in showing up to vote. A lower turnout usually helps Republicans, and vice versa.)

Could it be that, then, they are happy if less people vote? Could it be that they assume most of the people affected by this, and who will refuse to vote if it means signing a card, would have voted Democratic?

And finally, does it bother anyone that all of this is being done by a board responsible only to the governor that appoints them? I’m not saying that the SBOE is somehow part of a conspiracy, or that they have tried to intentionally remove anyone’s right to vote. Indeed, outside of the issues I’ve raised above, I think they have done what they thought was right to comply with the consent decree.

But in an area as important as free and fair elections, there needs to be segregation of duties. The SBOE staff has their role, and the SOS has his or her role. In this situation, that’s not happening.

What should happen next

Here are four things I think should happen next:

The Board of Elections should tag all the Inactive voters in the system in some way, then move them all back to the Active list for this year’s election. Obviously, the SBOE should not be required to lose all the work they’ve done up to this point. They need that list in order to watch those voters for the next two cycles, and remove them from the rolls if the voter doesn’t get some sort of voter credit. You don’t mess around with a consent decree.

However, the confusion this is going to cause this fall, plus the fear that the Oath of Voter card is going to generate, has to be avoided. Until the other recommendations (below) are put in place, all persons eligible to vote should be on one list, and precinct workers should continue to validate the voter’s identity as they have done in the past.

The GoVoteKY system should have a field added to the screen showing if the voter is flagged as Inactive. This way, whenever someone checks their voter registration info, they can tell if there is a question about their registration, and do something about it BEFORE showing up to vote.

The SBOE should come up with some way to deal with Inactive voters at the voting booth that does not involve the Oath of Voter card. One possibility would be to have the Inactive voters tagged differently on the voter rosters, so the precinct worker could notify the voter and collect updated information from the voter. Yes, they would still take time, but at least it assumes the voter is a good person trying to vote, and not a lying criminal trying to pull a fast one.

The SBOE and the SOS should put aside their differences, and figure out a way to work together to explain this process across the state and in multiple ways. The message is actually bi-partisan:

See, Republicans, we are making sure our records are accurate to prevent voter fraud. (Voter fraud almost never happens, but it’s a Republican talking point, so they’ll be happy.)
See, Democrats, we are doing everything we can to give people every chance to keep their voter information current, because we want everyone to vote.

No one is surprised that they have to register to vote. It’s built into everyone’ thinking about the voting process. The same should eventually be true about this process: “If you don’t vote regularly, you could wind up on the Inactive list, and then if you still don’t vote, you could get dropped from the voter rolls and have to register again.” That’s the process to comply with the consent decree, and that’s what the National Voting Rights Act and Help America Vote Act require. So help people understand it – before they go vote.

Final thoughts

Ever since this story broke, there have been multiple accusations thrown out, and multiple stories written. I’m hopeful that this novella has helped shed more light and less heat on the situation, and pointed out some issues that are not getting the necessary attention.

And, I hope that all parties involved remember their two ultimate clients: the voters of our state, and our system of government itself. Having free, open, and fair elections is critically important to both.

(original post available here: https://forwardky.com/the-inactive-voters-mess/)

Photo by Elliott Stallion on Unsplash

The “Inactive Voters” Mess in Kentucky