The Brennan Center for Justice and the Ohio Organizing Collaborative have been pushing Ohio’s Secretary of State since July to confirm voters aren’t being improperly removed from the rolls after updating their address. Now, they’re preparing to file suit against Sec. Frank LaRose if his office doesn’t respond by the end of the day today, Wednesday.

They argue Ohio’s procedures seem as though they violate federal law, and new state provisions seem to confirm those concerns.

Where statutes disagree

The watchdogs’ concerns center on provisions in the National Voter Registration Act of 1993, known colloquially as the Motor Voter law. In addition to requiring state motor vehicle agencies to provide voter registration forms, it sets out guidelines for what happens when a resident updates their address.

Section 5 requires that whenever someone updates their address with the BMV, that change must also serve as notification to update their voter registration. This change is supposed to happen automatically unless the person affirmatively opts out of the process.

“In other words,” the organizations wrote to the Secretary in July, “the NVRA puts the onus on state officials to update the voter’s registration record.”

In the same letter they cite correspondence between the Secretary’s office and state Rep. Elliot Forhan, D-South Euclid, in which LaRose indicated at least some of the individuals getting flagged had moved and updated their driver’s license but failed to update their registration.

The Brennan Center and Ohio Organizing Collaborative argue that’s a fundamental misreading of state agency responsibilities under the Motor Voter law.

“Ohio cannot require registered voters who report a change of address at the BMV to take any additional steps to update their registration, such as filling out additional forms or cancelling the registration at their old address,” their letter insists.

One notable problem, Brennan Center attorney Patrick Berry argued, is Ohio’s DATA Act. The measure was a priority for LaRose early in the current legislative term and it was included as a budget rider last summer. Its primary purpose was to get Ohio’s 88 boards of elections on the same page when it comes to maintaining their voter rolls, but it also carries a provision that could hamper updates under the NVRA.

The statute states registration updates can only happen if a voter files a name or address change, but it also prohibits information obtained from state agencies in the normal course of business from being used to update a voter’s registration address.

Berry worries that presents a conundrum. Is a change of address form getting shared between agencies to keep records up to date as the Motor Voter law requires? Or is it treated as the information collected in the normal course of business that can’t be used to update registrations?

With state law potentially at cross purposes, the organizations warned the Secretary that “removal on the ground that (voters) failed to cancel their registration at their old address would violate the NVRA.”

Additionally, Berry expressed concerns about the BMV change of address form. While it notifies applicants that the information they share will be used for “voter registration purposes,” it’s presented more like a warning than a service. “By signing this form,” it states, “you are consenting to the release of the information provided.”

“We think that that language could be confusing and subject to different interpretations,” Berry argued.

Following that notification, the form includes a box for applicants to opt out of sharing their information, but it also includes a second signature box. In a follow up letter to the Secretary on Monday, the organizations criticized that framing as “facially deceptive” because it seemingly presents the information sharing as something to which a voter must “opt in.”

Are the right people getting flagged?

After an initial review of the voters included in the removal process, Berry noted they found “a handful” who received letters to verify their address well before state officials can actually remove them. That’s not necessarily a problem, but he explained the Motor Voter law established the procedures for removing a voter after they’ve moved.

“Specifically,” he said, “an election official can’t remove a voter based on a change of address unless the voter confirms themselves in writing that they’ve moved, or the voter fails to respond to the notice that’s sent to them and then fails to vote in the next two federal general elections.”

Berry described finding voters in Cuyahoga County scheduled for removal who received confirmation letters in 2021, 2022 or 2024 — too recent to remove them unless the voter responds confirming their move.

After the removals went forward at the end of July, Berry explained one of the voters they identified was removed but the remainder were still on the rolls. The voter who was removed may have returned a confirmation notice, but it’s not clear.

“And we just want to make sure that you know that one voter who was removed was removed properly and in accordance with the National Voter Registration Act,” Berry said.

He noted they also want to know if similarly situated voters are being protected as well.

“As the chief election official,” Berry explained, “Secretary LaRose is required to ensure that the relevant state agencies and election officials, including the Bureau of Motor Vehicles and county boards of elections, are complying with the National Voter Registration Act.”

“And we hope that he responds to our letter by tomorrow, with assurances that they are,” he added. “But if we don’t hear from the Secretary, we won’t hesitate to seek court intervention to protect the rights of Ohio voters.”

Follow OCJ Reporter Nick Evans on Twitter.