Judicial Watch Victory: Court-Ordered Consent Decree Requires Kentucky to Clean Up Election Rolls

48 Kentucky County Rolls Had More Registered Voters Than Eligible Citizens 

(Washington, DC) –Judicial Watch announced today that a federal court judge has issued a consent decree directing the Commonwealth of Kentucky to remove the names of ineligible voters no longer in residence from its official voter registration lists. U.S. District Judge Gregory F. Van Tatenhove of the Eastern District of Kentucky, Central Division, signed the consent decree between Judicial Watch, Kentucky and the U.S. Department of Justice (DOJ).

The state of Kentucky has consented to clean its voter rolls of ineligible names in accordance with the National Voter Registration Act (NVRA).

The Kentucky State Board of Elections shall develop and implement a general program of statewide voter list maintenance that makes a reasonable effort to remove from the statewide voter registration list the names of registrants who have become ineligible due to a change in residence in accord with section 8 of the NVRA.

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Kentucky State Board of Elections shall create a Comprehensive Plan and implement and adhere to its terms.

The decree instructs that the plan is to include:

• Procedures for a general program of list maintenance
• Sources of information used regularly
• Procedures for sending a nonforwardable canvass mailing
• Procedures for using the data that is successfully matched to the statewide voter registration list
• Timing of notices and updates
• List of registrants to whom notices have been sent.
• Procedures for removing from the statewide voter registration list any registrant who is mailed a notice
• A description of databases to be used in list maintenance activities and a plan to consult with relevant database managers, assess the quality of data to be used in list maintenance activities, and develop sound and reliable matching criteria
• Procedures for maintaining and making available for inspection and copying the records concerning implementation of the general program activities
• A detailed description of any role that local election officials may play in list maintenance activities.
• Public outreach

In November 2017, Judicial Watch sued Kentucky over its failure to take reasonable steps to maintain accurate voter registration lists (Judicial Watch, Inc. v. Alison Lundergan Grimes et al.(No. 3:17-cv-00094)).  In June 2018, with Judicial Watch’s consent, the Justice Department moved to intervene in the lawsuit against Kentucky.

The Judicial Watch lawsuit argued that 48 Kentucky counties had more registered voters than citizens over the age of 18. The suit noted that Kentucky was one of only three states in which the statewide active registration rate is greater than 100% of the age-eligible citizen population.

Judicial Watch argued that Kentucky’s inflated voter rolls indicated that it was not complying with federal laws requiring it to cancel the registrations of citizens who have died or moved elsewhere. This conclusion was bolstered by Kentucky’s failure to divulge registration-related records as required by federal law.

In April 2017, Judicial Watch sent notice-of-violation letters threatening to sue Kentucky and ten other state and local jurisdictions for having more registered voters than citizens of voting age, as calculated by the U.S. Census Bureau’s American Community Survey. Judicial Watch filed suit against Kentucky later that year. In 2018, the Justice Department also contacted Kentucky regarding its failure to comply with Section 8’s list maintenance requirements.

The Kentucky win is the first statewide consent decree ever issued in a Section 8 lawsuit started by private litigants. Judicial Watch previously filed successful NVRA lawsuits against Ohio and Indiana, causing those states voluntarily to clean up their voting rolls.

Judicial Watch also sued the State of Maryland and Montgomery County over their failure to release documents in violation of the NVRA, as well as California and Los Angeles County for their failure to clean their voter rolls. Those lawsuits are ongoing.

“This consent decree is a victory for the voters of Kentucky and across America that want clean elections,” Judicial Watch President Tom Fitton said. “Dirty voter rolls can mean dirty elections so Judicial Watch is pleased our lawsuit succeeded in requiring Kentucky to take commonsense steps to clean its rolls. It is good to see that the Justice Department, after years of inaction, has finally returned to enforcing the law requiring states to take reasonable steps to maintain the accuracy of voting rolls.”

Judicial Watch has taken the lead nationwide in defending state voter ID laws and other commonsense election integrity measures, filing amicus briefs in the Supreme Court and in several circuit courts of appeal and trial courts. Judicial Watch supported North Carolina’s implementation of its election integrity reform laws, most recently filing amicus briefs in the Supreme Court in March 2017. And, the Supreme Court recently upheld efforts by Ohio to maintain accurate voting rolls, which were part of a historic settlement with Judicial Watch.

Lead attorney Robert Popper is director of Judicial Watch’s Election Integrity Project. Popper joined Judicial Watch in September 2013 as a senior attorney and as director of Judicial Watch’s Election Integrity Project. Prior to joining Judicial Watch, Popper worked for eight years, five as deputy chief of the Voting Section, in the Civil Rights Division of the Department of Justice, in which capacity he garnered numerous professional awards. Before that, Popper worked as a private attorney in New York City for 17 years, where his practice extended to a wide range of legal matters, including voting rights. Popper served as counsel in a successful constitutional challenge alleging racial segregation in the design of New York’s congressional districts, and successfully defended the appeal to the U.S. Supreme Court. Popper is a published author on the topic of voting rights law. He developed a legal standard relating to gerrymandering that is widely cited by experts and was adopted by the Arizona Independent Redistricting Commission. He has testified before the Missouri Senate Redistricting Committee and the Pennsylvania House State Government Committee; and he has spoken about voting rights to a conference of U.S. Attorneys at the National Advocacy Center, to state officials, and to countless local community representatives. In 2017, he gave testimony to the Presidential Advisory Commission on Election Integrity.

Eric W. Lee from Judicial Watch also worked on this case.

Judicial Watch is being assisted by Mark Wohlander of the Wohlander Law Office in Lexington, and by Christopher Coates of the Law Office of H. Christopher Coates in Charleston, South Carolina.

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