On July 16, a Montana state trial court issued a Temporary Restraining Order in a lawsuit over which voters can sign petitions. Montanans Securing Reproductive Rights v Jacobsen. The TRO prevents the Secretary of State from rejecting signatures on petitions who are inactive voters. Inactive voters are those who are on the registration rolls, but who have not voted in the last two elections.
The rationale for letting inactive voters sign petitions is that the very act of them signing the petition and listing their address is a means for them to establish that they are still at the address that had been listed for them in the records. Montana had permitted them to sign petitions until recently, when the Secretary of State had reversed that policy and said they are not eligible to sign.
It was in 1873 that Lost Dakota was annexed to Montana Territory.
Useful rationale Richard, but irrelevant. An inactive voter can choose to activate themselves any time by participating. This petition may be “it” for those people.
The potential for fraud cannot be used to deny reasonable access for honest people.
Yet ANOTHER case to let candidates pay filing fees in place of petition signatures to get on the ballot. There are just SO many things that can get messed up with petition signatures. It’s much harder to mess up with CASH.
SO— WHAT EXACTLY ARE THE RESTRICTIONS ON ANY *INACTIVE* ELECTORS ???
IN L-A-W OR SOME EXEC REG ???
An “inactive voter” is one that election officials believe no longer lives at their registration address. They have to first send a non-forwardable mail to the address, and then a forwardible postcard.
If no response, the voter is marked as “inactive”. If they do not vote at the next two federal elections they may be purged from the voting rolls.
There may be some restrictions on inactive voters such as voting in person.
“Inactive voters are those who are on the registration rolls, but who have not voted in the last two elections.”
Does this only refer to old registration rolls, or also to people who registered to vote in the last two elections but ended up not voting? What about people who registered to vote this year? Because that would be inane.
@Nunya,
Richard Winger gave an inaccurate definition of “inactive voter” The term is from federal law and is intended to control how voting rolls are purged.
A voter may be purged only if there is affirmative evidence of their disqualification such as a death certificate, confirmation that the voter has moved, been finally convicted of a felony, does not wish to be registered, etc.
Failure to vote, or apparent absence is not grounds for removal. If there is a belief that a voter has moved, election officials must send a non-forwardable mail to the registration address. If that is returned, they then send a forwardible postcard. But if that is not responded to, the assumption is that the registration is still OK.
The voter is then placed on an “inactive” status. If they then miss two federal election cycles they may be purged.
An inactive voter merely has to show up to vote. They do not have to vote provisionally. Some states do not send absentee ballots to inactive voters.
@Jim Riley
Thanks for explaining.
Are those two election cycles after they failed to respond to both non-forwardable mail and forwardable postcard, the same two elections that Richard meant; or are they an additional two, after a prior two established reasonable doubt whether the voter was still alive and living at the same address (in the absence of a death certificate, change of address, felony conviction, etc. obviously)?
@Nunya,
I had found a news article about the Montana case where it used language similar to what Richard Winger used. I can’t find it now, so perhaps the newspaper/TV station edited their article. The term “inactive” is confusing since the test for inactivity begins after the voter is placed on the list. Under federal law, you can’t remove someone from the voter roll for failure to vote.
Counties lose track of voters who move. Many people move without giving a change of address to the USPS. This may be particularly true for those skipping out on rent or bills, or escaping a bad domestic situation. Orange County California once purchased a private mailing list. Amazon and Google know where you live, even if the USPS doesn’t. Orange County sent letters to those addresses and got 10s of thousands of responses (e.g., “I moved to Arizona 10 years ago.”)
In Arizona there was a proposal to remove the number of inactive voters from the denominator for calculating signature requirements. Inactive voters could still sign petitions, but since there is a reasonable probability that they are no longer resident they shouldn’t be counted as potential signers. The legislators were outraged that if they encouraged someone to become active again, they should be penalized.
Finally, an election official from Maricopa County (she looked as though she may have babysat for Carl Hayden) explained what was proposed. The legislators then wanted to know why they used a term like “inactive”. Arizona probably put it in statute in response to federal law.
Ohio had a system where they began the investigation of residency after someone had missed two federal elections. So in effect they had to miss four federal elections (8 years) without voting before being purged. This was litigated for several years, before the procedure was upheld.
There are statutes about sending a mail ballot to inactive voters. This might be what the Montana SOS was relying on. She left a tweet on X including some text in quote marks that I have not located in statute. If the SOS appeals the state district court case, we may be able to understand her interpretation of statute (regardless if she is complying with Montana statute, she will lose under federal law).
In Montana, registration rolls are maintained at the county level, but there is also a statewide roll (this is a federal requirement). Supposedly on July 2, 2024; the SOS flipped a switch on the statewide list removing “inactive” voters. The TRO is for the counties who are validating signatures to ignore this.
States may have different definitions of inactive than that federal one?
@Jim Riley
Interesting, thank you for taking the time.
@Q,
States could theoretically have separate registration for federal and state elections. Local election administrators who had to actually execute elections would likely rip the hair out of legislators who proposed this. It is quite likely that if a state tried to do away with perpetual voter registration that it would be challenged and thrown out as an infringement on the right to vote.
“inactive” is the term in federal law, and it is a misnomer. But alternatives such as “suspended” imply that there is no right to vote. If your driver’s license is suspended, you can not (legally) drive. Texas does place inactive voters on a “suspense list”, which is likely borrowed from older terminology. How they treat inactive voters is the same. The Texas suspense lists are publicly available. These could be used by political parties to challenge voters, or to recruit voters who might not have voted recently or move about frequently.
“inactive” voters are more likely to be Democratic or unaffiliated. Moving more frequently, less stable domestic situations, etc. is correlated with voting Democratic or being unaffiliated. They may become registered to vote when they got a driver’s license. In New York State, 9.8% of Democrats are inactive, 7.2% of Republicans, 6.5% of Conservatives, and 9.3% of Blank (NY term for voters not enrolled in a party).
Montana has 20.9% inactive voters. In Gallatin County which is home to Montana State University and Big Sky ski resort it is 26.0%. Students move every year, and may have graduated. Seasonal workers at Big Sky may work a few seasons before deciding they need year round employment rather than eking by in summer.
Montana SOS/AG has filed an emergency appeal with the Montana Supreme Court.
https://juddocumentservice.mt.gov/getDocByCTrackId?DocId=481831&utm_medium=email&utm_source=govdelivery
The SOS appears to hinge on 13-19-313(2)
“(2) If the confirmation notice is returned to the election administrator, the election administrator shall place the elector on the inactive list provided for in 13-2-220 until the elector becomes a qualified elector. In order to become a qualified voter, an elector shall follow the procedure in 13-2-222 or 13-2-304, as applicable.”
This would appear to mean that an inactive voter is no longer a qualified voter, since they must follow a procedure to become a qualified voter. But elsewhere “inactive” and “active” are just two statuses of qualified voters. 13-19-313 has had the same or similar language since 1997 (probably in response to the NVRA). The likely explanation is that the Montana Legislature goober-ed the text back in 1997. Nobody noticed until 2024 (maybe they are thinking about the US Senate election).
13-19-313 applies to Mail Ballot Elections – elections where all voters are sent a ballot by mail (i.e., like in Washington or Oregon), but their use is restricted in Montana, mainly to local elections. A voter whose ballot is returned as undeliverable and can not be contacted is placed in inactive status. A voter who receive a mail ballot, but did not vote it, remains an active voter.
But if inactive is in fact distinct from qualified this would not be buried in a section regarding a fairly rare procedure. It is unlikely that most inactive voters are those whose ballot was returned as undeliverable in a Mail Ballot Election.
If an “inactive voter” is a qualified voter then they may sign a petition.
If an “inactive voter” is not a qualified voter, as the SOS argues, they may not only be ineligible to sign a petition, but their inactive status can not be cured by signing a petition. An inactive voter becomes an active voter by appearing at a polling place and voting, or by appearing before an election official. The NVRA appears to support this interpretation (it is silent whether signing a petition makes a voter active).
Some states allow signatures from inactive voters to count, some don’t.
@Ray,
Which do? Which don’t?
I don’t remember anymore, but I remember coming across both over the years. There are a small handful of states in the upper Midwest which count eligible voters even if they’re not registered, too.
It may have to do with the language in a state’s constitution. Before there was voter registration, there was no distinction between eligible and qualified. North Dakota does not have voter registration, so there is no such thing as a qualified voter. Minnesota has same day registration, so a very large segment of the population simply shows up to vote on election day. If they are an infrequent voter (every four years) and under 30, there is a very high likelihood that they have moved. This is probably why Jesse Ventura was elected. “Hey! let’s go vote for the action figure who has a radio show.” The vote pattern for Ventura looked like a meteor crater centered on the Twin Cities, with a Democrat area inside, and a Republican area outside. If someone can just show up and vote, it wouldn’t make sense to say you have to pre-register in order to sign a petition.
In Montana, the Constitution says that “qualified voters” can sign petitions. It is a novel interpretation of statute that says that “inactive voters” are no longer qualified (the statute being re-interpreted is in place since 1997). This new interpretation went into effect while a petition was being reviewed by the counties, and the SOS altered their version of the voter rolls to exclude “inactive” voters on July 2.
If Billy Bob Bodean (BBB) moves to Montana, and attempts to vote without first registering, he will be told that he is not registered (qualified).
If BBB registers to vote, giving an address of 6 Moosehead Drive, and then goes to vote, he will sign in and be permitted to vote.
If Montana believes that BBB has moved from 6 Moosehead Drive, but can’t confirm it he will be placed on the “inactive” list. If he has actually moved to Florida, after four years of not voting in Montana he will be removed from the voting rolls. But if BBB does show up to vote and still lives at 6 Moosehead Drive he will sign in and be permitted to vote. He will not have to offer any explanation. It is nonsensical for him to be told that he is not qualified to vote, and then asked what is required to become “qualified” be told to simply sign the voter roll.
If BBB asks how this is different from when he voted the first time when he simply signed in, he would be told “no difference, you were qualified before, but not now.”
Standing count would solve all of this.