A lawsuit spurned after thousands of voters were purged from local polling books before the 2016 elections will move forward after a federal judge partly rejected a motion to dismiss the litigation from the state Board of Elections.

U.S. District Judge Alison Nathan of the Southern District of New York said in her decision that while the section of state election law that allowed the purge may not be unconstitutional, the way it was applied by the state is less clear.

The lawsuit was brought last year by Common Cause, a government reform group, which claimed the state was not complying with a section of the National Voter Registration Act that outlines the procedure a state must follow before it can remove a voter from the rolls.

A section of state election law provides that if mail sent to a voter is returned as undeliverable, and that voter does not respond to a follow-up confirmation, they are then moved to what's called “inactive” status. That's when a voter is still registered to vote in the state but removed from the poll books.

Those voters will not find their name in the books when they show up on Election Day, but they can still vote using an affidavit ballot. Common Cause alleged that the practice is the “functional equivalent” to removing a voter from the registration list, and conflicts with the NVRA.

The relevant section of the NVRA says a state may not remove a registered voter from the official list unless that voter confirms in writing that they have moved or if they fail to respond to a notice seeking confirmation and do not vote in two consecutive general elections for federal office.

The Board of Elections argued that its process of moving a voter to “inactive” status does not contradict the NVRA since it does not technically remove those voters from the registration list at that time. Common Cause said in filings that marking a voter as “inactive” is confusing and impedes an individual's voting process. Someone could get to the polls and be told she is not on the list and not realize she can vote by affidavit ballot, for example.

Nathan did not disagree with either argument, holding that the facial challenges to the state law from Common Cause should be dismissed while the as-applied challenge may continue.

On the former challenge, Nathan said that the state's law meets the requirements of the NVRA, even if it may not appear so to the average voter.

“The Court concludes that New York's treatment of its official list does not amount to a circumvention of federal law,” Nathan wrote. “Defendants' definition of 'official list' serves two of the NVRA's explicit statutory purposes—maintaining the accuracy of voter rolls and the integrity of the electoral process.”

The latter challenge may have been out of the hands of the Board of Elections in some cases, but still falls under its responsibility. Common Cause claimed that poll workers “routinely” told voters marked as “inactive” that they were actually no longer registered to vote and did not tell them they could vote using an affidavit ballot. The group also said poll workers only allowed an affidavit ballot when a voter insisted on it and in some cases did not count those ballots.

“If the State does not inform or permit inactive voters to cast an affidavit ballot, or if its poll workers are not informed of their right to do so, then the State fails to comply with the express terms of [the law], and in so doing it fails to protect inactive voters from being denied the protections of the official list of eligible voters—in Plaintiffs' terms, de facto removal,” Nathan wrote.

Common Cause is represented in the lawsuit by the Lawyers' Committee for Civil Rights Under Law. Kristen Clarke, president of the LCCRUL, said in a statement that the decision highlights the need for a change in the state's election law.

“The court's ruling recognizes that all voters have access to protection under the National Voter Registration Act if they are denied an equal opportunity to participate in the political process,” Clarke said. “But much work remains to be done to combat the effects of New York's antiquated voting laws and procedures and ensure that every legitimate voter can exercise his or her fundamental rights.”

Dechert and LatinoJustice PRLDEF are also working on the case with the LCCRUL.

A spokesman for the state Board of Elections was not available for comment Monday evening.

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