Court Battles

Supreme Court weighs Ohio voter roll purge practice

Greg Nash

The Supreme Court appeared divided Wednesday on whether to uphold Ohio’s “use it or lose it” practice of cleaning up its voter rolls. 

The justices seemed unconvinced by arguments that the practice, known as the “Supplemental Process,” violates the National Voter Registration Act (NVRA) and the Help America Vote Act of 2002 — laws that bar states from removing the names of people from the voter rolls for failing to vote.

Under the Supplemental Process — one of two methods state officials use to identify voters who are no longer eligible to vote due to a change of residence — voters who have not voted in two years are flagged and sent a confirmation notice. Voters who then fail to respond to the notice and vote within the next two years are removed from the rolls.

Paul Smith, who argued on behalf of Ohio resident Larry Harmon, the Philip Randolph Institute and the Northeast Ohio Coalition for the Homeless, said the failure to return the confirmation notice is not adequate evidence that a person has moved. 

He said 70 percent of people throw the notices away.

“When the only evidence you have at all that they have moved is not voting, then that’s clearly the reason that you are purging them. And that’s what the Supplemental Process does,” Smith said, describing the impact of the process on people that don’t return the card.

But Chief Justice John Roberts argued that failure to return the mailed notice constitutes some evidence. 

“It doesn’t tell them nothing,” he said. “It tells them that they did not respond to a notice that says you’re going to lose the registration if you don’t vote through the two years, two elections. So it tells them something. They have more evidence than just that they haven’t voted.”

Justice Anthony Kennedy, the court’s frequent swing vote, at one point appeared to defend Ohio’s practice.

“The reason they’re purging them is they want to protect the voter roll from people that have moved and they’re voting in the wrong district,” he said. “That’s the reason. What we’re talking about are the best tools to implement that reason, to implement that purpose.”

The justices wrestled during the hour-long arguments with the text of provisions in the laws that prevent states from removing voters from the rolls unless a notice is sent, the voter fails to respond to the notice and fails to vote in at least two consecutive federal elections following receipt of the notice. 

Justice Sonia Sotomayor argued that voters have a right not to vote. 

“I don’t understand how you can say that the failure to vote can be used as the sole basis for sending out notices,” she told Ohio’s State Solicitor Eric Murphy.

Justice Elena Kagan, meanwhile wanted to know why Congress didn’t specifically say in the law that the prohibition on purging voters for inactivity doesn’t apply when a state sends confirmation notices.

“Well, Your Honor, I don’t know the answer to that,” said Solicitor General Noel Francisco, who argued in support of Ohio’s practice. “And I would say that the NVRA is not one of these statutes that I would hold up as a paradigm for legislative draftsmanship.”

Ohio officials are appealing the decision of the 6th Circuit Court of Appeals, which sided with Harmon, a veteran and computer consultant who was purged from the polls in the state process, and the other two groups.  

The court said the Supplemental Process “constitutes perhaps the plainest possible example of a process that ‘results in’ removal of a voter from the rolls by reason of his or her failure to vote.” 

On remand, the district court issued a temporary injunction for the November 2016 elections and ordered any provisional ballots cast by voters who had been removed from the voter rolls through the Supplemental Process to be counted, resulting in 7,515 more votes.

Six other states — Georgia, Montana, Oklahoma, Oregon, Pennsylvania and West Virginia — have similar practices that target voters for removal from the rolls for not voting, but Ohio’s is the most extreme.  

“The National Voting Rights Act sought to eliminate practices such as Ohio’s that penalize people who exercise their right not to vote,” Stuart Naifeh, senior counsel at the liberal think tank Demos, said in a call with reporters last week.

Proponents of stricter voting laws, however, say Harmon and the two groups are misinterpreting the NVRA. 

“The challengers are pushing an incorrect interpretation of the National Voter Registration Act that would severely limit and restrict the ability of states to maintain accurate, correct voter registration lists,” said Hans von Spakovsky, a former Federal Election Commission member and a former Republican member of President Trump’s now-dissolved voter fraud commission. 

 “As the Carter-Ford Commission on election reform said in its 2001 report, ‘inaccurate voter lists add millions of dollars in unnecessary costs to already underfunded election administrators and undermine public confidence in the integrity of the election system.’”

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