Justices Likely to Uphold Ohio Voter Purges

By Kimberly Strawbridge Robinson

The U.S. Supreme Court seemed likely to bless Ohio’s process for purging inactive voters from its voting rolls after oral argument Jan. 10.

The justices largely broke along ideological lines, with liberals likely to find that one of Ohio’s methods for purging voters violates the National Voter Registration Act, and conservatives leaning the opposite way.

The one exception was Justice Stephen G. Breyer, who appeared to agree with his conservative colleagues.

He emphasized that the NVRA focuses on ballot integrity, not just easy access to voting. Breyer seemed concerned about tying states’ hands.

What are states supposed to do to identify ineligible voters if they can’t do it this way? Breyer asked.

Clarification?

Under Ohio’s process, the state sends notices to individuals who haven’t voted for two years. If the voter fails to respond, or fails to vote for four additional years, they’re removed from the voter rolls.

This process runs afoul of the NVRA’s prohibition on purging voters “by reason of the person’s failure to vote,” challengers say.

The fight centers largely on a 2002 “clarification” to the NVRA, which, instead of clarifying things, muddied the waters.

Under the amendment, states don’t violate the failure-to-vote clause if they use a notice and deregistration procedure like Ohio’s when they receive an indication—from the post office, for example—that a voter has moved.

When the NVRA was passed, several states actually had a use-it-or-lose-it approach to voting, meaning that the failure to vote, by itself, would cause the voter to be removed from the rolls, Solicitor General Noel Francisco, arguing on behalf of the federal government as amicus curiae in support of Ohio, said. That’s what Congress wanted to end with the NVRA, he said.

But the amendment demonstrates that failure to vote can play a role in the purging process, Ohio State Solicitor Eric Murphy, Columbus, Ohio, told the justices. It just can’t be the sole reason for doing so, he said.

Under Ohio’s process, failure to vote is just one factor that leads to a voter being removed from the rolls, Murphy said. Another factor is the failure to return the notice, he added.

But that turns the clarification into something much broader, Justice Elena Kagan said.

The clarification only allows the notice procedure once there’s been a reliable indication that the voter has moved, she said. The state wants to use the clarification to justify any use of the notice procedure, no matter what the trigger, including the failure to vote, Kagan said.

False Positives

Moreover, Ohio’s supplemental process almost guarantees that eligible voters will be purged, the challengers’ lawyer, Paul Smith of the Campaign Legal Center, Washington, told the justices.

About 3 percent of people move out of their county each year, Smith said.

The state has several methods for finding those people and purging them from the voter rolls, he said. So the supplemental process is only looking for a small slice of that 3 percent, Smith said.

In an effort to suss out those individuals, the state sends notices to all registered voters who haven’t voted in two years. But that’s way more people than the 3 percent that have actually moved, Smith said.

Moreover, the state’s own statistics show that 70 percent of the people that do receive these notices simply ignore them, Smith said.

As a result, many of the hundreds of thousands of people removed via the supplemental process were likely eligible voters, he said.

That’s significant in a battleground state like Ohio, which voted for President Donald Trump by about 440,00 votes in 2016, and for President Barack Obama by just over 100,000 in 2012.

Because the NVRA was intended to increase the number of eligible voters on the voter rolls, it’s best to read the clarification as allowing failure to vote to be considered only when there is already a reliable indication that the voter has in fact moved, Smith said.

Dueling Mandates

Justice Samuel A. Alito Jr. noted that the NVRA also requires states to clean their voter rolls of ineligible voters.

It has competing goals: to increase the number of eligible voters on the voter rolls, but also to decrease the number of ineligible voters, Murphy said.

Approximately 40 percent of people don’t notify the post office when they move, Murphy said. So states need flexibility when trying to purge their “bloated voter rolls” of these ineligible voters, Francisco said.

How are states supposed to do that if there are too many barriers? Breyer wondered.

The case is Husted v. A. Philip Randolph Institute, U.S., No. 16-980, argued 1/10/18 .

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.