The Supreme Court on Wednesday is set to hear a case concerning whether Ohio’s method of removing names from its voter rolls violates federal law.
The battleground-state case pits voting rights groups that say Ohio’s system suppresses the vote against state officials who argue their process is meant to ensure the accuracy of voter rolls.
It comes after President Donald Trump this month dissolved a controversial commission that had been launched to combat what the President claims is a problem of voter fraud, though many election law experts say there is no widespread evidence that such a problem exists.
In Ohio, voters who have not engaged in voter activity for two years are sent address confirmation notices. If a voter returns the notice through prepaid mail or responds through the internet, his or her information is updated. If the notice is ignored and the voter fails to update a registration over the next four years, the registration is canceled.
Larry Harmon — a voter in the state — challenged the process, arguing that he had been removed from the rolls even though he had not moved. He had simply opted not to vote in 2009 and 2010. When he showed up at the polls in 2015, he was told his registration had been canceled. He claimed no recollection of receiving a confirmation notice from the state and he later sued, along with two public interest groups, the Northeast Ohio Coalition for the Homeless and the A. Philip Randolph Institute.
In September of 2016, a federal appeals court ruled that Ohio’s so-called “supplemental process” violates a federal law called the National Voter Registration Act. The law says a state cannot remove a voter from the rolls “by reason of the person’s failure to vote.” The panel of the 6th US Circuit Court of Appeals ruled that 7,515 ballots that had been struck could be cast in the last election.
Ohio Attorney General Mike DeWine appealed the decision to the Supreme Court, defending the process by noting that it targets people who have failed to respond to a notice, not those who have failed to vote.
“The Sixth Circuit’s decision makes it harder for states to conduct what all can agree is a critical activity — removing ineligible voters from registration lists — by eliminating one method for doing so,” Ohio Secretary of State Jon Husted argued in court papers.
The Trump administration, reversing positions from the Obama administration, agrees with Ohio’s interpretation of the federal law. The “NVRA does not prohibit a State from using nonvoting” as the basis to send an address-verification notice, government lawyers argued in briefs.
“That conclusion is supported by the NVRA’s text, context and history,” they wrote.
The court’s ruling could directly affect similar policies in six states, and 17 states have filed a brief in support of Ohio.
Lawyers for the states argue that another provision of the voter registration act requires each state to conduct a program that “makes a reasonable effort” to remove people who have moved or passed away, and they need the Supreme Court to clarify how states can accomplish the goal. They interpret the federal law as allowing Ohio’s system.
In a conference call last week, voting rights groups urged the justices to uphold the lower court’s opinion.
They argued that a “key tenet” of the NVRA is that voting “is not a use-it-or-lose-it” right and said the notices sent out were based on a voter’s failure to vote.
“Only seven states do what Ohio is doing here,” said Dale Ho, director of the Voting Rights Project at the American Civil Liberties Union. He said the vast majority of other states find ways to make sure their voter lists are up to date by using tax records, returned mail or DMV change-of-address forms to determine whether someone may have moved.
“People who only vote in presidential elections will be purged if they miss a single election,” said Stuart Naifeh, senior counsel at Demos.
He said Ohio’s process targets lower income voters and those of color and penalizes “voters who may already face obstacles in exercising the right to vote,” and that “it disproportionately harms the most vulnerable voters.”