Bending Toward Justice: Supreme Court to hear argument Wednesday in Ohio voter purge case

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If you're registered to vote in Ohio, but didn't vote for three consecutive federal elections, you can be purged from voter rolls. Voting rights organizations say Ohio is violating the National Voter Registration Act. State officials say it's necessary to maintain up-to-date registration information. The U.S. Supreme Court will hear arguments for Husted v. A. Phillip Randolph Institute Wednesday morning on whether this voter purge process is legal.

Under the NVRA, states cannot remove registered voters from voter rolls as a result of inaction; failing to vote is not a recognized basis for losing your registration status. To get around this, Ohio devised a sneaky two-step plan: if you don’t vote for two years (one federal election cycle), Ohio sends you a nondescript notice in the mail. If you don’t return that notice or vote in the next two federal elections cycles, they kick you off the rolls.

Ohio claims that removing a voter from the registration list for failure to return a notice is expressly permitted by the Help America Vote Act, which was enacted after the NVRA. The U.S. Court of Appeals for the Sixth Circuit disagreed, and ruled against Ohio prior to the 2016 elections. As the appeals court noted, the HAVA explicitly states it should not be interpreted in any way to “supersede, restrict, or limit the application of” the NVRA.

The U.S. Department of Justice held that same legal view, and filed a brief in the Sixth Circuit in support of the plaintiffs challenging Ohio’s law. Then United President Donald Trump was elected, and with Attorney General Jeff Sessions leading the charge, the Justice Department switched sides. In August, DOJ filed an amicus brief in support of Ohio’s voter purge process.

The stakes cannot be bigger.

As many as two million eligible Ohio voters have been purged from the state’s registration list since 2011. More than half of Ohio voters typically do not vote in a federal midterm election. That puts them in line to receive the nondescript notice.

But as the American Civil Liberties Union noted, “when Ohio sends out mailings to voters asking them to confirm whether or not they’ve moved, about 80 percent of those who are sent these mailings never respond to them. The inevitable result is that Ohio erroneously purges voters who haven’t moved, who remain eligible to vote, but who may end up being disenfranchised.” The ACLU is one of several legal organizations representing the plaintiffs in the case.

Ohio may be the most aggressive voter purger, but it’s not the only state that uses the sneaky two-step to kick eligible voters off the rolls. USA Today reported that several other states use a citizen’s failure to vote as a trigger in efforts to cleanse their registration rolls, including Georgia, Oklahoma, Pennsylvania, Tennessee and West Virginia. And if the Supreme Court says this process is legal, expect other Republican-led states to jump on this bandwagon.

A decision by the Supreme Court is expected by the end of the Court’s term in late June.