U.S. Supreme Court weighs legality of Ohio’s voter removal procedure

January 10, 2018 GMT

U.S. Supreme Court weighs legality of Ohio’s voter removal procedure

WASHINGTON, D. C. - The nation’s highest court on Wednesday weighed the legality of whether Ohio’s process for ensuring the accuracy of its voter registration rolls as challengers of the law claimed the process casts too broad a net in eliminating hundred of thousands of people from the voter rolls.

Failure to cast a ballot for two years triggers Ohio’s removal process. Notices are sent to voters whose registration is flagged. Registration is canceled if there’s no response to the notices, no votes are cast during the next four years and the voter’s address isn’t updated.


Challengers say the procedure is illegal under the National Voting Registration Act of 1993, which forbids states from using voter inactivity to spark removal from the rolls.

Justices Elana Kagan and Sonia Sotomayor tag teamed in grilling Ohio Solicitor General Eric E. Murphy on whether Ohio’s procedure discriminates against people who find it difficult to vote and those who decide not to vote as a First Amendment issue.

Sotomayor asked whether it was reasonable to interpret failure to vote as evidence that someone has moved, when it can be hard for people who are homeless, low income, or work long hours to make it to the polls.

“Places like Cleveland have very, very long lines,” to vote, she observed, suggesting that other ways of determining whether voters have changed their address would be more effective than people’s failure to vote.

Murphy argued that failing to vote is not the sole basis for removing voters from Ohio’s rolls, and that voters must ignore notices they’re sent before they’re dropped.

The attorney representing the law’s challengers, Paul M. Smith, argued that 70 percent of voters disregard the notices along with other junk mail so the system comes up with many “false positives,” unfairly ensnaring many people who haven’t moved. He said many of those dropped from the rolls first learn they’re not registered when they show up to vote and are turned away.

Justice Stephen Breyer, Samuel Alito and Chief Justice John Roberts asked Smith to suggest more appropriate criteria to remove voters from the rolls.

He said it might be more appropriate to use driver’s license and post office change-of-address information, non-forwardable mail, and databases that show whether people have moved to other states.

“There are strong arguments on both sides,” Alito said, suggesting his decision will come down to interpreting the language of the statute.


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Ohio Secretary of State Jon Husted - who administers Ohio’s voting laws - argues that the process is needed to remove dead people from the rolls and resolve the cases of voters who have multiple registrations. He says that proper maintenance of voter rolls means more ballots are counted and fewer Ohioans have trouble casting votes. The process has been in place for more than 20 years and has been administered the same way by both Republican and Democratic secretaries of state, Husted has said.

“I thought the Justices asked a great series of questions,” Husted said in an interview after the court’s hour-long arguments. “What we do in Ohio is to follow the law.”

Heather C. McGhee, who heads Demos, one of the public policy groups that challenged Ohio’s law, said she was “very pleased” with how the arguments went, and believes a majority of the court will agree with her group that Ohio’s law should be changed.

Lawyers for the organizations that challenged the policy said a particularly aggressive round of purging in 2015 triggered the lawsuit. Ohio had record voter turnout in 2008, and many voters who first registered to vote in that year’s presidential race were purged in 2015. Stuart Naifeh, an attorney for Demos, said Ohio also eliminated same-day registration for early voting in 2014, which ended an opportunity that voters previously had to correct erroneous removals and cast ballots.

In 2016, a federal court ruled that Ohio’s policies violated the law, and allowed 7,500 purged voters to cast ballots in that year’s election. Husted appealed the ruling to the Supreme Court.

A decision upholding Ohio’s law would pave the way for more aggressive vote-purging efforts in Ohio and other states, while striking down the law would “send a strong signal that the federal government and the National Voter Registration Act place important limits on what states can and can’t do with their voter rolls,” says Dale Ho, who heads the American Civil Liberties Union’s Voting Rights Project.

Ho said that Georgia, Montana, Oregon, West Virginia, Pennsylvania and Oklahoma also have a culling process that’s triggered by inactivity, but Ohio’s two-year trigger is the shortest of any state. Because a large proportion of voters only vote in presidential years, he said they have to miss just one presidential election to be kicked off its rolls.

U.S. Supreme Court to decide legality of Ohio’s process for removing inactive voters from rolls

The case is the latest episode in a nationwide partisan war over ballot access. Republicans say voter rolls need scrutiny to prevent fraud and promote ballot integrity, while Democrats insist the efforts are meant to reduce turnout from Democratic-leaning groups such as racial minorities.

An analysis by Reuters found the policy favors Republicans in the state’s largest metropolitan areas by removing voters from the rolls in Democratic leaning neighborhoods at roughly twice the rate as in Republican neighborhoods.