POLITICS
01/09/2018 05:47 am ET Updated Jan 09, 2018

One Of America's Key Voting Laws Is About To Face A Big Test At The Supreme Court

A case at the high court could have big implications for how aggressively states can remove voters from their rolls.

In November of 2015, Larry Harmon, a software engineer then in his late 50s, went to the polls to vote against an Ohio ballot initiative to legalize marijuana.

It had been a few years since Harmon voted. He cast a ballot for President Barack Obama in 2008, but didn’t particularly care for the candidates in 2010, 2012 or 2014, so he didn’t vote. When he went to the polls for the marijuana initiative in 2015, officials said he couldn’t vote. He had been removed from the voter rolls. Even though he had lived at the same address for well over a decade, officials wouldn’t let Harmon cast a provisional ballot and so he left his polling place without voting, went home and later wrote an angry letter to Ohio Secretary of State Jon Husted (R).

Ohio officials removed Harmon from the voter rolls in part because he failed to vote in federal elections over six consecutive years. One of the ways Ohio polices its voter rolls is by sending a confirmation notice to anyone who fails to vote in a federal election after two years. If the person fails to respond to that notice and also fails to vote over the next four years, they get removed from the rolls.

That process is being challenged in a consequential case the Supreme Court will hear on Wednesday: Husted v. A. Philip Randolph Institute. Harmon and civil rights groups argue the Ohio process violates federal law, which explicitly says people can’t be removed from the rolls just because they haven’t voted. Husted and others who defend the law say Ohio’s process is reasonable because people aren’t removed just for not voting ― they have to fail to respond to the mailer as well.

A Supreme Court ruling on the legality of the process could help clarify how aggressively states can purge their rolls and the limits the federal government can set on how states maintain lists of eligible voters.

The only thing that’s happened here is that people haven’t voted in a little while and didn’t answer a postcard. Justin Levitt

At the center of the case is one of America’s most important voting laws: the 1993 National Voter Registration Act. Passed with the goal of increasing voter registration, the NVRA requires states to give people an opportunity to register to vote at motor vehicle and other state agencies. But the law also requires a state to administer a “general program that makes a reasonable effort” to take ineligible people off the rolls. That program must be “uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965,” and it can’t remove people from the rolls just because they don’t vote.

“One of the biggest impacts if Ohio wins is going to be the reorientation of the purpose of the NVRA and in particular undermining the part of the NVRA that tries to show you only get thrown off the rolls if you’re ineligible,” said Justin Levitt, a former deputy assistant attorney general in the Justice Department’s civil rights division who worked on a DOJ brief supporting the challenge to the Ohio process last year. ”The fight in Ohio is, can you kick people off the rolls without any indication that they’re ineligible? The only thing that’s happened here is that people haven’t voted in a little while and didn’t answer a postcard.”

Stuart Naifeh, senior counsel at the think tank Demos, which is representing the plaintiffs in the case alongside the American Civil Liberties Union, told reporters last week that Ohio was illegally targeting people who didn’t vote.

“At issue in this case is a key tenet of the National Voter Registration Act, that voting is not a use it or lose it right,” he said in a press call. “Ohio’s supplemental process relies on the fundamentally flawed notion that a registered voter’s failure to vote is evidence that a person has moved. An eligible voter may fail to vote for many reasons. They may be uninterested in candidates or issues on the ballot. They may be ill, or they may face any number of other obstacles to voting that have nothing to do with their eligibility.”

Ohio has used the process that removed Harmon from the rolls for over two decades, but recently started sending confirmation notices every year, instead of every other year, after the state was sued by Judicial Watch, a conservative group. It’s unclear how many people officials have purged from the rolls, but a Reuters analysis found last year it was at least 144,000 in the state’s three biggest counties. When the U.S. Court of Appeals for the 6th Circuit ruled last year that the Ohio removal process was illegal, 7,500 eligible voters who would have otherwise been disqualified ended up voting.

Many Americans who turn out to vote during presidential elections, may decline to cast a ballot in midterm elections. While turnout was the highest in 40 years (57.1 percent) when Obama first won election in 2008, turnout plummeted to 36.9 percent in 2010. In the last midterm elections in 2014, turnout was just 36.3 percent, the lowest since 1942.

The 2016 Reuters analysis examined purging in Cleveland, Cincinnati and Columbus and found the state’s purging was twice as likely to affect people in places that tended to vote Democratic than places that leaned Republican. Democrats are less likely to vote in midterm elections than Republicans, the analysis noted. The study also found neighborhoods that had many poor, African-American residents were most affected by Ohio’s removal process.

In a brief to the Supreme Court, Ohio lawyers argued that because they only removed voters from the rolls four years after they sent a confirmation notice, they were in compliance with the law.

David Becker, a former Justice Department lawyer who worked on cases enforcing the NVRA, said if Ohio were to send a mailing targeting only black voters or voters of a certain age, it would be a blatant violation of federal law. The case is trying to resolve whether a blanket mailing to all voters who didn’t vote over two years is legal.

Under Obama, the Justice Department supported the challenge to Ohio’s process in the lower courts and filed a brief last year supporting it. But in August, under President Donald Trump, the Department announced it was switching sides in the case and backed Ohio, a move that observers said was unusual given its clear position in the lower court. Career civil rights attorneys did not sign the brief in which DOJ reversed its position, indicating they may disagree with its contents. Levitt said he expects DOJ lawyers to face questions about the reversal during oral arguments on Wednesday.

Becker said there are a range of possible outcomes for the court. The justices could choose to rule narrowly, just on whether the Ohio process was compatible with NVRA, he said, or they could choose to take a broader look at the law and what kinds of requirements Congress can set for how states maintain their voter rolls. Becker said it would be “disappointing” if the court chose to take the broader path because NVRA has given crucial guidance to states on how they can maintain their rolls.

The State of Ohio is taking full advantage of its powers outlined in federal and state law to proactively manage voter rolls. J. Christian Adams

Conservative groups are closely watching the case. The American Civil Rights Union, a conservative group that has sued jurisdictions to force them to more aggressively purge their rolls, filed an amicus brief at the Supreme Court backing Ohio and suggested there are bigger constitutional questions at stake.

“If, however, the NVRA indeed prohibits the States from utilizing inactivity as a factor that leads to deeming a registrant ultimately to be unqualified ― as the lower court found ― then the NVRA intrudes on the important federalist balance in the Constitution,” the group said in its brief.

J. Christian Adams, one of the lawyers on the briefs who has brought suits pushing purges, said in a statement that Ohio’s process was “common sense.”

“The State of Ohio is taking full advantage of its powers outlined in federal and state law to proactively manage voter rolls,” Adams, who was a conservative member of Trump’s now-defunct voter fraud commission, said in a statement. “Federal law doesn’t prohibit common sense. After a registrant has failed to respond to notices and not vote in multiple elections, they may be cleaned from the rolls. The interest groups arguing otherwise are keeping voter rolls filled with dead and ineligible voters.”

Only a handful of states have processes similar to Ohio’s, but Levitt said a ruling in Ohio’s favor could encourage other states to adopt similar processes.

Even if the Supreme Court were to rule in Ohio’s favor, Becker, who helped start an interstate database that helps election officials maintain more accurate rolls, said he didn’t think more states would move to adopt Ohio’s notification and purge process. New technology, he said, makes it possible for states to maintain their voting lists in more efficient ways.

“It’s hard for me to see that happening,” he said of the possibility of more states modeling Ohio’s purging process. “If you can send mailings to the 10 to 20 percent of the population that actually did move and see if you can get information and responses back from them, that’s a lot cheaper and more effective than sending mailings to 100 percent of the people in your voter list.”

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