By Jennifer Hepner
On June 11th, 2018, the United States Supreme Court ruled 5 to 4 in favor of the state of Ohio’s efforts to purge its voting rolls in Husted, Ohio Secretary of State v. A. Philip Randolph Institute et al.,reversing the 2016 decision made by the United States Court of Appeals for the Sixth Circuit. Ohio’s policy removes registrants’ names from the rolls if they fail to respond to a pre-addressed, prepaid return card to confirm whether or not they have moved to a new voting district. The notice is sent to registrants who have not voted in the last federal election, and registrants’ names are eventually purged if they fail to either send in the return card or cast a vote during the period covering the next two general elections—a period of about four years.
The National Voter Registration Act forbids change-of residence removal programs that rely upon a registrant’s failure to vote as a basis for removing his or her name from the federal voter roll; however, the Court ruled that Ohio’s Supplemental Process does not violate this clause, as it does not feel that the state of Ohio uses one’s failure to vote as the “sole criterion” for removing him or her from the rolls. In fact, the majority writes that the Failure-to-Vote Clause of the NVRA prohibits the once-common practice of removing registered voters simply because they failed to vote for some period of time—without it, states could use the failure to vote as conclusive evidence for ineligibility for some reason other than change of residence, “such as death, mental incapacity, or criminal conviction resulting in prolonged imprisonment.”
The challenge to Ohio’s law was brought about by Larry Harmon, who, when attempting to vote against a ballot initiative about marijuana legalization in 2015, discovered that he was no longer registered to vote after neglecting to partake in the 2012 Presidential election. Harmon had been purged from the voter rolls because he had not voted in two consecutive elections and had not returned a “last chance” notice to confirm that his address had not changed. Harmon has lived at the same address for over 16 years and does not remember receiving a confirmation notice in the mail.
In delivering the opinion of the Court, Justice Samuel J. Alito, Jr. highlights that the National Voter Registration Act requires states to “conduct a general program that makes a reasonable effort to remove the names” of voters who are ineligible “by reason of” death or change in residence. He explains that “before the NVRA, some states removed registrants without giving any notice” of doing so. Justice Alito writes that the majority believes the state of Ohio’s Supplemental Process is in line with the NVRA in its effort to remove ineligible voters from the state’s voter registration rolls and therefore it does not violate federal law.
Dissenters delve into the history of voter eligibility in the United States, arguing that a voter-purging process is antithetical to Congress’ push to “increase the number of eligible citizens who register to vote in elections for federal office.” In his dissent, Justice Stephen G. Breyer illustrates that a “nonreturned confirmation notice cannot reasonably indicate a change of address.” Justice Breyer claims that while in 2012 the state of Ohio sent out 1.5 million “last chance” confirmation notices to registrants who appeared to be ineligible to remain on the federal voter role due to changes in their residence, the state received only 60,000 return cards (4%) that confirmed that the responding registrants had moved. Ohio received about 235,000 return cards informing the state that it was wrong and that these registrants had not moved. Justice Breyer argues that the failure of over one million citizens to respond to these notices prove the state cannot assume failure to respond as an adequate criterion for removing one’s name from the voter rolls, as “the number of registered voters who fail to vote and fail to respond to the ‘last chance’ notice exceeds the number of registered voters who move out of their county each year.”
In her own dissent, Justice Sonia Sotomayor focuses on the ways the Ohio voter-purging process has undermined the minority vote. Justice Sotomayor argues that “Congress enacted the National Voter Registration Act against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters” and that Ohio’s Supplemental Process reflects precisely the type of purge system that the NVRA was designed to prevent. She illustrates that “numerous amici report that the Supplemental Process has disproportionately affected minority, low-income, and veteran voters,” rendering them “particularly vulnerable to unwanted removal” from voter rolls. Purged voters are forced to “needlessly reregister,” yet they are often prevented from doing so because they never receive information about where and when elections are taking place. Justice Sotomayor claims that “by concluding that the Supplemental Process does not violate the NVRA, the majority ignores the history of voter suppression that Congress sought to eradicate” with the enactment of the National Voter Registration Act.