Supreme Court Upholds Ohio Infrequent Voter Purge Law

In Husted v. A. Philip Randolph Institute, Samuel Alito authored a 5-4 opinion ruling that removing voters from the rolls after four years is perfectly legal.

An odd if predictable ruling today from the Supreme Court.

WaPo (“Supreme Court upholds Ohio’s way of removing infrequent voters from rolls“):

Conservatives on the Supreme Court on Monday upheld Ohio’s method of purging voters from the rolls after they miss elections.

The court ruled 5 to 4 that Ohio’s process does not violate federal law. The dissenters said it could result in thousands of infrequent voters losing their right to vote.

Unlike many voting cases that come before the court, Wednesday’s case centered not on grand constitutional principles but on interpreting seemingly contradictory directives of federal law.

Beyond the prohibition on removing voters because they failed to vote, the law calls on states to keep accurate rolls and allows removal when a person fails to respond to a request to confirm registration and then fails to vote in two federal elections.

Ohio sends a notice after a voter skips a single federal election cycle. If they fail to respond and do not vote in the next four years, their names are removed from the rolls.

Justice Samuel A. Alito Jr. said the court’s job was not to decide whether Ohio has adopted the “ideal method” for keeping rolls up to date, but only whether it complies with federal law.

That’s the entirety of the WaPo report. After reading it, my thought was that Alito reached the only possible verdict. This was, after all, a statutory interpretation, not a ruling on Constitutional law. And, if there’s not a federal statute banning this practice, states are naturally free to set their own rules for elections. But it’s not that simple, as one sees from the longer report at NYT (“Supreme Court Upholds Ohio’s Purge of Voting Rolls“):

The Supreme Court on Monday upheld Ohio’s aggressive efforts to purge its voting rolls.

The court ruled that a state may kick people off the rolls if they skip a few elections and fail to respond to a notice from state election officials. The vote was 5 to 4, with the more conservative justices in the majority.

The case concerned Larry Harmon, a software engineer and Navy veteran who lives near Akron, Ohio. He voted in the 2004 and 2008 presidential elections but did not vote in 2012, saying he was unimpressed by the candidates. He also sat out the midterm elections in 2010 and 2014.

But in 2015, Mr. Harmon did want to vote against a ballot initiative to legalize marijuana and found that his name had been stricken from the voting rolls.

Federal laws prohibit states from removing people from voter rolls “by reason of the person’s failure to vote.” But they allow election officials who suspect that a voter has moved to send a confirmation notice.

The central question in the case was whether a failure to vote could be the reason to send out the notice.

Ohio is more aggressive than any other state in purging its voter rolls. After skipping a single federal election cycle, voters are sent a notice. If they fail to respond and do not vote in the next four years, their names are purged from the rolls.

A few other states use similar approaches, but not one of them moves as fast.

“Ohio is the only state that commences such a process based on the failure to vote in a single federal election cycle,” said a brief from the League of Women Voters and the Brennan Center for Justice. “Literally every other state uses a different, and more voter-protective, practice.”

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled in favor of Mr. Harmon in 2016, saying that Ohio had violated the National Voter Registration Act of 1993 by using the failure to vote as a “trigger” for sending the notices.

Congress went through all the trouble a quarter century back to explicitly ban the practice of purging the voter rolls of those who simply failed to vote. Common sense would indicate that this is precisely what Ohio is doing. That they include the intermediate step—based on failure to vote—of requiring people to opt back into the voting process doesn’t obviously change that.

Beyond the technicalities of the law, of course, is the larger issue of Republican-controlled legislatures doing what they can to make it harder for those likely to vote Democrat to do so. There’s simply no doubt that these laws disproportionately impact low-income, low-education citizens, especially African-Americans and Hispanics. Rather clearly, that impact is considered a feature rather than a bug in these laws. Indeed, we have numerous instances of Republican politicians openly stating that this is the case.

Because the legislative histories will show plausible other reasons for these hurdles to registration and voting, they likely don’t violate the U.S. Constitution. But they’re shameful and un-American.

SCOTUSBlog has been tracking the case for years but has not yet written on today’s ruling. I’ll update the post when they do.

The full opinion and dissent are available at the Supreme Court’s site.

UPDATE:  SCOTUSBlog’s Amy Howe has just put up her analysis of the ruling. The core:

In a decision by Justice Samuel Alito, the court emphasized that subsection (d) of the NVRA specifically allows states to remove a voter who “has failed to respond to a notice” and “has not voted or appeared to vote.” Indeed, the majority stressed, not only “are States allowed to remove registrants who satisfy these requirements, but federal law makes this removal mandatory.” The Ohio practice at issue in this case, the majority concluded, “follows subsection (d) to the letter”: “It is undisputed that Ohio does not remove a registrant on change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years.”

For the five justices in the majority – Alito, along with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch – the extent to which Ohio’s practice hews to subsection (d) was enough. And they rejected the challengers’ argument that the state’s practice violates the ban on removing voters from the registration lists “solely by reason of a failure to vote” because it uses the failure to vote as the trigger for sending the return card. The majority reasoned that Ohio’s practice would violate the “failure-to-vote” clause “only if it removes registrants for no reason other than their failure to vote.” But here, the majority reiterated, the state “removes registrants only if they have failed to vote and have failed to respond to a notice.”

Justice Stephen Breyer dissented from today’s decision, in an opinion joined by Sotomayor and Justices Ruth Bader Ginsburg and Elena Kagan. Breyer would have struck down Ohio’s practice not only because it violates the provision prohibiting states from removing voters from their list “solely by reason of a failure to vote,” but also because he believes that Ohio is not complying with its obligation, under the same federal laws, to make a “reasonable effort” to remove ineligible voters from its lists. Breyer complained that the state reads too much into a voter’s failure to return a notice to confirm his eligibility. There is no reason to assume such voters have moved, Breyer suggested; for whatever reason, he posited, it’s simply human nature that people don’t return cards that they get in the mail.

Alito pushed back against the Breyer dissent, criticizing its reliance on its “own cobbled-together statistics” and “a feature of human nature of which the dissent has apparently taken judicial notice.” Breyer may not think that a voter’s failure to confirm his eligibility by taking what Alito characterized as “the simple and easy step of mailing back the preaddressed, postage prepaid card” or updating his information online has any significance, Alito wrote, but Congress disagreed. What Breyer’s dissent really boils down to, said Alito, is a “policy disagreement.” But this case is about interpreting federal statutes, Alito emphasized: “We have no authority to second-guess Congress” or to decide whether Ohio’s practice is the best way to keep its voter rolls current. “The only question before us,” Alito concluded, is whether the practice “violates federal law. It does not.”

While I think the majority is splitting hairs here, they’re not wrong. Ohio’s statute, while falling within a pattern I find highly disturbing, falls within the technical limits of Federal statute.

FILED UNDER: Law and the Courts, Supreme Court, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Daryl and his brother Darryl says:

    The Trumplicans can’t win on their agenda…so suppress voting, stoke fear, conspire with foreign nations…whatever it takes to stay in power and give tax cuts to the wealthy.

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  2. matt bernius says:

    Beyond the technicalities of the law, of course, is the larger issue of Republican-controlled legislatures doing what they can to make it harder for those likely to vote Democrat to do so. There’s simply no doubt that these laws disproportionately impact low-income, low-education citizens, especially African-Americans and Hispanics. Rather clearly, that impact is considered a feature rather than a bug in these laws. Indeed, we have numerous instances of Republican politicians openly stating that this is the case.

    Regardless of whether or not implict racial bias is at the root of the legislation, this is structural racism in action.

    Thank you for calling it out James. It is shameful and fundamentally un-American.

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  3. As I noted when this case was argued in January it always seemed clear to me that Ohio had the better argument here.

    The procedure that Ohio had in place states that a voter can only be removed from the rolls if they have failed to vote during a Federal election cycle. At that point, the state sends a notice to the voter’s last known address of record. If the voter in question returns the notice indicating that they still resided at that address and that they wanted to remain a registered voter in that jurisdiction. If they don’t return the notice and then don’t vote in the next four elections then the presumption was that the voter in question had either moved or passed away and thus they were removed from the rolls. This seems entirely reasonable and, more importantly, on its face seems to be in complete compliance with the relevant Federal statute, which was the basis for this case.

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  4. @Daryl and his brother Darryl:

    The Ohio law in question was in place long before Trump came along.

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  5. PJ says:

    @Doug Mataconis:
    Republicans have been suppressing the vote long before Trump.

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  6. Daryl and his brother Darryl says:

    @Doug Mataconis:
    Indeed…but the party is now his.

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  7. PJ,

    As I said in another comment, the Ohio law as adopted seems to me to be a very reasonably crafted manner in determining whether voters who have not voted in several elections still reside at their address of record, or indeed are still alive.

    How would you propose going about doing that?

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  8. James Joyner says:

    @Doug Mataconis: As noted in the NYT report, none of the other 49 states nor the District of Columbia employ anything near as draconian as this. Failing to vote in a single federal election–including midterms that tend to have relatively low turnout–is a rather drastic trigger. I could see it if, say, three or four election cycles had passed. But a single one, in a nation where turnout is typically less than 50% of registered voters? That seems rather obviously designed to purge the rolls of the sort of people most likely to vote Democrat.

    Now, it’s not the job of SCOTUS to evaluate the policy merits of the law. But it seems to me that, using a single non-vote as a trigger for a purging process violates at least the spirit of the 1993 law in question.

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  9. @Doug Mataconis: Based on an admittedly cursory read of this story, I can understand how Ohio prevailed in court (although a 5-4 decision suggests it was not totally clear-cut).

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  10. (hit “Post” on accident):

    BUT, the broader issue of clear voter suppression is a real problem. Further, I think James has a point about the 1993 statute.

    Regardless, there is a broader problem with this policy, and many others, that are clearly designed to undercut fundamental features of our democracy.

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  11. @James Joyner:

    Failing to vote in a single federal election–including midterms that tend to have relatively low turnout–is a rather drastic trigger.

    But the Ohio law doesn’t automatically purge someone after failing to vote in one election cycle. What happens is that this failure to vote results in a notice being mailed to the voter’s address of record along with (I believe) a pre-paid card that the voter is asked to return if they wish to remain on the rolls. If they do, then they aren’t removed. If they don’t then the law goes on to provide that they cannot be removed until they fail to vote in four subsequent elections. This doesn’t seem unreasonable to me.

    More importantly, it appears to be in compliance with the relevant Federal laws which specifically allow the states to remove voters from the rolls if they don’t vote and don’t respond to a notice like the one Ohio sends out. That was the issue before the Court, and because of that, it seems clear that the majority has the better argument here. One can certainly make the policy argument that there should be something more that would lead to a step as drastic as removing someone from the voter rolls, but policy arguments are for the legislature (whether at the state level or in Congress) to deal with, not the courts. The sole issue before the court was whether Ohio’s law complied with Federal law, and based on the clear language of the relevant Federal statutes I think they got it right here.

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  12. @Steven L. Taylor:

    As I said in my last comment to James, there may be a valid policy argument here but that’s an issue for the legislatures, not the courts.

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  13. Jc says:

    This is just voter roll gerrymandering in a swing state. I know the left gerrymanders too, but they would not do this. It is a new level. Hard enough to get people registered to participate (as evidenced by participation rates) now we want to make it even more of an ordeal. It’s almost like we only want certain types of people to vote…shocking

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  14. James Joyner says:

    @Doug Mataconis:

    What happens is that this failure to vote results in a notice being mailed to the voter’s address of record along with (I believe) a pre-paid card that the voter is asked to return if they wish to remain on the rolls. If they do, then they aren’t removed. If they don’t then the law goes on to provide that they cannot be removed until they fail to vote in four subsequent elections. This doesn’t seem unreasonable to me.

    I gather it’s four years, not four elections? (Although there may be enough elections crammed in there, as there are in Virginia, to make that a distinction without meaning.) And it’s pretty easy to miss a single mailing.

    Harmon, the person at the center of the suit, only skipped a single presidential election (2012) and was purged by the time he tried to vote in 2015. That seems harsh.

    Again, I don’t have a strong view on whether the narrow majority got it right as a technical matter. It seems to me that Ohio is pushing the envelope in skirting the intent of the 1993 law that was derisively called Motor Voter. I presume other Republican states will do the same now.

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  15. Daryl and his brother Darryl says:

    So…let me just put this into perspective; a Justice appointed by a president who lost the popular vote to a seat that was wrongly denied the previous president, makes it harder for lower-income Democrats to vote.
    Yup…the system is working, alright.

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  16. An Interested Party says:

    Even though some already have, it would be nice if most Republican partisans just admitted why they pass laws like this–to make it harder for certain people to vote so that Republicans can win more elections…someone explain to me how hurting democracy makes our country better…

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  17. James Joyner says:

    @An Interested Party: There’s an argument for pruning ineligible voters from the rolls, both to prevent fraud and to simplify the process for election workers. But the fact that the energy for doing so is entirely in one party is problematic, indeed.

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  18. ddennis says:

    Conceding that the GOP utilizes vote-suppressing tactics, citizens need to get up off their bum-a$$3$ and vote. If one is not defending his/her constitutional right to participate in the voting process in four years, then one shouldn’t be surprised when they are purged off the rolls. Even if it’s off-cycle, they can verify their status and register, just to keep current on the rolls.

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  19. Tyrell says:

    There are many kinds of “purges”. One is the purge of inactive members from the church roles. This is commonly done when a new pastor comes in. Some may complain, but it happens because they have not done even the minimal requirements to remain a member.
    There are certain subscriptions that will be purged,mailing lists and club memberships. Even my doctor will purge my records after five years if I have not been in for a visit or some communications.
    I don’t see that the Ohio law of purging is extreme or unreasonable.
    I remember one time I was at the polls waiting in line to vote and talked to a lady who was running for judge. She said her mother voted for years. After she passed away.
    I have seen two of the “Purge” movies. Not great movies, but in many of the characters I see some symbolism. I wonder if that was deliberate.

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  20. @Tyrell: None of those is a good analogy to voter rolls.

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  21. Just one point to address several comments alleging that this Ohio law is part of some recent effort to target Democratic voters.

    The law in question has been on the books for 24 years.

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  22. An Interested Party says:

    The law in question has been on the books for 24 years.

    And the Motor Voter Act has been on the books for roughly the same amount of time…hmm…one wonders if this Ohio law was in response to the Motor Voter Act…

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  23. TM01 says:

    There’s simply no doubt that these laws disproportionately impact low-income, low-education citizens, especially African-Americans and Hispanics.

    Wow.

    So now colored people are too stupid to find a mailbox to drop off a pre-paid postcard stating “yes, I do still live here and want to remain on the voter rolls.”

    But those republicans sure are racist.

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  24. James Joyner says:

    @TM01: There are hundreds of studies confirming this. It’s not a function of skin color, per se, but rather of economics, culture, lifestyle, etc. They’re more mobile, and thus less likely to actually get the postcard. They’re more likely to work irregular hours, less likely to have reliable transportation, etc. Not to mention trust issues with the government.

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