The Supreme Court will decide if Ohio can automatically remove inactive voters from its registry.
On Election Day 2016, some Ohio residents turned out to vote only to be told their names had been removed from the list of registered voters. They had chosen not to vote in the last few elections, and as a result, Ohio officials had purged their names from the rolls. But was this an acceptable reason for their state government to remove them from its voter registry?
The U.S. Supreme Court heard arguments earlier this term in a case that will decide that question, Husted v. A. Philip Randolph Institute. The case pits state interests in preventing voter fraud against citizens’ right to vote when they see fit. The challengers identified Ohio as employing one of the most stringent purge programs in the country—in fact, they contended that over 7,500 eligible votes from the 2016 election would not have been counted if not for the suit.
Under Ohio’s “supplemental” process, if voters are inactive for two years, the state sends them a notice; if they fail to respond to that notice and do not vote over the next four years, Ohio removes them from its voter rolls, and voters must reregister. The Supreme Court will decide whether two federal acts—the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA)—prohibit this practice.
The NVRA forbids removing a voter from the registry for failing to vote, even in the name of protecting the integrity of elections. The Act does establish, however, permissible grounds for removal. One such basis is a change of residence to somewhere outside of the voting jurisdiction, and the Act suggests a federally approved process for removing such voters.
First, a state may compare its voter list with the U.S. Postal Service’s change-of-address data. Even if there is a discrepancy, the state may not remove a voter from the registry just yet. The state government must first send a notice to the voter confirming the change of address, and only if the voter does not respond to the notice and fails to vote in two consecutive federal election cycles may the state remove the voter.
The challengers in Husted do not contest this federally approved process but rather Ohio’s “supplemental” process. Because not all voters notify the postal service that they are moving, Ohio takes two years of voting inactivity to suggest that a voter may have changed residences. The state then sends out confirmation notices and monitors whether the voter fails to vote in subsequent federal elections, just like in the federally approved process.
The challengers argued that this supplemental practice goes beyond merely confirming postal service data of a change of residence, which the NVRA authorizes as part of the federally approved process. Instead, they argued, this process amounts to impermissibly treating voter inactivity as a trigger for removal by itself.
Ohio responded by arguing that inactive voters are removed for failing to respond to the confirmation notice, not for failing to vote. The state contended that this interpretation must be correct for the federally approved process to coexist with the failure-to-vote prohibition. Otherwise, according to the state, removing voters under the federally approved process could be characterized as impermissibly removing them for failing to vote, and it would be nonsensical for Congress to both permit and prohibit the same action.
The challengers pointed to HAVA, which amended the NVRA and established that the failure-to-vote prohibition does not interfere with the federally approved process. The fact that Congress did not mention any other processes in this alteration, they argued, implies that Ohio’s supplemental process runs afoul of the failure-to-vote prohibition.
Ohio responded that, by excluding the federally approved process from the failure-to-vote prohibition, the HAVA amendment confirms that the supplemental process—just like the federally approved process—removes voters for failing to respond to a notice, not failing to vote.
The U.S. Court of Appeals for the Sixth Circuit ruled against Ohio, describing the state’s practice as “the plainest possible example” of removing names for failing to vote. The Sixth Circuit held that voters may not be removed from the registry except for those reasons established by the NVRA, which include a change of residence but explicitly do not include failing to vote. The Sixth Circuit also sided with the challengers’ interpretation of the HAVA amendment.
Apart from the narrow question of the legality of Ohio’s supplemental process, commentators have also highlighted an array of other issues, including the historical suppression of minorities’ voting rights in Ohio and the constitutional division of power over regulating federal elections.
The Court heard oral argument on January 10, 2018.