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Supreme Court makes it easier for states to remove voters from the rolls if they skip an election

By David G. Savage • Updated Jun 11, 2018 at 2:44 PM

WASHINGTON — The Supreme Court made it easier Monday for states to remove occasional voters from the rolls, upholding an Ohio law that drops voters who fail to cast a ballot and do not respond to several notices.

In a 5-4 decision, the justices agreed with Ohio Republicans who said they sought to clean up the voting rolls and drop people who have moved and left the area. The court said that nationwide, 24 million voter registrations are estimated to be inaccurate or invalid, mostly people who have moved.

The four liberal justices dissented and said the ruling would allow officials to wrongly purge voters who sat out an election or two and did not respond to a notice in the mail.

Civil rights lawyers had sued Ohio and argued that tens of thousands of voters in Cleveland and other big cites had been wrongly removed from voting rolls. They won an appeals court ruling that held the state was violating the federal “Motor Voter Act” by removing voters simply for a “failure to vote.”

But the Supreme Court took up Ohio’s appeal and reversed the lower court.

Justice Samuel A. Alito said Ohio’s procedure “does not strike any registrant solely by reason of the failure to vote. Instead, as expressly permitted by federal law, it removes registrants only when they have failed to vote and have failed to respond to a change-of-residence.”

The decision in Husted vs. A. Philip Randolph Institute split the court along familiar lines. The five conservatives, all Republican appointees, formed the majority, while the four dissenters were Democratic appointees.

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Here is a roundup of reaction to the high court’s ruling:

Ohio Attorney General Mike DeWine issued the following statement on the United States Supreme Court's decision in favor of Ohio in Husted v. A. Philip Randolph Institute: “I am pleased that the United States Supreme Court agreed that Ohio was following federal law in maintaining accurate voter rolls. I congratulate our attorneys throughout this case for their exceptional work in documenting how this process, used by Democrat and Republican secretaries of state, is indeed lawful.”

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Here is a statement from Robert Weissman, the president of Public Citizen: “The arguments in the Husted case concern statutory interpretation. But everyone understands what was going on in Ohio and what’s at stake: Ohio adopted a voter purge system designed to suppress the votes of people of color and low-income individuals. The Supreme Court, which should be the nation’s beacon for justice, just put its stamp of approval on Ohio’s voter suppression system and gave the go-ahead to states around the country to follow its model.”

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Ohio Secretary of State Jon Husted said this: “Today’s decision is a victory for election integrity, and a defeat for those who use the federal court system to make election law across the country. This decision is validation of Ohio’s efforts to clean up the voter rolls and now with the blessing nation’s highest court, it can serve as a model for other states to use.”

Husted also provided these excerpts from the decision:

“The process that Ohio uses to remove voters on change-of residence grounds does not violate the Failure-to-Vote Clause or any other part of the NVRA…Ohio’s removal process follows subsection (d) to the letter: It 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.” – Page 2

“... the explanation added by HAVA in 2002 makes it clear that the statutory phrase ‘by reasons of the person’s failure to vote’ in the Failure-to-Vote Clause does not categorically preclude the use of nonvoting as a test for removal.” – Page 5

“As noted, subsection (d), the provision of the NVRA that directly addresses the procedures that a State must follow before removing a registrant from the rolls on change-of residence grounds, provides that a State may remove a registrant who “(i) has failed to respond to a notice” and “(ii) has not voted or appeared to vote . . . during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice” (about four years). Not only are States allowed to remove registrants who satisfy these requirements, but federal law makes this removal mandatory. – Page 8

“Respondents argue (and the Sixth Circuit held) that, even if Ohio’s process complies with subsection (d), it nevertheless violates the Failure-to-Vote Clause—the clause that generally prohibits States from removing people from the rolls “by reason of [a] person’s failure to vote.” Respondents point out that Ohio’s Supplemental Process uses a person’s failure to vote twice: once as the trigger for sending return cards and again as one of the requirements for removal. Respondents conclude that this use of nonvoting is illegal. We reject this argument because the Failure-to-Vote Clause, both as originally enacted in the NVRA and as amended by HAVA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. Instead, as permitted by subsection (d), Ohio removes registrants only if they have failed to vote and have failed to respond to a notice.” – Page 9

“There is no plausible reason why Congress would enact the provision that respondents envision. As interpreted by respondents, HAVA would be like a law that contains one provision making it illegal to drive with a blood alcohol level of 0.08 or higher and another provision making it illegal to drive with a blood alcohol level of 0.10 or higher. The second provision would not only be redundant; it would be confusing and downright silly.” – Pages 13-14

“This argument is based on a dubious empirical conclusion that the NVRA and HAVA do not allow us to indulge. Congress clearly did not think that the failure to send back a return card was of no evidentiary value because Congress made that conduct one of the two requirements for removal under subsection (d).” – Page 15-16

“Ohio simply treats the failure to return a notice and the failure to vote as evidence that a registrant has moved, not as a ground for removal. And in doing this, Ohio simply follows federal law.” – Page 17

“The notice in question here warns recipients that unless they take the simple and easy step of mailing back the preaddressed, postage prepaid card— or take the equally easy step of updating their information online—their names may be removed from the voting rolls if they do not vote during the next four years. It was Congress’s judgment that a reasonable person with an interest in voting is not likely to ignore notice of this sort.” – Page 20

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U.S. Senator Sherrod Brown (D-Ohip) blasted the Supreme Court’s decision to uphold Ohio’s efforts to purge voters from the state’s voter rolls. Last week, Brown announced he would not support Eric Murphy to serve as Judge on the Sixth Circuit Court of Appeals, in part because of Murphy’s defense of the Ohio voter purge as State Solicitor of Ohio.

“Ohio should be working to make voting easier, not harder,” Brown said. “Instead, today’s decision empowers Ohio to further strip away the right to vote for thousands of Ohioans, threatening the integrity of our state’s election process. This ruling further shows why we can’t afford to pack our federal courts with judges who have a track record of hostility towards Ohioans’ most basic right.”

Last year, Brown criticized a reversal by the U.S. Department of Justice (DOJ) against defending the legal challenge to Ohio’s voter purging efforts. In September of last year, the Sixth Circuit Court of Appeals found that Ohio’s process of purging voters from the rolls violated federal law. Ohio Secretary of State Jon Husted appealed that decision to the Supreme Court, which ruled today in support of Ohio’s method of purging voters. As former Ohio Secretary of State, Senator Brown has always fought to protect Ohioans’ rights to vote and has spoken out strongly against the voter purge.

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The 5-4 decision will allow veterans to be removed from the rolls while deployed and more voters, especially racial minorities, to be disenfranchised by bureaucratic hurdles as they exercise their right to vote, according to some observer.

“I believe this goes to show the results of the one party rule system that has continued to plague our country. We are not better served with this ruling. I am disgusted that the highest court in our land finds JUSTICE in a state that removes the right to vote from the defenders of our freedoms,” said U.S. Army Sgt. Joseph Helle and mayor of Oak Harbor. “This is truly an embarrassing day for our country, all in the name of political gain.”

When in D.C. to defend purging Ohio voters, Husted had the gall to lecture Helle on why it’s easy for deployed service members to vote, causing onlookers to shout “Shame, shame, shame.”

Voting is the cornerstone of our democracy. This case highlights the importance of all Ohio voters being proactive and taking time to verify that they are in fact on the voter rolls," said Catherine Turcer of Common Cause Ohio. "Voters can confirm that they are properly registered which is essential for their vote to count at MyOhiovote.com or by calling their local board of elections."

“This disastrous decision will only serve to disenfranchise voters and make it more difficult for Ohioans to participate in our democracy,” said ProgressOhio Communications Director Tyler Dillon. “It’s disgusting that our Secretary of State Jon Husted, whose job is to uphold the integrity of our voting process and make it easier for citizens to have a say in their government, is so committed to disenfranchising the Ohioans he's supposed to serve.”

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The U.S. Supreme Court decision creates a danger that other states will pursue extreme purging practices to disenfranchise millions of eligible voters across the country, according to the ACLU of Ohio.

“Today’s decision is a blow, not just to Ohio voters, but to the democratic process. Giving the green light to Ohio’s purge process could have a ripple effect across the entire country. Despite this setback, the court’s decision will not hinder our current and future advocacy efforts. Marginalized populations remain extremely vulnerable to state-sanctioned voter suppression and disenfranchisement, and we will continue to fight to uphold the rights of eligible voters in the 2018 midterm elections, and beyond,” said Freda Levenson, legal director at the ACLU of Ohio.

“Today’s decision threatens the ability of voters to have their voices heard in our elections,” said Stuart Naifeh, senior counsel at Demos, which led the legal team challenging the state’s practices. “The fight does not stop here. If states take today’s decision as a sign that they can be even more reckless and kick eligible voters off the rolls, we will fight back in the courts, the legislatures, and with our community partners across the country.”

In APRI, Ohio asked the Supreme Court to overturn a federal appeals court decision that found an Ohio practice of targeting registrants who have not voted in a two-year period for removal from the voter rolls — when there is no evidence that the voter has become ineligible — violates a federal law known as the National Voter Registration Act (NVRA). The Court assented to Ohio’s request, holding that the state’s process does not violate the NVRA’s prohibition on using non-voting as a basis for canceling registrations because, although the state indeed targets eligible voters who have not voted recently, the non-voting is not “the sole criterion” for removing a registrant.

“To have a healthy and functioning democracy, we must increase — not restrict — access to the ballot,” said Andre Washington, president, Ohio A. Philip Randolph Institute (APRI). “Practices, like Ohio’s, that remove eligible but infrequent voters from the registration rolls disproportionately disenfranchise low-income voters and voters of color.”

In 2015 alone, hundreds of thousands of infrequent voters were purged from Ohio’s voter rolls. Over 40,600 registrants in the state’s largest county, Cuyahoga, were removed under the process allowed by the Supreme Court today. The majority of these registrants lived in low-income communities and communities of color.

“The Supreme Court decision to allow Ohio to purge its citizens from the rolls is a setback for voting rights nationwide,” said Paul Smith, vice president of Campaign Legal Center (CLC). “Our democracy weakens when states are permitted to take actions that discourage voter participation. By constructing obstacles that make voting more difficult, Ohio is sending the wrong message to its citizens.”

“Countless voters, including homeless and housing-insecure Ohioans, have already been stripped of their rights as a result of Ohio’s unjust and illogical purge process,” said Chris Knestrick, executive director, Northeast Ohio Coalition for the Homeless (NEOCH). “By greenlighting Ohio’s purge process, the court allowed states to shut out the voices of these voters.”

DÄ“mos and the ACLU of Ohio first filed suit on behalf of Ohio APRI, NEOCH, and Ohio resident Larry Harmon in 2016, prevailing in the circuit court and securing relief that protected the right to vote for purged Ohio voters in November 2016 and every other election in the state to date.

“Voters should not be purged from the rolls simply because they have exercised their right not to vote. This ruling is a setback for voting rights, but it is not a green light to engage in wholesale purges of eligible voters without notice.” said Dale Ho, director of the ACLU’s Voting Rights Project.


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