Can Ohio purge voters? Crucial rights case goes to Supreme Court

Brandon Parsons
January 13, 2018

This law also placed limits on how states could remove voters from the rolls once they registered.

The plaintiffs in the case allege the process violates a provision in federal law that bars states from removing people from the rolls simply because they don't vote.

Justice Sonia Sotomayor spoke at length about voter disenfranchisement, and noted that the state's policy disproportionately affected marginalized groups.

"Nobody is removed exclusively by reason of their failure to vote", Ohio State Solicitor Eric E. Murphy told the justices, adding, "They're removed if they fail to respond to a notice and fail to vote over six years, which is more than the minimum protections".

Murphy, arguing on behalf of OH, said that "around eight" states use failure to vote as the trigger for sending a notice that will eventually lead to voters being purged. Most of the states supporting OH have Republican governors or legislatures; most of those opposed are governed by Democrats.

The Trump administration is supporting OH, saying the Motor Voter law requires states to adequately notify nonvoters before they are purged but doesn't prohibit the use of voting history altogether. Today the court's more conservative justices seemed inclined to agree with the state - and could even pick up a sixth vote, from Justice Stephen Breyer.

Sotomayor pressed Murphy on the consequences the OH process would have, particularly on poor and minority populations.

Here is how Ohio's voter purge now works: through a practice known as Supplemental Process, the Ohio County Board of Elections uses a registered voter's failure to vote in a single election as evidence that the voter has moved.

"We are confident that the Supreme Court will uphold the correct decision from the Sixth Circuit Court of Appeals, and will ultimately ensure that eligible OH voters may not be stricken from the rolls", she said.

The high-stakes legal fight surrounding Ohio's voter purge program is at the center of a larger battle over access to the ballot. She noted that in OH there are large groups of minorities and homeless people who face obstacles to voting like long lines at the polls. Employing such technologies not only provides a more secure and effective means of protection against voter fraud, to the extent that it exists, they also protect against external hacking and violations of integrity in a way that many current techniques do not. If notified Ohioans then either send their notices back, or vote at any point in the subsequent four years, they are kept on the roles. He said many of those dropped from the rolls first learn they're not registered when they show up to vote and are turned away.

Justice Samuel Alito voiced concerns about why it was objectionable for OH to take measures to keep ineligible voters off its rolls.

Solicitor General Noel Francisco said they concluded the law is poorly drawn, but there's no way for it to make sense unless states are given some flexibility to manage their lists. "It's quite unusual your office would change its position so dramatically".

The Supreme Court's ruling could directly affect similar policies in six states.

Civil rights groups contend that a decision for OH would have widespread implications because it would fuel a broader effort to make it more hard and costly to vote.

The A. Philip Randolph Institute, represented by Campaign Legal Center's Paul Smith, argued on Wednesday that OH violates federal voting laws by basing its decision to remove voters on their failure to vote. "The evidence we have in the record is that most people throw it in the wastebasket", Smith said.

Later, questioning Smith about Ohio's procedure, Alito said: "Does it say the failure to vote is a ground for removal, or does it say that moving out of the district is a ground for removal, and failure to vote plays a part in the determination of whether a person has moved out of the district?"

"This process has worked very well in OH under Democratic and Republican administrations". And if you happen not to see the notice among the junk mail, or if it doesn't arrive for some reason, you're out of luck.

OH says its policy is legal, as voter inactivity is not the proximate process of removal.

This year a lawsuit by Judicial Watch is making its way through California's courts on the majority of its counties having inaccurate voter rolls.

In about one hour of arguments, some members of court's conservative and liberal wings seemed clearly on different sides of the case.

"Among those, OH is the most aggressive".

Daniel Tokaji, one of the attorneys for the plaintiff, the A. Philip Randolph Institute, argued that Ohio's purge policies are unconstitutional and violate the National Voting Rights Act.

Other reports by AllAboutTopnews

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