Supreme Court upholds Ohio’s voter purge law

Daily News Article   —   Posted on September 7, 2018

Writing for the majority in a 5-4 decision, Justice Samuel Alito wrote that Ohio’s system to keep voter rolls up to date does not violate federal laws approved in 1993 and 2002 by Congress. (Under the laws, states cannot remove voters from registration lists because of their failure to vote. They can do so if voters don’t respond to confirmation notices.)

“We have no authority to second-guess Congress or to decide whether” Ohio’s law “is the ideal method for keeping its voting rolls up to date,” Alito wrote. “The only question before us is whether it violates federal law. It does not.”

The justices overruled a 2016 decision by a three-judge panel of the 6th U.S. Circuit Court of Appeals. In that decision, the court sided with the plaintiffs who argued that Ohio’s system violated federal law by discriminating against low-income voters.

Justice Alito began his majority opinion by observing that an estimated “24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate.” He said failing to vote cannot be the sole reason for purging voters, but Ohio “removes registrants only if they have failed to vote and have failed to respond to a notice.”

“A state violates the failure-to-vote clause only if it removes registrants for no reason other than their failure to vote,” Alito said. By contrast, he said, Ohio waits six years before removal, following federal law “to the letter.”

Federal law allows states to rely on change-of-address forms that citizens file with the U.S. Postal Service as evidence that a voter has changed residence. Ohio, like most states, relies on such reports as a principal method to keep rolls current. But because some 40% of people who move don’t alert the Postal Service, Ohio uses its “supplemental process” as a backstop for residence changes.

Justice Alito observed that the Ohio supplemental process doesn’t simply delete voters who fail to vote for a specified period, a process that Congress specifically outlawed.

Instead, such a failure to vote for 2 years triggers the state’s effort to confirm that the citizen hasn’t moved, offering him or her the chance to ensure their continued registration by returning a pre-paid postcard – or voting in a coming election over the next 4 years.

While people might toss junk mail without a thought, Justice Alito wrote, the Ohio notice “is nothing like the solicitations for commercial products or contributions that recipients may routinely discard.”

“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,” Alito wrote.

“It was Congress’s judgment that a reasonable person with an interest in voting is not likely to ignore notice of this sort.”

Joining Alito to form the majority were Chief Justice John Roberts, and Justices Clarence Thomas, Neil Gorsuch, and Anthony Kennedy. Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg dissented.

In her dissent, Justice Sotomayor wrote that Congress passed what is known as the National Voter Registration Act of 1993 “against the backdrop of substantial efforts by states to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections.”

This assertion prompted a response from Alito who wrote that Sotomayor’s dissent “says nothing about what is relevant in this case – namely the language of the” 1993 federal law. He described as “misconceived” her assertion that minority and low-income voters would be disenfranchised.

“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,” Alito wrote.

The procedure has been the same for years, under both GOP and Democratic secretaries of state.

In addition to Justice Sotomayor, Justice Breyer wrote a dissent in which he was joined by Justices Kagan, Sotomayor, and Bader Ginsburg, marking the sixth time in the 2017-18 term the four liberals dissented as a bloc. Rather than focusing on messy voter rolls, he recited the history of literacy tests, poll taxes and other restrictions he said were designed to “keep certain groups of citizens from voting.”

Breyer noted that most voters simply ignore the warning notices, leaving their failure to vote as the principal cause for being purged from the rolls. The number who don’t vote or return notices far exceeds the number who actually have moved, he said.

The case came about when Ohio resident Larry Harmon challenged the process arguing that he was removed from the rolls even though he had not moved, but rather had opted not to vote in 2009 and 2010. When he showed up at the polls in 2015 he was told his registration had been canceled. He claimed no recollection of receiving a confirmation notice from the state and he later brought suit along with two public interest groups called the Northeast Ohio Coalition for the Homeless and the A. Philip Randolph Institute.

Compiled from reports at Dayton Daily News and USA Today on June 11, 2018, with excerpts from The Hill, WSJ and CNN. Reprinted here for educational purposes only. May not be reproduced on other websites without permission.