On a party-line vote, Supreme Court approves OH voter purges

Geraldine Edwards
June 12, 2018

Opponents of Ohio's voter purge practice said federal law prohibits citizens from being penalized just for the failure to vote.

"The right to vote is not 'use it or lose it, ' Carson said".

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.

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The U.S. Supreme Court on Monday revived Ohio's contentious policy of purging infrequent voters from its registration rolls, dealing a setback to voting rights proponents who said the practice has disenfranchised thousands of registered voters.

OH sends a notice after a voter skips a single federal election cycle.

But Alito maintained that OH does not base its decision to remove voters "solely" on their failure to vote but also on the failure to respond to the notice from elections officials. OH claims that its practices just keep voter rolls up to date, and are consistent with federal law; the challengers argue that the state's purges violate federal law and risk disenfranchising eligible voters.

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After the last presidential election, the department switched sides in the case, Husted v. A. Philip Randolph Institute, No. 16-980. Election administrators constantly update their voter rolls to ensure that no one who has moved or died remains active. "The only question before us", Alito made clear, is whether the practice "violates federal law". He concluded that the OH system didn't violate the NVRA's failure-to-vote language since the state also sent the written mailers. What's more, he added, the state also keeps voters on the rolls if they take nonvoting actions like filling out a voter registration form or signing a petition. "States may use whatever trigger they think best", to trigger the voter removal process, including the failure to vote. "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".

Justices Stephen G. Breyer and Sonia Sotomayor wrote dissents, with Justice Sotomayor accusing the majority of trampling on the right to vote, saying she feared it would be used against minorities. But Justice Samuel Alito, writing for the majority, said the policy did not violate the National Voter Registration Act.

OH sends a notice to registered voters who fail to cast a ballot over a two-year period. Other states begin the purge process after a voter goes an entire four-year cycle without casting a ballot.

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Monday's Supreme Court opinion did not deal with whatever alleged discriminatory effect Ohio's purge protocol had.

In other words, a voter doesn't even get on the list of people subject to a purge unless they fail to vote for two consecutive years. If there was a clearly, solidly established presumption in favor of the right to vote and a difficult set of obstacles for would-be vote suppressors to overcome, decisions like this would be hard to write.

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