The decision in Husted v. A. Philip Randolph Institute helps clarify the steps states can take to remove someone from their voter rolls, and it could encourage them to be more aggressive. The case was brought on behalf of the A. Philip Randolph Institute, a labor and civil rights group, and an eligible Ohio voter the state had removed from its voter rolls. The voter had been living at the same address for about 16 years.
In Ohio, officials send anyone who doesn’t vote for two consecutive years a notice in the mail to determine whether they’ve moved. If someone fails to respond to the notice and then doesn’t vote for four consecutive years, the state removes them from its voter rolls.
Ohio had argued that the process was necessary to make sure its voter rolls were accurate and up to date ― but the challengers said it violated a federal law that prohibits states from canceling someone’s voter registration simply because they haven’t voted. Ohio countered that it canceled registrations not only because of a failure to vote, but also because people didn’t respond to the notice.
Writing the opinion for the five-justice majority, Justice Samuel Alito said that a 2002 law, the Help America Vote Act, amended the National Voter Registration Act and clarified what states could do to remove people from the voting rolls. HAVA, Alito wrote, says a state cannot remove someone from the voting rolls only and because of their failure to vote. What Ohio does, Alito wrote, is permissible because people are removed if they fail to vote and fail to respond to the state mailing.
“HAVA dispelled any doubt that a state removal program may use the failure to vote as a factor (but not the sole factor) in removing names from the list of registered voters,” Alito wrote. “That is exactly what Ohio’s Supplemental Process does. It does not strike any registrant solely by reason of the
failure to vote.”
The challengers in the case also argued Ohio’s process did not amount to a reliable way of figuring out if someone had moved. Alito dismissed that argument, saying the method of choosing how to remove people from the rolls was an estimation for lawmakers, not the courts, to decide.
“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,” Ohio Secretary of State Jon Husted (R) said in a statement.
In the dissent, Justice Stephen Breyer argued the Ohio process was unlawful for two reasons. First, he said, someone’s failure to vote triggered Ohio’s address confirmation mailing and the process for removing them from the rolls. The fact that the entire process was initiated by someone’s failure to vote, he said, showed the state was targeting people only based on the fact they hadn’t voted ― something clearly prohibited by the law.
Second, he said, the NVRA requires states to conduct a “reasonable” effort to remove people from the voter rolls, but Ohio’s process isn’t reasonable. The process, he said, is not an accurate way to identify if someone has really moved.
He noted that in 2010 the state identified 1.5 million voters who had likely moved. Of those 1.5 million, the state got back about 60,000 mailings from people indicating they had moved, but 235,000 people sent back the mailings saying they had not. Breyer wrote there was no reason to think the remaining 1 million people had in fact moved.
Stuart Naifeh, senior counsel at Demos, which helped represent the challengers along with the American Civil Liberties Union, said the group would continue to fight efforts to aggressively remove voters from the rolls.
“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,” he said in a statement.
Justice Sonia Sotomayor joined the dissenting opinion but also wrote her own separate dissent. In her dissent, Sotomayor highlighted the disproportionate effect the Ohio law had on low-income, minority, disabled and veteran voters. She noted that 10 percent of African-American voters in downtown Cincinnati had their voter registrations canceled since 2010 compared with 4 percent of voters in a suburban, majority-white neighborhood. The NVRA, she wrote, was designed precisely to prevent the kind of unfair effect the Ohio process is having. She ended her opinion with a plea for communities affected by the Ohio law and other voting restrictions to exercise their right to vote.
“Communities that are disproportionately affected by unnecessarily harsh registration laws should not tolerate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by,” she wrote. “Today’s decision forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right
J. Christian Adams, president of the Public Interest Legal Foundation, a group that has sued to force places to more aggressively purge their voting rolls, praised the court’s decision.
“Today’s ruling empowers local officials and concerned parties to utilize the NVRA to ensure the most accurate and reliable voter rolls possible. The days of trying to hamstring maintenance responsibilities in the absence of federal guidance are over,” he said in a statement.
During January’s oral arguments, Alito, Breyer and Chief Justice John Roberts appeared sympathetic to Ohio’s argument that the state needed the aggressive process to maintain accurate rolls. Sotomayor and Justice Elena Kagan seemed more skeptical of Ohio’s argument, and Sotomayor expressed concern that poor people and minorities might not vote because of long lines at the polls.
The League of Women Voters noted in a friend-of-the-court brief that only five other states ― Georgia, Oklahoma, Oregon, Pennsylvania and West Virginia ― use someone’s failure to vote to trigger the process for canceling their voter registration. But all those states, the League noted, give someone longer than two years of not voting before they begin the cancellation process.
Paul Smith, a lawyer for the challengers, argued that the state could rely on information from the post office and other government agencies for a more reliable indicator that someone had moved. He noted that in 2011, 70 percent of people who received the confirmation notices didn’t send them back.
As the case was pending before the Supreme Court, the Department of Justice made the unusual move of switching sides. When the case was at the U.S. Court of Appeals for the 6th Circuit, the Justice Department, under President Barack Obama, filed a brief supporting the challenge. After President Donald Trump took office, the Department of Justice supported Ohio’s process.
This story has been updated with details from the court opinions and reactions to them.
This article originally appeared on HuffPost.