Supreme Court Weighs Purge of Ohio Voting Rolls
Posted January 10, 2018 1:44 p.m. EST
WASHINGTON — In a spirited argument on Wednesday, the Supreme Court appeared deeply divided over whether Ohio may kick people off the voting rolls if they skip a few elections and fail to respond to a notice from state officials.
Justice Sonia Sotomayor said Ohio’s approach effectively disenfranchised minority voters in the state’s major cities and were part of a broader effort to suppress voting.
“All of these impediments result in large numbers of people not voting in certain parts of the state,” she said.
But Justices Anthony M. Kennedy and Stephen G. Breyer expressed concern about maintaining the integrity of the state’s list of eligible voters.
“They want to protect the voter rolls from people who have moved and are voting in the wrong district,” Kennedy said.
The case concerns Larry Harmon, a software engineer and Navy veteran who lives near Akron, Ohio. He voted in the 2004 and 2008 presidential elections but skipped the next one, saying he was unimpressed by the candidates. He also sat out the midterm elections in 2010 and 2014.
In 2015, Harmon did want to vote, against a ballot initiative to legalize marijuana. But his name had been stricken from the voting rolls.
Ohio is more aggressive than any other state in purging its voter rolls. After skipping a single federal election cycle, voters are sent a notice. If they fail to respond and do not vote in the next four years, their names are purged from the rolls.
A few other states use similar approaches, but none of them move as fast.
“Ohio is the only state that commences such a process based on the failure to vote in a single federal election cycle,” said a brief from the League of Women Voters and the Brennan Center for Justice. “Literally every other state uses a different, and more voter-protective, practice.”
In a Supreme Court brief, Ohio officials said the notices protect the integrity of the voting rolls, as failing to vote suggests that voters may have moved.
State officials said they sent Harmon a notice in 2011 and that he did not respond. He said he never saw the notice.
At Wednesday’s argument, the justices debated whether two federal laws allowed Ohio to cull its voting rolls based on failing to vote. The laws prohibit states from removing people from voter rolls “by reason of the person’s failure to vote.” But they allow election officials who suspect that a voter has moved to send a confirmation notice.
Justice Ruth Bader Ginsburg said that “Congress didn’t want the failure to vote to be a trigger for this procedure.”
Sotomayor also said Ohio’s process ran afoul of the federal laws. “I don’t understand how you can say the failure to vote can be used as the sole basis for sending out notices,” she said.
But Justice Samuel A. Alito Jr. said the laws appeared to permit Ohio to use its notification process.
The 6th U.S. Circuit Court of Appeals, in Cincinnati, ruled in favor of Harmon in 2016, saying that Ohio had violated the National Voter Registration Act of 1993 by using the failure to vote as a “trigger” for sending the notices.
Without that decision, “the ballots of more than 7,500 eligible Ohioans would have gone uncounted in the November 2016 election,” Harmon’s lawyers at Demos and the American Civil Liberties Union wrote in a Supreme Court brief.
A Reuters study in 2016 found that at least 144,000 people were removed from the voting rolls in recent years in Ohio’s three largest counties, which are home to Cleveland, Cincinnati and Columbus.
“Voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods,” the study found. “Neighborhoods that have a high proportion of poor, African-American residents are hit the hardest.”
Twelve states, generally led by Democrats, filed a brief supporting Harmon. Seventeen states, generally Republican, filed a brief on the other side.
The Justice Department for decades took the position that failing to vote should not lead to disenfranchisement. In the appeals court, the Obama administration filed a brief supporting Harmon. After the last presidential election, the department switched sides in the case, Husted v. A. Philip Randolph Institute, No. 16-980.
Questioning Solicitor General Noel J. Francisco, Sotomayor said that it “seems quite unusual that your office would change its position so dramatically.”