Jurisprudence

Supreme Court, in 5–4 Decision, Allows States to Purge Voters for Their Failure to Vote

Associate Justice of the US Supreme Court Samuel Alito speaks during the American Bar Association's Section on International Law Conference in Washington, DC, April 27, 2017. / AFP PHOTO / SAUL LOEB        (Photo credit should read SAUL LOEB/AFP/Getty Images)
Supreme Court Associate Justice Samuel Alito speaks during the American Bar Association Section on International Law Conference in Washington.
SAUL LOEB/Getty Images

In a 5–4 decision handed down Monday morning, the Supreme Court ruled that states may purge voters from the rolls due to their failure to cast a ballot. The ruling will disproportionately disenfranchise minorities and veterans as well as low-income and disabled people. Because of this decision, it is now likely that thousands of Americans will show up to the polls in 2018 hoping to cast a ballot—only to be told that they have been purged from the rolls because they skipped the past few elections. It is a nightmare scenario for voting-rights advocates that may affect the outcome of many future elections as well as the 2018 midterm elections in Ohio.

Husted v. A. Philip Randolph Institute, Monday’s case, involves an unambiguous clause of the National Voter Registration Act, a federal law passed in 1993 to protect the franchise. The NVRA prohibits any state from removing a registrant from the federal roll “by reason of the person’s failure to vote.” Congress intended this provision to protect Americans’ right to vote and not to vote, barring states from implementing a “use it or lose it” policy that punished infrequent voters. For more than two decades, states have maintained their voter rolls without violating this provision. Most states use the Postal Service’s national change-of-address service to identify voters who might have moved or died and then send these voters notices to determine whether they wish to maintain their registration. If voters fail to return these notices and fail to vote in two consecutive federal elections, the NVRA allows them to be removed from the rolls.

To test the limits of the NVRA’s safeguards, however, Ohio Republicans created another process through which to remove voters. Under this “supplemental process,” Ohio identifies voters who may have moved based exclusively on their failure to engage in any voter activity during a single federal election. It then begins the purge process by sending these voters a notice in the mail alerting them to the possibility that they might be removed. If they fail to return the notice, and do not vote in the next two federal elections, Ohio removes them from the rolls.

It’s easy to see how Ohio’s supplemental process could lead to the purge of countless infrequent but valid voters. Americans often sit out multiple elections before returning to the polls, and Ohio’s notification card can be easily mistaken for junk mail. Under this process, you may get thrown off the rolls simply because you skipped three consecutive federal elections—say, two midterm elections and one presidential election—and overlooked a letter in your mailbox. Fearing mass purges in Ohio, voting-rights advocates sued to block the supplemental process, and in 2016, the 6th U.S. Court of Appeals ruled that Ohio’s practice ran afoul of the NVRA.

Now, the Supreme Court has reversed that decision in an opinion by Justice Samuel Alito that warps the plain text of the NVRA to mean the opposite of what it actually says. Again, the law explicitly forbids any state from “removing of the name of any person from the official list of voters … by reason of the person’s failure to vote.” An amendment to the statute makes this command even clearer, stating that “no registrant may be removed solely by reason of a failure to vote.” Yet Alito insisted that Ohio does not purge voters based on their “failure to vote.” Instead, he wrote, Ohio “treats the failure to return a notice and the failure to vote as evidence that a registrant has moved, not as a ground for removal.” Because the state uses an individual’s failure to vote only as “evidence,” Alito concluded, its supplemental process comports with the NVRA.

Writing in dissent, Justice Stephen Breyer cut through the haze of Alito’s word games by citing the statute itself. Ohio, Breyer explained, begins the purge process after a citizen skips a federal election. It completes the process if that citizen skips the next two federal elections and fails to return a mailer. If the citizen had voted in any one of those three elections, she would not be removed from the rolls. Therefore, Ohio’s process obviously targeted and removed this voter from the rolls “by reason of the person’s failure to vote.” In doing so, it plainly violated the NVRA.

Justice Sonia Sotomayor authored a separate dissent to point out the devastating consequences of Husted for vulnerable Americans. Congress, she wrote, passed the NVRA with the express intention to protect low-income and minority voters. Yet Ohio’s supplemental process “has disproportionately affected minority, low-income, disabled, and veteran voters”—exactly those Americans whom the NVRA was meant to help. Already, the process has led to racist outcomes: “African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity” since 2012, as “compared to only 4% of voters in a suburban, majority-white neighborhood.” Moreover:

low voter turnout rates, language-access problems, mail delivery issues, inflexible work schedules, and transportation issues, among other obstacles, make it more difficult for many minority, low-income, disabled, homeless, and veteran voters to cast a ballot or return a notice, rendering them particularly vulnerable to unwarranted removal under the Supplemental Process. 

By affirming the legality of the process, Sotomayor wrote, the majority “entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.” And in light of Monday’s awful ruling, 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.”

Now that the court has blessed Ohio’s purges, more GOP-controlled states are likely to adopt similar proposals. The evidence from Ohio indicates that this process will primarily purge minority and low-income voters. It may well swing close elections in the future, and will undoubtedly lead to chaos and confusion at the polls. Thanks to the Supreme Court, myriad citizens will try to cast a ballot in the years to come—and learn that the state has quietly stripped them of their constitutional right to vote.

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