The Supreme Court on Monday upheld an Ohio practice of purging voters from the state’s rolls, leaving voting rights advocates afraid that other states could end registration for hundreds of thousands of voters who sit out as little as one federal election.
In a 5-to-4 opinion that pitted the conservative majority against the more liberal justices, the high court upheld Ohio’s “use it or lose it” policy of cleaning up its voter rolls, known as the supplemental process.
{mosads}Under that policy, voters who fail to cast a ballot for two years are sent a letter by state elections officials. If they do not respond to the notice, and if they fail to vote for another two years, their registrations are canceled.
Voting-rights groups led by the Ohio-based A. Philip Randolph Institute had challenged Ohio Secretary of State Jon Husted’s (R) process of purging hundreds of thousands of voters. But Justice Samuel Alito, writing for the majority, said the policy did not violate the National Voter Registration Act.
That act prevents states from canceling voter registrations solely because those registered do not show up to vote. Alito said Ohio skirts that prohibition by sending voters the postcard, to which they can respond before their registrations are canceled.
Advocates of broader access to the ballot box called the ruling flawed. They said Ohio’s policy is part of a larger campaign to disenfranchise voters — especially minorities and those disproportionately likely to oppose President Trump.
What’s more, they said, they worried that the ruling now gives other states a blueprint from which to conduct their own voter purges.
“This case comes out of Ohio, but Georgia and several other states are trying to do the same thing. The Trump campaign reelection strategy is voter suppression,” former Missouri Secretary of State Jason Kander (D), who runs the voting rights group Let America Vote, told The Hill. “This is a voter suppression campaign run out of the White House by President Trump, who has actively worked to undermine faith in American democracy.”
The Trump administration defended the Ohio policy, a reversal from the Obama years, when the Justice Department challenged it in court.
Ohio is one of six states that uses the so-called supplemental process — and the only one that begins sending letters to voters if they go just two years without voting. Other states begin the purge process after a voter goes an entire four-year cycle without casting a ballot.
In his own statement, Husted said he hoped the ruling would give other states a path toward purging duplicate or obsolete registrations.
“This decision is a validation of Ohio’s efforts to clean up the voter rolls and now with the blessing of the nation’s highest court, it can serve as a model for other states to use,” Husted said.
Voter purges are not uncommon, even in states led by Democrats. Election administrators constantly update their voter rolls to ensure that no one who has moved or died remains active.
But in recent years, some purges have been viewed through a more partisan lens. Georgia Secretary of State Brian Kemp (R) clashed with the American Civil Liberties Union when he took steps to cancel the registrations of 591,000 voters who had not been in contact with the state since September 2014. Alabama put 340,000 voters on its inactive list the same year. Utah removed 76,000 voters in 2012 — including 60,000 in Salt Lake County alone, the one Democratic bastion in an otherwise deeply conservative state.
On Friday, a federal judge ruled against an Indiana law passed earlier this year that would have canceled registrations for anyone whose name was flagged by the Crosscheck program, an interstate compact by which states cross-reference their voter lists against each other to weed out those who might be registered in multiple states. The judge said Indiana, where 481,000 people have seen their registrations canceled since 2014, must contact voters to give them an opportunity to remain active.
Earlier this year, a judge ruled that Kansas Secretary of State Kris Kobach (R), whose office created the Crosscheck program, could not demand proof of citizenship beyond what is required under federal law before someone is registered to vote.
Myrna Perez, who heads the Voting Rights and Elections project at the Brennan Center for Justice, said the Supreme Court had reiterated that states must both give notice to voters whose registrations might be canceled and give those voters the time to either become active or respond. But she said she worried that advocates of more restrictive voting policies might see the decision as an opening to further crack down on inactive voters.
“We are worried that would-be vote suppressors will read too much into it and conclude that aggressive purges or unreasonable purges would be tolerated,” Perez said in an interview. “Election administrators have to strike a balance between making sure that the rolls are as clean as possible, because everyone benefits from clean rolls, and removing eligible voters.”
The Crosscheck program, which involves 26 states around the country, has come under increasing scrutiny in recent years as some states accuse it of improperly flagging eligible voters. Since 2013, eight states, both red and blue, have left the Crosscheck program.
Other states have taken steps to erase duplicate voter registrations without imperiling someone’s right to vote. Twelve states and the District of Columbia have implemented automatic voter registration policies or laws, in which eligible voters are registered or their addresses are updated when they come into contact with a government agency like the Department of Motor Vehicles.
Tennessee has eliminated the practice of purging voters based on a lapse in voting history.
Kander, who is eyeing a 2020 presidential bid, said the Supreme Court’s decision highlights the need for groups like his to spotlight voter purges, which he said are highly likely to sweep up eligible voters whose registrations ought not be canceled.
“We can no longer trust the federal government to work in our best interests on voting rights,” Kander said. “We have to expand our efforts beyond the court of law and into the court of public opinion.”