OH official defends state's voter roll system

Lester Mason
January 13, 2018

The justices largely broke along ideological lines, with liberals likely to find that one of Ohio's methods for purging voters violates the National Voter Registration Act, and conservatives leaning the opposite way. Two other Republican appointees, Justices Clarence Thomas and Neil Gorsuch, asked no questions during the hour-long session, leaving some uncertainty about the ultimate outcome.

"What we're seeing is a real moment as to whether or not we're going to be a country that makes voting free, fair and accessible, or are we going to put a bunch of barriers in front of the ballot box", said Myrna Pérez, director of the voting rights and elections project at New York University School of Law's Brennan Center for Justice. Breyer seemed concerned about tying states' hands.

"What are they supposed to do?" he asked.

Under Ohio rules, registered voters who fail to vote in a two-year period are targeted for eventual removal from registration rolls, even if they haven't moved and remain eligible. Moreover, NVRA and HAVA specifically say that states can not remove names "from the official list of voters registered to vote in an election for federal office by reason of the person's failure to vote".

Under a withering attack from Justice Sonia Sotomayor, Ohio Solicitor Eric Murphy defended the state's system to remove voters from the rolls, insisting that "nobody is removed exclusively by failure to vote".

The justices heard arguments in a case from OH, among a handful of states that use voters' inactivity to trigger a process that could lead to their removal from voter rolls. That's what Congress wanted to end with the NVRA, he said. On Wednesday, his complaints against Ohio's de-registration system will be heard by the Supreme Court. It just can't be the sole reason for doing so, he said. The lower court agreed, ruling OH used a voter's failure to vote as the "trigger" for sending a confirmation notice to that voter, meaning it is indeed a failure to vote or voter inactivity that begins the purging process. Nor had he returned a notice asking if he was a resident.

But that turns the clarification into something much broader, Justice Elena Kagan said.

"And when you don't get the notice back, what that tells you is absolutely nothing about whether the person has moved", Smith said. He said he voted absentee while he was deployed, but when he returned to OH he discovered that the ballot apparently never arrived and he had been purged from the voter rolls. OH assumes the person has moved or died and the name is purged in order to prevent voter fraud and to keep up to date voting records.

The Supreme Court is diving into state efforts to pare their voting rolls by targeting people who haven't voted in a while.

"There might be surveys about how many people throw everything in the wastebasket", Breyer said.

Moreover, the state's own statistics show that 70 percent of the people that do receive these notices simply ignore them, Smith said. OH is one of seven states, along with Georgia, Montana, Oklahoma, Oregon, Pennsylvania and West Virginia, that purge infrequent voters from registration lists, according to the plaintiffs who sued OH in 2016.

Because the NVRA was meant to increase the number of eligible voters on the voter rolls, it's best to read the clarification as allowing failure to vote to be considered only when there is already a reliable indication that the voter has in fact moved, Smith said. The NVRA and HAVA also prevent states from removing names in a manner that is discriminatory.

It has competing goals: to increase the number of eligible voters on the voter rolls, but also to decrease the number of ineligible voters, Murphy said. "It has the shortest timeline for removing people for non-voting", Naifeh said.

Harmon, who said he does not recall receiving a notice from the state, was taken by surprise when told he was no longer registered to vote in 2015.

Other reports by Iphone Fresh

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