Supreme Court Must Not Allow Ohio to Purge Inactive Voters

Columbus, Ohio

On Wednesday, January 10, my colleague at Campaign Legal Center, Paul Smith, will argue before the Supreme Court of the United States in the Ohio voter purge case, Husted v. A Philip Randolph Institute, a case involving the protection of the fundamental right to vote as American citizens. Americans cherish the right to vote because it preserves all our other rights.

In 1993, Congress enacted the National Voter Registration Act (NVRA) to facilitate voter registration and to protect registered voters against unfair removal from voting rolls. Despite federal protection, however, the right to vote is in danger for many Americans. At a time when 50 million eligible citizens are not registered to vote, it is critical the Supreme Court upholds the notion that our democracy is strongest when every voice can be heard and when every eligible citizen can have their vote counted.

Ideally, every American would vote in every election. But many American choose not to or are unable to vote in each election. Inability to vote in every election should not be disqualifying. But under Ohio’s current system, not voting in two consecutive elections initiates the state’s voter purge procedure and may lead to the removal of the voter from the rolls for future elections. Oftentimes, citizens who are removed do not find out until they go to the polls – when it is too late to reregister and cast a ballot. Therefore, they are wrongfully deprived of their right to vote.

This is what happened prior to the 2016 presidential election, when it became apparent that Ohio had purged hundreds of thousands of registered voters from its voter rolls. Thousands of these purged voters showed up to vote in 2016 and were only permitted to vote because of the lower courts’ rulings in this case. For precisely that reason, those rulings must stand.

Ohio’s process violates NVRA’s prohibition on unjustified removal of eligible voters from the registration lists. As a fundamental right, Congress determined that the right to vote comes together with the right not to vote. The NVRA specifically bars states from using failure to vote as the reason to remove a voter and does not allow states to bypass that rule by sending a single mail-notice. While Ohio claims that its “supplemental process” is a way to figure out when voters move, a single mail-in notice and failure to vote alone is a terribly designed system for finding voters who have moved. While the system may catch stray relocated voters, most of these hundreds of thousands of eligible voters have not moved. A far more effective system, already used by Ohio, focuses on voters who have changed their address with the United States Postal Service. The NVRA requires a state to have reasonable indication that a voter has moved before it starts the removal process. Ohio’s “supplemental process” fails this basic test.

This past fall, I joined 16 of my former colleagues at the Department of Justice – both Democratic and Republican – in an amicus brief filed with the Court to argue that the Supreme Court should strike down Ohio’s supplemental process. Prior to the Department’s disturbing and about face change in position last July to support Ohio’s voter purge, the Department had been consistent for over two decades in its interpretation of the NVRA. I spent two decades myself supervising and working on cases like Husted in the Department’s Civil Rights Division. My work ranged from litigating voting rights and redistricting lawsuits, to reviewing state and local governments’ voting laws– like the state of Ohio’s supplemental process—for compliance with legal standards. I can say confidently that Ohio’s actions directly violate the NVRA. I am also hopeful that the Supreme Court will uphold the court of appeals’ decision striking down this unjustified and unnecessary practice.

Wednesday's oral arguments did not simply affect the citizens of Ohio. This case will set a precedent for all states and is vital to the protection of fundamental voting rights for all citizens. When an individual is purged from a voter rolls because they did not make it to the polls, it decreases the odds of his or her participation in future elections. If Ohio strike hundreds of thousands of voters from the rolls because of missed elections, it will only harm participation in our democracy and isolate more citizens from civic life. The Supreme Court must strike down Ohio’s illegal purge process. If not, expect to see voter purges added to the newest forms of voter suppression across the states, threatening the very heart of our democracy.

Gerry supervises the voting rights and redistricting program at CLC.