Editor’s Note: Samuel Spital is the director of litigation at the NAACP Legal Defense & Education Fund, Inc. Leah Aden is senior counsel. The views expressed here are solely those of the authors.
Suppose that in the last two years, you didn’t show up to vote. Perhaps you couldn’t make it to the polls, despite your best efforts, because it conflicted with your unpredictable work or child care schedule. Or perhaps you decided to abstain from voting in protest because you weren’t pleased with any of the candidates. Or maybe you just forgot.
If you live in Ohio, your failure to vote – for whatever reason – for two years would have triggered a process that could have resulted in your being purged from the state’s voter rolls. Ohio’s process for purging voters who vote infrequently is precisely the kind of barrier to voting that violates federal law.
Larry Harmon, an Ohio resident and plaintiff in Husted v. A. Philip Randolph Institute, expressed similar reasons for not voting. “Sometimes, I wasn’t up on the politics,” Harmon told an Ohio public radio station. “Other times I didn’t like either of the candidates.” His case is now before the US Supreme Court.
On Wednesday, the Court will hear oral arguments in his case, which challenges Ohio’s practice of “purging” people from its voter rolls for inactivity. Everyone who cares about the right to vote should pay close attention to how the justices approach this case. In keeping with federal protections, the Supreme Court should send a strong message that states should not purge eligible residents and voters from their rolls. Voting is a fundamental right and should not be a “use it or lose it” proposition.
Here’s how it currently works. As part of their process for maintaining voter rolls, county election officials in Ohio mail notices to registered voters who have not voted for two years. If a voter does not respond to that single mailing – perhaps because she did not see it in a pile of junk mail or understand its significance – and does not vote for the next four years, the voter is automatically removed from the state’s voter rolls.
According to The Nation, from 2011 to 2016, Ohio – a state with more than 11 million residents – purged 840,000 voters from its voter rolls for such voting inactivity. In 2015, more than 40,000 voters were purged from the rolls in Cuyahoga County alone, which encompasses the city of Cleveland. A bipartisan Congress considered the burdens on eligible voters and election administrators alike of having to reregister after being purged. That is why Congress adopted federal laws that prohibit what Ohio is attempting to do.
To be clear, states may properly remove voters who have died or moved to another state to maintain updated voter rolls. However, federal laws such as the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA) prohibit states from removing voters solely for voting inactivity. Indeed, these laws were designed to expand access to the ballot, not make it more difficult to vote.
Ohio’s method of purging voters must also be considered in the context of the broader trend of state and local efforts to disenfranchise minority voters, using tools like voter ID laws in states like Texas and Alabama. Those efforts have accelerated since the Supreme Court’s 2013 decision in Shelby County v. Holder, which gutted Section 5 of the Voting Rights Act, removing federal review for changes to voting laws before their implementation in states and localities where racial discrimination in voting had been most prevalent.
To make matters worse, the government institution that should be, and has previously been, protecting voting rights is missing in action. The Department of Justice has – for more than 20 years under Republican and Democratic administrations alike – recognized that broadening ballot access is the NVRA and HAVA’s key objectives.
Specifically, the DOJ correctly interpreted the NVRA and HAVA to prohibit states from triggering a voter purge based on voting inactivity. DOJ maintained that position in this very case in the lower courts. Yet, after Jeff Sessions was sworn in as attorney general, DOJ made a startling about-face, siding with Ohio. DOJ has offered no principled justification for this U-turn.
This is no surprise. In 2013, then-Sen. Sessions described the Voting Rights Act as “intrusive legislation” and referred to the Shelby County v. Holder ruling as “good news” for the South. This year, the Sessions-led DOJ also reversed course in a lawsuit in which NAACP Legal Defense & Education Fund (LDF) and our co-counsel have successfully shown that Texas’ voter ID law – the strictest voter ID law in the nation – purposefully discriminates against black and Latino voters. Even though a federal district court has twice found that the law was motivated by intentional discrimination, the Sessions Justice Department abandoned that claim.
In light of these startling reversals and the Justice Department’s politicized agenda, the Supreme Court should be highly skeptical of its new arguments, which directly contradict the once-established position in support of voters’ rights. This is why the organization where we work, the LDF, filed an amicus brief opposing Ohio’s purge process and highlighting DOJ’s lack of a meaningful basis for its reversal in position.
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When the Supreme Court has acted to give more leeway to voter ID laws or undermined the Voting Rights Act, states and local jurisdictions (as LDF has been documenting) have been quick to unleash repressive measures that make it harder for people to vote. But the Husted case could be a fresh opportunity to correct course.
By invalidating Ohio’s purge process, the Supreme Court can make clear that voting is a fundamental right for which states should be expanding access, not limiting it.