Correction: Due to an editing error, a previous version of this article stated that the word "solely" was in the National Voter Registration Act of 1993 (NVRA). That word actually appears in the Help America Vote Act of 2002, which updated the NVRA.
Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law, voting rights, and constitutional law. He is the co-editor of “Election Law Stories” and is currently writing a new book on positive voting rights expansions. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas. The opinions expressed are his own.
To strengthen our democracy, we should promote inclusive elections where we remove unnecessary hurdles and make it easy to vote.
Unfortunately, five members of the Supreme Court do not seem to agree with this sentiment. In upholding, by a 5-4 vote, Ohio’s practice of purging its voter rolls, the conservative members of the Court showed that they care more about protecting state authority over elections than the individual, fundamental right to vote.
The dispute revolves around Ohio’s process for removing voters from the voter rolls based on a failure to vote in previous elections. The state mails a notice to anyone who does not vote in two consecutive years, seemingly to see if the person still resides at that address. If the person does not respond and fails to vote or update their registration during the next four years, the state removes that person from the voter registration list. Once removed, the individual cannot vote unless he or she re-registers at least 30 days before the next election.
Ostensibly, the point of this process is to ward off voter fraud, though Ohio has not had major integrity problems with its elections. To be sure, Ohio’s voter rolls may be somewhat out of date – as people move and die all the time – but inaccurate voter rolls do not automatically lead to voter fraud. On the other hand, Ohio’s voter purge process effectively disenfranchises thousands of eligible voters.
Yet Justice Samuel Alito, writing for the majority, showed which side of this debate enjoys the conservative justices’ credence. He began his majority opinion upholding Ohio’s law by focusing on outdated voter rolls, not the disenfranchising effect of the law. He noted that “about one in eight” voter registrations in the United States are “invalid” or “significantly inaccurate,” citing a study from 2012. But he failed to indicate whether any of these inaccuracies lead to any actual voter fraud or any other integrity problems in our elections. And he did not mention the number of people who simply cannot vote because of this process.
In the Help America Vote Act of 2002, Congress said that a state cannot remove someone from the voter rolls “solely” for failing to vote. That language is at the heart of the Supreme Court’s decision. The Court held that Ohio was not removing people “solely” for failing to vote because these individuals also failed to respond to the state’s mailer – but that reasoning glosses over the fact that the state sends the mailer only when someone fails to vote! Not voting, then, is the trigger for removing the person from the rolls.
Justice Alito’s answer to the problem of voters who may suffer disenfranchisement – of which there are numerous examples – dripped with disdain, saying that a “reasonable person with an interest in voting” would return the mailed card or vote again. But what about people who never received the card, for whatever reason? What about the person, like plaintiff Joe Helle, a veteran who returned from serving overseas to learn that Ohio had canceled his voter registration? What about someone who just misses an election or two? That person will surely be surprised to learn that they can no longer vote. As Justice Sonia Sotomayor explained in her dissent, Ohio’s law harms minority, low-income, disabled, and veteran voters the most.
And for what good reason? Justice Alito failed to explain why there should be any obstacles to the voting booth without a strong enough justification. Again, there is little evidence that outdated voter registration lists lead to massive voter fraud, no matter how many times President Trump or others claim to the contrary. Bloated registration rolls mean … that there are bloated registration rolls, not that our elections are in peril. Yes, we should clean them up, but not at the expense of disenfranchising valid voters.
What we have, then, is actual evidence that Ohio’s voter purge system leads to disenfranchisement, measured against data that its voter lists are inaccurate – but with nothing to suggest that this fact impugns our elections.
As between the two – preventing people from voting or not – one would think that a strong democracy would favor inclusion. Of course, if there were evidence of integrity problems, and not just speculation, then a state should take the necessary steps to cure the problems. But mere speculation should not support disenfranchisement. Instead, the Supreme Court put the thumb on the side of states to regulate their elections as they see fit, limiting the role of federal oversight in the process.
This approach has epitomized the Court’s recent voting rights jurisprudence, from upholding Indiana’s voter ID law in 2008 to gutting a major provision of the Voting Rights Act in 2013. The Court once served as a bastion of voting rights protection, striking down state practices that infringed upon that fundamental right. Minorities, in particular, have struggled for equal voting rights for our entire history. Today’s decision, however, follows a more troubling trend in failing to protect fully the most important right in our democracy.
If we have to jump through so many hoops, and if minorities in particular suffer disproportionate harms – as they do under Ohio’s voter purge practice – then can we really say that we all truly enjoy the fundamental right to vote?
If the Supreme Court will not serve as a meaningful check on state overreaches, then the answer is to force state legislators to support pro-democracy rules – or to vote them out. As Justice Sotomayor wrote at the end of her dissent, “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. Today’s decision forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.”
In fact, several states have inclusive policies for voter registration and still hold strong elections. Twelve states and DC use automatic voter registration, where the state has the onus of registering voters based on information that already exists in state databases, and many other places are considering this reform. Fifteen states plus DC use same-day registration, where a voter can register and vote on Election Day itself. North Dakota doesn’t have any pre-Election Day registration requirement at all. There are no credible cries of voter fraud in these places, because there is no evidence of any substantive integrity problems.
Grassroots efforts and individual advocacy can make a difference. The Supreme Court’s decision does not mean that every state must use Ohio’s system. It simply left the authority with the state itself. We must all advocate to change our elections for the better by demanding an inclusive, positive, expansive voting process.