Voter-Purge Efforts by States Backed by U.S. Supreme Court

(Bloomberg) -- The U.S. Supreme Court gave states more power to purge their voting databases of people who haven’t cast ballots recently, upholding an Ohio system that could become a model for other Republican-controlled states.

The justices, voting 5-4 along ideological lines, said the system was a legitimate effort to identify people who have moved away and didn’t illegally penalize people for not voting.

The case became a proxy for the highly partisan fight over the country’s election rules. Republicans, including the Trump administration, are calling for stepped-up efforts to prevent voter fraud, while Democrats say that push is a thinly veiled campaign to stop liberals and minorities from casting ballots.

Ohio will now be able to use the system for its November election, when Senator Sherrod Brown will be among 26 Democrats defending their seats. A federal appeals court had blocked the procedure for 2016, letting 7,500 state residents cast ballots even though they’d previously been struck from the rolls.

Ohio is perennially a battleground state in presidential elections and has given its electoral votes to the eventual winner in 28 of the last 30 elections.

Nineteen states use voter inactivity in the process of purging their databases, though only a handful make non-voting as central as Ohio does. Rules in Georgia, Oregon, West Virginia, Oklahoma and Pennsylvania were among those that could have been affected by the case.

Under the disputed procedure, Ohio mails notices to people who haven’t voted in two years, asking them to confirm that they still live at that address. If someone doesn’t respond and then doesn’t vote during the next four years, the state removes the person.

Motor Voter Law

An Ohio voter and two interest groups said the procedure violates the 1993 National Voter Registration Act, more commonly known as the Motor Voter law. That law bars states from removing anyone “by reason of the person’s failure to vote.”

The Supreme Court majority said Ohio didn’t violate that provision.

The procedure “does not strike any registrant solely by reason of the failure to vote,” Justice Samuel Alito wrote for the majority. “Instead, as expressly permitted by federal law, it removes registrants only when they have failed to vote and have failed to respond to a change-of-residence notice.”

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.

Breyer said only a small fraction of people respond to the notice, either to say they have moved or to say they haven’t.

“The fact that the state hears nothing from the registrant essentially proves nothing at all,” he wrote for the four dissenters.

‘Burdens’ Voters’ Rights

In a separate dissent, Sotomayor said the program “burdens the rights of eligible voters.”

“At best, purged voters are forced to needlessly re-register if they decide to vote in a subsequent election,” she wrote. “At worst, they are prevented from voting at all because they never receive information about when and where elections are taking place.”

She said Congress passed the Motor Voter law “against the backdrop of substantial efforts by states to disenfranchise low-income and minority voters.”

Alito said the dissenters “have a policy disagreement” with Ohio and Congress. “We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date,” he wrote.

Still, Alito suggested that Congress was pursuing a worthy objective by encouraging states to cull their databases. He began his opinion by citing a Pew Center study estimating that 24 million registrations are either invalid or significantly inaccurate.

The Trump administration supported Ohio, as did 17 other states. They pointed to a separate provision in the Motor Voter law requiring states to make reasonable efforts to remove people from voting lists if they have moved or died.

‘Threatening’ Integrity

New York led a group of 12 states, plus the District of Columbia, that opposed the Ohio system. They said officials have far better tools to identify voters who have moved, including government tax records, census lists and motor-vehicle department databases.

“Ohio should be working to make voting easier, not harder,” Brown, the state’s Democratic senator, said in a statement. “Instead, today’s decision empowers Ohio to further strip away the right to vote for thousands of Ohioans, threatening the integrity of our state’s election process.”

Ohio Attorney General Mike DeWine, a Republican, hailed the decision.

“I congratulate our attorneys throughout this case for their exceptional work in documenting how this process, used by Democrat and Republican secretaries of state, is indeed lawful,” he said in a statement.

Voter-rights advocates said they feared other states will now follow Ohio’s lead.

"What the decision does is kind of produce a template," said Paul Smith, the lawyer who argued the case for the challengers to the Ohio procedure. "They have a green light to do it if they just follow the Ohio procedure."

The case is Husted v. A. Philip Randolph Institute, 16-980.

©2018 Bloomberg L.P.