After tackling partisan gerrymandering in October, the U.S. Supreme Court will take on the controversial issue of voter purges in a November case that could have major implications for the 2018 mid-term elections.
Scheduled for oral argument on Nov. 8, Husted v. A. Philip Randolph Institute will determine whether failure to cast a ballot in recent elections, or "voter inactivity," can lawfully trigger efforts to remove a person from the voter registration rolls.
Critics say the purge policy used by Ohio’s Republican Secretary of State Jon Husted violates the National Voter Registration Act of 1993 and disproportionately impacts black, Hispanic and poor voters who traditionally support Democrats.
Republicans argue that fraud by ineligible voters can occur if people who die or move away aren’t regularly identified and cleared from the registration rolls as the NVRA requires.
That premise is a key pillar of President Trump’s voter fraud commission and the Justice Department has cited the NVRA in its efforts to force 44 states to provide information on how they maintain their voter registration lists.
Voting rights advocates say Republicans are laying the groundwork for a national voter purge effort and legal challenges to state and county purges are popping up across the country.
Ohio has the most restrictive purge system in the country, sending a confirmation notice to registered voters when they fail to vote in a federal election and then eliminating their names from the rolls if they don’t respond and fail to vote in the next two federal elections over a four-year period.
The NVRA doesn’t allow people to be removed from the rolls for not voting. On the other hand, it allows states to remove voters who don’t respond to a confirmation notice and fail to vote in the next two federal elections.
The U.S. Court of Appeals for the Sixth Circuit ruled in favor of the A. Philip Randolph Institute in the pending case because, it said, Ohio’s purge process was triggered by voter inactivity. The decision reversed a lower court that had ruled for Ohio.
If the high court rules Ohio’s purge process is lawful, other states will likely begin pruning their rolls more aggressively, said Robert Popper, senior attorney at Judicial Watch, a conservative legal foundation that backs Ohio in the case.
Popper said some “inactive” voters who’ve received confirmation notices stay on the rolls for 10 to 15 years which leads many counties to have voter registration rolls that exceed their citizen voting-age population.
“Usually what’s going on is a failure to clean the voter rolls for an extended period of years,” Popper said. “States don’t like doing this. It costs money. It takes attention.”
So if the high court lowers threshold for when states can begin the purge process, many will do so.
“States will be watching to know what they're allowed to do. And there are some elections officials who are eager to pare down the rolls that they think have become bloated over time,” Popper said.
Under that scenario, people who historically vote at lower rates could be erroneously trimmed from the rolls or declared inactive, which would make it harder for them to cast a ballot, possibly in the 2018 mid-term elections.
Along with low-income people and minorities, those most likely to be affected include disabled voters, young voters, those with language barriers and those who move frequently, opponents of Ohio’s system maintain. Hourly workers who have difficulty making time to vote and active duty service members away for long periods of time could also face new voting barriers.
“I think that we're looking at millions of voters being unable to vote and it’s going to potentially change the outcome of elections in states across the country," said Jessica Jones Capparell, Interim Director of Advocacy at the League of Women Voters.
Some other states send confirmation notices for non-voting, but only Ohio does so when a person fails to vote in a single federal election cycle – a two-year period.
About four million people, over half of Ohio’s registered voters, were sent confirmation letters after they failed to vote in the 2010 election cycle. Capparell said that’s an unreasonable response that was never intended under the NVRA, which was enacted to increase voter participation.
But the law provides “no limits on when the states can send these notices or to whom they can send them,” according to a court brief filed by six former U.S. Justice Department attorneys in support of the Ohio policy. “The NVRA requires the states to send notices before removing voters for changing residences. But it does not regulate the ‘triggers’ for those notices.”
Failure to vote, however, isn’t a good indicator of whether a person has moved nor is it a good way to identify ineligible voters, according to a brief filed by a 13 Democratic state attorneys general; Postal Service change-of-address information, state mailings returned as undeliverable, tax records, state census lists and records from state databases are better indicators, they wrote.
The Supreme Court must now decide if federal law allows states, as part of their maintenance of voter registration rolls, to begin the purge process by sending confirmation notices based solely on a person’s failure to vote.
The outcome will resonate in Georgia where Common Cause and other groups have sued Secretary of State Brian Kemp over a similar purge process that begins when voters haven’t cast a ballot for three straight years.
After the Supreme Court accepted the Ohio Case, Kemp purged 590,000 more people, many “precisely because they had been placed on the ‘inactive’ list due to not having voted during a three-year period,” Common Cause wrote in its Supreme Court brief.
Several conservative legal groups and attorneys general from red states have filed court briefs in support of Ohio and Husted, a Republican candidate for governor. The states want clarity on the issue after facing lawsuits from liberal groups that say the process is being abused and conservative voting rights groups, like Judicial Watch, that say the rolls aren’t being maintained.
“We’re not collecting scalps,” Popper said of Judicial Watch lawsuits calling for more aggressive purges. “We’re trying to make people comply with their obligations under the National Voter Registration Act.”
The U.S. Department of Justice reversed its position in the case in August, siding with Ohio after previously calling the state’s purge process unlawful under former Attorney General Eric Holder.
“What the Justice Department’s interpretation is matters,” said Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights. “Here, of course, the Supreme Court is going to know that by its own admission, the Justice Department changed its position explicitly, in part, because of the change in political administrations.”
The Justice Department made a similar reversal in February when it changed its position that Texas’ strict voter ID law was designed to discriminate against minorities. Both policy reversals highlight the Trump administration’s efforts to restrict voter eligibility based on unsubstantiated claims of rampant voter fraud.
The outcome of the Ohio case could determine the fate of a growing number of voter purge lawsuits nationwide.
The Indiana NAACP and the League of Women Voters filed suit in August over a new state law that lets election officials remove voters who are believed to be registered in another state - even though that’s not illegal.
And in July, the American Civil Liberties Union sued Fulton County, Ga., for beginning the purge process by declaring “inactive” nearly 50,000 registered voters who had moved within the same county.