WASHINGTON (CN) – The Justice Department reversed itself Monday in a high-profile voting-rights case and is now throwing support behind Ohio’s effort to restore a procedure allowing the state to purge inactive voters who don’t respond to registration notices.
The Obama DOJ had supported the civil rights groups that challenged Ohio’s voter-roll maintenance process last year as unlawful, but the agency has filed a new amicus brief that says the process does not violate the law.
“After this Court’s grant of review and the change in Administrations, the Department reconsidered the question,” the brief states, which was filed Monday with the U.S. Supreme Court.
After review, the DOJ concluded that the National Voting Registration Act does not prohibit states from sending registration notices based on nonvoting.
“That conclusion is supported by the NVRA’s text, context, and history,” the brief continues, abbreviating the law.
One provision of the law requires states to conduct programs that make a reasonable effort to remove ineligible voters from voter rolls.
The Ohio program, which the Sixth Circuit struck down last September, had allowed the state to send registration confirmation notices to voters who have not voted for two years.
It then allowed the state to purge voters who did not respond to the notice, but only if they failed to vote during the following four years.
The divided appeals court had sided with the groups that brought the challenge – Ohio A. Philip Randolph Institute, Northeast Ohio Coalition for the Homeless and Larry Harmon – agreeing that it violated the NVRA’s prohibition on purging voters for not voting.
The court found that the voter registration notices violated that prohibition because they were triggered solely by the act of nonvoting.
Ohio Secretary of State Jon Husted petitioned the Supreme Court, which agreed on May 30 to review the procedure.
The DOJ argued in its new amicus brief that the Sixth Circuit erred, and offered what it said is a better reading of the law.
The law’s prohibition on purging nonvoters “is best interpreted to prohibit removing a registrant solely for nonvoting,” the brief states.
The law says nothing about triggers, according to the brief, and only prohibits purging of voters for nonvoting – it does not prevent states from sending notices based on nonvoting.
“If the recipient of such a notice fails to respond and then fails to vote for the additional period prescribed in Section 20507(d), the initial period of nonvoting is unquestionably a but-for cause of the ultimate removal,” the brief states.
“Respondents do not contend—and could not plausibly contend—that the supplemental process results in the removal of any registrant solely because of nonvoting,” the brief continues.
Husted welcomed the news of the DOJ’s support.
“This case is about maintaining the integrity of our elections, something that will be harder to do if elections officials are not be able to properly maintain the voter rolls,” Husted said in a statement. “I welcome the support of these federal officials, state officials, and advocacy groups who filed with the U.S. Supreme Court to uphold Ohio’s process – a process that has been in place for more than two decades and administered the same way by both Republican and Democrat secretaries of state.”
The Ohio A. Philip Randolph Institute did not return a phone call seeking comment about the DOJ reversal.
But Jonathan Brater, who focuses on voting rights with the Brennan Center for Justice at New York University, called the agency’s reversal “troubling” – particularly when coupled with its June 28 request to the 44 states covered by the NVRA for information on voter-roll maintenance.
He noted that this is the second time the DOJ has reversed course to some extent on voting-rights issues – the first being a reversal of the agency’s challenge to a Texas voter ID law that civil rights groups claim discriminates based on race.
“It’s troubling that the Department of Justice is taking a position regarding voter purges when just over a month ago they sent letters to almost every state in the country demanding to know the procedures for maintaining their voter lists,” Brater said in a phone interview. “That letter suggested that the Department of Justice is gearing up for enforcement actions that could lead to states engaging in list maintenance activities that, if done improperly, could disenfranchise eligible voters.”
Brater said the DOJ’s inquiry about voter-roll maintenance mirrors steps the agency took during the George W. Bush administration, when it accused 14 states of failing to comply with the law’s voter-list maintenance provisions, and then threatened litigation to try to force them to purge their voter rolls.
“This is another example of the Department potentially using its power to, rather than protect voters, to make it more difficult for them to vote by putting pressure on states to purge their voter rolls,” Brater said.
Brater noted a potential connection between the June 28 DOJ letter and its recent reversal in the Ohio case, which he called two major actions that involve the same issue – voter-list maintenance and voter purges.
“I think that if the Department is going to be looking nationwide at the way states maintain their voter rolls, and also take positions that make it easier for states to purge voters who are eligible, that would be very concerning for voters and for voter rights,” he said.
Freda Levenson, legal director for the American Civil Liberties Union of Ohio, slammed the DOJ’s position reversal in a statement Tuesday.
“This abrupt reversal by the Department of Justice goes against its decades-long position that consistently held voter purges to be illegal under the National Voter Registration Act,” Levenson said. “The DOJ has completely abandoned its own opinion that it recently submitted to the 6th Circuit Court of Appeals in this very case when it weighed in on the side of the ACLU to say the purge was unlawful. The facts of this case have not changed since this ruling; there is no reason for the DOJ to depart from the extremely important principle at issue in this case.” (Emphasis in original.)
The Supreme Court is set to hear the Ohio case next term.