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Ohio Voter-Purge Process Heads to High Court

The Supreme Court agreed Tuesday to give Ohio a shot at defending its policy of purging voter rolls — removing voters from registration rolls for failing to vote.

WASHINGTON (CN) — The Supreme Court agreed Tuesday to give Ohio a shot at defending its policy of purging voter rolls — removing voters from registration rolls for failing to vote.

Ohio’s strategy involves purging any voter who fails to respond to an address confirmation mailer, and then fails to vote in consecutive federal elections. Andre Washington, president of the Ohio A. Philip Randolph Institute, noted in a statement that the process purged approximately 40,000 individuals from the Cuyahoga County voter rolls in 2015.

"A disproportionate number of those people came from low-income neighborhoods and communities of color," Washington said in a statement Tuesday.

His group filed suit roughly a year ago alongside voter Larry Harmon and the Northeast Ohio Coalition for the Homeless,  which fights to give homeless voters and other marginalized voters a voice  in the electoral process.

Though a federal judge had initially sided with the state — saying the states have discretion under the National Voter Registration Act to decide what information they can use as a “trigger” for sending voter-confirmation notices — the Sixth Circuit reversed 2-1 in September.

Washington said in a statement: "The Supreme Court must uphold the Sixth Circuit’s decision to ensure that all Ohio citizens have the opportunity to exercise their right to vote.”

The NVRA contains an exception that allows for registration purges of voters who fail to vote and then fail to respond to an address-confirmation mailer, but the Cincinnati-based federal appeals court said Ohio's law did not conform to the exception.

“The secretary’s reading of the except clause would require us to ignore the traditional rule of statutory construction dictating that exceptions to a statute's general rules be construed narrowly,” U.S. Circuit Judge Eric Clay wrote for a three-judge panel, referring to Ohio Secretary of State John Husted.

Clay added: “The only reasonable reading of the NVRA is that any part of a state's roll maintenance process that does not mimic the expressly permitted procedures outlined in subsections (c) or (d) — in this case, the supplemental Process' two-year 'trigger' provision — is subject to subsection (b)(2)'s prohibition clause.”

Husted argued that there are several types of "voter activity" that can trigger the confirmation mailer — including filing a change of address form and casting an absentee ballot — and so individuals are not removed solely for failing to vote in elections.

Judge Clay wrote that "the [prohibition] clause would have no teeth at all if states could circumvent it by simply including 'voting' in a disjunctive list of activities in which a registrant must fail to engage in order to 'trigger' the confirmation notice procedure.”

"In more concrete terms," he continued, "a state cannot avoid the conclusion that its process results in removal 'solely by reason of a failure to vote' ... by providing that the confirmation notice procedure is triggered by a registrant's failure either to vote or to climb Mt. Everest or to hit a hole-in-one." (Emphasis in original)

Though the state introduced a new form while the case was pending, the Sixth Circuit found that it did not moot the case.

“As plaintiffs note," Clay wrote, "the secretary's newly issued form does nothing to correct the fact that Ohio has, for years, been removing voters from the rolls because they failed to respond to forms that are blatantly non-compliant with the NVRA.”

U.S. Circuit Judges Julia Smith Gibbons and Eugene Edward Siler Jr. rounded out the panel.

In a brief dissent, Siler said "the statute leaves it to the states to implement, and Ohio has developed a lawful procedure.”

“The state cannot remove the registrant's name from the rolls for a failure to vote only, and Ohio does not do so,” Siler wrote. “It removes registrants only if (1) they have not voted or updated their registration for the last two years, (2) also failed to respond to the address-confirmation notice, and (3) then failed to engage in any voter activity in four consecutive years, including two consecutive Federal elections following that notice.”

Per its custom, the Supreme Court did not issue any statement Tuesday in taking up the case. The court did not take up any other cases.

State Solicitor Eric Murphy is representing Ohio.

The challengers are represented by Brenda Wright of the Newtown, Massachusetts, firm Demos, and by the American Civil Liberties Union.

“Ohio has purged hundreds of thousands of people from the voter rolls simply because they have exercised their right not to vote in a few elections,” said Freda Levenson, legal director of the ACLU of Ohio, in a statement. “This purge process violates the National Voter Registration Act. We are confident that the Supreme Court will uphold the correct decision from the Sixth Circuit Court of Appeals, and will ultimately ensure that eligible Ohio voters may not be stricken from the rolls.”

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