WASHINGTON (CN) - An attorney for Ohio faced tough questions Wednesday at the U.S. Supreme Court where challengers say the state’s method of purging its voter rolls reduces turnout and hurts minorities in particular.
Ohio's process for maintaining its voter rolls has two parts: the first relies on change-of-address notices that voters send themselves to the U.S. Postal Service, and the second targets any voter who has not cast a ballot in two years.
The scheme went before the high court in Washington this morning after the Sixth Circuit found it violated the National Voter Registration Act.
Though state solicitor Eric Murphy argued that Ohio needs a way to keep track of voters who move without informing the Postal Service, Justice Sonia Sotomayor questioned whether the state has a less-extreme option at its disposal.
"There are dozens of other ways that you could verify a change of address, yet you're suggesting using a failure to appear at an election or elections as evidence of moving when people have a right not to vote if they choose," Sotomayor said.
Before Ohio strikes voters from the rolls, it sends them notices in the mail. Murphy drew skepticism from Justice Elena Kagan that the National Voter Registration Act is inapplicable because it governs removals not notices.
Such an interpretation, Kagan argued, is "not the way we think of proximate cause in any area."
Paul Smith, an attorney for the Campaign Legal Center, seized on this point in his argument, saying the notice cannot be found to insulate Ohio's law because the notice comes from a voter's failure to cast a ballot.
"Calling the non-return of the notice the proximate cause is like saying when you strike out, the only proximate cause is strike two," Smith said. "It just doesn't really make sense."
Smith said 70 percent of people who receive notices don't return them, making the process less about the notices than the failure to vote. He also said people have a right not to vote if they do not want to.
The challenge to Ohio's method of purging its voter rolls comes from Navy veteran Larry Harmon, an Ohio resident who was turned away from the polls in 2015 after learning he was no longer registered to vote.
Harmon voted in 2008, buy stayed home in 2009 and 2010, an absence that triggered a notice from the state government asking if he was still at the address where he has lived since 1999. Harmon said he never received the notice, but state records indicate it was sent.
The most vocal skeptic of Harmon’s challenge Monday was Justice Samuel Alito, who constructed a hypothetical Ohio process where voters who had been inactive for 20 years received a notice. Smith at the Campaign Legal Center said even that long an absence from the ballot box does not give the state a reason to believe they have moved.
"You think that if somebody hasn't voted for 20 years, that doesn't raise the inference that the person has moved or died?" Alito asked.
Justice Stephen Breyer shared some of Alito's concerns, pressing Smith on how a state could maintain accurate voter rolls when it is so easy for states to lose track of people when they move or die.
"I'm in Rhode Island," Breyer said. "I see the statute. I know some people have died, maybe in Rhode Island, maybe outside. Maybe they've moved to California. I don't want them voting in my state or people pretending to be them voting in my state. What do I do?"
In an about-face from its position when the case was before the Sixth Circuit, the government sided with Ohio at the Supreme Court in an amicus brief. U.S. Solicitor General Noel Francisco used his 10 minutes before the justices to make the case that the NVRA was meant to improve voter roll maintenance practices across the country. He said Ohio's method is a significant improvement on the processes in place before the law passed.
"What the NVRA did was it required everybody to improve their processes well beyond what they were before the NVRA was passed, but beyond that left the states with flexibility," Francisco said.
In addition to these points, however, the justices also questioned Francisco on why the Justice Department switched sides in the case after the change from the Obama to the Trump administration.
"Seems quite unusual that your office would change its position so dramatically," Sotomayor said. "I might accept it if you thought the Help America Vote Act, in fact, clarified something that was ambiguous, but you're taking a very different position.”
Passed in 2002, the Help America Vote Act specifically mentions a process of trimming voter rolls that involves a notice sent to voters. It also mentions, however, that voters cannot be purged "solely by reason of a failure to vote."