WASHINGTON (CN) – A Navy veteran will head to the U.S. Supreme Court on Wednesday to challenge how Ohio culls its voter rolls — a practice that activists have linked to the more than 7,500 Ohioans blocked from voting in the 2016 presidential election.
Larry Harmon learned that his voter registration had been canceled when he arrived at his polling site for the 2015 state elections. Though he sat out the local election in 2009 and a federal midterm election in 2010, Harmon had lived at the same address in Kent, Ohio, for the last 15 years at that point.
He had never been arrested or declared mentally incompetent, and he cast ballots at both the 2004 and 2008 presidential elections.
Attorneys for Harmon say it was after the 2008 election, where significant get-out-the-vote efforts resulted in record turnout, that “Ohio conducted a massive statewide purge, removing many voters merely because they had not voted for a period of six years.”
Ohio has a two-part system for paring down its voter rolls. The state first checks its registered voter logs against a database of people who have given change-of-address information to the postal service, sending a notice to anyone who appears to have moved. The state then cancels the registration of any voter who moves and does not vote or change their registration within four years of receiving the notice.
But in briefs before the Supreme Court, Ohio notes this process alone would not catch people who move without telling the postal service. To find these people, the state also sends notices to voters who have been inactive for two years, removing anyone who does not vote or change their registration within four years of receiving the notice.
The nonprofit groups challenging this method of voter pruning says Ohio is not alone: Georgia, Montana, Oklahoma, Oregon, Pennsylvania and West Virginia all use a similar process.
Harmon, who does not remember receiving a notice, brought his challenge to Ohio’s scheme with the nonprofit A. Philip Randolph Institute and the Northeast Ohio Coalition for the Homeless, alleging violations of the National Voter Registration Act.
Passed by Congress in 1993, this law and its subsequent amendment in the Help America Vote Act of 2002 prohibit states from snipping people from their voter registration rolls “solely” because they did not vote.
Weeks ahead of the November 2016 presidential election, the Sixth Circuit agreed 2-1 with the challengers that Ohio’s process for trimming its voter rolls violated the NVRA. The Supreme Court took up the case in May.
Because the case is so intimately tied to states’ rights, Loyola Law School professor Justin Levitt said its outcome may not come down to party lines.
“The main split that I would expect to see isn’t really conservative or liberal, it’s space to states and not space to states,” Levitt said.
In its July brief, Ohio argued that it removes voters from the rolls only when they do not respond to confirmation notices. By contrast, the failure-to-vote clause of the NVRA “regulates removals, not notices,” according to the brief.
“And any connection between the initial failure to vote that triggers a notice and the final removal is ‘indirect’ and ‘purely contingent’ on the registrant’s failure to respond,” state solicitor Eric Murphy continued.
Ohio said the court is required to resolve any ambiguity terms from the NVRA in favor of the state.
“In 1993, most states sent notices to nonvoters requiring them to confirm their eligibility,” Murphy wrote. “If Congress meant to depart from that common practice, it would have done so expressly, not through implications. Yet the NVRA does not expressly regulate who may receive notices. The court should read this silence as a delegation of authority to the states (not the federal judiciary).” (Parentheses in original.)
The Randolph Institute argues Ohio is looking at its voter-registration process wrong. The group says that — because a failure to vote triggers the notice, which ultimately allows the state to cut a voter’s registration — the failure to vote is inextricably tied to a voter’s falling off the roll.
“Petitioner’s proximate-cause analysis is inapplicable here,” the brief filed in September states. “Regardless, the failure to vote is the proximate cause of removal under the supplemental process, because non-voters are singled out for failing to vote, sent confirmation notices and then removed as a direct result of their failure to vote – without any affirmative evidence that they have changed residence or otherwise become ineligible.”
Loyola professor Levitt meanwhile emphasized that the case is one of statutory interpretation, meaning the balance of harm to the state and to voters will take a backseat to finer points of the NVRA itself. Levitt said some justices might use the potential harms, however, as evidence of what Congress meant to do when it passed the NVRA, a key part of analysis for some justices.
The Justice Department sided with the Randolph Institute when the case was before the Sixth Circuit, but filed a friend-of-the-court brief on behalf of Ohio after President Donald Trump took office last year. That about-face is relatively rare, Levitt said, especially given that the Justice Department’s record interpreting the NVRA is a key factor in the case.
As a result, Levitt predicted the DOJ lawyer who will take the podium for 10 minutes to argue the government’s position on Wednesday will face a particularly pointed grilling from the justices.
“The justices can read the statute for themselves and the parties are going to argue about what the statute means,” Levitt said. “And that means the attorney for the solicitor general is going to have a very uncomfortable 10 minutes trying to talk about why the Department of Justice said one thing in the Sixth Circuit and another thing before the Supreme Court when that’s based on the DOJ’s own history.”