WASHINGTON (CN) – Challengers said the process blocked more than 7,500 qualified Ohioans from voting in the 2016 election, but the Supreme Court ruled 5-4 Monday that the state’s method of pruning its voter rolls comports with federal law.
Delivering the opinion for the majority, Justice Samuel Alito said Ohio’s method complies with the National Voter Registration Act because the state does not solely rely on a voter’s inactivity to cull its voter rolls of people who have moved to a different district.
Ohio uses a multistep process for pruning its voter rolls of people who have moved outside of their voting district since the last election. First, the state checks its list of registered voters against a database of people who have given the U.S. Postal Service change-of-address information, sending a notice to anyone who has moved. Anyone who moves and does not change their registration or vote within four years of receiving the notice is then cut from the rolls.
In an effort to catch people who move without telling the Postal Service, as well, the state also sends notices to people who have not voted in two years. Anyone who does not vote or change their registration within four years of receiving the notice is then removed.
But voter-advocacy groups claimed that both the NVRA and its later amendment in the Help America Vote Act, forbid states from eliminating voters from registration rolls “by reason of the person’s failure to vote.”
Rejecting this argument Monday, however, Alito said Ohio’s process easily squares with the federal law.
“We reject this argument because the failure-to-vote clause, both as originally enacted in the NVRA and as amended in the HVRA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way,” the lead opinion states (emphasis in original).
Ohio Secretary of State Jon Husted praised the decision, saying Ohio will now be able to serve as a model for other states looking for a way to prune their voting rolls.
“Today’s decision is a victory for election integrity and a defeat for those who use the federal court system to make election law across the country,” Husted said in the statement. “This decision is a validation of Ohio’s efforts to clean up the voter rolls and now with the blessing [of the] nation’s highest court, it can serve as a model for other states to use.”
Myrna Perez, director of the Voting Rights and Elections Project at the Brennan Center, said meanwhile that it is the precise concern of voting-rights activists is that other states will follow Ohio’s policy lead.
“While this is disappointing, Ohio is one of only a few states that used failure to vote as a trigger for kicking someone off the rolls,” Perez said in the statement. “Our worry is that other states will take this decision as a green light to implement more aggressive voter purges as the 2018 elections loom.”
An appointee of President George W. Bush, Alito said that the challengers’ interpretation would “cannibalize” the nested requirements of NVRA and HAVA.
“There is no plausible reason why Congress would enact the provision that respondents envision,” Alito wrote. “As interpreted by respondents, HAVA would be like a law that contains one provision making it illegal to drive with a blood alcohol level of .08 or higher and another provision making it illegal to drive with a blood alcohol level of 0.10 or higher. The second provision would not only be redundant; it would be confusing and downright silly.”
Alito took on the dissents from Justices Stephen Breyer and Sonia Sotomayor as substituting their own judgments of what is reasonable for those of Ohio and Congress.
“The dissents have a policy disagreement, not just with Ohio, but with Congress,” Alito wrote. “But this case presents a question of statutory interpretation, not a question of policy. We have no authority to second-guess Congress or to decide whether Ohio’s supplemental process is the ideal method for keepings its voting rolls up to date. The only question before us is whether it violates federal law. It does not.”
In a dissent Alito called lengthy and complex, Breyer said Ohio’s process is tainted because it uses failure to vote as a trigger for its removal procedure.
“The program violates subsection (b)’s prohibition because under it, a registrant who fails to vote in a single federal election, fails to respond to a forwardable notice, and fails to vote for another four years may well be purged,” Breyer wrote. “If the registrant had voted at any point, the registrant would not have been removed.”
Joined by Justices Sotomayor, Ruth Bader Ginsburg and Elena Kagan, Breyer argued that Alito’s interpretation leaves the failure-to-vote clause with “no independent weight” outside of the other various requirements and prohibitions Congress drew up in the law.
Pointing to the poor response rate the state receives on the notices, Breyer further argues Ohio’s process does not help inform the state of newly moved voters. By Breyer’s reading, this runs Ohio’s process into the federal requirement that states use a reasonable method to pinpoint people who have moved outside of their district.
“To put the matter in the present statutory context: When a state relies upon a registrant’s failure to vote to initiate the confirmation procedure, it violates the failure-to-vote clause and a state’s subsequent use of the confirmation procedure cannot save the state’s program from that defect,” Breyer wrote. “Even if that were not so, a nonreturned confirmation notice adds nothing to the state’s understanding of whether the voter has moved or not. And that, I repeat, is because a nonreturned confirmation notice (as the numbers show) cannot reasonably indicate a change of address.”
Sotomayor penned a dissent of her own as well that says the majority’s reading of the NVRA ignores Congress’ goal of curbing state efforts to remove minorities and the poor from voter rolls. Noting the Ohio process has disproportionately impacted minority voters, Sotomayor says it is a textbook example of what Congress meant to prevent when it passed the NVRA.
She also noted that other states have been able to come up with ways to prune their voter rolls that do not use failure to vote as a trigger.
“In concluding the supplemental process does not violate the NVRA, the majority does more than just misconstrue the statutory text,” Sotomayor wrote. “It entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.”
Other civil rights groups that blasted Monday’s decision called it a threat to voting rights.
“To have a healthy and functioning democracy, we must increase – not restrict – access to the ballot,” Andre Washington, the president of the Ohio A. Philip Randolph Institute, said in a statement. “Practices, like Ohio’s, that remove eligible but infrequent voters from the registration rolls disproportionately disenfranchise low-income voters and voters of color.”
As the head of the lead challenger in the case, Washington told reporters that it will keep advocating for voter rights despite Monday’s defeat.
Paul Smith, vice president of Campaign Legal Center, told reporters this morning that he believes Alito’s opinion misinterprets the statute and misses “the statutory forest for the trees.”
Smith said the decision does not prevent Congress from passing legislation outlawing Ohio’s method of purging its voting rolls, though he noted no such change appears imminent.
Chief Justice John Roberts joined Alito’s opinion, as did Justices Neil Gorsuch, Clarence Thomas and Anthony Kennedy.
Thomas took a step farther than Alito in a concurring opinion, saying the challengers’ reading of the NVRA would not just contradict the statute’s text but also cause it to infringe on the states’ constitutional authority to set voting requirements.