Supreme Court upholds aggressive Ohio voter purges

Supreme Court upholds aggressive Ohio voter purges

By Gary Gately   
Published
The Supreme Court sidestepped a decision on political gerrymandering, but revisits the issue in a major case during its next term. (Photo courtesy of the Brennan Center for Justice at the New York University School of Law.)

WASHINGTON — A sharply divided U.S. Supreme Court on Monday upheld state voter purges that civil rights and voting rights advocates said will have a disproportionate impact on minority and poor voters.

The 5-4 decision overturned a federal appeals court ruling that Ohio’s voter-purge policy violated the 1993 National Voters Registration Act, which bars removal of voters from registration lists for failing to vote. But the NVRA, widely known as the “Motor Voter Act,” also calls on states to undertake “reasonable effort” to keep accurate voter rolls and allows states to devise methods for removing voters believed to have moved.

Writing for the majority in the 21-page opinion, Justice Samuel A. Alito Jr. sided with the Trump administration, which argued Ohio’s purges complied with the federal law.

Ohio’s voter-purge policy, which had been put on hold by a federal appeals court pending the Supreme Court decision, is the most aggressive in the nation. And civil rights and voting rights advocates warned it could lead to other states adopting similar policies, which those advocates say would benefit Republicans.

The policy stipulates that state election officials send a confirmation notice to those who have not voted in two years and whom officials suspect have moved. Under the policy, those who do not respond to notices or vote in the four years after receiving the notices can be removed from the voter rolls.

“We have no authority to second-guess Congress or to decide whether Ohio’s supplemental process is the ideal method for keeping its voting rolls up to date,” Alito wrote. “The only question before us is whether it violates federal law.”

Alito noted the Ohio law does not remove from voter rolls anybody solely for not voting, but only if they have failed to vote and failed to respond to a change-of-residence notice.

“Combined with the two years of nonvoting before notice is sent, that makes a total of six years of nonvoting before removal,” Alito wrote in the  opinion, joined by fellow Republican presidential appointees Chief Justice John G. Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas and Trump appointee Neil M. Gorsuch.

The Supreme Court’s decision represents a victory for the Trump administration, which has claimed widespread voter fraud in the 2016 election and called for aggressive measures to combat it. The administration, which has produced no evidence of voter fraud, reversed course from the Obama administration, which had opposed the Ohio purge policy.

Sotomayor: Decision targets minority voters

Justice Sonia Sotomayor, in a sharply worded dissent, harshly criticized the majority decision, saying it clears the way for purging predominantly poor and minority voters, who tend to move more frequently than middle- and upper-class white voters – and overwhelmingly vote Democratic.

“The majority does more than just misconstrue the statutory text [of the NVRA],” 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.”

Justice Stephen G. Breyer, joined in a dissent by fellow Democratic presidential appointees Sotomayor and Justices Ruth Bader Ginsburg and Elena Kagan, said the Ohio policy violates federal law by stripping people of their voting rights after they failed to vote and respond to the mailed notices.

“A forwardable notice that elicits no response whatsoever tells the State close to nothing at all,” Breyer wrote.

“Ohio’s system adds to its non-voting-based identification system a factor that has no tendency to reveal accurately whether the registered voter has changed residences. Nothing plus one is still one. To add an irrelevant factor to a failure to vote, say, a factor like having gone on vacation or having eaten too large a meal, cannot change Ohio’s sole use of ‘failure to vote’ into something it is not.”

Sotomayor urged voting rights and civil rights advocates to mobilize.

“Communities that are disproportionately affected by unnecessarily harsh registration laws should not tolerate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by,” she wrote. “Today’s decision forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.”

In Husted v. A. Philip Randolph Institute et al, organizations representing Ohio voters sued the state’s Republican secretary of state, Jon Husted, after the removal of tens of thousands of voters from a state voter list. The plaintiffs claimed the purges violated the  Motor Voter Act and the Help America Vote Act of 2002, which allowed states to remove ineligible voters from their rolls but reaffirmed the 1993 law’s provision that nobody may be removed solely for failing to vote.

The lead plaintiff in the case, Larry Harmon, did not vote in 2009 or 2010. When he tried to vote against a state ballot initiative to legalize marijuana in 2015, he learned his name had been purged from the voter rolls.

A divided three-judge panel of the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled in favor of the plaintiffs in 2016 and blocked the Ohio voter purges before Election Day that year, overturning a federal District Court ruling. A federal  judge last year restored the votes of 7,500 voters who had been purged from the rolls.

Ohio asked the Supreme Court to review the decision.

Ohio secretary of state praises decision

“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 a statement. “This decision is validation of Ohio’s efforts to clean up the voter rolls and now with the blessing nation’s highest court, it can serve as a model for other states to use.”

But voting rights and civil rights advocates asserted that the Supreme Court decision could lead more Republican-controlled states to adopt measures designed to keep minority and poor voters from casting ballots.

Andre Washington, president of the Washington-based labor and civil rights nonprofit A. Philip Randolph Institute, the lead plaintiff, said in a statement, “To have a healthy and functioning democracy, we must increase — not restrict — access to the ballot.” He noted the ruling’s impact on “infrequent” voters, especially those poor or of color. In  2015, Ohio’s largest county alone purged more than 40,600 such people.

Chris Knestrick, executive director of the co-plaintiff Northeast Ohio Coalition for the Homeless, called the purge practice “unjust and illogical,” and forecast it will let Ohio, and potentially other states, “shut out the voices” of such occasional voters.

Also condemning the ruling, ACLU of Ohio Legal Director Freda Levenson called the pro-purge green-light “a blow, not just to Ohio voters, but to the democratic process.”

Levenson predicted the ruling could have a “ripple effect across the country,” which faces key congressional and other general elections in less than five months. She called the Supreme Court ruling a “setback,” but added that it “will not hinder our current and future advocacy efforts. Marginalized populations remain extremely vulnerable to state-sanctioned voter suppression and disenfranchisement.”

Vanita Gupta, president and CEO of nonprofit, Washington-based Leadership Conference on Civil and Human Rights, tweeted:

And Stuart Naifeh, senior counsel at the liberal advocacy group Demos, a co-plaintiff in the suit, said in a statement the decision “threatens the ability of voters to have their voices heard in our elections.”

“The fight does not stop here,” Naifeh added. “If states take today’s decision as a sign that they can be even more reckless and kick eligible voters off the rolls, we will fight back in the courts, the legislatures, and with our community partners across the country.”

Some Democrats in Congress also criticized the decision.

Sen. Elizabeth Warren (D-Mass.) tweeted:

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