Voter-purge debate heads to high court

Ohio case pits GOP fraud issue vs. Democrats’ suppression fear

Larry Harmon got a surprise when he went to his Kent, Ohio, polling place for a 2015 local election: He was no longer registered and couldn’t vote.

Election officials removed him from the rolls because he hadn’t voted since 2008 and didn’t respond to the notice they say they sent in 2011. The lawsuit he and two interest groups filed against Ohio is now part of a U.S. Supreme Court case that will shape the rights of thousands of people as the 2018 elections approach.

The justices will decide how far states can go in purging their election databases of people who might have moved away.

The case, set for argument Jan. 10, has become a proxy for the highly partisan fight over the country’s election rules. Republicans are calling for stepped-up efforts to prevent voter fraud, while Democrats say those moves are a thinly veiled campaign to stop liberals and minorities from casting ballots.

“The question of voter purges sits right at the center of voter suppression,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund and a critic of purge efforts.

Dumping the inactive

Nineteen states use voter inactivity in the process of purging their databases, though only a handful make non-voting as central as Ohio does. Rules in Georgia, Tennessee, West Virginia, Oklahoma and Pennsylvania are among those that could be affected by the case.

Ohio is perennially a key battleground state in presidential elections and has given its electoral votes to the eventual winner in 28 of the last 30 elections. Twoterm Sen. Sherrod Brown’s Ohio seat is among 26 that Democrats will be defending in the November election. Republicans will be defending only eight Senate seats.

Under the disputed procedure, Ohio mails notices to people who haven’t voted in two years, asking them to confirm that they still live at that address. If someone doesn’t respond and then doesn’t vote during the next four years, the state removes the person.

A federal appeals court voted 2-1 to block the procedure, saying it violates the 1993 National Voter Registration Act, more commonly known as the Motor Voter law. The majority pointed to a provision in the law that bars states from removing anyone “by reason of the person’s failure to vote.”

The appeals court ruling in September 2016 let about 7,500 state residents cast ballots in that year’s election, even though they’d previously been struck from the list of eligible voters.

Ohio and its supporters say the appeals court majority misunderstood the federal law and the state’s procedures.

“People are not being removed for failing to vote,” said Robert Popper, a lawyer with Judicial Watch, an advocacy group that backs Ohio in the case. “They’re being sent a notice letter for failing to vote.”

Ohio said in court papers that the decision “makes it harder for states to conduct what all can agree is a critical activity — removing ineligible voters from registration lists.”

The state has a separate procedure for removing people who file change-ofaddress forms with the U.S. Postal Service.

States against states

Harmon says he voted for Barack Obama in 2008 but was disillusioned four years later. “There’s no option on a ballot for ‘none of the above,’ so I stayed home and expressed my political preference that way,” he said in a sworn statement. He didn’t vote in 2014 either but says he wanted to vote against a marijuana-legalization initiative in 2015.

The lawyers pressing the suit say the Motor Voter law was designed to protect people like Harmon.

“The right to vote is so fundamental that Congress wanted to make sure people can continue to exercise it even if they don’t exercise it in every election,” said Stuart Naifeh, a lawyer at Demos, the advocacy group that represents Harmon, the A. Philip Randolph Institute and the Northeast Ohio Coalition for the Homeless. “People have the right not to vote as well as the right to vote.”

New York is leading a group of 12 states, plus the District of Columbia, that say officials have far better tools to identify voters who have moved. In addition to the Postal Service information, states can use government tax records, census lists and motor-vehicle department databases, the group says.

“There is no pressing need for states to target nonvoters,” the states argued in court papers.

Seventeen other states, led by Georgia, are backing Ohio. They point to a separate provision in the Motor Voter law requiring states to make reasonable efforts to remove people from voting lists if they have moved or died.

The Trump administration is also supporting Ohio.