Justice Dept. backs Ohio’s bid to purge voters
Administration says change is ‘supported’ by Registration Act
WASHINGTON — The Justice Department has thrown its weight behind Ohio in a highprofile legal fight over the state’s purging of infrequent voters from its election rolls, reversing the federal government’s position under the Obama administration that the practice was unlawful.
The move was the latest in a series of changes the department has made in how it enforces civil rights law under the Trump administration. The dispute centers on an aggressive practice used in Ohio, a crucial swing state in presidential elections, that removes voters who sit out three election cycles and fail to respond to a warning.
Last year, when the state sought to delete several hundred thousand registrations of infrequent voters ahead of the presidential election, civilliberties groups filed a lawsuit against Ohio’s secretary of state, Jon Husted. After the Obamaera Justice Department filed a friend-of-the-court brief calling the purging practices unlawful, a federal appeals court ordered Ohio to let those people vote.
‘Not merely a policy change’
But, seeking to resume the practice in future elections, Ohio appealed to the Supreme Court. And late Monday, the Trump administration filed a brief arguing that the justices should reverse the appeals court and find that Ohio is within its rights to prune its voter rolls.
“After this court’s grant of review and the change in administrations, the department reconsidered the question” and has “now concluded” that Ohio’s purging practices are legal, the brief said.
Justin Levitt, a professor at a Loyola Law School, Los Angeles, who was a deputy in the Justice Department’s Civil Rights Division under the Obama administration and worked on the Ohio case, said he disagreed with the new interpretation, while stressing that it was particularly extraordinary for “the solicitor general’s office to switch its own position on what the statute means” in the middle of the case.
“This is not merely a policy change,” he said. “It is a change by the office that has the role in the courts of deciding what the law says on behalf of the federal government. Every time the office of the solicitor general changes position, without an intervening change in the law, it damages its credibility a little bit.”
Lauren Ehrsam, a Justice Department spokeswoman, said the new position “was supported by the National Voter Registration Act’s text, context and history,” and she stressed that a ruling allowing Ohio’s practice would not force other states to do likewise.
Statutory provisions
For years, Republicans have been trying to impose various new restrictions on voting and claiming that tighter limits on access to the ballot box are necessary to prevent voter fraud. Democrats — who note that there is no evidence of significant levels of voter impersonation fraud — maintain that the efforts are instead an attempt to suppress participation by groups of voters who may have disproportionate trouble complying with the hurdles.
After President Donald Trump made his claim that he only lost the popular vote to Hillary Clinton because millions of illegal ballots were cast in the 2016 election, the White House appointed a panel to investigate claims of fraud. In June, its vice chairman and day-to-day leader, Kris Kobach, the Kansas secretary of state, asked officials in all 50 states and the District of Columbia to voluntarily provide personal records about their voters but was met with a bipartisan rebuke and lawsuits.
The issue in the Ohio case centers on an ambiguous and convoluted set of statutory provisions created by the National Voter Registration Act of 1993 and the Help America Vote Act of 2002. They require states to keep voter rolls up-to-date by deleting the registrations of voters who move away but bar states from deregistering people simply because of voting inactivity.
Under Ohio’s process, if registered voters have sat out elections for two years, the state mails warnings to their addresses. If the recipients then do not cast ballots in the next two federal elections or have some other contact with elections officials in that time, the state purges them from the rolls.
The Obama-era Justice Department argued that before sending the warning, the state should have “reliable evidence” that a voter may have moved — such as registering a forwarding address at the post office. It said starting the process simply because people failed to vote risked illegally purging voters “based purely on inactivity rather than actual ineligibility.”
Leaders lose ‘moral compass’
But the Trump-era Justice Department argued that Congress wanted states to make sure voter registration rolls were up to date in order to curb the risk of fraud, and Ohio’s approach was a permissible means of doing that.
“Registrants are sent a notice because of that initial failure, but they are not removed unless they fail to respond and fail to vote for the additional period,” the new brief said.
Georgia uses a similar tactic for purging voter rolls, which is also the subject of litigation.
The new Supreme Court brief in the Ohio case was signed by Jeffrey Wall, the acting solicitor general, and John Gore, the acting assistant attorney general for the Civil Rights Division. It was not signed by any career attorneys in the Civil Rights Division, unlike last year’s brief with the appeals court.
Kristen Clarke, the president of the liberal Lawyers’ Committee for Civil Rights Under Law, condemned the new position as an effort to obstruct voting rights that could open the door to “wide-scale unlawful purging.” She also called the reversal “just the latest example of an agency whose leadership has lost its moral compass.”