Supreme Court says Ohio vote rule is legal
State uses address checks to remove infrequent voters
The U.S. Supreme Court voted 5-4 Monday to uphold Ohio’s process of removing infrequent voters from the rolls, saying the system was consistent with federal regulations.
While legal experts contend the move is unlikely to shift federal election results in November, the policy’s impact on local elections remains unclear.
The practice in question, called Ohio’s “Supplemental Process,” dates to 1994. It involves the state sending residents who have failed to vote for two years a pre-addressed, postage-prepaid return card, asking that they respond to verify that they still live at the address. If voters do not respond and fail to vote in any election for four subsequent years, the state removes them from the rolls.
Delivering the opinion of the court, Justice Samuel Alito argued that a reasonable person with an interest in voting would be unlikely to ignore the notice. The court was not in the business of second-guessing Congress nor deciding whether Ohio’s strategies were an ideal method to maintain accurate voting rolls, Justice Alito wrote. The sole question before the court was whether the practice violated federal law, he added.
In dissent, Justice Sonia Sotomayor said minorities, veterans and low-income and disabled voters would ultimately bear a burden of a system that marginalizes their influence.
“[The majority] entirely ignores the history of voter suppression against which the [National Voter Registration Act] 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 Sotomayor 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.”
But Justice Alito contended there was no evidence that Ohio employed or carried out the program with “discriminatory intent .”
Edward Foley, director of election law at Ohio State University’s Moritz College of Law, said the decision was “narrow in its scope and potential effect,” adding that anyone affected could re-register to vote. Those removed from voting rolls chose not to respond to the postcard and not to vote, he said.
“I don’t think there’s any real reason to believe that the drop-off is going to be significant,” Mr. Foley said. “The Ohio law that was upheld in this case never disenfranchised anybody.”
About 7,500 voters who were removed from Ohio voter registration rolls from 2011 to 2014 and then reinstated at the order of a federal judge eventually voted in the 2016 presidential election.
Those 7,500 voters would not have been enough to tip the presidential election from Republican Donald Trump to Democrat Hillary Clinton, but scores of other Ohio elections have been decided by a handful of votes.
Now, Mr. Foley said, states can choose to implement a similar system to that of Ohio. But the decision is part of a broader trend whereby political parties compete “not just with their TV ads and their activities” but also “over the rules of the game.”
Dan Tokaji, an election law expert and an attorney for the plaintiffs in the case, said the majority decision “misinterpreted and selectively quoted” from the National Voter Registration Act, “ignoring the [parts] they didn’t like.”
“The majority of the current Supreme Court is no friend to the right to vote,” Mr. Tokaji said, adding that the decision came as no surprise.
While the federal elections this fall will likely be unaffected by the policy, Mr. Tokaji said, the practice of removing voters who are not voting may make a difference in smaller elections in local jurisdictions or in future elections.
Republican elected officials lauded the decision as a win for Ohio.
“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,” said a statement from Ohio Secretary of State Jon Husted. “This decision is 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.”
The case began when the Washington-based A. Philip Randolph Institute and other plaintiffs sued Mr. Husted in 2016, challenging Ohio’s voter-removal tactics on the grounds that they violated federal election laws.
The Supreme Court agreed to hear the case in May 2017, after a federal district court sided with Mr. Husted and the 6th U.S. Circuit Court of Appeals reversed that district court decision.
Clayola Brown, president of the A. Philip Randolph Institute, called the removal process “disgusting,” adding that it disproportionately disenfranchises people of color, immigrants and lowincome people.
“It’s hard to fathom how low down and dirty the purging process that was implemented in Ohio could be upheld by the Supreme Court,” Ms. Brown said. “Now … it will be a field day watching other states try to do the same thing.”