Jus­tices OK Ohio voter purg­ing

Peo­ple who don’t cast bal­lots can be kicked off rolls

USA TODAY International Edition - - FRONT PAGE - Richard Wolf

WASHINGTON – Fail­ing to vote can lead to get­ting knocked off voter reg­is­tra­tion rolls, a deeply di­vided Supreme Court ruled Mon­day in a de­ci­sion that prob­a­bly will help Repub­li­cans and hurt Democrats.

The court’s con­ser­va­tive ma­jor­ity ruled 5-4 that Ohio did not vi­o­late fed­eral laws by purg­ing vot­ers who failed to vote for six years and did not con­firm their res­i­dency. Ohio has the strictest such law in the na­tion.

The rul­ing pro­tects sim­i­lar laws in six states, in­clud­ing sev­eral elect­ing gov­er­nors or U.S. sen­a­tors this fall: Penn­syl­va­nia, Ge­or­gia, Ore­gon, Ok­la­homa, West Vir­ginia and Mon­tana.

Civil rights groups chal­lenged Ohio’s pro­ce­dure for clean­ing up voter reg­is­tra­tion rolls, ar­gu­ing that it dis­pro­por­tion­ately af­fects mi­nori­ties, the poor and peo­ple with dis­abil­i­ties. The Trump ad­min­is­tra­tion re­versed the po­si­tion taken by its pre­de­ces­sor and sided with Ohio.

Jus­tice Sa­muel Al­ito noted in his ma­jor­ity opin­ion that about 1 in 8 voter reg­is­tra­tions in the U.S. is in­valid or in­ac­cu­rate. He said fail­ing to vote can­not be the sole rea­son for purg­ing vot­ers, but Ohio “re­moves reg­is­trants only if they have failed to vote and have failed to re­spond to a no­tice.”

“A state vi­o­lates the fail­ure-to-vote clause only if it re­moves reg­is­trants for no rea­son other than their fail­ure to vote,” Al­ito said. By con­trast, he said, Ohio waits six years be­fore re­moval, fol­low­ing fed­eral law “to the let­ter.”

Jus­tice Stephen Breyer penned an 18-page dis­sent for the lib­eral wing of

the court, mark­ing the sixth time this term the four lib­er­als have dis­sented as a bloc. Rather than fo­cus­ing on messy voter rolls, he re­cited the his­tory of lit­er­acy tests, poll taxes and other re­stric­tions he said were de­signed to “keep cer­tain groups of ci­ti­zens from vot­ing.”

Breyer noted that most vot­ers sim­ply ig­nore the warn­ing no­tices, leav­ing their fail­ure to vote as the prin­ci­pal cause for be­ing purged from the rolls. The num­ber who don’t vote or re­turn no­tices far ex­ceeds the num­ber who ac­tu­ally have moved, he said.

“The streets of Ohio’s cities are not filled with mov­ing vans; nor has Cleve­land be­come the na­tion’s res­i­den­tial mov­ing com­pa­nies’ head­quar­ters,” Breyer said. Rather, Ohio’s process “erects need­less hur­dles to vot­ing of the kind Congress sought to elim­i­nate.”

Ad­van­tage: GOP

The rul­ing could be a ma­jor vic­tory for Repub­li­cans, who tend to ben­e­fit from lower voter turnout, and a sting­ing loss for Democrats, who do best in high­turnout elec­tions. That’s be­cause mi­nori­ties, young peo­ple and those with lower in­comes are most likely to be dis­en­fran­chised by the state’s pol­icy.

“Make no mis­take: This case was about noth­ing more than Ohio Repub­li­cans try­ing to tilt elec­tions in their fa­vor by block­ing com­mu­ni­ties of color from the bal­lot box – all un­der the guise of pre­vent­ing ‘voter fraud,’ ” Demo­cratic Na­tional Com­mit­tee Chair­man Tom Perez said.

Jus­tice So­nia So­tomayor made that point in a sep­a­rate dis­sent, not­ing that Ohio sta­tis­tics show the process dis­pro­por­tion­ately af­fects mi­nor­ity, low-in­come, dis­abled and vet­eran vot­ers.

“This purge pro­gram bur­dens the rights of el­i­gi­ble vot­ers,” she said. “At best, purged vot­ers are forced to need­lessly re-reg­is­ter if they de­cide to vote in a sub­se­quent elec­tion; at worst, they are pre­vented from vot­ing at all be­cause they never re­ceive in­for­ma­tion about when and where elec­tions are tak­ing place.”

Paul Smith, a vet­eran Supreme Court lit­i­ga­tor who pre­sented the chal­lengers’ case in Jan­uary, said the court’s rul­ing

will hurt in­fre­quent vot­ers “who have a cer­tain po­lit­i­cal per­spec­tive.”

Myrna Perez, di­rec­tor of vot­ing rights and elec­tions at the Bren­nan Cen­ter for Jus­tice at NYU School of Law, warned that other states “will take this de­ci­sion as a green light to im­ple­ment more ag­gres­sive voter purges as the 2018 elec­tions loom.”

Ohio Sec­re­tary of State Jon Husted hailed the rul­ing as “a vic­tory for elec­tion in­tegrity and a de­feat for those who use the fed­eral court sys­tem to make elec­tion law across the coun­try.” He said Ohio’s method of purg­ing vot­ers “can serve as a model for other states to use.”

Bell­wether state

Ohio, of­ten a bell­wether in na­tional elec­tions, has re­moved thou­sands of peo­ple who didn’t vote for two years, didn’t re­turn warn­ing no­tices and then didn’t vote for an­other four years. The state was sued af­ter the 2015 elec­tion, when those who had not voted since Barack Obama was elected in 2008 dis­cov­ered they no longer were reg­is­tered.

Un­der fed­eral laws en­acted in 1993 and 2002, states can­not re­move vot­ers from reg­is­tra­tion lists be­cause of their fail­ure to vote. They can do so if vot­ers don’t re­spond to con­fir­ma­tion no­tices.

The ques­tion for the court was

whether fail­ing to vote could be the ini­tial trig­ger lead­ing to re­moval. The U.S. Court of Ap­peals for the 6th Cir­cuit in 2016 said no, which re­stored the votes of 7,515 Ohioans.

The case was the lat­est in a se­ries of bat­tles against at­tempts by states to re­strict vot­ing rights and com­bat al­leged voter fraud. Most of the states that backed Ohio have Repub­li­can gov­er­nors or leg­is­la­tures; most of those op­posed are gov­erned by Democrats.

The Supreme Court has heard a bevy of vot­ing rights cases since its con­tro­ver­sial de­ci­sion in 2013 strik­ing down a key sec­tion of the Vot­ing Rights Act, which had forced mostly South­ern states to clear changes in elec­tion laws with fed­eral of­fi­cials.

Last term, the jus­tices nixed the ex­ces­sive use of race in re­dis­trict­ing by leg­is­la­tures in North Carolina and Vir­ginia; a sim­i­lar case from Texas is pend­ing. This term, it faces cases from Wis­con­sin and Mary­land chal­leng­ing what op­po­nents claim were elec­tion maps drawn by state leg­is­la­tors for purely par­ti­san gain.

Ohio’s law was crit­i­cized as harsh be­cause it kick-started the purg­ing process af­ter two years. Dur­ing oral ar­gu­ment in Jan­uary, Smith said, “Most of the peo­ple who are purged have not moved.”


Ohio’s strict voter reg­is­tra­tion laws drew protests out­side the U.S. Supreme Court in Jan­uary.

The Supreme Court is al­low­ing Ohio to clean up its vot­ing rolls by tar­get­ing peo­ple who haven’t cast bal­lots in a while. JULIE CARR SMYTH/AP

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