Hi, and welcome back to Legal Geek. This week, we cover the landmark election law decision from the Supreme Court this week on the practice of purging inactive voters from the voter rolls and registries.
The Supreme Court decided Husted v. A. Philip Randolph Institute this week, which was a case regarding a massive purge of Ohio voters from the state's voter registry. The purge was enacted a few years ago in Ohio by using a voter's failure to vote in elections as evidence that the voter has moved, and therefore should not be on the rolls anymore. Of course, if the voter then returns to try and vote without having re-registered to do so, which needs to happen 30 days in advance of the election, they cannot vote or their vote is made on a provisional ballot which undergoes heavier scrutiny before being included in the counts.
The law on point from the challengers of this practice is the National Voter Registration Act of 1993, commonly called the Motor Voter Act. This law requires states to provide a number of different types of voter registration, including whenever a driver's license is renewed or obtained, and it also requires states to maintain voter registration lists accurate and current. The goal is to make it easier and more understandable for people to get to the polls and vote. In the latter requirement about keeping registrations lists current, voters being removed for moving away or for non-voting can only be done so after meeting certain requirements, AKA, safeguards against improper removal of voters.
So you may ask, what safeguards did Ohio use to avoid removing voters improperly? Here's how the purge works. Ohio sends notices to registrants who have not engaged in any voting activity for a period of two consecutive years. These voters are removed from the rolls if they do not respond to these notices, and then continue to be inactive for another four years. Thus, it takes 6 years to remove a voter from the registration lists, and Justice Alito, writing for the Court's majority, found this to be acceptable as a purge mechanism under the law.
In short, Alito argues that it is not the lack of voting that causes the purge, but instead, this is just a piece of evidence indicating someone has moved which then eventually can lead to a purge. Justice Breyer writes a dissent that argues that a system which assumes you have moved based on a lack of voting and does not kick into action otherwise puts the impetus on the non-voting, which by itself cannot be a factor used to remove voters from the rolls under the law. Both sides make what I consider to be plausible interpretations of the law to reach their respective conclusions, although both are very complicated and above the depth of our normal coverage here. The law is ambiguous enough to allow for this, and so we end up with a 5-4 split decision at the highest court accordingly.
The Ohio practice is therefore deemed legal for purging voters from the registration rolls, and the practice can continue there as well as perhaps be more widely adopted in other states. That's also what happened following up on the Supreme Court's similar decision in a 2008 case called Crawford in which an Indiana voter ID requirement was upheld as constitutional, leading to voter ID laws in a majority of states in the past decade.
These safeguards and measures are made in the name of preventing voter fraud, but studies have shown voter ID laws and even this Ohio purging the rolls practice ends up suppressing the votes of legitimate voters who want to participate. Indeed, these studies show a disproportionate effect of many of these measures on the impoverished and minorities. That begs the question of whether these practices are enacted to serve those who don't want such types to vote, or if they really are for prevention of fraud. The debate is a core background to these election law cases.
The Bottom Line is, the openness of the polls in Ohio to all potential voters arguably closed a bit this week thanks to this voter purge practice being upheld, but it will be a few years before we see if this has the same impact as voter ID laws have had nationwide. One can hope that we stop politicizing ballot access because we as citizens should all have a fair voice in this thing we call government, for better or for worse.
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