Supreme Court Will Decide If Voting Is A Use It Or Lose It Right In Ohio

Aug 13, 2017

Not to be morbid, but let's say you are an Ohioan who has passed away and is no longer with us. Should your name be removed from the voting rolls?

Yes, absolutely. This is not Chicago, after all.

Now let's say you are a registered Ohio voter and you have moved, permanently, to another state. Should your name be removed from the voting rolls in Ohio?

Yes, certainly, because you can't vote in a state where you no longer live.

Now let's say you are a registered voter who has not cast a ballot for the past six years, for whatever reason. Maybe you are fed up with politics; maybe there are no candidates or issues that inspire you. Should you be removed from the voting rolls in Ohio?

Voting rights advocates say no, it would be against federal law – the National Voter Registration Act of 1993 to be exact – to "purge" your name from the voting rolls.

Ohio Secretary of State Jon Husted says yes, you should be – not because you didn't vote but because you never responded to a voter confirmation notice mailed to you by your county board of elections after two years of not voting.

Sometime this fall, the U.S. Supreme Court will decide who is right, in a case known as Husted v. Ohio A. Phillip Randolph Institute.

The Supreme Court will probably hear oral arguments in November and make their decision. And that decision could fundamentally change the way every one of Ohio's 88 county boards of elections cull their voting rolls.

If it goes the way Ohio Secretary of State Jon Husted wants it to go, the boards can continue dumping voters who haven't cast a ballot in six years – a practice that voting rights advocates say disproportionately impacts people in low-income neighborhoods and African-American voters.

Critics of the practice calling it "voter purging;" election officials generally use a more neutral, less jarring phrase – the "supplemental process."

It has resulted in the elimination of thousands of voters – tens of thousands, possibly hundreds of thousands – from the voter rolls in Ohio counties in recent years.

Freda Levenson of the Ohio ACLU, which is representing the A. Phillip Randolph Institute and other voter rights groups that are plaintiffs in the case, says no one really knows how many thousands of Ohio voters have been dropped from the voting rolls over the years.

"The information is so hard to get from boards of elections,'' Levenson said.

But it stopped abruptly last year when the Sixth Circuit Court of Appeals, in a split decision, found that the practice was illegal under the 1993 National Voter Registration Act because the trigger for taking someone off the voter rolls was the failure to cast a ballot.

And now, Husted has the U.S. Justice Department on his side. President Obama's Justice Department had filed a friend-of-the-court brief arguing that the practice is illegal. Last week, the Trump administration's Justice Department did a complete 180-degree turn and sided with Husted, who, in May, had the U.S. Supreme Court agree to hear the case.

Husted has 17 state attorneys general filing amicus briefs with the U.S. Supreme Court, along with several conservative think tanks, but the big one is the Justice Department jumping from the plaintiffs' side to the state of Ohio's side.

In the lawsuit that has at least temporarily stopped the practice, the Ohio ACLU is representing the Ohio A. Phillip Randolph Institute, the Northeast Ohio Coalition for the Homeless and Larry Harmon, a 60-year-old Kent resident and Navy veteran who was denied a ballot in 2015 after not voting since 2008, when he went to the polls to vote for Barack Obama.

So, what is this practice that so many find so onerous and the Ohio secretary of state finds so necessary?

Here is how Sherry Poland, director of the Hamilton County Board of Elections, explained the process to WVXU:

Let's say you have been on the voting rolls for two years and had no voter activity in that period – either going to the polls to vote or simply signing a petition to allow a candidate or issue on the ballot.

The county board of elections would send you a "confirmation notice" – one that can be forwarded to your new address should you have moved.

The confirmation notice will tell you that you haven't voted for two years; and advise you to file a change-of-address form with the board of elections if you have moved.

If you respond to the notice, you are put on "confirmation status." If, over the next four years, you fail to vote or respond to the notice, your voter registration is cancelled.

In 2015, 6,894 inactive voters were removed from the voting rolls through the supplemental process. Ohio election officials couldn't do the supplemental process in 2016 because of the lawsuit against it. In that year, there were 542,583 registered voters in Hamilton County; and 42 percent of them cast ballots.

Husted's office put a two-minute video on YouTube last Wednesday, touting the support he has in terms of amicus briefs filed with the Supreme Court (including, now, one from the U.S. Justice Department) and explaining his rationale for why removing inactive voters from the rolls is legal under federal law.

"When I was first elected secretary of state, there were some counties with more registered voters than adults living in that county,'' Husted said. "This opened Ohio up to potential voter fraud and undermined confidence in the system."

Husted said he, along with county election officials, "addressed this by removing 1.7 million duplicate registrations and more than 580,00 deceased voters from the rolls."

Husted, who is also a Republican candidate for governor, said this has been the practice in Ohio for 20 years, under both Democratic and Republican secretaries of state – that people who had failed to vote for six years and failed to respond when election officials tried to contact them have been dropped from the rolls.

"There are some people who will try to confuse this issue and suggest that we are removing people from the voting rolls and making it harder to vote,'' Husted said. "That's nonsense. It's never been easier to register to vote and cast a ballot in Ohio."

But the right to vote, Husted said, "must be balanced with accurate and properly maintained voter rolls so we can minimize the risk of voter fraud and maintain public confidence."

Levenson told WVXU she was stunned by the 180-degree shift in the U.S. Justice Department's decision.

"This was a very abrupt reversal, to say the least,'' Levenson said. "And the Justice Department filed a brief with no articulation of a reason for the reversal. They basically just said, 'we've changed our mind.'''

As for the "confirmation notices," Levenson said she has talked to hundreds of Ohioans who were removed from the voting rolls.

"I haven't talked to one person who actually remembers seeing a postcard,'' Levenson said. "People get little postcards in the mail all the time. Most of the time, they pay no attention to them or throw them away without reading them. And, for that, they should be removed from the voting rolls?"

Levenson said that although there is evidence that these purges of the voting polls have a disproportionate impact on the poor and minorities, "we didn't make this a racial discrimination case."

"Our case is that federal law prohibits it,'' Levenson said. "The law says you can't be disenfranchised for the failure to vote."

Voting, she said, "is not a use-it-or-lose-it right."

The state of Ohio has already filed its brief on behalf of Husted. The plaintiffs have until mid-September to file theirs.

Then, probably in November, there will be oral arguments before the U.S. Supreme Court.

And then, county officials all over Ohio will wait to see if the Supreme Court thinks the way they have been removing inactive voters from the rolls is legal or not.

Chances are, those local elections officials will be on pins-and-needles until there is a decision.