The Supreme Court ruled on Monday in a 5-4 vote to uphold the method Ohio uses to purge names from voter polls, stating that the process does not violate federal law.
This is a timely and provocative ruling with the upcoming November 2018 mid-term elections at hand.
Put simply, the court stated that they weren’t deciding whether Ohio’s process is the best method for updating its voter rolls, but whether or not it violates federal law. It is very possible that the conservative arm of the court overlooked the “trigger” effect that the process uses to identify voters who may have changed their address which is the direct result of the failure to vote in consecutive federal election cycles. The failure to vote is barred by the National Voter Registration Act as a reason to strike someone from voter rolls. But the justices ruled that one was not necessarily tied to the other as long as “reasonable effort” was used to identify voters who could be stricken from the rolls. After examining the method and process that Ohio uses, I’m not so sure…
Let’s back up for minute and look at the process.
According to the National Voter Registration Act (NVRA) states are required to conduct a voter registration list maintenance program that makes a reasonable effort to remove ineligible persons by reason of change of address, death, or mental incapacity. The NVRA spells out this process which includes a person’s written confirmation of a change of address outside of the registered jurisdiction. However many residents never return the notices that are sent out by state when triggered by failure to vote and are subsequently put on the list of ineligible voters without further verification.
The three largest voting counties in Ohio are located in Cincinnati, Columbus, and Cleveland. Keeping in mind that Ohio is a swing state, a Reuters study in 2016 found at least 144,000 voters were purged from rolls in counties within these cities. The study reports that poorer, rural neighborhoods with larger African-American populations are affected with nearly twice the number of voters being struck from the rolls. That appears to be a looming disparity that disproportionately affects minority voters.
The process utilized by Ohio and other states who are sure to follow suit, automatically assumes that voters have moved out of the district and purges the voting rolls simply because they failed to return a postcard. Records provided by the state showed that 1.5 million voters were identified as “likely to have moved”. The state mailed cards to all of these registered voters and they received back 60,000 cards from people saying they had indeed moved. 235,000 sent back cards saying they hadn’t changed addresses. That leaves 1.2 million voters that the state is just assuming have moved and can legally be stricken from voting rolls. This is a staggering number of voters that have no verification of ineligible voting status! So is the assumption that because they failed to return a postage paid postcard that they should be denied their right to vote and is this by extension a kind of voter suppression by the state?
While it’s important to recognize that culling voting rolls is designed to insure accuracy and help prevent voter fraud, the practice can also be used to deter voters while catching them off guard when they go to the polls to cast their votes. Critics of the recent decision note that failure to vote in only one federal election cycle should not trigger a purge and voters should be afforded a more protected status.
Justice Breyer wrote that the goal of ensuring accuracy of voting rolls does not justify erecting obstacles. Should our election process be a test of voter’s determination and fortitude to cast a vote or even challenge their will to do so? It seems to be moving in that direction in certain pockets of the country. How does making the process more restrictive insure that the “will of the majority” is being carried out through our election process?
Assuming that voters have moved if they don’t send back these notices resulting in a purge from the voting rolls is not a strong litmus test for our democracy. It assumes a negative rather than verifies a positive. The only people who should be purged from the voting rolls via the mass mailing are the ones who DO return the cards and indicate that they have indeed moved.
In spite of the arguments against purging the voting rolls using this process, the majority of justices couldn’t find a reasonable decision that Ohio’s mandate violates federal law. This new Supreme Court ruling could possibly lead to more voters becoming disenfranchised by a system that appears more restrictive and suppressive as these laws take hold.
One way states can help insure that voters rights aren’t being compromised is to mobilize people to get voters registered and to get them to the polls. The NVRA created a “safe harbor” procedure for states to remove ineligible voters by obtaining verification of change of address outside the district. It allows them to utilize change of address information obtained by the US Postal Service through the NCOA program and use information from the mailings that indicate they were non-deliverable. While states aren’t required to use the program to identify voters who have moved, it seems to be a more “reasonable” effort to locate voters before striking them from the rolls. The Supreme Court deemed Ohio’s efforts to be reasonable but that definition seems to be a completely subjective one.
In an environment of increasing partisan loyalties, it seems that voting is less about meeting the needs of constituents to gain their votes than it is about controlling who votes.