Supreme Court considers whether Ohio's cleanup of voter registration rolls goes too far
AGGRESSIVE REMOVAL
Harmon and the two nonprofits—the Northeast Ohio Coalition for the Homeless and the Ohio chapter of the A. Philip Randolph Institute, a Washington, D.C.-based organization of African-American trade unionists, sued the state over its procedures in 2016.
A federal district court ruled for the state, but a panel of the 6th U.S. Circuit Court of Appeals at Cincinnati voted 2-1 to reverse. Ohio’s process “constitutes perhaps the plainest possible example of a process” that results in “removal of a voter from the rolls by reason of his or her failure to vote” and thus violates the NVRA’s failure-to-vote clause, the majority held.
On remand, the district court ordered relief for the November 2016 election that required the state to count more than 7,500 provisional ballots from voters who had been removed from the rolls.
That figure, lawyers for Harmon have pointed out, does not include purged voters who had sought to vote by mail, those who learned they had been purged and did not show up, or those who came to the polls but did not cast a provisional ballot. (Harmon said he was not offered one.)
More than 5 million votes were cast in Ohio in the 2016 election.
Myrna Pérez of the Brennan Center for Justice at the New York University School of Law says most states use independent information that a voter has moved in order to trigger sending a notice under the NVRA. This includes consulting with other agencies in their own states, sharing information with other states, other election-related mailings, and the U.S. Postal Service’s national change-of-address system.
Ohio’s method “is not a smart way to get your rolls clean,” says Pérez, whose center joined with the League of Women Voters in filing an amicus brief on Harmon’s side. “As a policy matter, we don’t want election administrators making sloppy inferences that have real risk of voters being disenfranchised.”
The issue is especially important now, according to Pérez. “We are in a climate in which there is some element that wants really aggressive voter removal,” she says.
Harmon and some of his allies point to evidence that Ohio’s process has disproportionately purged racial minorities from the rolls. A 2016 analysis by the Reuters news agency found that in Ohio’s most populous counties, “neighborhoods that have a high proportion of poor, African-American residents are hit hardest” by the state’s purge process.
SHIFTING POSITION
Robert Alt, president and CEO of the Buckeye Institute, a free market-based policy group that filed an amicus brief on the state’s side, says voters, regardless of race or political affiliation, should welcome keeping the voter rolls clean. “An oft-forgotten problem in voting is that vote dilution occurs if individuals vote where they aren’t supposed to,” Alt says.
Another ally on Ohio’s side in the high court is President Donald Trump’s administration.
“The NVRA’s history and purpose reinforce the conclusion that states may send [address verification] notices based on nonvoting,” according to an amicus brief filed in August and signed by then-Acting U.S. Solicitor General Jeffrey B. Wall.
That is a reversal from the way the Department of Justice under President Barack Obama and previous administrations had consistently interpreted the NVRA.
An amicus brief on Harmon’s side was filed by former U.S. Attorney General Eric H. Holder Jr., as well as 16 former DOJ civil rights attorneys who were in Democratic and Republican administrations. It says that from 1994 until the Trump administration’s brief in this case, the DOJ “repeatedly interpreted the NVRA to prohibit using the failure to vote as the basis for initiating a purge procedure.”
Samuel R. Bagenstos, a professor at the University of Michigan Law School who is one of the former DOJ civil rights officials, wrote in the brief: “Unusually, the [Trump administration’s] solicitor general’s brief was not signed by a single career attorney in the Civil Rights Division, the component of the department that is responsible for enforcing the NVRA provisions at issue here.”
This article was published in the January 2018 issue of the ABA Journal with the title "Urge to Purge: Court considers whether Ohio’s methods of cleaning up voter registration rolls go too far."
