By Adam Liptak (NY Times)
Voting on Primary Day in Cincinnati last month. Ohio has been more aggressive than any other state in purging its voter rolls.
WASHINGTON — The Supreme Court on Monday upheld Ohio’s aggressive efforts to purge its voting rolls, siding with Republicans in the latest partisan battle over how far states can go in imposing restrictions on voting.
The court ruled that states may kick people off the rolls if they skip a few elections and fail to respond to a notice from election officials. The vote was 5 to 4, with the more conservative justices in the majority.
On one level, the decision sought to make sense of tangled statutory language. But it was also a vivid reminder that measures placing obstacles between people seeking to vote and their ability to cast ballots — including cutbacks on early voting, elimination of same-day registration and tough voter ID laws — present dueling visions of democracy.
Republicans have pushed for such restrictions, arguing without evidence that they are needed to combat what they say is widespread voter fraud. Democrats have pushed back, countering that the efforts are part of an attempt to suppress voting by Democratic constituencies, particularly minorities.
The case concerned Larry Harmon, a software engineer and Navy veteran who lives near Akron, Ohio. He voted in the 2004 and 2008 presidential elections but did not vote in 2012, saying he was unimpressed by the candidates. He also sat out the midterm elections in 2010 and 2014.
But in 2015, Mr. Harmon did want to vote against a ballot initiative to legalize marijuana and found that his name had been stricken from the voting rolls. State officials said that they had done so after sending Mr. Harmon a notice in 2011 asking him to confirm his eligibility to vote and that he did not respond. Mr. Harmon said he did not remember receiving a notice, but he was dropped from the voter rolls.
The United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled in favor of Mr. Harmon in 2016, saying that Ohio had violated the National Voter Registration Act of 1993 by using the failure to vote as a “trigger” for sending the notices.
The Supreme Court reversed that ruling, allowing the approach by Ohio, which is more aggressive than any other state in purging its voter rolls. After skipping a single federal election cycle, voters are sent a notice. If they fail to respond and do not vote in the next four years, their names are purged from the rolls.
A few other states use similar approaches, but not one of them moves as fast.
“Ohio is the only state that commences such a process based on the failure to vote in a single federal election cycle,” said a brief from the League of Women Voters and the Brennan Center for Justice. “Literally every other state uses a different, and more voter-protective, practice.”
Federal laws prohibit states from removing people from voter rolls “by reason of the person’s failure to vote.” But they allow election officials who suspect that a voter has moved to send a confirmation notice.
Justice Samuel A. Alito Jr., writing for the majority, said federal laws allowed such notices as part of a process to cull inaccuracies from the voting rolls. A key provision, he wrote, “simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way.”
“Instead,” he wrote, “Ohio removes registrants only if they have failed to vote and have failed to respond to a notice.”
Justice Alito wrote that Congress had good reason to urge states to clean up their voting rolls. Citing a 2012 report from the Pew Center on the States, he wrote that some 24 million voter registrations were estimated to be invalid or significantly inaccurate, and that 2.75 million people were registered to vote in more than one state.
In dissent, Justice Stephen G. Breyer wrote that the goal of ensuring the accuracy of voting rolls did not justify erecting obstacles to prevent eligible voters from casting ballots. “The purpose of our election process is not to test the fortitude and determination of the voter, but to discern the will of the majority,” he wrote, quoting a Senate report.
In 2012, Justice Breyer wrote, Ohio sent out 1.5 million notices, to roughly 20 percent of the state’s registered voters. But only 4 percent of Americans move outside their county each year, he wrote.
“Ohio only received back about 60,000 return cards (or 4 percent) which said, in effect: ‘You are right, Ohio. I have, in fact, moved,’” Justice Breyer wrote. “In addition, Ohio received back about 235,000 return cards which said, in effect, ‘You are wrong, Ohio, I have not moved.’”
“In the end, however, there were more than one million notices — the vast majority of notices sent — to which Ohio received back no return card at all,” he wrote.
The upshot, Justice Breyer wrote, was that many voters who had not moved were removed from the rolls, thanks in large part to “the human tendency not to send back cards received in the mail.”
Justice Alito said he was unimpressed by Justice Breyer’s “cobbled-together statistics and a feature of human nature of which the dissent has apparently taken judicial notice.”
Federal law, Justice Alito wrote, “plainly reflects Congress’s judgment that the failure to send back the card, coupled with the failure to vote during the period covering the next two general federal elections, is significant evidence that the addressee has moved.”
Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Neil M. Gorsuch joined the majority opinion.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Breyer’s dissent. In a separate dissent in which she wrote only for herself, Justice Sotomayor said Ohio’s program was of a piece with “concerted state efforts to prevent minorities from voting and to undermine the efficacy of their votes” that were “an unfortunate feature of our country’s history.”
Justice Alito responded that the dissenters had focused on the wrong questions.
“The dissents have a policy disagreement, not just with Ohio, but with Congress,” he wrote. “But this case presents a question of statutory interpretation, not a question of policy. We have no authority to second-guess Congress or to decide whether” Ohio’s notification program “is the ideal method for keeping its voting rolls up to date.”
“The only question before us is whether it violates federal law,” Justice Alito wrote. “It does not.”
Jon Husted, Ohio’s secretary of state, said other states may now follow Ohio’s lead.
“Today’s decision is a victory for election integrity,” Mr. Husted, a Republican, said in a statement, adding that “this decision is validation of Ohio’s efforts to clean up the voter rolls” and could “serve as a model for other states to use.”
That would have a lopsided impact on Democratic voters, some analysts predicted.
“States can provide some rationale for sending notice cards to individuals for whatever reason, as long as it’s loosely tied to a change of address, and if voters fail to respond to that card, then basically they can be purged from the rolls,” said Michael P. McDonald, a political scientist and director of the United States Elections Project at the University of Florida.
“That’s the implication beyond Ohio,” he said. “I think Republican states are going to embrace this ruling.”
A Reuters study in 2016 found that at least 144,000 people were removed from the voting rolls in recent years in Ohio’s three largest counties, which are home to Cleveland, Cincinnati and Columbus.
“Voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods,” the study found. “Neighborhoods that have a high proportion of poor, African-American residents are hit the hardest.”
Voting-rights advocacy groups said they feared Monday’s decision would lead to similar disparities. “This decision will allow states to obstruct countless eligible voters from participating in our country’s electoral system,” Vanita Gupta, the president of the Leadership Conference on Civil and Human Rights, said in a statement. “We should make it easier, not more difficult, for citizens to exercise their right to vote.”
Others suggested, however, that the impact of the ruling was likely to be more limited. “It does give all 50 states the green light to do what Ohio did,” said Edward B. Foley, an election-law scholar at Ohio State University’s Moritz College of Law. “But I think that green light is very specific with respect to voter purging and list maintenance.”
“If you’re a voter who’s going to get purged as a result of this,” he continued, “it means you haven’t voted for at least six years, plus you haven’t responded to this notice. Genuine voter suppression is really horrific, but I don’t think Ohio was being terribly irresponsible in what it was doing.”
The Justice Department for decades took the position that failing to vote should not lead to disenfranchisement. In the appeals court, the Obama administration filed a brief supporting Mr. Harmon.
After the last presidential election, the department switched sides in the case, Husted v. A. Philip Randolph Institute, No. 16-980.
Michael Wines contributed reporting.