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Showdown on Ohio's Purging of Voter Rolls Heads to High Court

Showdown on Ohio's Purging of Voter Rolls Heads to High Court

In oral arguments, the tension between the practical effect of how OH purges its rolls and the more abstract statutory questions at play was on display.

At issue before justices is Ohio's process for removing inactive voters from state databases, a process that the American Civil Liberties Union calls an overly-aggressive purge of eligible voters. NPR legal affairs correspondent Nina Totenberg reports. Plaintiffs argue that such a voter purge would have disenfranchised over 7,000 OH voters in the November 2016 election, had it not been for the Sixth Circuit Court's determination that the supplemental process "constitutes perhaps the plainest possible example of a process" that violates the National Voter Registration Act's prohibition against list-maintenance programs that assume non-voters have moved after verifications have been sent, and remove them if they never respond. "Under federal law, not voting isn't sufficient to get you purged from the rolls and denied the right to vote". Seven states are using a process similar to Ohio's, so millions of voters around the country are potentially affected by the Court's decision.

Husted says that's why the state has to be proactive in how they handle the state's voter rolls. "And it's not like me to flaunt my military service by any means, but to be a veteran, go serve my country for so long, to come home and be told that I can not exercise one of the fundamental rights that I went and defended is ridiculous". There are dozens of other ways that you could verify a change of address, yet you're suggesting that using a failure to appear at an election or elections as evidence of moving when people have a right not to vote if they choose.

HUSTED: We email you your ballot. "We don't want them on the voter roll", Breyer declared.

HELLE: What I know is that I was wrongfully purged along with the plaintiff in this case.

Husted's purges have unabashedly favored the GOP. But when he came home in 2011, he found a battle he didn't expect.

UNIDENTIFIED CROWD: (Crowd chanting) Shame, shame, shame. But Justice Kennedy, the court's usual swing vote on such matters, said little.

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Justice Sonia Sotomayor brought up the right of people not to vote in an election, if they chose to do so, as a reason to take away their voter registration. And the secretary of state's office should do everything it can to help them.

In reply, the state's lawyer said the safe harbor is woefully insufficient in cleaning up the rolls. That's actually hard to say, particularly since Paul Smith did a creditable job of answering Breyer's concerns by showing evidence that most voters receiving notices like those mailed out by OH just toss them in the trash, making response or nonresponse irrelevant to the voter's actual residence.

Solicitor General Noel Francisco said they concluded the law is poorly drawn, but there's no way for it to make sense unless states are given some flexibility to manage their lists. Forty states read this law the way your opponents do - everybody but you today. "Seems quite unusual that your office would change its position so dramatically", Sotomayor said.

OH is one of seven states, along with Georgia, Montana, Oklahoma, Oregon, Pennsylvania and West Virginia, that erase infrequent voters from registration lists, according to the plaintiffs.

The problem - according to Paul Smith, who is representing OH civil groups in the case - is that most people simply toss the notice "into the waste basket". A process in which a state began a purging process based on returned undeliverable mail in addition to not voting for a period of three our four years would be more acceptable, he conceded, because the undeliverable mailing would provide the state with some kind of concrete evidence someone may have moved.

Breyer later asked Smith whether a state could send out a card, labeled with instructions not to forward, to voters. Every year, a certain number of people die and a certain number of people move to California. Democrats are less likely to vote in mid-term elections and thus are more at risk of falling off the rolls. And he even questioned whether a person has the constitutional right not to vote, as Smith had suggested. It mandates states can only remove voters' names from registration rolls if that voter has become ineligible - and specifically prohibits states from removing voters for not voting. It's hard to say whether Smith's answer was enough to satisfy Breyer's concerns.