Ohio Awaits Supreme Court Ruling In Voter Removal Case

May 28, 2018
Originally published on May 26, 2018 1:20 pm

Any day now, the U.S. Supreme Court may decide a case that could change how Ohio removes people from voter rolls. The court heard arguments in Husted v. A. Philip Randolph Institute in January. 

Federal law lays out a process for taking people’s names off the registered voter list if they have moved to a new address and haven’t updated election officials.

Ohio is one of several states to begin the removal process if voters skip elections and don’t have other contact with their local election board.

Read on for an explanation of state voter purge processes. 

How do states remove voters believed to have moved?

Under federal law, state election officials can send a forwardable confirmation mailer to the address asking if the voter still lives there. A voter can send the card back in either to confirm that they do, or to update their address.

If state officials don’t receive any response, federal law requires them to wait four years. If the voter doesn’t cast a ballot or update their address, they can be taken off the rolls.

How does this apply to Ohio and the case before the Supreme Court?

Different states have different ways of deciding when to send a confirmation mailer.

One common way is to look to U.S. Postal Service change-of-address data. Ohio does look to this as part of its voter roll maintenance process.

But Ohio has also followed what it calls the “supplemental process.”

If someone hasn’t engaged in any voter activity for two years—no voting or updating information with the board of elections—Ohio can send a confirmation mailer. Four years later, if there’s still been no voting, the voter can be removed.

The state defended this supplemental process before the U.S. Supreme Court, arguing that it is allowed under federal law. The A. Philip Randolph Institute and Northeast Ohio Coalition for the Homeless, the groups suing the state, argued against the process.

What’s at stake in this case?

Doug Chapin, the director of the Program for Excellence in Election Administration at the University of Minnesota’s Humphrey School of Public Affairs, said that federal law prevents states from removing voters solely for non-voting.

What’s in question in this case, he said, is whether non-voting is the reason Ohio removes voters, or just a trigger for sending a confirmation mailer.

“That seemingly small, kind of technical difference will actually make a big difference in how states look at their efforts to update and maintain their voter registration rolls,” Chapin said.

The court’s forthcoming decision could directly affect at least one other state.

Georgia’s removal process, sending confirmation mailers after three years of inactivity, is also facing a court challenge.

A federal court dismissed the suit against Georgia, but the 11th U.S. Circuit Court of Appeals overturned that decision. The appeals court told the lower court to consider the Supreme Court’s pending decision in the Ohio case.

Besides Georgia, how do other states send confirmation mailers?

West Virginia sends a notice after four years of inactivity. Oregon law says the state can send confirmation mailers after at least five years’ inactivity. But the Republican secretary of state there expanded that to 10 years.

Indiana law prevents the state from removing voters solely for not voting. But the state does still send out confirmation mailers based on other criteria. Last year, the state removed about half a million people from the registered voter list through the confirmation mailer process.

“I wouldn’t say that Ohio is unique,” Doug Chapin said. “I think that they are probably on the more aggressive end of states seeking to identify potentially inactive voters.”

More than two dozen states have joined friend-of-the-court briefs, with some backing Ohio and others backing the groups suing the state

Who else is making arguments in this case?

The League of Women Voters sided with the A. Philip Randolph Institute and NEOCH in the case.

Jonathan Brater, an attorney with the Brennan Center for Justice, helped write the brief. He called Ohio an “extreme outlier” and said that if the court rules in Secretary of State Jon Husted’s favor, it could set a precedent.

“I think it would send a signal and possibly open up some potentially dangerous purge activities that could sweep in a lot of eligible voters,” Brater said.

The Buckeye Institute, a conservative group, filed a brief on Husted’s side of the case, arguing that Ohio has the constitutional authority to set its own rules for maintaining rolls. 

“What we want to do is try and keep the rolls as accurate as possible without infringing upon individuals’ right to vote, and I think Ohio has struck a good balance,” Buckeye Institute president Robert Alt said.

How many people are removed from the rolls under the confirmation notice process?

The Election Assistance Commission, a part of the federal government, surveys state and county officials on that question and others every two years.

According to EAC data collected from Ohio counties, between Nov. 2014 and Nov. 2016, the state removed 426,781 names from voter rolls for failing to respond to a confirmation notice or vote for four years.

In 2016, the Cincinnati Enquirer and USA Today Network found examples of inconsistencies in the numbers that counties submitted to the EAC for an earlier report.

Ohio removed another 173,182 people who had died and 384,451 people who moved out of their voting jurisdiction, according to the 2014-2016 EAC report. In all, the state removed around 1 million names from the rolls during that time.

Before the 2016 election, in response to a judge’s order, Husted issued a directive allowing voters who had been purged since 2011 to cast provisional ballots. The secretary of state’s office recorded votes from about 7,500 people in that category.

Husted put out a similar directive before the May 2018 primary. 

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