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Law & the Courts

The Supreme Court’s Narrow Decision on Purging Voter Rolls

The Supreme Court of the United States. (Erin Schaff/Reuters)

The Supreme Court this morning, in a 5-4 decision, upheld Ohio’s purge of the names of some inactive voters from the voter rolls. “Purging voters” sounds pretty radical, right? That’s what you’d think from the loud freakout over the decision from Democrats and liberal/progressive pundits and celebrities. The reality is much more modest, and Justice Alito’s opinion in Husted v. A. Philip Randolph Institute resolved only a very narrow question of federal statutory law.

The Court was not asked to decide if states are allowed to purge names from the voter rolls. Federal law requires them to do so. That law, the National Voter Registration Act of 1993, was written by congressional Democrats, passed with the votes of every single Democratic senator and 238 of the 252 Democrats in the House at the time (including Nancy Pelosi, Chuck Schumer, Dick Durbin, Steny Hoyer, and James Clyburn) and signed into law by President Bill Clinton. The NVRA, also known as the “motor voter” law, expanded voter registration in a number of ways, but it also formally recognized the legitimate interests of states in periodically updating their lists of voters so they are limited to people actually still residing in a place where they are eligible to vote, and commanded them to do something about it:

NVRA requires States to “conduct a general program that makes a reasonable effort to remove the names” of voters who are ineligible “by reason of ” death or change in residence. §20507(a)(4).

That requirement was not altered when Congress revised some details of its operation in 2002 with the Help America Vote Act, which again passed the Senate 92-2 (only Schumer and Hillary Clinton opposed it) and got the votes of 184 of 195 House Democrats (again, including Pelosi, Hoyer, and Clyburn). None of the parties to the case challenged it; only one of the Justices suggested that it was in any way unconstitutional, and that was Justice Thomas, who joined the majority opinion but questioned whether Congress even had the right to restrict how states determine voter qualifications. So, Husted was not a case about the right to vote or the power to purge the voter rolls at all. The only question was whether the criteria that Ohio used to identify eligible voters was allowed by the federal rules established by NVRA and revised by HAVA. The next time you see someone claiming that the Supreme Court did something much broader than that, you should be on your guard not to trust anything else they say on the topic.

Ohio uses two methods to identify voter registrations that no longer correspond to an actual, eligible voter. One, which NVRA explicitly permits, is to purge voters who have submitted a change of address form to the Postal Service. But as Justice Alito’s opinion noted, that leaves a big problem: Around 10 percent of Americans move every year (about 4 percent outside their home county), and about 40 percent of those don’t notify the Postal Service. The cumulative effect of this, over time, is a large one. Justice Alito cited a study from the nonpartisan Pew Center:

It has been estimated that 24 million voter registrations in the United States — about one in eight — are either invalid or significantly inaccurate. …And about 2.75 million people are said to be registered to vote in more than one State.

To address this, Ohio adopted a three-step process. First, individuals who failed to vote or engage in “voter activity” for two years are identified as potentially inactive. “Voter activity” includes things like updating a registration, signing a petition, or updating a voting address with various state agencies. It then sends a postcard asking to verify that the voter is still there. NVRA dictates that if the voter sends back the postcard, that’s the end of the matter: either they confirm they haven’t moved, or they confirm they have. NVRA also says that if there is no response, states have to wait at least two election cycles (typically four years) and can then remove the voter if they haven’t voted or otherwise updated their address. (Ohio extended the NVRA period slightly to four full years). Thus, a voter registration only gets added to the NVRA-required purge if the voter hasn’t been heard from at all, either by voting activity or confirming an address, for six full years. Other states have similar programs, though with a variety of triggers.

The question in Husted was simply whether Ohio was permitted by NVRA and HAVA to use the absence of “voter activity” to trigger this process. Before NVRA, states routinely purged the rolls of inactive voters, and NVRA made clear that voter inactivity by itself could not be the basis for purging: The statute states that a state purge “shall not result in the removal of the name of any person . . . by reason of the person’s failure to vote.” HAVA, however, clarified this in two ways. One, it explained that “nothing in [the prohibition] may be construed to prohibit a State from using the procedures described in [the provisions regarding voter return cards] to remove an individual from the official list of eligible voters.” So, clearly, under HAVA, Ohio could use the failure to vote after the failure to return a card as grounds for purging the registration. None of the Justices really disputed this.

Second, NVRA provided that a purge “shall not result in the removal of the name of any person . . . by reason of the person’s failure to vote,” and a separate provision in HAVA clarified that “no registrant may be removed solely by reason of a failure to vote.” And therein lies the actual dispute in the case. Justice Alito and the majority concluded that using non-voting as a way to start the process did not amount to removing registrations from the rolls “solely by reason of” not voting, because the removal would take place only if the voter (1) hadn’t voted, (2) continued not voting, (3) hadn’t engaged in any other “voter activity,” (4) continued to not do so, (5) didn’t send back the response card, and (6) didn’t update his or her address with the state in the other specified ways. Justice Breyer’s dissent argued that this still just amounted to using non-voting to identify names to purge, and that all the other steps were already part of the statutory process. There are arguable points on both sides of this narrow question of statutory interpretation, but as Justice Alito noted, the bottom line is that NVRA and HAVA eliminated the old practice of purging registrations just for non-voting and created a process by which non-voting was a legitimate factor in addition to failure to send the response card.

Beyond that, the dissenting Justices grasped at straws. Justice Breyer argued that a purge that considered non-voting plus non-response was not a “reasonable” one under NVRA’s requirement of “a general program that makes a reasonable effort to remove the names,” and complained about the fact that people tend not to return postcards, so it’s unreasonable to hold that against them. But if the Court had followed his lead, it would have created two new problems: overruling Congress’s decision that the return-card process was a proper one, and getting judges into the business of deciding what is and isn’t “reasonable.”

Justice Sotomayor wrote separately to complain that Ohio’s system “disproportionately affected minority, low-income, disabled, and veteran voters,” but as Justice Alito noted, this had nothing to do with the evidence in the record or the issues the Court was asked to decide:

JUSTICE SOTOMAYOR’s dissent says nothing about what is relevant in this case — namely, the language of the NVRA — but instead accuses us of “ignor[ing] the history of voter suppression” in this country and of “uphold[ing] a program that appears to further the . . . disenfranchisement of minority and low-income voters.” . . . Those charges are  misconceived. The NVRA prohibits state programs that are discriminatory . . . but respondents did not assert a claim under that provision. And JUSTICE SOTOMAYOR has not pointed to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent.

In reality, purges of inactive voter registrations are necessary to maintaining fair and honest elections, and when they actually had responsibility for writing federal laws on the subject, Democrats recognized that. And the process will never be perfect. Just last week, in deep-blue Los Angeles, controversy erupted over a failure of the voter rolls (one that California officials were attempting to remedy by collecting provisional ballots):

State and county leaders demanded answers Wednesday from the Los Angeles County elections chief after more than 118,000 people were left off voter rosters on election day, a major blunder that fueled anger and confusion at the polls. . . . The faulty rosters, which election officials attributed Tuesday to a printing error, affected roughly 2.3% of the registered voters across the county and 35% of voting locations, according to county figures. [Registrar Dean] Logan said Wednesday that the foul-up involved the names printed on the rosters for polling places and had nothing to do with voter eligibility.” It was a data issue and it is a system issue that absolutely needs to be resolved,” Logan told the county board, without elaborating on exactly what went wrong.

It’s always worth investigating these things, but the immediate leap to assume partisan conspiracies is misguided; while partisan mischief in voting has been going on as long as we’ve had democracy, the fact remains that somebody has to make sure that the voter rolls bear some relationship to the voters, and that will always involve judgments about how best to do it. At the end of the day, the Husted decision is simply one fairly narrow decision about the mechanics of a process that Congress has already decided must be carried out.

Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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