Supreme Court says states can remove voters who skip elections, ignore warnings

Richard Wolf | USA TODAY

WASHINGTON – Failing to vote can lead to getting knocked off voter registration rolls, a deeply divided Supreme Court ruled Monday in a decision that probably will help Republicans and hurt Democrats.

The court's conservative majority ruled 5-4 that Ohio did not violate federal laws by purging voters who failed to vote for six years and did not confirm their residency. Ohio has the strictest such law in the nation.

The ruling protects similar laws in six states, including several electing governors or U.S. senators this fall. They are Pennsylvania, Georgia, Oregon, Oklahoma, West Virginia and Montana.

Civil rights groups challenged Ohio's procedure for cleaning up voter registration rolls, arguing that it disproportionately affects minorities, the poor and people with disabilities. The Trump administration reversed the position taken by its predecessor and sided with Ohio.

Justice Samuel Alito noted in his majority opinion that about one in eight voter registrations in the USA are invalid or inaccurate. He said failing to vote cannot be the sole reason for purging voters, but Ohio "removes registrants only if they have failed to vote and have failed to respond to a notice."

"A state violates the failure-to-vote clause only if it removes registrants for no reason other than their failure to vote," Alito said. By contrast, he said, Ohio waits six years before removal, following federal law "to the letter."

Justice Stephen Breyer penned an 18-page dissent for the liberal wing of the court, marking the sixth time this term the four liberals have dissented as a bloc. Rather than focusing on messy voter rolls, he recited the history of literacy tests, poll taxes and other restrictions he said were designed to "keep certain groups of citizens from voting."

Breyer noted that most voters simply ignore the warning notices, leaving their failure to vote as the principal cause for being purged from the rolls. The number who don't vote or return notices far exceeds the number who actually have moved, he said.

"The streets of Ohio's cities are not filled with moving vans; nor has Cleveland become the nation's residential moving companies' headquarters," Breyer said. Rather, Ohio's process "erects needless hurdles to voting of the kind Congress sought to eliminate."

Advantage: GOP

The ruling could be a major victory for Republicans, who tend to benefit from lower voter turnout, and a stinging loss for Democrats, who do best in high-turnout elections. That's because minorities, young people and those with lower incomes are most likely to be disenfranchised by the state's policy.

“Make no mistake: This case was about nothing more than Ohio Republicans trying to tilt elections in their favor by blocking communities of color from the ballot box — all under the guise of preventing ‘voter fraud,’ " Democratic National Committee chairman Tom Perez said.

Justice Sonia Sotomayor made that point in a separate dissent, noting Ohio statistics show that the state's process disproportionately affects minority, low-income, disabled and veteran voters.

"This purge program burdens the rights of eligible voters," she said. "At best, purged voters are forced to needlessly re-register if they decide to vote in a subsequent election; at worst, they are prevented from voting at all because they never receive information about when and where elections are taking place."

Paul Smith, a veteran Supreme Court litigator who presented the challengers' case in January, said the court's ruling will hurt infrequent voters "who have a certain political perspective.”

Myrna Pérez, director of voting rights and elections at the Brennan Center for Justice at NYU School of Law, warned that other states "will take this decision as a green light to implement more aggressive voter purges as the 2018 elections loom."

Ohio Secretary of State Jon Husted hailed the ruling as "a victory for election integrity and a defeat for those who use the federal court system to make election law across the country." He said the state's method of purging voters "can serve as a model for other states to use."

And Tom Fitton, president of the conservative group Judicial Watch, said the decision "should send a signal to other states to take reasonable steps to make sure that voters who died or moved away no longer remain on their voter rolls."

Bellwether state

Ohio, often a bellwether in national elections, has removed thousands of people who didn't vote for two years, didn't return warning notices, then didn't vote for an additional four years. The state was sued after the 2015 election, when those who had not voted since Barack Obama was elected president in 2008 discovered they no longer were registered.

Under federal laws enacted in 1993 and 2002, states cannot remove voters from registration lists because of their failure to vote. They can do so if voters don't respond to confirmation notices.

The question for the court was whether failing to vote could be the initial trigger leading to removal. The U.S. Court of Appeals for the 6th Circuit in 2016 said no, which restored the votes of 7,515 Ohioans.

The case was the latest in a series of battles against attempts by some states to restrict voting rights and combat alleged voter fraud. Most of the states that backed Ohio have Republican governors or legislatures; most of those opposed are governed by Democrats.

The Supreme Court has heard a bevy of voting rights cases since its controversial decision in 2013 striking down a key section of the Voting Rights Act, which had forced mostly Southern states to clear changes in election laws with federal officials.

Last term, the justices nixed the excessive use of race in redistricting by legislatures in North Carolina and Virginia; a similar case from Texas is pending. This term, it faces cases from Wisconsin and Maryland challenging what opponents claim were election maps drawn by state legislators for purely partisan gain.

Ohio's law was criticized as harsh because it kick-started the purging process after two years. During oral argument in January, Smith said, "Most of the people who are purged have not moved."

U.S. Solicitor General Noel Francisco — whose office changed sides in the case after Trump replaced President Obama — said Ohio had the right to streamline "over-inflated" and "bloated" voter registration rolls.

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