Updated 6:34 p.m. ET
An ideologically split U.S. Supreme Court Monday upheld Ohio’s controversial “use-it-or-lose-it” voting law by a 5-to-4 margin. The law allows the state to strike voters from the registration rolls if they fail to return a mailed address confirmation form, and don’t vote for another four years, or two federal election cycles.
Failure to vote
The challenge to Ohio’s law was brought by a software engineer named Larry Harmon, who usually votes only in presidential elections. In 2012, he didn’t like the Obama-Romney choice, and so he stayed home. And when he went to vote a couple of years later, against a ballot initiative about marijuana legalization, he found he was no longer registered. He had been purged from the rolls, because he hadn’t voted in two consecutive elections, nor had he sent back a postcard the state sent out to confirm that his address had not changed.
Harmon has lived at the same address for more than 16 years but doesn’t ever remember receiving such a letter. So he sued the state, contending there are lots of other ways to confirm an address, including checking property records, tax forms, and drivers’ licenses. “I earned the right to vote,” said the navy veteran. “Whether I use it or not is up to my personal discretion. They don’t take away my right to buy a gun if I don’t buy a gun.”
The lower courts said that Ohio’s voter-purge law violated the National Voter Registration Act, which says that people may not be purged from the voter rolls because of their failure to vote. But on Monday, the Supreme Court said Ohio is not stripping people of the right to vote solely because they failed to vote, but also because they didn’t return the address confirmation form.
An ideologically divided court
Justice Samuel Alito wrote the majority opinion with the court’s other conservatives signing on. The first line of the opinion lays out evidence for why Alito sees the need to clean up voter rolls. “It has been estimated that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate,” Alito wrote, citing the same Pew Center on the States study that incoming Trump White House officials cited — misleadingly — to make the case that voter fraud was occurring and immigrants in the U.S. illegally were voting.
Alito also pointed to a different federal law, the Help America Vote Act, which is aimed at getting states to update their voting rolls to make them more accurate. That law, Alito wrote, “dispelled any doubt that a state removal program may use the failure to vote as a factor (but not the sole factor) in removing names from the list of registered voters.” The Ohio system, he concluded, “does not strike any registrant solely by reason of the failure to vote.”
Writing for the dissenters, Justice Stephen Breyer said that the majority had misinterpreted the law. He noted that federal statute does not allow someone to be purged from the rolls “by reason of the person’s failure to vote.”
“In my view,” added Breyer, “Ohio’s program does just that.”
The dissent, which was joined by the court’s other liberal-leaning justices, noted that only 4 percent of Americans move outside the county they live in each year, and that in 2012, Ohio identified 1.5 million registered voters – nearly 20 per cent of the state’s total – as likely to be ineligible, because they had changed their addresses. That would mean that vastly more Ohioans moved each year than in other states. And when sent address confirmation letters, Breyer opined, that it appears that more than two-thirds mistook the notice for junk mail and threw it out, thus losing their right to vote without even knowing it.
Justice Sonia Sotomayor, in a separate dissent, pointed particularly to the effect of Monday’s decision on minority and poor neighborhoods. She observed that, in Hamilton County – which includes Cincinnati – African-American neighborhoods in the city had 10 percent of their voters removed due to inactivity, as compared to only 4 percent in the suburban, white-majority neighborhoods.
Voting-rights advocates react
Reaction among voting-rights advocates was predictably angry.
League of Women Voters President Chris Carson said Monday’s decision would “fuel the fire of voter suppression across the country.”
Vanita Gupta, president of the Leadership Conference on Civil and Human Rights, said, “Voting should not be a ‘use it or lose it’ proposition in this country. That essentially is what the court is allowing Ohio to do. Other states could certainly follow suit in the aftermath of this decision.”
Richard Hasen, an elections expert at the University of California, Irvine, agrees that Republican-dominated legislatures may now adopt similar provisions. “This provides another tool for those states,” he said, “to remove eligible voters from the voting rolls, and that will have a disproportionate effect likely on voters who tend to vote for Democrats.”
He added that “it could also provoke backlash” when voters are turned away at the polls.
Indeed, on the day that the case was argued at the Supreme Court, state officials were confronted by former Army Sergeant Joe Helle, who served in Iraq and Afghanistan.
“I was an active duty soldier that maintained my home of record in the state of Ohio, came back home after defending that right, and could not exercise it because of this archaic terrible policy,” he said, as officials inched away from him.
A model for other states?
Jason Snead of the conservative Heritage Foundation had a different view.
“The long-term effect of this will be to allow states to undertake reasonable steps to clean up their voter rolls,” he said.
Justin Levitt, a professor at Loyola Law School in Los Angeles and a former Justice Department official, noted that it costs a lot of money to mail out millions of address-confirmation letters. Checking Social Security rolls and tax records, he said, are cheaper alternatives. In fact, he added, “the Ohio structure that was upheld today is kind of a relic, and states are generally moving away from that.”
That may be. But Ohio Secretary of State John Husted, whose name the case bears, not only celebrated the decision as a victory; he went further, calling the Ohio law “a model for other states to use.”
Read the decision here: