WASHINGTON, D.C. — All of the U.S. Supreme Court justices — or at least the seven that spoke on Wednesday — seemed to agree that voting cannot be a “use it or lose it” right. But they disagreed on what that means in practice.
Several conservative justices, including John Roberts and Samuel Alito, appeared open to Ohio’s interpretation of the National Voter Registration Act as attorneys for the state defended its practice of purging hundreds of thousands of people from the rolls. Most of the court’s liberal justices expressed serious skepticism about its constitutionality.
In Ohio, if someone doesn’t vote for two years, the secretary of state sends them a piece of mail asking asking them to verify their address. If they do not return the mail and they do not vote for the next four years, they are taken off the voter rolls. Since Ohio implemented this policy in 2011, hundreds of thousands of people have been purged from the rolls.
Eric Murphy, Ohio’s solicitor general, argued that the NVRA requires states to maintain their voter lists, and Ohio’s program does just that. But he faced pointed questions from liberal Justices Elena Kagan and Sonia Sotomayor. Sotomayor was the only justice to bring up the policy’s impact on groups of voters that tend to vote for Democratic candidates: Reports on Ohio’s purges have found that “voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods.”
After pointing out that Ohio seems to be saying that failure to vote is enough evidence to suggest that someone has moved addresses, Sotomayor said that that interpretation is flawed.
She asked if it’s reasonable to use the mailers as a means to purge voters when doing so “results in disenfranchising disproportionately certain cities where large groups of minorities live, where large groups of homeless people live, and across the country, they’re the group that votes the least, in large measure because many of them work very long hours,” she said. “And without the golden week that Ohio rescinded, many of them can’t vote because the polls are not open while they’re not working.”
Justice Stephen Breyer, usually a consistent liberal vote, appeared more sympathetic to Ohio’s practice, and asked several questions about how a state would know if someone moved out-of-state or died. But he also critiqued Ohio’s practice of requiring a response to mail, pointing out that it’s not uncommon for people to throw away their mail before giving it a close look.
“I admit to doing that sometimes,” he joked.
Kagan and Sotomayor both pointed out that failure to respond to mail is not enough evidence that someone has moved, agreeing with the argument made by Paul Smith, the attorney for the purged voters. Smith claimed that three percent of Americans move counties or state every year and only a small portion of them live in Ohio, yet the state still purges hundreds of thousands of people.
“Seventy percent of people don’t return them — that’s what the statistics show about the notices in 2011: ten percent were returned as undeliverable, 20 percent were returned, and 1.2 million people just threw them in the circular file,” Smith said. He later added that this type of notice “doesn’t provide you any evidence at all on which to decide that these people should be purged.”
Justices Neil Gorsuch and Clarence Thomas did not speak during the arguments. Anthony Kennedy, likely the deciding justice, asked several questions about the NVRA, but did not clearly indicate how he would vote. At one point, he asked if Ohio could send address verification mailers to the entire electorate instead of just the people who fail to vote for two years. Smith said that would still violate the NVRA.
Noel Francisco, the solicitor general, notably struggled to explain why the U.S. Department of Justice switched positions on Ohio’s purges under president Trump. Questioned by Justice Ruth Bader Ginsburg about why the government no longer believes that non-voting is not a reliable indicator of residence change, Francisco attempted to explain that the statute does not require it to be a reliable indicator.
The decision in this case, Husted v. A. Philip Randolph Institute, will have implications well beyond Ohio. Murphy, arguing on behalf of Ohio, said that “around eight” states use failure to vote as the trigger for sending a notice that will eventually lead to voters being purged. A total of 17 GOP-controlled states signed onto a brief supporting Ohio’s position, indicating that they would be interested in using a similar list-maintenance procedure if it’s found to be constitutional.
Outside the court, voting advocates and other protesters held signs urging the court to “Protect my vote.” At one point after the arguments, Joe Helle, a veteran who was purged from the rolls after failing to vote while deployed in Afghanistan and Iraq, approached Ohio Secretary of State Jon Husted (R) to debate the merits of Ohio’s voter maintenance. After a brief interaction, Husted walked away from Helle and cut the conversation short.
Purged Ohio voter Joe Helle: “If voting is easy sir, why is a U.S. veteran like me being removed from the rolls?” pic.twitter.com/lGbhPfcETT
— Kira Lerner (@kira_lerner) January 10, 2018
Helle told ThinkProgress that Husted attempted to tell him that voting is easy in Ohio.
“If voting is easy sir, why is a U.S. veteran like me being removed from the rolls?” he asked.