Between 2011 and 2016, the state of Ohio purged 2 million names from its voter registration rolls, 1.2 million of which were purged under a process that targets infrequent voters. That process is now going before the Supreme Court, which will hear oral arguments in Husted v. A. Philip Randolph Institute on Wednesday.
Husted involves several interlocking provisions of the federal law governing when a state may remove voters from its rolls.
Voting rights advocates rest heavily on one provision, which provides that states may not deregister a voter “by reason of the person’s failure to vote.”
Ohio, meanwhile, points to other provisions that sometimes permit states to mail a voter a notice asking the voter to confirm their address. If this notice is not returned after it is mailed, and if the voter does not vote in the next two federal elections, the state may purge the voter.
What makes Ohio’s process legally uncertain, however, is that it uses a “person’s failure to vote” as a triggering mechanism to determine who receives the notice asking them to confirm their address. A person who does not vote over a two-year period receives the notice in the mail. If they neither return it nor vote in the next two federal races, they are purged from the voter rolls — even if they have not moved.
Unfortunately, the competing provisions of federal law at issue in this case are not models of clarity. Though the law sometimes permits states to use the send-a-notice-and-see-what-the-voter-does method of identifying voters to purge, it provides little explicit guidance about which criteria states may use to decide who receives such a notice. Indeed, the clearest piece of guidance the law does provide appears to be the provision stating that a voter may not be purged “by reason of the person’s failure to vote” — but this provision is also qualified with language reiterating the state’s power to use the notice-based purge method.
It’s the sort of statutory interpretation puzzle that, in a less politically charged case, could divide the Court along unusual lines, with justices across the political spectrum disagreeing on the best way to piece through the law.
But partisan politics loom large in Husted. The purge process at issue in the case was directed by Ohio’s Republican secretary of state and disproportionately targets Democrats. Ohio’s purge process was opposed by President Obama’s Justice Department in the lower court, and is now supported by Donald Trump’s Justice Department in the Supreme Court.
The Court often splits along party lines in voting rights cases, and there’s good reason to think they will do the same here. (Though it is worth noting that Judge Julia Smith Gibbons, a conservative George W. Bush appointee, joined the court of appeals decision striking down Ohio’s purge process.)
In the likely event that Ohio does prevail in the Supreme Court, expect other states to mimic Ohio’s purges. After the Supreme Court gave a green light to Indiana’s voter ID law in a 2008 decision, many conservative states enacted their own voter ID laws — which tend to disenfranchise groups that typically favor Democrats over Republicans, such as students, low-income voters, and people of color.
A ruling for Ohio in Husted would add to the toolbox conservative lawmakers may use to shrink the franchise. And, while this one tool is unlikely to swing any particular election, the combination of many tools can move the electorate sharply to the right.