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Analysis

Ohio Voting Rights Decision not a Green Light for Reckless Voter Purges

Anyone tempted to treat it as such should think twice.

June 12, 2018

[Cross­pos­ted from CNN]

In a disheart­en­ing decision, the US Supreme Court upheld Ohio’s overly broad voter purge law Monday. The ruling means that eligible voters in the Buck­eye State who may have missed a few elec­tions could be kicked off the rolls and poten­tially find their voices silenced at the polls in Novem­ber.  

Push­ing people to the side­lines in their demo­cracy is what caused voting rights groups to raise alarm about Ohio’s contro­ver­sial prac­tice in the first place. It’s wrong, and it should­n’t be allowed. But this week’s ruling in the case of Husted v. A. Philip Randolph Insti­tute does not give states carte blanche to begin aggress­ively purging voters. Anyone temp­ted to treat it as such should think twice.
 
Currently, Ohio is one of only six states where, if you fail to vote in a federal elec­tion, offi­cials can send a mailer to your house saying the state thinks you’ve moved away. (The other five are Geor­gia, Oklahoma, Oregon, Pennsylvania and West Virginia.) If you don’t respond, and then don’t vote or engage in other elec­tion activ­ity for two federal elec­tions, you’re booted off the regis­tra­tion list. 
 
Anyone who’s ever had to (or decided to) miss an elec­tion for one reason or another knows you should­n’t infer that someone has moved just because they didn’t vote once. Fortu­nately, Ohio is so far the only state that sends such a mailer after a voter misses just one elec­tion cycle.
 
We opposed this Ohio prac­tice because we believed—and still do—that initi­at­ing removal from voter lists because someone missed one federal elec­tion risks delet­ing too many eligible voters from regis­tra­tion lists. Even conser­vat­ive Justice Samuel Alito wrote that uphold­ing the legal­ity of Ohio’s purge does­n’t neces­sar­ily mean it’s “a wise policy judg­ment.”
 
The National Voter Regis­tra­tion Act, the federal law under which Ohio’s stat­ute was chal­lenged, is designed to protect voters against unreas­on­able voter purges. Also known as “motor voter,” this set of federal protec­tions remains the law of the land, and includes key safe­guards that states must continue to follow.
 
While the court wasn’t persuaded by the argu­ment that Ohio’s rules broke federal law, the major­ity opin­ion also made it clear that states do need to follow the protec­tions to voters guar­an­teed under federal law when they think a voter has moved, includ­ing send­ing a mailer, then wait­ing two federal elec­tion cycles before remov­ing someone from a regis­tra­tion list.
 
Our fear is this aspect of the ruling will be ignored by zealots in the “voter fraud” fantasy realm, who will decide to use the Husted decision to justify more draconian purges around the coun­try. That would be an inac­cur­ate read­ing of Monday’s decision, and we’ll be ready to stand up for voters if they try.
 
Take what happened last week in Indi­ana, where a judge blocked the state’s purge law before it could go into effect. In that case, we filed a lawsuit on behalf of the Indi­ana chapters of the NAACP and League of Women Voters, arguing that the Hoosier State was improp­erly using a multistate voter data­base system called Crosscheck­—which is cham­pioned by Kansas Secret­ary of State Kris Kobach (chair­man of Trump’s defunct voter fraud commis­sion and a known proponent of the myth of wide­spread voter fraud).  
 
In theory Crosscheck seems like a fine idea: States come together to see if there are duplic­ate names among regis­tra­tion lists. But in real­ity, the system has bad data and uses inac­cur­ate processes that often gener­ate false posit­ives. That means Crosscheck might tell you voters have moved out of your state when they haven’t. Even so, Indi­ana alto­gether elim­in­ated the mailer and subsequent wait­ing period for voters that was crucial to the Supreme Court’s ruling that Ohio’s policy is legal.
 
 
The court’s decision Monday may have been a win for the state of Ohio—and perhaps for the Depart­ment of Justice, which switched sides after 2016 and backed Ohio. But the Supreme Court also confirmed some real limits against bad purges. And we’ll continue to put juris­dic­tions on notice that Husted is not a green light to purge the rolls with reck­less aban­don. It is, however, a clarion call that our move­ment needs to double down on vigil­ance in the face of voter suppres­sion. 
 

This post is part of the Bren­nan Center’s work to Protect the Vote in the 2018 midterm elec­tions.

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