By Josh Taylor
On June 11, 2018, a politically-divided U.S. Supreme Court answered that question in the affirmative as it relates to Ohio’s method of cleaning up its voter registration lists. The 5-4 Court determined that Ohio does not contravene federal voting laws when it takes measures to remove registrants that likely moved away from their voting district. The case, titled Husted v. A. Philip Randolph Institute, originated when a voter arrived to vote in 2015 to find out he was removed from the rolls after not voting in 2009 and 2010. Public interest groups Northeast Ohio Coalition for the Homeless and the A. Philip Randolph Institute, a trade group that fights for racial equality and economic justice, joined the voter plaintiff in moving the case up to the highest court in the land.
Justice Alito, quickly emerging as the main conservative voice in opinions this session, was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Gorsuch, and outlined Ohio’s removal methods in the opinion’s opening paragraphs: “Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed, postage prepaid card to these individuals asking them to verify that they still reside at the same address. Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls.” Husted v. A. Philip Randolph Inst., 584 U.S. __ (2018).
The main issue in the case was whether Ohio’s voter removal process complies with the federal National Voter Registration Act (NVRA) and the federal law’s requirements on removing voter registrations by reason of death or change in residence. The law is clear on providing notice in the form of return cards for voters to confirm whether they still reside in their voting districts. For those who do not return the card indicating they still reside in the district or no longer reside there, the NVRA provides a “failure-to-vote” clause stating that “registrants who have not responded to a notice and . . . have not voted in 2 consecutive general elections for Federal office shall be removed.” 52 U.S.C. § 21083(a)(4)(A). It adds that “no registrant may be removed solely by reason of a failure to vote.” § 21083(a)(4)(A) (emphasis provided in opinion).
After outlining the federal law’s language, the Court charted Ohio’s procedures undertaken before voters are removed from its rolls. First, Ohio sends return cards to any registrants whom the Postal Service identifies as having moved. Second, for those moves that the Postal Service does not know about (about 40% of movers), Ohio sends a return card for those “who have not engaged in any voter activity for a period of two consecutive years.” Husted, 584 U.S. __ (internal quotations omitted). After sending these cards, “Ohio removes registrants from the rolls only if they fail to respond and continue to be inactive for an additional period of four consecutive years, including two federal general elections.” Id. (internal quotations omitted).
The aggrieved voter and pair of advocacy groups prevailed at the Sixth Circuit Court of Appeals on the argument that Ohio’s process violates the NVRA’s language that a person cannot be removed by reason of failure to vote. The Supreme Court rejected that argument and the Sixth Circuit’s holding due to three words in the law: “We reject this argument because the Failure-to-Vote Clause . . . simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. Instead, as permitted by subsection (d), Ohio removes registrants only if they have failed to vote and have failed to respond to a notice.” Id. (emphasis in original). The Court went on to disavow any alternative readings and meanings of the federal law, noting that only “sole causation” is a sensical non-cannibalistic reading of the statute. See id. Justice Alito took several pages to respond to and counter Justice Breyer’s and Justice Sotomayor’s dissents. The Court ultimately determined that “[t]he dissents have a policy disagreement, not just with Ohio, but with Congress” in response to Justice Sotomayor’s illumination of the U.S.’s history of voter suppression. Id. For the majority, however, the “case presents a question of statutory interpretation, not a question of policy.” Id. According to the Court, Ohio’s process for removing voters from its rolls simply does not violate any federal law.
Justice Thomas issued a concurring opinion after joining the Court’s majority to note his feeling that “respondents’ proposed interpretation of the National Voter Registration Act (NVRA) should also be rejected because it would raise significant constitutional concerns.” Id. (Thomas, J., concurring). His main point was that the proposed reading “would seriously interfere with the States’ constitutional authority to set and enforce voter qualifications.” Id.
Justice Breyer’s dissent was joined by Justices Ginsburg, Sotomayor, and Kagan. Their main argument was that Ohio’s process does indeed violate a federal prohibition of removing people based on failure to vote. See id. (Breyer, J., dissenting). Justice Breyer argued that, by making so much of the word “solely”, “the majority makes too much of too little.” Id.
Justice Sotomayor dissented separately as well to remind the Court that “[c]oncerted state efforts to prevent minorities from voting and to undermine the efficacy of their votes are an unfortunate feature of our country’s history.” Id. (Sotomayor, J., dissenting). “Today’s decision,” she concluded, “forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.” Id.
This divided opinion certainly highlights the standard “text vs. policy” divisions often present in a 5-4 split. It will be interesting to see which states use Ohio’s Court-approved voter removal processes as a blueprint for cleansing their rolls, and which states enact measures to avoid removals based on voting inactivity altogether.
You can read the Court’s full opinion, concurrence, and dissents here.