Supreme Court Gives States the Green Light to Clean Up Voter Rolls

Style Magazine Newswire | 6/12/2018, 2:55 p.m.
Can a state take reasonable steps to ensure the accuracy of its voter rolls by removing people who have left ...

Nevertheless, the challengers in Husted claimed that Ohio ran afoul of the law’s “failure-to-vote clause,” which stipulates that no person can be removed from a voter roll “by reason of the person’s failure to vote” without following the law’s procedures. They asserted, incorrectly, that Ohio’s use of a voter’s failure to vote at two points in its clean-up process—first, to trigger the mailing, and then again during the subsequent four-year period—violated this provision. They also argued that Ohio was removing eligible voters as part of its clean-up process.

The district court rejected both claims, but on appeal, the 6th U.S. Circuit Court of Appeals reversed the lower court, holding that Ohio had indeed violated the National Voter Registration Act.

Now, the Supreme Court has resolved the matter, handing down a victory for Ohio, and for the integrity of American elections.

Alito’s opinion made swift work of the challengers’ claims.

First, Alito noted that Ohio’s process—mailing a notice seeking confirmation of residency, followed by a waiting period encompassing two federal general elections—followed the process prescribed in the National Voter Registration Act “to the letter.” In fact, he wrote, “[n]ot only are states allowed to remove registrants who satisfy these requirements, but federal law makes this removal mandatory.”

Next, the court rejected the claim that Ohio ran afoul of the failure-to-vote clause, concluding that the law “simply forbids the use of nonvoting as the sole criterion for removing a registrant”—something Ohio does not do. Rather, nonvoting is treated as evidence of nonresidency, but is not itself sufficient to result in removal from the voter roll.

This is exactly how Congress intended nonvoting to be used. Not only did it make it part of the requirements prescribed in the National Voter Registration Act for removal, it subsequently included provisions in the Help America Vote Act specifying that no one could be removed “solely” for this reason, and amended the original failure-to-vote clause to specify that it “may not be construed to prohibit a state from using” the procedures on which Ohio based its law.

Adopting the challengers’ argument would have led to a bizarre reading of the statute in which it would be illegal for any state to adhere to the National Voter Registration Act’s own requirements. “Congress could not have meant for the failure-to-vote clause to cannibalize” the other provisions of the law.

In fact, as Thomas pointed out in his concurrence, reading the statute the way the challengers claimed “would seriously interfere with the state’s constitutional authority to set and enforce voter qualifications.” Such an interpretation would render the National Voter Registration Act unconstitutional.

Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan dissented, arguing that Ohio violated the National Voter Registration Act’s requirement that a state make “a reasonable effort to remove the names of ineligible voters” because “failure to vote is not a reasonable method for identifying voters whose registrations are likely invalid.”

Alito rejected this claim, pointing out that it is not for the “federal courts to go beyond the restrictions” in the law and “strike down any state law that does not meet” the justices’ arbitrary conceptions of “reasonableness.” Policy judgments like these are properly addressed not in court, but in Congress. And Congress determined when it passed the National Voter Registration Act that a failure to vote after receiving a written notice from the state is, in fact, a “reasonable method” for identifying voters who have moved out of state.

Hopefully, this opinion will spark a new wave of state interest in adopting modern measures and using new technologies designed to remove ineligible voters from the rolls. So long as voter registrations remain an area rife with inaccuracy, states invite the potential for fraud and risk damaging faith in the electoral process itself.