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Supreme Court OKs State Voter Purge Practice

By Christopher Coble, Esq. | Last updated on

Voter eligibility and voter fraud have been big topics over the past few elections, with voting rights and voter ID laws seemingly in constant flux. One of the ways in which some states try to maintain accurate lists of eligible voters is by culling its voter rolls of people who fail to appear at the polls and who then fail to respond to a notice.

U.S. Navy veteran and Ohio resident Larry Harmon was one such person, who found out he had been culled after going to his local polling place to vote in 2015. Harmon had been removed from Ohio's voter rolls because he hadn't voted in 2009 and 2010 and then, despite living at the same address for more than 16 years, had not responded to a notice from the state elections board to confirm his eligibility. Harmon sued the state, but the Supreme Court yesterday decided the practice was legal under federal elections laws, paving the way for other states to similarly purge their voter rolls.

Voter Practices

Harmon and the other plaintiffs cited two federal voting laws that allegedly prohibited Ohio from culling eligible voters from its rolls. The National Voter Registration Act was enacted in 1993 to "increase the number of eligible citizens who register to vote in elections for Federal office" and "ensure that accurate and current voter registration rolls are maintained." And the Help America Vote Act, passed in 2002, directed the states to update their voting procedures, including voter registration lists. Specifically, HAVA directs that "registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters," with the caveat that "no registrant may be removed solely by reason of a failure to vote."

Ohio would use the failure to vote for two years as a way of identifying voters who may have moved, then the state would send nonvoters a card in the mail asking them to verify that they still reside at the same address. Voters who failed to return the card and failed to vote in any election for four more years would be removed from the rolls.

The Supreme Court, in a 5-4 decision, held that not only "are States allowed to remove registrants who satisfy these requirements, but federal law makes this removal mandatory." Thus, the majority reads NVRA's warning that a "State shall not remove the name of a registrant from the official list of eligible voters" unless the registrant "has failed to respond to a notice" and "has not voted or appeared to vote" as a directive telling states they must remove such registrants.

Voter Purges

Justice Stephen Breyer and Justice Sonia Sotomayor both dissented from the opinion, with Breyer arguing that the state's emphasis on a person's failure to respond to a mailed notice, ignoring "the human tendency not to send back cards received in the mail." Sotomayor contended the majority's opinion "entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate."

Interestingly, a federal judge in Indianapolis on the same day blocked an Indiana law that might have kicked thousands of voters off the rolls based on a database that compares names with registered voters in other states. The Supreme Court may have paved the way for states to purge their voter rolls, but it's unlikely this is the last we'll hear on the matter.

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