News Law and Policy

Supreme Court to Decide if GOP Voter Purges Constitute Voter Suppression

Jessica Mason Pieklo & Ally Boguhn

Ohio Republicans have purged from voter rolls anyone who hasn't voted in recent elections, giving an upper hand to GOP candidates across the state.

The U.S. Supreme Court this week agreed to hear a case appealing a federal court’s decision that Ohio’s procedure for canceling voter registrations of some residents was unconstitutional, breathing new life into the state’s attempts to purge its voter rolls.

This could give other states the green light to follow, just in time for the 2018 midterm elections.

State Rep. Kathleen Clyde (D-Kent) in a 2016 interview with Rewire called the GOP-backed purge a part of “aggressive attacks” on voting rights in Ohio, adding that the process had eliminated two million voters from the state’s rolls. The state contends that many of the millions purged had died before being removed.

Clyde told Rewire that some data “is showing that African Americans voters and Democratic voters were much more likely affected” by the voter purge and that many did not know they were removed from the registration rolls, potentially creating confusion at the polls.

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Reuters found in a 2016 analysis that in “the state’s three largest counties that include Cleveland, Cincinnati, and Columbus, voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods.”

The report noted that “residents of relatively affluent Republican-leaning neighborhoods are more likely to vote in both congressional elections and presidential contests, historical turnouts show. Democrats are less likely to vote in mid-term elections and thus are more at risk of falling off the rolls.”

At the center of the case is the National Voter Registration Act of 1993 (NVRA) and the critical swing state of Ohio. The NVRA, also known as the Motor Voter Act, in many ways revolutionized the way elections are conducted by making it easier for people to register to vote. Among its requirements, the NVRA sets a voter registration floor, stating that there must be at least three uniform ways for voters to register. One method allows voters to register at the same time they apply for a driver’s licenses. Under the statute, state officials then forward that completed application to local election officials to keep voter rolls up to date.

This is the provision at the heart of the challenge the Roberts Court will hear next term.

While setting a voter registration floor, the NVRA requires uniform and non-discriminatory kinds of list maintenance programs to comply with the Voting Rights Act. The NVRA states that removing voters for not voting or for having moved can only be done after meeting requirements laid out in the statute, such as preventing voters who move within their congressional district from having to re-register with a new address.

Before the U.S. Court of Appeals for the Sixth Circuit reversed a district court’s ruling in Husted v. A. Phillip Randolph Institute and halted the practice in September 2016 , Ohio officials considered those who had not engaged in voter activity within a set period of time to have moved. This set off the state’s “Supplemental Process” of removing them from the voter registration rolls. If a voter failed to respond to a mailer asking them to confirm their address, they were deemed “inactive voters” and removed from the rolls—meaning they would need to re-register to cast ballots—if they subsequently didn’t vote for four consecutive years. [for FC: see pg 9; Paraphrased earlier Rewire write-up of process; ACLU explains it here]

Ohio appealed to the Supreme Court arguing that if the Sixth Circuit’s ruling is allowed to stand it will make it “harder for States to conduct what all can agree is a critical activity—removing ineligible voters from registration lists—by eliminating one method for doing so.”

The Court agreeing to take the case has given pause to voting rights advocates. Despite recent wins against gerrymandering efforts in North Carolina and Virginia, voting rights have not fared well before the Roberts Court. And it is no secret that the Trump administration and Republicans in Congress want to limit access to the ballot box, with the NVRA among the GOP’s chief targets.

This case is unique in that only Ohio’s process is under review, which means there are no conflicting lower appeals courts’ rulings on the NVRA. Normally, a disagreement between federal courts is an important factor in the Court deciding to hear cases. Here Ohio is being sued for its process of maintaining voter rolls rather than a failure to keep them up to date. This could provide an opening for the conservatives on the Court to endorse Ohio’s process, undermining the NVRA, just as they gutted the Voting Rights Act in the 2013 ruling Shelby County v. Holder.

Civil rights advocates are confident the Court will rule against the Ohio voter roll purge despite the conservative bend of the Roberts Court.

“Ohio has purged hundreds of thousands of people from the voter rolls simply because they have exercised their right not to vote in a few elections,” Freda Levenson, legal director of the ACLU of Ohio, said in a statement on the Court’s decision to take up the case. “This purge process violates the National Voter Registration Act. We are confident that the Supreme Court will uphold the correct decision from the Sixth Circuit Court of Appeals, and will ultimately ensure that eligible Ohio voters may not be stricken from the rolls.”

When the district court ruled last year that Ohio’s voter purging practices were unconstitutional, Ohio Secretary of State Jon Husted claimed that the decision “opens the door to fraud.” Multiple investigations by his office into illegal voting, one in 2012 and another in 2015, turned up little evidence that such fraud regularly occurs in the state. The two investigations turned up 44 cases of non-citizen voting.

Voter roll purges having an outsized impact on Democratic-leaning parts of Ohio, which is considered a swing state in presidential elections, could determine upcoming midterm elections. President Trump won just over 51 percent of the vote in the state, while Hillary Clinton captured 43 percent. Republicans are gearing up to mount a challenge to Democratic Sen. Sherrod Brown in the midterm election for his key seat in the U.S. Senate.  

The state will elect a new governor in 2018, and Husted—who has led the charge in Ohio’s voter purge—is running for the Republican nomination.

Husted has targeted voting practices that bolster access to the ballot box, such as early voting. A federal appeals court in August 2016 ruled in favor of Husted, who argued for cuts to Ohio’s early voting from 35 days to 29 days before an election.

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