Department of Justice to Support Ohio’s Voter Registry Purge Law in October Supreme Court Battle
Ohio’s controversial new proposal to trim inactive voters from the state registries has earned public support from the Department of Justice. The Sessions-led DOJ has filed a brief in support of Ohio in a voting rights case which the US Supreme Court will hear during its upcoming term. The decision by the DOJ marks a reversal of the position taken by the department during the Obama administration, and will be met with opposition from the ACLU and other voting rights activists.
Ohio’s Voter Purge Law Challenged in Federal Court
For the past year, Ohio officials have faced an ongoing legal challenge in federal court to the state’s process of removing inactive voters from state registries. Typically, states across the country have processes for removing from the rolls ineligible voters — those found incompetent, incarcerated for felonies, or who have moved — but Ohio’s process includes a purge of voters who have been inactive for several years.
Ohio’s removal process begins when the secretary of state’s office sends a notice to the last known address of voters who have not participated in elections for two years. If the voter does not respond with updated information, vote, or sign a petition within four years of the notice then he or she is removed from the state voter rolls.
In April of 2016, the American Civil Liberties Union, A. Phillip Randolph Institute, and Northeast Ohio Coalition for the Homeless filed a legal suit against the state alleging that the removal procedure violates the National Voter Registration Act of 1993, which is also known as the “Motor Voter” law. This 1993 federal law prohibits removing voters for not voting, but does allow states to purge from voter registries those who have moved on without updating their address. It is under this provision that Ohio officials have argued for the legality of their process, however, the plaintiffs in the lawsuit argue that the state’s procedures are wrong to assume that inactivity is due to relocation.
Plaintiffs argue that the form voters receive is confusing and not clear about the consequences for failing to update the state with a new address. To bolster their argument, the plaintiffs alleged that nearly 40,000 individuals in Cuyahoga County (Cleveland area) and thousands others across voting districts in the state were illegally removed from the registry under Ohio’s procedure. Further, the plaintiffs pointed out that a disproportionate number of the removed voters were ethnic minorities.
Ohio Voter Case Heads to the Supreme Court
Late last year, the Federal Court of Appeals for the 6th Circuit agreed with plaintiffs and found Ohio’s process to be in violation of the National Voter Registration Act because the Justices found that the state’s process, while operating in an area of ambiguity within the law, violated the spirit of the act by removing voters for inactivity.
The 2 – 1 majority opinion argued that the state’s procedures placed to significant a burden on the voter who faced removal that they were active and at the same location. The plaintiffs welcomed the decision, announcing that it was a victory for voting rights in Ohio and other states where voting rolls are essentially trimmed due to voter inactivity.
Ohio officials, on the other hand, were disappointed by the ruling and appealed to the Supreme Court. Secretary of State Jon Husted has repeatedly defended the process as necessary to preventing voter fraud, and he stated that the 6th Circuit’s opinion dealt a blow to the integrity of the voting process in Ohio. Husted told reporters, “Ohio's process for removing duplicate registrations and those of deceased and relocated voters has been consistent under both Republicans and Democrats for over two decades and has been one of our greatest defenses against voter fraud and abuse." The Supreme Court agreed to hear Ohio’s appeal, setting up a final showdown during the October session.
In an usual move, the Department of Justice, which under President Obama had filed a brief in opposition of the law, changed legal positions and submitted a brief in favor of Ohio’s law as the case heads to the Supreme Court.
Department of Justice Reverses Position on Ohio Voter Law
In August, the DOJ submitted an amicus brief to the Supreme Court arguing that Ohio’s voter purge policy is legal under federal law. According to the DOJ’s revised position, federal attorneys claim that ignoring a notice to update an address or affirm voting activity is a lawful trigger for voter removal.
The brief parses out language to argue that voters are not actually removed for voting inactivity (which would be illegal under the National Voting Rights Act), but are instead removed for failing to respond to a notice of inactivity. The distinction, according to the DOJ, crosses the boundary from illegal voter purge to legal maintenance of voter registries.
The reversal, although not unusual for the Sessions-led DOJ, is uncommon in the history of federal law. The Supreme Court will hear the case in October and issue an opinion early next year which will clarify the legality of removing voters from registries.