Voter Roll Purges in Ohio: The Supreme Court Oral Argument Commentary
Husted v. A Philip Randolph Institute
Full transcript here:
This week, the Supreme Court heard Oral Arguments – basically an interview of both sides- to decide whether or not Ohio’s voter roll purges are legal. It was an interesting look at the factors involved, and I learned a lot- about the process and the Court’s dispositions. This case – and the small sliver of the law it focuses on, is a little confusing, and somewhat contradictory- it says that the primary purpose of the law is to promote the fundamental right to vote, and that discriminatory laws can hurt voter participation. It does, in the last line of purpose mention, maintaining accurate voter registration rolls. It goes on to describe a minimum legal process for voter roll purges, which are to be conducted for only because of 1. death or 2. moving out of the area. It explicitly states- the reason for a purge cannot be failure to vote, (use it or lose it privilege of voting) It goes on to describe a minimum process- sending of a forward able post card after a missed election. If this is not returned- and it actually says on the card that you don’t have to return it, you have 2 federal elections to vote or you will be a part of the voter roll purges.
NVRA- National Voter Registration act text excerpt
- —The Congress finds that—
- (1) the right of citizens of the United States to vote is a fundamental right;
- (2) it is the duty of the Federal, State, and local governments to promote the exercise of that right; and
- (3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.
- (b) PURPOSES.—The purposes of this Act are—
- (1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;
- (2) to make it possible for Federal, State, and local governments to implement this Act in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;
- (3) to protect the integrity of the electoral process; and
- (4) to ensure that accurate and current voter registration rolls are maintained.
Ohio Voter Roll Purges: Facts from Supreme Court Oral Argument
- 70% of voters who get the card, don’t return it
- 3% of voters move nationally each year- Smith, Applicant
- 40% of the moving don’t notify the state- Respondent
- 2% of voters move and don’t notify the state- Extrapolation from 1 and 2
- 6 million unregistered but eligible Ohioans
It seemed to me, that while the actions of Ohio might fit the letter of the law- it clearly violates the intent of the law. A sub process, meant to give a nod to a real concern, the expansion of voter roll lists in size, causes a law meant to expand voter registration access, and prevent discrimination in voting, to decrease voter registration access, and to purge disproportionately a sizable minority- black Americans by a 2 to 1 margin. The turn in this program also swings on the word reasonable program to maintain the voter rolls. These cards, which trigger the countdown to purging, and are supposed to be a safeguard, are returned less than 20% of the time, in 1.5 million sendings. Were this program to be a reasonable program, the managers would note the low return rate- the Congressionally mandated minimum program, does not really mean much about whether a person has moved or is dead- it just says they are in the large majority of Ohioans- 70 + % uninterested in the post card which is sent to them, which is even forward able- so there is no return if the people don’t live there. Thus- I found myself in agreement with both Roberts and Alito- the meat of the argument by the applicant was clearly the inadequate nature of the confirmation process. It is noted, that 10 plus other states send a non-forwardable card in addition, which gets returned by the post office and tells the state concretely- that person doesn’t live there.
At no point is compelling state interest- Thurgood Marshall’s term in Richardson v Ramirez, demonstrated by the state as to the necessity of the purge. Why is the need of the state to have lean and trim voter rolls more important than the essential right of the citizen to vote, so that the overpurging of citizens; ie; their loss of their vote in election- in the numbers of hundreds, thousands tens or hundreds of thousands is worth it? Some mention is made of “dead people” voting, or people who have moved voting out of territory, but no evidence or even some sort of reasoned extrapolation as to how often that happens or on what scale. Which means the state is taking actions
The act itself affirms the right to NOT vote- and that registration should not be taken away for exercising this ( I also agree with Justice Roberts- compulsory voting, or the like, is a good idea, though the amicus brief about it being a first amendment action also has merits.) Here, the effect of Ohio’s implementation or defacto law- is that it is taken away for not voting, plus the non return of a post card that says, return is not mandatory explicitly. Justice Sotomayer, also notes, that only 1 notice is sent at the beginning of the process- no notification of actually being purged is sent, to allow the citizen to correct the issue. It seems clear , here that the action of the state in regards to a law meant to expand voting, in fact decreases access, and judging from their failure to take steps that other states have taken, that this may be evidence of intent to reduce voter rolls, as this is known to be an advantage for the Republican party.
Ohio Voter Roll purges facts external to the Oral Argument
A quick overview of some contextual pieces which were NOT mentioned in the transcript:
- Ohio has purged 2 million voters since 2011, more than any other state in the union, equivalent to approximately 1/4 of their registered population(NVRA Report) or approximately 25%, per Ari Berman
- This purge is more likely to affect black voters than white voters, by a 2 to 1 margin.
- In Toney v White-a federal precedent at the appellate level- racially discriminatory voter roll purges is grounds for overturning elections– and remarkably, proving intent is not necessary, just effect, meaning you don’t have to go into peoples motivations, and prove that they deliberately did something to discriminate against blacks or other groups- just that those groups were disproportionately affected by the state’s purges, and that the effects of the purges, were numerically enough to have changed the outcome of the election. If a candidate won by 5 votes, and 6 people were purged, 4 black and 2 white- this would constitute grounds for overturning the election.
- Ohio has approximately 11.7 million people US Census
- 2010 2017 US Census
6.Ohio’s CVAP percentage register – the number of age voters, registered actually dropped from 95% to about 90%- only 5 states did this happen, Florida, Wisconsin, Kansas, Pennsylvania and Minnesota. (NVRA report) In actual numbers from 8.1 million in 2008 to 7.9 million despite small population growth.
- 2% of voters move each year without notifying the post office * 7.8 million(Registered voters in Ohio 2016 per NVRA report=93,600 approximate appropriate Ohio voter roll purges, each year
- The death raterose to 729.5 deaths per 100,000 people in 2015, up from 723.2 in 2014, according to the National Center for Health Statistics.Jun 1, 2016
- 730/100000 *7.8 million registered voters= 56,940= approx. 57,000 deaths per year and removals from the rolls
- 93,600+57,000 * 6 years 2011-2017= 903,240
- 2 million – 900,000= 1.1 million voters purged in Ohio with no reason since 2011
If you get really ambitious, the actual law they debate is here- but it is boring, confusing and long, even if you are really interested in the stuff.
National Voter Registration Act.