The Supreme Court issued a decision today in Husted v. A. Phillip Randolph Institute, a case involving Ohio’s voter list maintenance policies. By a 5-4 vote, the Court upheld Ohio’s policy of removing ineligible and outdated voters from it rolls. The majority concluded that the practice under challenge – which cancels the registration of voters who do not go to the polls and who don’t respond to a notice – does not violate the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act.
This is a major victory for election integrity. As the majority (per Justice Alito) noted, it is estimated that roughly one in eight voter registrations is “either invalid or significantly inaccurate” and that 2.75 million people are registered to vote in more than one state.
The Court’s decision is clearly correct. The NVRA specifically allows states to remove, on change of residence grounds, a registered would-be voter who does not vote, who then fails to respond to a notice, and who then fails to vote in any election during the period covering the next two general federal elections. As Justice Alito explained, the Ohio practice at issue “follows the [NVRA] to the letter,” it being “undisputed that Ohio does not remove a registrant on change-of-residence grounds unless the registrant is sent, and fails to mail back a return card, and then fails to vote for an additional four years.”
The majority rejected the silly argument that because Ohio uses the absence of “voter activity” to trigger the removal process, it violates the requirement that a state purge “shall not result in the removal of the name of any person . . . by reason of the person’s failure to vote.” Ohio does not run afoul of this prohibition because using non-voting to trigger the process is not the same thing as removing voters by reason of not voting. Ohio requires more than mere non-voting, so a person can not vote and still remain registered.
Justice Breyer wrote a dissent that, as Justice Alito points out, has lots to do with his disagreement with Congress about the wisdom of reliance on the returning a card, and little to do with the law Congress passed. As Alito explained, the Court has “no authority to second-guess Congress” or to decide whether Ohio’s practice is the best way to keep its voter rolls current. “The only question before us,” he concluded, is whether the practice “violates federal law.” Plainly, it does not.
Justice Sotomayor wrote a separate dissent to complain that the Court’s decision will have a disproportionate effect on the poor, the elderly, and minorities. That’s possible, but only if they fail to return their card and fail to vote for six years.
Absent evidence that Ohio’s rules are based on discriminatory intent — and none was presented — Ohio shouldn’t be estopped from attempts, in compliance with federal statutes, to maintain the integrity of its registrations rolls merely because members of certain groups may be unwilling, disproportionately, to take the simple measures needed to stay eligible.
Justice Thomas wrote a concurrence. He argued that the attack on Ohio’s procedure should be rejected for the additional reason that it is based on an interpretation of the NVRA that would raise significant constitutional concerns, namely concerns that states’ authority over federal elections is being usurped.
These concerns would stem from the Constitution’s Qualifications Clause, Article 1, Section 2, clause 1, along with the Seventeenth Amendment.
No other Justice joined Thomas’ opinion, perhaps because the question it raised was not necessary to uphold Ohio’s rule.
In any event, today’s ruling empowers local officials to ensure the most accurate and reliable voter rolls possible. It’s a good win.