Supreme Court justices battled Wednesday over how to interpret the confusion surrounding a 1993 motor-voter law and what steps states need to take before ousting someone from their voter lists, as a national debate rages over how far states can go to clean up their rolls.
Ohio brought the case to the justices, defending its own practice of deleting someone who hasn’t voted in several different years’ worth of elections, and who didn’t respond affirmatively to a follow-up notice mailed to their address.
Voting-rights activists say the state is pulling the trigger much too fast, and there are plenty of reasons someone might miss multiple elections, and then ignore the mailed-out reminder. They said deleting voters without more of a reason violates the 1993 National Voter Registration Act, better known as the motor-voter law.
That law urges states to clean up voter rolls, but says someone’s absence from the polls for a couple of elections can’t be the reason they’re kicked off.
Ohio says it’s kicking people off because they don’t respond to the notices from election officials warning them they’re about to lose status.
Voting-rights activists say the notices only go out after someone doesn’t vote, so lack of voting is still the cause of being erased.
“Knocking eligible voters off the rolls simply because they exercise their right not to vote is illegal,” said Dale Ho, director of the American Civil Liberties Union’s voting rights project.
Hundreds of thousands of voters are purged from the state’s lists each year. In 2016, more than 7,500 voters showed up at the polls and found their names missing, forcing them to vote a provisional ballot, Ohio elections officials said.
Wednesday’s case was brought by a veteran who didn’t vote for some years, then went back to the polls in 2015 and found his name had been dropped. An appeals court in 2016 sided with him and ruled Ohio’s practice illegal.
But most of the justices who asked questions Wednesday seemed sympathetic to Ohio’s attempts to keep its rolls clean.
“What are they supposed to do?” Justice Stephen G. Breyer wondered, adding later, “I don’t believe Congress would have passed a statute that would prevent a state from purging a voting roll of people who have died or have moved out of the state.”
Paul M. Smith, the lawyer arguing the case for the voting rights activists, insisted there are ways for states to track that information — though he was unable to detail them for the justices.
Mr. Smith also seemed to stumble at one point when he said it would be OK for people to be culled from the rolls if the post office returned their notices as undeliverable, or no longer at that address.
Chief Justice John G. Roberts said that undercut the activists’ argument, because the notices would still have been sent because of non-voting.
At another point Chief Justice Roberts seemed to wonder just how far the voting-rights activists’ arguments stretched, wondering whether there’s a constitutional right not to vote at all.
“It that true?” he demanded.
“Just as you have a right to vote protected by the First Amendment, a right not to vote because you don’t want to vote for any of those candidates would be protected as well, I would think,” Mr. Smith replied.
The Trump administration, which supported Ohio’s practice, came under fire from the court’s liberal wing for its position.
Justice Ruth Bader Ginsburg said past administrations, both Democratic and Republican, had opposed Ohio-style attempts to cleanse their voter rolls on the basis of non-voting.
She wanted to know why the new administration was breaking with that.
Solicitor General Noel Francisco said they concluded the law is poorly drawn, but there’s no way for it to make sense unless states are given some flexibility to manage their lists.
The case is Husted v. Philip Randolph Institute.
A decision is expected by the end of the term in June.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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