The decision in Husted v. A. Philip Randolph Institute helps clarify the steps states can take to remove someone from their voter rolls, and it could encourage them to be more aggressive. The case was brought on behalf of the A. Philip Randolph Institute, a labor and civil rights group, and an eligible Ohio voter the state had removed from its voter rolls. The voter had been living at the same address for about 16 years.
In Ohio, officials send anyone who doesn’t vote for two consecutive years a notice in the mail to determine whether they’ve moved. If someone fails to respond to the notice and then doesn’t vote for four consecutive years, the state removes them from its voter rolls.
Ohio had argued that the process was necessary to make sure its voter rolls were accurate and up to date ― but the challengers said it violated a federal law that prohibits states from canceling someone’s voter registration simply because they haven’t voted. Ohio countered that it canceled registrations not only because of a failure to vote, but also because people didn’t respond to the notice.
Writing the opinion for the five-justice majority, Justice Samuel Alito said that a 2002 law, the Help America Vote Act, amended the National Voter Registration Act and clarified what states could do to remove people from the voting rolls. HAVA, Alito wrote, says a state cannot remove someone from the voting rolls only and because of their failure to vote. What Ohio does, Alito wrote, is permissible because people are removed if they fail to vote and fail to respond to the state mailing.
“HAVA dispelled any doubt that a state removal program may use the failure to vote as a factor (but not the sole factor) in removing names from the list of registered voters,” Alito wrote. “That is exactly what Ohio’s Supplemental Process does. It does not strike any registrant solely by reason of the
failure to vote.”
The challengers in the case also argued Ohio’s process did not amount to a reliable way of figuring out if someone had moved. Alito dismissed that argument, saying the method of choosing how to remove people from the rolls was an estimation for lawmakers, not the courts, to decide.
Justice Stephen Breyer authored the dissent; Justice Sonia Sotomayor joined the dissenting opinion but also wrote her own separate dissent.
During January’s oral arguments, Alito, Breyer and Chief Justice John Roberts appeared sympathetic to Ohio’s argument that the state needed the aggressive process to maintain accurate rolls. Sotomayor and Justice Elena Kagan seemed more skeptical of Ohio’s argument, and Sotomayor expressed concern that poor people and minorities might not vote because of long lines at the polls.
The League of Women Voters noted in a friend-of-the-court brief that only five other states ― Georgia, Oklahoma, Oregon, Pennsylvania and West Virginia ― use someone’s failure to vote to trigger the process for canceling their voter registration. But all those states, the League noted, give someone longer than two years of not voting before they begin the cancellation process.
Paul Smith, a lawyer for the challengers, argued that the state could rely on information from the post office and other government agencies for a more reliable indicator that someone had moved. He noted that in 2011, 70 percent of people who received the confirmation notices didn’t send them back.
This is a developing story. Please check back for updates.