Posted on Thursday, September 06, 2018

The Supreme Court Unmoved by Claims of Ohio Voter Suppression

Husted, Ohio Secretary of State v. A. Philip Randolph Institute, ___ U.S. ___, No. 16-980 (11 June 2018).

It has been estimated that 24 million voter registrations – about one in eight – are either invalid or significantly inaccurate.  More than 10% of Americans move every year, and deleting the names of those who have moved is no small matter.

For many years, Congress left it up to the States to maintain accurate lists of those eligible to vote in federal elections, but in 1993 Congress enacted the National Voter Registration Act (NVRA).  The Act has two main objectives: increasing voter registration and removing ineligible persons from the States’ voter registration rolls. 52 U.S.C. §20501(b).  To achieve the latter goal, the NVRA requires the States to conduct a general program that makes a reasonable effort to remove the names of voters who are ineligible by reason of death or change of residence. §20507(a)(4).

The Act prescribes requirements that a State must meet in order to remove a name on change-of-residence grounds. §§20507(b), (c), (d).  The most important of the requirements is sending a notice to the voter.  Before the NVRA, some States removed registrants without giving any notice.  The NVRA changed that by providing that a State may not remove a registrant’s name on change-of-residence grounds unless either (A) the registrant confirms in writing that he or she has moved or (B) the registrant fails to return a preaddressed “return card” containing statutorily prescribed content.  The card must explain that, in order to stay on the rolls, a registrant who has not moved must either return the card or vote during the period covering the next two federal elections.

The Act treats the failure to return a card as some evidence – but not conclusive proof – that the voter has moved.  Instead, a voter’s name must be kept on the voter list for a period covering two general federal elections.  Only if the registrant fails to vote during that period and does not otherwise confirm that he or she lives in the district may the registrant’s name be removed. §20507(d)(2)(A).

Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed card to those individuals asking them to verify that they still reside at the same address.  Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls.  The Court held that Ohio’s program complies with the NVRA. The Court said that the NVRA clearly provides that if a registrant does not respond to the notice and if the registrant does not vote in two successive federal elections, then the State must remove the registrant from the voter rolls. §20507(d)(3).  Ohio complies with that statutory requirement.

This was a five-to-four decision.  Justice Alito wrote the Court’s opinion.  Justices Breyer and Sotomayor wrote dissenting opinions.  The main thrust of Justice Breyer’s dissent is that the NVRA prohibits any use of the failure to vote, and because Ohio uses the failure to vote for two years as the trigger for sending a preaddressed card to the voter, therefore Ohio violates the NVRA.  Justice Sotomayor’s dissent says nothing relevant to construing and applying the NVRA and instead accuses the majority of ignoring the history of voter suppression of minority and low-income voters.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at