The first major voting rights case of the year comes before the Supreme Court Wednesday, when Justices hear arguments over the state of Ohio’s “supplemental process” for removing people from voter registration lists. The case is important procedurally and politically. While only a handful of states currently use a procedure as strict as Ohio’s, if the Court upholds, it will likely be adopted by more states. Politically, the issue of voter list management has become a partisan one, with Republicans claiming that threats of voter fraud necessitate more stringent cleaning of voter rolls, while Democrats argue that such tactics serve to suppress voter participation. The heart of the matter concerns the scientific integrity of eligible voter data.
The legal issues with Ohio’s process
If a registered voter in Ohio does not vote in a two-year period, they are sent a notification to verify eligibility by a local election board, and removed from the rolls if they fail to respond and do not vote in the next four years. Plaintiffs argue that such a voter purge would have disenfranchised over 7,000 Ohio voters in the November 2016 election, had it not been for the Sixth Circuit Court’s determination that the supplemental process “constitutes perhaps the plainest possible example of a process” that violates the National Voter Registration Act’s prohibition against list-maintenance programs that assume non-voters have moved after verifications have been sent, and remove them if they never respond.
The defendant, Ohio Secretary of State Jon Husted, has responded by arguing that the failure to respond, rather than the notification, is the trigger that “breaks the prohibited link between nonvoting and removal.” Further, defendants make a textual argument regarding a sub-section requirement of the National Voter Registration Act of 1993, that registrants who have not voted and do not respond to a notice “shall be removed” from the voter list, though that subsection also prohibits removal solely for failure to vote. Finally, defendants argue that prohibiting Ohio’s specific trigger would be an infringement on federalism and the right of states to determine their own triggers within the boundaries of federal law.
Looking for clarity on federal protections
The Supreme Court’s analysis will be consequential in shaping those federal boundaries, and by extension, the administrative policies and technologies that are adopted by states prior to the 2018 elections. Unfortunately, federal priorities have been confounded by the controversial reversal of the Department of Justice’s position on this case. Last August, federal attorneys under new Attorney General Jeff Sessions claimed that, as a result of the “change in Administrations,” they now support Ohio’s process, in contrast to Obama-era officials who sided with plaintiffs. This highly unusual about-face only muddies the legal waters as the Supreme Court prepares to wade in.
Ultimately, the Supreme Court needs to clarify the protections afforded by the federal government under the Elections Clause, which gives Congress authority to “make or alter” state election regulations, a provision that the Framers included specifically with the intent of keeping states from manipulating Congressional elections so as to subvert the power of the federal government. In this regard, defendants are correct to point out that this is a question of federalism.
Integrity and access aren’t conflicting goals
The National Voter Registration Act of 1993 and the Help America Vote Act of 2002 were both crafted by Congress with the explicit intent of increasing voter registration and participation in the electoral process. The state of Ohio claims that these regulations have “dueling purposes” of facilitating access to the ballot, but also ensuring the integrity of the process, which in their view necessitates regularly cleaning and purging voter lists.
While the value of one’s vote can be unconstitutionally diminished either by denying it to eligible voters, or by contaminating votes cast with ineligible votes, the Supreme Court needs to recognize that these purposes are not necessarily “dueling” or in conflict. To the extent that there are administrative policies and technologies that can improve both access and integrity, the Court should be suspicious of any regulation that sacrifices equal access to the vote when a less burdensome procedure is available that protects electoral integrity as well or better than the proposed policy.
In this context, there are several regulatory and technological innovations that are demonstrably superior to Ohio’s supplemental process. For one, it is possible to use existing statewide data in a manner that more effectively identifies residential changes and eligibility than Ohio’s notification process. Algorithms are being developed that couple multiple databases from state records, and could more accurately identify what Ohio claims they are looking for, residential changes, without accidentally removing eligible voters from the lists.
Studies have also indicated that Automatic Voter Registration (AVR), that is, requiring eligible residents to opt out of voter lists rather than opt in, can both substantially increase political participation and provide a more accurate database to verify voter eligibility. Employing such technologies not only provides a more secure and effective means of protection against voter fraud, to the extent that it exists, they also protect against external hacking and violations of integrity in a way that many current techniques do not. The Supreme Court needs to take questions of data management and integrity into account if they are to uphold their obligation to apply strict scrutiny to the violation of our constitutionally protected right to a free, fair and equal vote.
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