The Supreme Court, in a narrow 5-4 decision, has upheld a restrictive Ohio election law that initiates a process to purge eligible voters from its voter list if they fail to vote in a single election. A number of other states and localities have also implemented voter list purging tactics, and it is expected that this decision will result in additional states adopting more restrictive voter list purges.
The central question is whether or not the law, which relies on failure to vote as a trigger to remove voters from the voter registration list, violates the prohibition in the 1993 National Voter Registration Act (NVRA) that voters can be removed from a list based solely on a failure to vote.
Writing for the majority, Justice Alito interpreted the law’s request to confirm residence as additional criteria, enough that this “supplemental process” complies with basic requirements of the NVRA. In dissent, Justice Breyer held that the law is in violation of the NVRA, which includes a “broad prohibition on removing registrants because of their failure to vote.” He continues:
Ohio’s system adds to its non-voting based identification system a factor that has no tendency to reveal accurately whether the registered voter has changed residences. Nothing plus one is still one.
The factor Breyer refers to is the notification requiring targeted voters to prove their residency. Indeed, voter data analysis revealed that the Ohio system would have disenfranchised over 7,000 eligible voters in 2016. Plaintiffs found that most people throw the verification requests in the trash, such that the method is not a reliable indicator of voter eligibility.
Moreover, I have previously noted that there are far more effective methods for verifying voter eligibility through database matching algorithms, but Alito’s opinion effectively ignored all of the science available on the topic, in addition to ignoring the possibility of implementing voter list maintenance procedures that are less invasive of voting rights.
However, the data may still get its day in court, as suggested in Justice Sotomayor’s individual dissent. Sotomayor criticized the majority for “distorting the statutory text to arrive at a conclusion that…contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against.”
As Richard Hasen notes at Slate, Justice Sotomayor also laid out a path to directly challenge these discriminatory laws under the Voting Rights Act, and through the ballot box, as more conservative states inevitably adopt similar laws.
Justice Sotomayor focused her dissent on the requirement that any removal program “be uniform, nondiscriminatory, and in compliance with the Voting Rights Act” and illustrated the disparate impact of voter purging on minority, disabled, veterans, and low-income voters. Specifically, she described the inequalities in removals between downtown, African-American communities in Cincinnati (10%) and the more affluent, white suburbs of Hamilton County (4%).
Empirical demonstrations of the discriminatory impact of voter purging laws can be used in future litigation to have them thrown out in violation of the Voting Rights Act, even though the impact of such laws was barely considered in the Court’s ruling.
In addition, voters themselves can fight back at the ballot box. By supporting reforms such as Automatic Voter Registration (AVR), which provides greater security over voter lists and improves political participation, voters can ensure that they are protected. Over a dozen states have already adopted AVR, and many more are following. The crucial difference between standard voter registration procedures and AVR is that eligible citizens are automatically registered through interaction with a state agency (typically the department of motor vehicles), and must “opt-out” rather than being required to “opt-in.”
Finally, voters have the opportunity, this November, to support meaningful, effective reforms that protect and strengthen the right to vote. That will require that we help to make sure that people are registered, that they have adequate ballot access, and that they are mobilized. Effective participation in the 2018 elections could very well determine the impact of this divisive, divided decision that the Supreme Court has given us.