SCOTUS Dispute Over Ballot Integrity Divides Red States, Blue States

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Kevin Daley Supreme Court correspondent
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Some 30 states have weighed in on a Supreme Court dispute involving Ohio’s ballot integrity law, which critics claim was crafted to remove traditionally Democratic constituencies from state voter rolls and afford Republicans a registration advantage.

Twelve primarily Democratic states and the District of Columbia filed an amicus (or “friend-of-the-court”) brief Monday urging the Court to rule that Ohio’s program violates the National Voter Registration Act (NVRA). A separate coalition of 17 primarily red states filed a brief defending the law, which resembles ballot integrity measures adopted by other states.

Under the Ohio process, voters who do not cast a ballot after a two year period are sent a mailer. The mailer asks said resident to confirm that they wish to remain registered to vote in Ohio. If the mailer is not returned, and if the resident does not vote in an election for the next four years, then the voter is removed from the state registry.

Defenders of the process say it ensures the states maintain accurate voter rolls, which are not often updated to reflect forms of attrition like death or relocation. Opponents charge it is yet another iteration of GOP voter-suppression tactics.

“Policies like Ohio’s threaten to disenfranchise our most vulnerable citizens – minority, young, low-income, and disabled voters – who already vote at lower rates,” said New York Attorney General Eric Schneiderman, who leads the blue state coalition. “My office will continue to fight to protect each and every voter’s rights.”

In their brief, the blue states argue that there are more effective means of identifying superfluous registrants. Such alternative means include United States Postal Service data, state census lists, or tax records.

The states also argue that Ohio’s regime harms a vital interest of all citizens, to the extent that it removes otherwise eligible voters from ballot rolls by reliance on an inaccurate proxy. Thirty-seven percent of eligible voters did not vote in the 2016 presidential election. The non-participation figure is even higher during midterm elections. By contrast, just 4 percent of Americans move out of their registration jurisdiction each year. This, the blue states claim, is proof that voter inactivity is a poor stand-in for residency or death, that results in the removal of otherwise eligible voters from the registry.

“Given this striking disparity between the large numbers of Americans who do not vote and the much smaller numbers who move in a way that affects their eligibility to vote, it makes little sense to view voter inactivity as a particularly probative measure of change of residence,” they write.

Neither, they say, is failure to file a confirmation notice evidence of a change in residency, particularly for minority populations for whom ineffective mail delivery is common.

In light of this evidence, the states argue that using inactivity as a trigger for deregistration does not serve its intended purpose while imposing significant harm.

The states supporting Ohio take a rather different tack,

As a general matter, the pro-Ohio amicus brief is a detailed, if dry, explanation as to how the relevant rules governing the correct reading of legal texts demonstrate the Ohio regime is lawful. Among other things, the brief argues that the relevant text only forbids maintenance programs which remove voters as a direct consequence of their not voting. Ohio’s program, on the other hand, initiates a lengthy audit process that may or may not result in their removal.

They elsewhere argue that other provisions in the law permit regimes of the sort Ohio has adopted. Therefore, they say, if Ohio’s program is unlawful, there are internal contradictions within the NVRA.

The red states also urged the high court to set clear guidelines for compliance with the NVRA. These states say they regularly litigate challenges which allege both that they are too zealous in purging their rolls, and that are not zealous enough.

“At a minimum, the states need this Court to help end this churn of litigation by explaining in clear terms the NVRA’s limits on how states may carry out their statutory obligations,” the pro-Ohio amici write.

The case, Husted v. A. Philip Randolph Institute, will be heard in November.

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