The Supreme Court hinted it may allow states more flexibility to remove registered voters from state rolls during a lively argument on Wednesday.
A majority of the Court appeared ready to sanction Ohio’s voter purge program, which Democrats have linked to a broader voter suppression effort.
At issue in Wednesday’s case, Husted v. A. Philip Randolph Institute, was Ohio’s registry maintenance policy. Voters in Ohio who fail to vote in a federal election are issued a confirmation notice by mail. If a voter fails to return the notice, and does not vote over the next four years, the voter is removed from state rolls.
Ohio says the program helps the state determine which citizens have died or moved to different jurisdictions, warranting their removal from the registry.
Almost 20 others states include voter inactivity in their registry maintenance programs. A handful of states, including Pennsylvania, use policies similar to Ohio’s.
The A. Philip Randolph Institute (APRI), a civil rights front, challenged the policy in court, citing two federal laws that prohibit states from purging voters “by reason of the person’s failure to vote.” Both laws also allow states to send confirmation notices to voters that may have moved.
Paul Smith, a veteran Supreme Court advocate, represented the APRI in the dispute.
Ohio says its policy is legal, as voter inactivity is not the proximate cause of removal. Rather, a voter is removed well after they fail to return a confirmation notice.
Justice Elena Kagan countered that “proximate” does not mean “single,” and that failure to vote substantially contributes to removal under Ohio’s regime.
“There’s more than one proximate cause in the world,” she said.
Justice Sonia Sotomayor spoke at length about voter disenfranchisement, and noted that the state’s policy disproportionately affected marginalized groups. She also questioned why the Department of Justice, which argued for 10 minutes in support of Ohio, switched positions in the litigation. The Obama administration previously supported the APRI.
In a surprising development, Justice Stephen Breyer appeared to sympathize with Ohio’s position, citing its heightened interest in protecting the integrity of its registry. Though he acknowledged non-voting is not a perfect proxy for change in residence, he suggested Ohio’s policy generates useful data for elections officials.
“We do have the fact that that notice didn’t come back, and that means more than you think it means,” he told Smith of the failure to return a confirmation mailer.
Justice Anthony Kennedy echoed Breyer’s view.
A 2016 Reuters analysis suggested 144,000 Ohioans were removed from the voter registry under the current policy in the state’s three largest counties. 7,515 voters removed pursuant to the policy cast provisional ballots in the 2016 presidential election. The 6th U.S. Circuit Court of Appeals ordered the state to count those votes.
Opponents of Ohio’s policy rallied outside the high court as the justices convened to hear arguments.
“Your vote is your voice,” the ACLU’s Jennifer Bellamy told demonstrators in the Court’s marble plaza. “We are fighting in every state to protect and expand the right to vote.”
A ruling is expected by June.
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