Despite Supreme Court Ruling, Voting Is Still Not a ‘Use It or Lose It’ Right

The U.S. Supreme Court ruled on Monday that an Ohio voter purge program can resume, finding that the practice does not violate the National Voter Registration Act of 1993. The decision is a setback for voting rights in America and devastating for the thousands of Ohio voters who will show up at the polls only to learn that they have been purged and barred from casting a ballot — which happened to our client Larry Harmon in 2015. 

The ruling, however, is not a green light for states to initiate wholesale purges of registered voters however they see fit. While the court concluded that Ohio’s practice was permitted under the NVRA, it was unmistakably clear that states cannot purge registered voters without first providing notice and an opportunity to stay on the rolls. 

Along with our partners, the ACLU challenged Ohio’s voter purge process, which targets registered voters who do not vote in a two-year period for removal from the rolls. Here’s what the process looks like: Ohioans who don’t vote for two years are sent a nondescript postcard from the Ohio secretary of state’s office requesting a confirmation of their address. If those voters don’t respond to the notice or vote within the next two federal election cycles (or four years), they are kicked off the rolls without further notice. 

For decades, the Department of Justice, which enforces the NVRA, in both Republican and Democratic administrations, maintained that these kinds of purges are illegal — including in the run up to the 2016 election in this very case. Under Trump, however, the Justice Department flipped sides. It’s a stark reminder of the administration yet again reversing course on civil rights. 

As Justice Sotomayor pointed out in her dissent, the NVRA’s restrictions on voter purge practices were created “against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters,” including purges based on registrant’s failure to vote. As a result, the NVRA expressly prohibits purging voters just because they don’t vote. The court, however, concluded that Ohio’s practice of targeting infrequent voters for removal does not violate the NVRA — even though hundreds of thousands of Ohio voters, disproportionately minority, low-income, disabled, and veterans — were disenfranchised since this practice began. 

Nevertheless, although the court permitted Ohio’s purge program, it did so because the targeted voters are removed only after they receive a notice and subsequently do not vote or respond to the notice for another four years. As Justice Alito acknowledged, “the NVRA is clear about the need to send a ‘return card,’” before a state may remove a registered voter.

So while today’s decision “ultimately sanction[s] the very purging” of minority and low-income voters that Congress sought to prevent in enacting the NVRA, as noted by Justice Sotomayor, states do not have unfettered discretion to purge voters. States should beware of trying to turn the clock back on voting rights by failing to heed the NVRA’s limits on purge practices. 

As Justice Sotomayor wrote in her dissent:

“Communities that are disproportionately affected by unnecessarily harsh registration laws should not tolerate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by. Today’s decision forces these communities and their allies to be even more provocative and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.”

We agree, and we will continue to monitor states to protect our voting rights this fall and beyond. In fact, we, along with a number of other voting rights advocates, recently secured one preliminary victory against an illegal voter purge program.

Once registered, a voter should not be disenfranchised so long as the voter remains eligible to vote. That basic principle is one that should be jealously guarded in our democracy regardless of one’s political persuasion.

View comments (27)
Read the Terms of Use

Dr. Timothy Leary

Maybe more people would vote if they had somebody worth voting for.

Anonymous

Does this mean that a disenfranchised voter cannot re-register to vote? If not, why not voter registration drives in the affected area? Transportation for election day turn-out could also help with keeping voters on the rolls.\

Gaius Americanus

The Democrats have done nothing since 1980 to slow this steady erosion of our rights in this nation, especially while meekly allowing McConnell to steal a SCOTUS seat for Trump. All we are now doing is venting our angry spleens to the polluted skies as the Ship of State sinks below the waves. There is no rescue.

Anonymous

The democrats have done everything they can to speed up the erosion of our rights in this nation. And up to now they have made much destructive headway.

Anonymous

Ugh these comments though, blaming Democrats for eroding our rights away when it's very clear (not just in the article) that even before the Trump administration minorities have been actively discouraged to vote to the point of passing laws prohibiting them from doing so. The DOJ even flipped sides after the 2016 election. How are Republicans not to blame, again?

Anonymous

The problem is not “meek” Democrats, it’s NOT ENOUGH Democrats to outvote the GOP cult in Congress and statehouses. That’s what we need to do as citizens this year: FLIP GOP SEATS so that Democrats CAN enact reforms. “Standing up” to McConnell and Ryan accomplishes nothing except energizing your base if they have the VOTES to ignore you. Let’s give Nancy and Dianne the votes to stop one party rule!

Anonymous

No one is being forced to vote Republican. Perhaps the Democratic Party should look at why people choose not to vote for them. Here's a hint: people don't like to be belittled and don't want people in power who think poorly of them and insinuate they are cult members, deplorables, or that thrir votes shouldn't count.

R

To "Anonymous:" Who can belittle you more than Nazis, racists, and white supremacists? Because that's exactly what's happening here. When someone wins by 3 million votes and is still doesn't win, votes DON'T count. This is not the first election even in this century to be stolen by Republicans, who've worked tirelessly at eroding people's rights unless they're white, straight, cis, and male. And they haven't been shy about it either. Nowhere is it more obvious than the current administration who coerced the DOJ into flipping their stance on this violation of the most basic right to vote. Even more important for DEMOCRATS to vote EVERY. SINGLE. TIME.

Austin H. Turney

What is the process that a voter must go thru in Ohio to register again? If the process in Ohio is difficult, say, as in Kansas, requiring a certified birth certificate or passport as well as evidence of residence, it will sure cause many to drop out.

Anonymous

I have to provide three forms of ID just to get the electricity turned on in my house, yet you think it's too much to ask people, to obtain the ability to choose the direction of our nation?!? How astute of you...

Pages

Stay Informed