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.

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Anonymous

Polls are open late into the night all over the country you very unsmart person! They would never open the polls on the weekend because the majority of government employees are off all weekend, and they will never change that! Forcing people to vote?!? Wow that sounds a lot like a communist country! And one last question, do you think the ACLU is actually going to answer you here?!? Well, if they did, it sure wouldn't be on a weekend!

Anonymous

Now that he can't get PUTIE-PIE to do his dirty work he has to get OTHER people to do it. He doesn't do any of his OWN dirty work. He's like Charles Manson, Adolf Hitler, Osama bin Laden. Who make everyone else strap on the bombs but won't die for it themselves.
There's no sense in sending others out to die for what you won't even do yourself & that covers both Trump AND that war dog of his, BOLTON. They BOTH avoided war when they were drafted to fight it themselves but blabber on and on about how damn patriotic they are.
Not when it's your own butt on the line.

Simha Nyr

In Israel an Israeli citizen doesn't have to "register" in order to have the right to vote.
There is the "voters' book" which, based upon the registered address, shows where is each voter's precinct, and in case of mistakes, etc., one can apply for correction.
Anyway, if you don't relocate, once you are in the book, you are there forever (if you pass away, the Ministry of the Interior is supposed to know it, and to delete you from the book, but it happens the dead voter continue voting).

Simha Nyr

Spelling correction: but it happens that dead voters continue voting.
Sorry!

Outraged In Ohio

The system in Ohio is DESIGNED to suppress as many progressive votes as possible. In the past few years, in my immediate family alone, here are 4 specific examples.

(1) In 2012, I moved to Ohio from a blue state. I still had my Obama bumper sticker on my car when I went to the DMV to transfer my license and registration, and to register to vote. I had changed states before in my life, and had done this at least 3 different times with no problems whatsoever. I had no outstanding debts, warrants, unpaid fines, etc., so this should have been an easy administrative case . I brought my blue state driver's license, my VALID US Passport, my Social Security Card, my birth certificate, my latest county real estate tax bill, two bank statements, plus 5 utility bills all addressed to my Ohio address. After passing the written test, I mentioned to the state trooper that I had met every requirement listed on their website, so I should be licensed and registered. He demanded that I show him the exact website where this was spelled out (but he wouldn't let me use his computer). I figured he was just being "authoritative," so I got in line to speak to a clerk. She asked me for my (1981) marriage license, which I happened to have with me because I grabbed an entire file folder from home. Then she asked why my middle initial in my maiden name was different from my current middle initial, so I had to point out the (obvious) fact that I had legally changed my middle name to my maiden name when I got married, and this was evident on every document I presented. She, too, would not certify me, so I asked to speak to a supervisor. The supervisor asked me if I owned my own home. I said yes. Then she asked me if I could bring in the deed to my house. At that point, I'd had it. I told her: "Number One, If you want to know whether or not I own my home, you can look it up in your OWN database. Number Two, I do not have to be a homeowner EITHER to get a driver's license OR to register to vote. So, unless you want to read about this on the front page of tomorrow's newspaper, you will transfer my license and register me right NOW." They complied. Today that tactic would not work, because the local newspaper has since been turned into a Trump mouthpiece.

(2) My elderly mother is physically quite frail (but mentally sharp as a tack), so she typically votes by absentee ballot because she cannot endure the long hike from the handicapped parking spot to the actual voting machines in her polling place. She has lived at and voted from the same address for over 60 years. The new voter ID laws asked for her 8 character driver's license number (which is printed only 2 millimeters tall), and she inadvertently transposed two digits on the absentee ballot application form, so they refused to send her a ballot. She had to go wait in line (also a painful process) at the early vote center in order to vote.

(3) In the 2016 election, my mom and dad both requested absentee ballots on the same day (carefully filling in driver's license numbers), and received them in the mail on the same day. They each filled them out, and together took them to the post office (since Ohio requires you pay for absentee ballot postage yourself), paid the identical postage and mailed the ballots at the same time. (In our large city, US mail that is going across town first travels 60 miles out-of-state, and then returns the 60 miles back). The weekend before the election, they went on an out-of-town trip, returning Sunday night. My mother had a postcard waiting in the mail from the Democratic party warning her that her absentee ballot had not been received, and that she should be sure to correct the problem. She called the (then-closed) Board of Elections, and got a recorded message telling her that those postcards were sent out in error. I showed my parents how to find out the status of their absentee ballots online, and, sure enough, my mother's had not arrived, while my father's had arrived 2 weeks earlier, 5 days after they both mailed them. So, on Monday she went to the early vote center to stand in line for 2 hours to cast a provisional ballot. I seriously worried that the act of voting might kill her.

(4) My daughter, who had been living with me for most of the run-up to the 2016 election, was eagerly seeking a job outside Ohio. She requested an absentee ballot, because her out-of-town interview schedule was pretty unpredictable. Before her ballot arrived in the mail, she got a job offer in a blue state, accepted it, and moved immediately. She registered to vote in her new state (although new voter registration was already closed in restrictive Ohio at that point), and ultimately voted there in person on election day. After she had moved out, her Ohio absentee ballot arrived at my house, with stern warnings on the outside not to forward the mail. I was worried that she would be accused of voter fraud, since Trump was already crowing about this. I called the Board of Elections, and they told me to return the unopened envelope, writing on the outside that the addressee had moved out of state and her ballot should be cancelled, and send it to the attention of Ms. xxx. I did so, and photographed the envelope before putting it in the mailbox, since I don't trust these people. Earlier today, I searched the Ohio Secretary of State's online database of Voter Files, and found that my daughter was listed as having voted in Ohio in the November 2016 election!!! I called Ms. xxx, and she told me there must have been a mistake at the Secretary of State's office during the data transfer. And, presumably, when right-wingers decide to "prove" voter fraud by cross checking databases, they will identify my daughter as having voted twice. Good thing I've saved some evidence, but in hindsight I should probably have spent the money and sent it registered mail, or perhaps videotaped myself handing it over to the Board of Elections in person.

Normally, I don't think it's wise to attribute nefarious motives to people, when a simple explanation of incompetence will suffice. Either way, government employees in the State of Ohio are doing things to hinder legal voters from doing so. But the likelihood that this cluster of foul-ups occurred to so many in my family only AFTER Ohio tightened their voting procedures and NEVER happened to us BEFORE or in different states, is incredibly small. My complaints to officials were always met with, "It was someone else's fault," or "You could have gone somewhere else to register," or "You could have chosen a different way to vote." As it happens, my family members are ardent voters, so I spent two hours and 45 minutes at the DMV to register, and my mom endured 3 hours of exhausting standing in line, just to make sure they would NOT disenfranchise us. But not everyone can take that much time off from work, or risk their health or life, AND THEY SHOULDN'T HAVE TO!!! The government in my state is acting more like an iron curtain country than it is a democracy. Incidentally, a similar smokescreen is employed by the state to justify why they permit toxic water in our Great Lake.

So, make no mistake about it, this new Supreme Court ruling WILL deny many, many legitimate voters their right to vote. And it will prevent, only a miniscule number of voter fraud cases, if any. Those of us who care about voter rights will have to be hypervigilant to prevent our own government from doing this to us!

Sorry for the lengthy comment.

Anonymous

I've also had headaches with getting absentee ballots since 2012. Its not isolated.

Anonymous

So are they going to send notices via certified mail to ensure the notices are sent and recieved?

A voter can't be assumed to have recieved a notice just because it was sent. I get misdelivered mail for my neighbors all the time. And importantly, I've had another government agency, Veterans Affairs, claim they sent me a letter I never recieved. With them, there was no recourse for their answer that "a volunteer in our mailroom marked it sent, so our policy says we can count it as received".

How are people going to prove it if they are disenfranchised and never got a postcard? They can't. Plus Ohio is not going to pay to send them all via certified mail. It can and will be abused on some scale when you put an unprovable burden of proof on individuals to retain a right.

Anonymous

What the ACLU isn't telling you here is, the reason the states want to remove these non voters from the roles is to keep the criminals in each party from using those votes illegally to boost their candidate, while the actual citizen has no clue because they never vote! People are free to register to vote anytime they wish! This is typical lies from the very people that want to exploit those votes!

Anonymous

From watching the election it is obvious that if the ACLU can't fine people or put people in jail they are useless.

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