A sharply divided Supreme Court on Monday upheld a controversial voter purge policy in Ohio, one of several voting disputes the court is expected to settle in the coming weeks.
In a 5-4 decision, the court upheld Ohio’s “use it or lose it” policy, known as the supplemental process.
Under the state policy, voters who have not voted in two years are flagged and sent a confirmation notice. Voters who fail to respond to the notice and don’t vote within the next two years are removed from the rolls.
The process is one of two methods state officials use to identify voters who are no longer eligible to vote due to a change of residence.
Critics claimed the policy violates a federal law that bars states from removing people from the voter rolls for failing to vote. But a majority of the high court rejected that argument.
The court’s five conservative justices, led by Justice Samuel Alito, voted in the majority, with the court’s four liberals, led by Justice Stephen Breyer, dissenting.
In delivering the majority opinion, Alito said the state’s process does not violate the National Voter Registration Act’s failure-to-vote Clause or any of the law’s other provisions.
“The notice in question here warns recipients that unless they take the simple and easy step of mailing back the preaddressed, postage prepaid card — or take the equally easy step of updating their information online—their names may be removed from the voting rolls if they do not vote during the next four years,” Alito wrote.
“It was Congress’s judgment that a reasonable person with an interest in voting is not likely to ignore notice of this sort.”
Demos and the American Civil Liberties Union, which brought the lawsuit on behalf of Ohio resident Larry Harmon and two other groups, argued the policy specifically targets minority and low-income people, two groups that traditionally have lower voter turnout.
In a fiery dissent, Justice Sonia Sotomayor agreed. She said Congress enacted the National Voter Registration Act specifically to fight state efforts to disenfranchise these communities.
“The Court errs in ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against,” she said.
Justice Stephen Breyer in a separate dissent joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sotomayor, argued that a voter’s failure to respond to a notice “is an irrelevant factor in terms of what it shows about whether that registrant changed his or her residence.”
“To add an irrelevant factor to a failure to vote, say, a factor like having gone on vacation or having eaten too large a meal, cannot change Ohio’s sole use of ‘failure to vote’ into something it is not,” he said.
Six other states — Georgia, Montana, Oklahoma, Oregon, Pennsylvania and West Virginia — have similar practices that target voters for removal from the rolls for not voting, but Ohio’s is the most stringent.
In a statement, Ohio Secretary of State Jon Husted (R), said the state’s process can now serve as a model for other jurisdictions.
“Today’s decision is a victory for election integrity, and a defeat for those who use the federal court system to make election law across the country,” he said.
“This decision is validation of Ohio’s efforts to clean up the voter rolls and now with the blessing [of the] nation’s highest court, it can serve as a model for other states to use.”
But voting rights advocates warned they will fight other states that try to enact similar voter policies they see as discriminatory.
“If states take today’s decision as a sign that they can be even more reckless and kick eligible voters off the rolls, we will fight back in the courts, the legislatures, and with our community partners across the country,” Stuart Naifeh, senior counsel at Demos, said in a statement.
Naifeh argued the case on behalf of Harmon, who was removed from the rolls under the state’s process, as well as the Philip Randolph Institute and the Northeast Ohio Coalition for the Homeless.
The court has other voting issues on its docket. The justices are still grappling with two partisan gerrymandering cases challenging voter maps in Wisconsin and Maryland.
Dale Ho, director of ACLU’s Voting Rights Project, wouldn’t guess how the court would rule but said the cases present a tremendous opportunity.
“On the one hand we could get a great ruling from the court that either makes clear when too much partisanship in the redistricting process is so problematic that it violates the Constitution or we could get a ruling short of that, but at least starts to point the way for what the standard for that is going to look like,” he said.
“Or we could get something really negative that either kicks these cases out on some kind of narrow ground, which would be a shame because then you’d have to start the machine over again to try to get some relief in these cases.”
According to Ho, the most troubling ruling, however, would be one that shuts the door on these kinds of challenges going forward.
The court is expected to release more decisions on Thursday.
– Updated at 2:59 p.m.