Monday, June 11, 2018, the Supreme Court decided in a 5-4 ruling to uphold voter purging practices in Ohio that result in the removal of inactive voters from state voting rolls, a decision voting rights advocates are saying disproportionately affects already marginalized communities. In Ohio, registered voters who do not vote over a period of two years are sent a notice by the state. If they do not respond and do not vote over the following four years, they are removed from the state’s voter rolls.
National Action Network President the Rev. Al Sharpton has stated that Monday’s decision “marks an outrageous backward step for voting rights,” calling Ohio’s voter purge practices “codified voter suppression” that “disproportionately impacts people of color and marginalized communities that are already underrepresented at the ballot box, and could mean further disenfranchisement for millions of eligible voters across the country when other states adopt similar laws.”
Reports say that a lawyer for the state of Ohio told the court that the state’s process helps keep voter registration lists accurate and up to date. Conservative factions claim that voter purging practices such as those in Ohio prevent voter fraud from occurring. President Donald Trump told ABC News in January, “When you look at the people that are registered—dead, illegal and two states and some cases maybe three states—we have a lot to look into.”
The Supreme Court’s Monday decision was made regarding the methods used in Ohio to determine voter eligibility, specifically whether the usage of nonvoting as evidence of ineligibility is unconstitutional. As Supreme Court Justice Anthony Kennedy stated, “They want to protect the voter roll from people that have moved, and they’re voting in the wrong district. … What we’re talking about are the best tools to implement that purpose.”
The National Voter Registration Act of 1993 addresses the issue of removal of ineligible voters from voting rolls. According to the Act, a state might remove a name on grounds of change-of-residence only if the individual confirms the change-of-residence in writing or if the individual does not return a pre-addressed, postage prepaid “return card” and does not vote in any election over the period of the following two federal elections.
The Act, in its Failure-to-Vote Clause, states that state removal practices “shall not result in the removal of the name of any person… by reason of the person’s failure to vote.” However, The Help America Vote Act of 2002 adds that “nothing in [this prohibition] may be construed to prohibit a State from using the procedures” such as those previously described. The Supreme Court found Ohio’s purge practices to be in accordance with the National Voter Registration Act and The Help America Vote Act, concluding that registered voters are removed from the rolls on the basis of a change-of-residence and not on the basis of nonvoting, although nonvoting is used as a method of determining that a voter may have moved.
Although Ohio’s voter purge practices might not have been found to be unconstitutional, there is still concern regarding the impact of these practices.
After Larry Harmon, a Navy veteran and software engineer from Kent, Ohio, was turned away when attempting to vote in a local referendum in November 2015 because of six years of inactivity, he contested Ohio’s purging practices in court, backed by the American Civil Liberties Union and the public policy organization Demos. As a result, a federal judge ordered that voters purged for inactivity be allowed to cast provisional ballots, an order that allowed roughly 7,500 Ohio voters, who otherwise would not have been able to vote because of being removed from voter rolls, to vote in the 2016 presidential election.
These purge practices might have a negative impact on minority communities. Supreme Court Justice Sonia Sotomayor argued that the decision “entirely ignores the history of voter suppression against which the [National Voting Rights Act] was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.”
In a statement to the Amsterdam News, the American Civil Liberties Union of Ohio wrote, “Minority, disabled and low-income individuals were disproportionately impacted by Ohio’s purges of infrequent voters.
“People who are reliant on public transportation, who are disabled, or who have inflexible work schedules, language-access problems, or responsibilities for child and family care, face obstacles to casting a ballot. These challenges, further compounded with mail-delivery issues, made them significantly more vulnerable to Ohio’s purge. An investigation of one Ohio county revealed that, since 2012, 10 percent of voters in African-American majority neighborhoods were purged, compared with only 4 percent in the majority-white neighborhoods.
“Now that the United States Supreme Court has ruled that Ohio’s purge does not violate the NVRA, we expect—and fear—that the purge will be reinstated, and that it will continue to have an especially harsh impact on minority voters.”
According to a 2016 Reuters analysis, voters in Ohio’s three largest counties have been removed from voter rolls at “roughly twice the rate as in Republican neighborhoods.” It found that the neighborhoods hit hardest by Ohio’s purge practices were those with higher proportions of poor, Black residents. From 2012 to 2016, roughly 30,000 voters had been purged because of inactivity, a number greater than Barack Obama’s margin of victory in 2012.
Color of Change, a racial justice organization, said in a statement to the Amsterdam News, “This isn’t democracy. This is a blatant attempt to erase the voices of millions of Black voters, all for the benefit of a few in power. A decision like this sets a troubling national precedent and will only encourage states to continue pursuing racist voter laws. Voter suppression isn’t unfortunate—it’s unjust. We must hold the corporate and political enablers of this ruling accountable.”
Brooklyn Council Member Jumaane Williams stated that purging is overall aimed at very specific populations, usually Black and Latino. Williams said, “Voter fraud is not a real crisis. … It’s absolutely contrived. The only logic that makes sense, though, is bigotry.”
Williams added, “What states should be doing is increasing participation.”
According to reports, at least a dozen other politically conservative states have said they would adopt practices similar to Ohio’s voter purge practices if Ohio prevailed, meaning Monday’s decision has nationwide implications.
Highlighting existing purging practices in New York State, Williams said, “New York claims to be progressive, but it’s mostly lip service. … Most elected officials prefer systems that favor incumbency; there is voter suppression in specific areas. It’s clear that incumbents don’t like certain populations voting.” He cited the Brooklyn purging scandal of 2016, wherein more than 100,000 voters were illegally purged by the city Board of Elections.
This Supreme Court decision follows the Trump administration’s crackdown on alleged voter fraud. Trump has repeatedly made the unsubstantiated claim that between 3 and 5 million illegal votes had caused him to lose the popular vote in the 2016 presidential election, and he formed the presidential Advisory Commission on Election Integrity in May 2017, considered by voting rights activists to be pretext for voter suppression.