This week, the Supreme Court held in Husted v. A. Philip Randolph Institute that Ohio’s processes of removing people from the voter rolls does not violate federal law. The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting Ohio — and twelve other states maintain their voter rolls using a similar process.
For city leaders, the case could have a serious impact on voting and elections.
The law works like this: If a person doesn’t vote for two years, the state of Ohio sends them a confirmation notice. If they don’t respond to the notice — and don’t vote in the next four years — the state of Ohio will remove them from the voter rolls.
The National Voter Registration Act (NVRA) allows states to remove voters if they don’t respond to a confirmation notice and don’t vote in the next two federal election cycles. But the so-called Failure-to-Vote Clause says a state program “shall not result in the removal of the name of any person … by reason of the person’s failure to vote.”
Two advocacy groups and an Ohio resident claim Ohio’s process violate the NVRA’s Failure-to-Vote Clause because “the failure to vote plays a prominent part in the Ohio removal scheme.” They argue failure to vote is used as a trigger for sending the confirmation notice and as a requirement for removal.
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In a 5-4 opinion written by Justice Alito, the Supreme Court concluded that the Ohio process doesn’t violate the NVRA. First, it is undisputed that the Ohio process follows the NVRA “to the letter.” Second, Justice Alito pointed to other language in the NVRA stating that registrants may not be removed “solely by reason of a failure to vote.”
According to the court, the NVRA “simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. Instead, as permitted by [the NVRA], Ohio removes registrants only if they have failed to vote and have failed to respond to a notice.”
The challengers also argued that because so many people discard the confirmation notice the failure to send it back is “worthless” as evidence someone has moved and is ineligible to vote. The Supreme Court rejected the notion it should second-guess the Ohio Legislature’s “considered judgment” regarding the “probative value” of a registrant’s failure to respond to the confirmation notice.
The court again relied on respecting the judgment of the Ohio Legislature in rejecting the challengers’ argument the “Ohio’s procedure is illegal because the State sends out notices without having any ‘reliable indicator’ that the addressee has moved.” According to the court, “the Ohio Legislature apparently thought that nonvoting for two years was sufficiently correlated with a change of residence to justify sending a [confirmation notice].”
The SLLC amicus brief points out that hundreds, if not thousands, of states and local governments are tasked with registering voters and maintaining voter rolls. Processes vary based on factors including state law and resources; so, states and local governments need clear direction and flexibility regarding what process they may use to maintain voter rolls.
The brief notes that while in this case Ohio is being sued for the process it uses to take people off the rolls, states and local governments have been sued for keeping ineligible voters on the rolls.
Joshua Davis, Reed Smith wrote the SLLC brief which the following organizations joined: the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.
About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.