Purged From the Voter Rolls: Husted v. A. Philip Randolph Institute
by Damon Huss and Christine Cheung
What if you were registered to vote but missed an election? What if you missed elections for six years? Would it be fair for your state to then deny your eligibility to vote? The Supreme Court had to decide this issue when an Ohio man tried to vote but couldn’t in 2015.
Larry Harmon is a U.S. Navy veteran. He has lived at the same address in Ohio for over 16 years. Harmon normally votes in presidential elections, but in 2012, he decided not to vote because he did not like either Barack Obama or Mitt Romney. However, a ballot initiative about legalizing cannabis brought him to the polls in 2015, and he looked forward to making a difference with his vote.
Unfortunately, when Harmon arrived at his local polling place, he was shocked to find that his name did not appear on the list of registered voters. Harmon discovered that his name did not appear because he had not voted since the presidential election of 2008.
Under Ohio law, if a resident has not voted in two years, then the Ohio secretary of state sends that resident a notice asking the resident to confirm his or her address. The state provides the resident with a pre-stamped return card. If the resident responds, then they remain on the state’s voting lists (aka voter rolls). If the resident does not respond, and if the resident then does not vote for two more federal election cycles (four years), then the state assumes the resident has moved. The state then removes the resident from the voter rolls.
The state had sent Harmon the required notice in 2011 to confirm his eligibility. Harmon did not mail back the return card, so his name was removed from the voter rolls. Harmon, however, did not remember receiving the notice. Moreover, he thought it was unfair for the state to remove his name from the list of eligible voters simply because he had not voted for a few years.
Harmon sued Ohio’s secretary of state, Jon Husted, in federal court. Harmon was joined as a plaintiff by the A. Philip Randolph Institute (APRI), a civil rights organization. (A. Philip Randolph was a labor leader and organizer during the civil rights movement.) The case involved federal law.
Federal Voter Registration Law
In 1993, Congress passed the National Voter Registration Act (NVRA). The law had four purposes:
• to increase the number of registered voters;
• to enhance the participation of voters in federal elections;
• to protect the integrity of elections; and
• to help states keep accurate lists of registered voters.
To fulfill the fourth purpose, the NVRA requires states to make reasonable efforts to remove the names of voters who have died or changed residence (moved) without re-registering to vote. Those voters are ineligible to vote.
The NVRA provides specific procedures for voters who change residence, which can seem a little tricky at first. Under the law, a state may not remove a voter’s name based on change-of-residence unless the voter does one of two things. Either the voter confirms in writing (usually with a form from the post office) that he or she has moved, or else the voter fails to mail in a preaddressed, postage-paid return card issued by the state. The voter will still have a chance to vote in the next two federal elections instead of mailing back the card, and the card must inform the voter of that option.
The idea behind the NVRA is that if a voter fails to mail back the return card and fails to vote in one of the next two federal elections, the state can assume the person has moved. But the NVRA explicitly bars any state from removing someone’s name from a voter roll “by reason of the person’s failure to vote” (the failure-to-vote clause).
In response to the NVRA, states adopted various programs to remove ineligible voters from their official lists based on change-of-residence. Thirty-six states followed the first option set out by the NVRA: allowing residents to submit change-of-address information with the U.S. Postal Service. Ohio opted to have return cards by mail and monitor residents’ failure to respond and failure to vote.
At trial in district court, the plaintiffs argued that Ohio’s program violated the NVRA’s failure-to-vote clause. They argued that a person’s failure to vote illegally triggers the removal process by triggering the mailing of the return card. Husted countered that Ohio’s procedures mirrored the NVRA’s procedures and never removed anyone based “solely” on the failure to vote.
The district court agreed with Husted and ruled in his favor. The plaintiffs appealed, and the Sixth Circuit Court of Appeals reversed the district court’s decision. Husted then appealed the case to the U.S. Supreme Court.
The Majority Opinion
In June 2018, the U.S. Supreme Court issued a 5–4 opinion written by Justice Samuel Alito. The court held that Ohio’s change-of-residence removal program did not violate the NVRA. Justices Thomas, Gorsuch, Roberts, and Kennedy joined Alito’s opinion. The majority on the court identified the “most important part” of the NVRA regulations as the “prior notice obligation.”
According to the majority opinion, Ohio’s program satisfied the prior-notice obligation by sending the pre-stamped return cards to residents before it started the clock on four years of failing to vote. It removed a resident from the voting lists only after that four years. Justice Alito also wrote that “no provision of federal law” specified how a state may send a return card. Different states have adopted different programs for removing ineligible voters from their lists, and all of them are valid. For example, the NVRA states that sending return cards to those who have submitted change-of-address information to the U.S. Postal Service suffices. Likewise, states may send notices to every registered voter over intervals of time. Ohio opted for the method of sending cards to those who have not voted for some period of time. All of these methods were legal, according to the court.
The Supreme Court held that the reason for sending the return card was not important. A state’s program only violates the NVRA if, after the card is mailed and the resident does not reply, the state does not wait until after the mandated two general elections (four years) before removing the voter from the official lists. Thus, the Supreme Court held that Ohio’s program follows the NVRA “to the letter.”
Justice Clarence Thomas wrote a concurring opinion. He agreed with the majority’s conclusion. But he added that he thought that there was a fundamental constitutional issue at play. In his view, the majority opinion avoided constitutional concerns, but according to him, under the Constitution, “States have the exclusive authority to set voter qualifications.”
Dissenting Opinions
Justice Stephen Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented from the majority opinion in this case. According to Justice Breyer, the failure-to-vote clause of the NVRA “generally prohibits” states from using registrants’ failure to vote as a trigger for removing their names from official voting lists. In other words, states cannot use failure to vote as confirmation that a voter has moved.
Also, Justice Breyer looked at the NVRA as a “Confirmation Procedure” rather than the first thing that should identify whether a registrant has moved. Ohio’s program necessarily used the return cards as the first thing to determine whether a registrant had moved. Since the Confirmation Procedure was to confirm, not identify, voters who had moved, Justice Breyer argued that Ohio’s program was an unconstitutional violation of the NVRA.
Justice Breyer pointed out that even if Ohio’s program satisfied the failure-to-vote clause and the Confirmation Procedure, Ohio’s program violated the NVRA because it was an “unreasonable” method for identifying voters who had moved. Justice Breyer noted that “most people who receive confirmation notices from the State simply do not send back the ‘return card’ attached to that mailing — whether they have moved or not.”
Furthermore, Justice Breyer pointed to a study that found that there were more registered voters who failed to vote and failed to respond to the return cards than voters who moved outside their county each year. In other words, wrote Breyer, “The fact that the State hears nothing from the registrant essentially proves nothing at all.”
Justice Sonia Sotomayor wrote a separate dissenting opinion. She joined Justice Breyer’s dissent “in full,” but wanted to emphasize the first two purposes of the NVRA: to increase voter registration and to enhance voter participation in federal elections. In her opinion, Ohio’s law violated the purposes of the NVRA as well as the failure-to-vote clause. “Congress enacted the NVRA,” Justice Sotomayor wrote, “against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters.” In her opinion, the majority on the court ignored this history.
Why This Case Matters
The case reflects two conflicting visions of what the main problem is in our federal elections. The two visions divide along partisan lines.
For Jon Husted, a Republican, the problem is voter fraud. He has argued that the Ohio voting procedures “make it easy to vote and hard to cheat.” The concern is that a fraudulent voter might assume the name of a deceased person or someone who has moved out of a particular county. Then, that fraudulent voter might vote in their name. Though extremely rare, voter fraud concerns the governments of several politically conservative states.
For others, the problem is voter suppression. In 2016, the Reuters news agency found that at least 144,000 people’s names were removed from voter rolls in Ohio’s largest three counties, and more specifically from Democratic-majority, black-majority neighborhoods. Hence Justice Sotomayor emphasized that the NVRA’s legislative history shows that the NVRA was meant to prevent just that kind of disenfranchisement.
In light of the Husted case, other states might follow Ohio’s example for their own programs. This would likely significantly increase the number of names purged from voting lists across the country. In 2019, an Arizona state legislative committee passed a bill to purge voters’ names from the early mail-in ballot list if those voters miss two federal elections. Mail-in ballots are often used by poorer voters who cannot take time off from work to vote on Election Day. Even so, the voters could still vote in person. Republicans approved the bill. Democrats rejected it.
This article was originally published in the Summer 2019 issue of Bill of Rights in Action (BRIA), the quarterly curricular magazine of Constitutional Rights Foundation. Click here for a classroom activity on this article, plus writing and discussion questions for use with high school students. You can also subscribe to BRIA for free here.
