The Supreme Court on Monday made it easier for states to remove perfectly eligible voters from the registration rolls. The 5-4 decision is the latest in a series of lamentable rulings undermining the right to vote and disproportionately disadvantaging the poor and racial minorities.
In Ohio, registered voters who haven’t voted for two years are sent a card asking them to verify that they still live at their listed address. Voters who don’t return the card and fail to vote in any election for four more years are presumed to have moved — even if they haven’t — and are removed from the rolls. As a result, some voters have shown up at the polls only to be told that they are no longer registered.
Ohio’s practice would seem to violate a 1993 federal law, the National Voter Registration Act, which prohibits states from removing anyone from the federal rolls “by reason of the person’s failure to vote.” But the court’s conservative majority found a way to justify the practice.
Writing for the court, Justice Samuel A. Alito Jr. said that, while failure to vote couldn’t be the “sole” reason for purging a voter from the rolls, it could be one factor in that decision — the other being failing to respond to a change-of-address notice. Therefore, Alito concluded, Ohio’s purging policy was legal.
That is tortured reasoning. Clearly it’s the failure to vote that triggers the process of sending out the change-of-address notice, which can lead to a voter’s disqualification if it isn’t returned, or if it’s lost in the mail.
Justice Stephen G. Breyer, in a dissent joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, made the point well: “When a state relies upon a registrant’s failure to vote to initiate the confirmation procedure, it violates the failure- to-vote clause, and a state’s subsequent use of the confirmation procedure cannot save the state’s program from that defect.”
Ideally every citizen will participate in every election. But skipping an election or even several elections shouldn’t be grounds for being purged from the rolls. Congress wanted to make it possible for voters to remain registered even if they decided not to participate in one or more contests. The objective was to encourage participation over the long haul.
And while it’s desirable to keep election rolls current — a goal also enunciated in the National Voter Registration Act — that can be done without presuming that those who haven’t voted recently or bothered to return a postcard no longer live in the area. For example, election officials can compare names on election rolls to those on the National Change of Address database (as Ohio election officials in fact do).
Finally, it’s important to realize that, as with requirements for photo ID, the burdens imposed by Ohio’s policy aren’t borne equally. In a separate dissenting opinion, Sotomayor cited friend-of-the-court briefs claiming that Ohio’s policy had disproportionately affected minority, low-income, disabled and veteran voters. Sotomayor further noted that predominantly black neighborhoods in downtown Cincinnati had 10 percent of their voters removed from the rolls since 2012, compared with 4 percent of voters in a suburban, majority-white neighborhood.
Because Monday’s decision is based on the interpretation of a federal statute, not the Constitution, Congress could overrule it, by making it clear that Breyer’s interpretation of the National Voter Registration Act is the correct one. Sadly, the current Republican-controlled Congress is even less likely to take an expansive view of voting rights than the current Supreme Court.