By Lisa Soronen
States and local governments have an interest in their voter rolls being accurate. Voters have an interest in remaining registered to vote. These interests collide in Husted v. A. Philip Randolph Institute.
The issue the U.S. Supreme Court will decide in this case is whether federal law allows states to remove people from the voter rolls if the state sends them a confirmation notice after they haven’t voted for two years, they don’t respond to the notice, and then they don’t vote in the next four years.
While Ohio is being sued in this case, 12 other states use a similar scheme.
The National Voter Registration Act (NVRA) says that roll maintenance procedures “shall not result in” people being removed from the polls for failure to vote. The Help America Vote Act modified the NVRA to say states may remove voters if they don’t respond to a confirmation notice and don’t vote in the next two federal election cycles.
The 6th U.S. Circuit Court of Appeals struck down Ohio’s scheme, reasoning that it “constitutes perhaps the plainest possible example of a process that ‘result[s] in’ removal of a voter from the rolls by reason of his or her failure to vote.”
According to the lower court, the problem with Ohio’s scheme is that the “trigger” for someone being removed from the voter rolls is their failure to vote..
In its petition asking the Supreme Court to hear this case, Ohio argues that it doesn’t remove voters “’by reason of’ their failure to vote; it removes voters ‘by reason of’” their failure to respond to a notice. The state also claims the NVRA doesn’t regulate what triggers the confirmation notice.
This case affects local governments as well as states. In recent years numerous local governments have been sued under the NVRA for not maintaining an accurate voter registration list.
An amicus brief filed by a number of former Department of Justice Voting Section attorneys points out that DOJ settled a number of these lawsuits by requiring local governments to follow a procedure similar to Ohio’s.
If you are interested in connecting with state legislators who are focused on election issues like this one, plan to join us for NCSL’s The Future of Elections: Technology Policy and Funding Conference. There, a panel of experts will discuss how to seal up opportunities for voter fraud with systematized efforts to keep voter rolls clean. The deadline to register online is Friday, June 2.
Lisa Soronen is executive director of the State and Local Legal Center and is a frequent contributor to the NCSL Blog on legal and judicial issues.