By Lisa Soronen

In Husted v. A. Philip Randolph Institute, the U.S. Supreme Court held that Ohio’s processes of removing people from the voter rolls does not violate federal law, in a decision announced today..

If a person doesn’t vote for two years Ohio sends them a confirmation notice. If they don’t respond to the notice and don’t vote in the next four years, Ohio removes them from the voter rolls.

The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting Ohio. Twelve other states maintain their voter rolls using a similar process.

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 “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. 

The Supreme Court in a 5-4 opinion written by Justice Samuel Alito concluded the Ohio process doesn’t violate the NVRA. First, it is undisputed the Ohio process follows the NVRA “to the letter.” Second, 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 General Assembly in rejecting the challengers’ argument that 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 and Reed Smith wrote the SLLC brief which was joined by: NCSL, 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.

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog.