Husted: The Legality of Purging the Voter Rolls

By: Marcie Ernst and Melanie Walker[1]

The United States Supreme Court recently ruled in Husted, Ohio Secretary of State v. A. Phillip Randolph Institute[2] that Ohio’s process for removing voters on change-of-residence grounds did not violate the National Voter Registration Act (NVRA), also known as the “Motor Voter Act.”[3] A. Phillip Randolph Institute, a labor and civil rights group, filed the case on behalf of Larry Harmon, a resident of the state who had not voted in the previous two elections, but who attempted to vote in the following election and found his name stricken from the voter roll.

The case split the Court 5-4 along ideological lines with the conservative justices voting to uphold Ohio’s statute. This dispute reflects a broader partisan conflict as voting rules have been implemented in Republican-controlled states to keep voter rolls accurate and combat voter fraud. However, Democrats argue that there is no evidence of significant voter fraud and that purges disproportionately affect minorities and low-income people.

The NVRA addresses the removal of ineligible voters from state voting rolls and includes requirements that a state must meet before removing a name on change-of-residence grounds. To meet these requirements, a state must show that a registrant either confirmed in writing that she has moved or failed to return a “preaddressed, postage prepaid ‘return card’” and then failed to vote in the following two general federal elections. Additionally, the NVRA contains a general “Failure-to-Vote Clause,” which states that a voter cannot be removed from the roll based on her failure to vote. However, the NVRA was amended by the Help America Vote Act of 2002 (HAVA) and clarifies that the failure to vote clause does not prohibit the return card and failure to vote procedure.

Ohio’s removal process begins once a registrant fails to vote for two years. The state sends a return card to verify an individual’s residence. Failing to return a card allows a voter to remain on the list for two federal election cycles, approximately four years. Removal from the voter list will only occur if the individual fails to vote during this period.

The A. Phillip Randolph Institute made four main arguments:

• Nonvoting can only be considered after a registrant has failed to mail back her card and the use of the failure to vote as a trigger to mail a notice violates the NVRA;
• Many properly registered voters simply discard the cards rather than returning them and a failure to return a card is worthless evidence that the addressee has moved;
• This method violates the NVRA by purging the voter list for reasons other than the specific requirements of a person’s request, criminal conviction, mental incapacity, death, change of residence and initial ineligibility; and
• This method sends out notices without having any reliable indicator that the addressee has moved.

In addition to agreeing with the Institute’s interpretation and arguments, the minority noted that the number of people who move each year is significantly lower than the number of people who fail to vote, and that not voting is a poor proxy for an address change.

However, the majority disagreed with all of the arguments. First, after analyzing the text of the statute, the majority determined that Ohio’s procedure follows the NVRA “to the letter.” The NVRA prohibits nonvoting as the only reason that an individual is removed from the voter list. Since Ohio sends registrants a return card and gives them an additional four years before removal, the process does not violate the NVRA. Second, the majority found that the return card argument was invalid because the empirical evidence does not outweigh Congress’s research and discretion to adopt the return card process.  Third, Ohio’s process does not violate the NVRA purging requirements because it is a verification of their address. Lastly, the majority concluded that adopting an alternative interpretation would make HAVA’s amendment redundant and an interpretation rendering a statute redundant is never adopted. Thus, the majority of the Supreme Court held that the Ohio law does not violate any federal laws.

It is unclear how this ruling will affect the upcoming midterm elections and whether additional states will adopt this type of process. A number of other states also use voter inactivity to trigger a removal process from the voter rolls and it will likely be adopted by more.

[1] Ms. Walker is a law student at the Duke University School of Law and was a summer associate with Smith, Gambrell & Russell, LLP.

[2] 584 U.S. __ (2018).

[3] 52 U.S.C. §§ 20501-20511 (2012).

For more information on this topic, contact your Litigation counsel at Smith, Gambrell & Russell, LLP.

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