Central to the dispute between Ohio and the American Civil Liberties Union is a small part of the state's voting law: If a person skips voting in a two-year period, that sets in motion a legal process that could eventually lead them to being removed from the voter rolls.
Opponents say that’s way too quick, and that it penalizes intermittent voters who are often lower income.
“This is a way that demonstrably kicks people off the voter rolls when the only thing they are guilty of is not having voted in a recent election,” said Richard Saphire, a professor emeritus of law at the University of Dayton and who helped write the ACLU’s legal papers. “And that’s not a reason to disqualify people from voting in the future.”
But Michael A. Carvin, an attorney in the Washington, D.C., office of the Cleveland law firm Jones, Day, said Ohio’s law does nothing of the sort.
Carvin, who has filed legal papers defending Ohio’s system, said, “You can’t knock somebody off the voter rolls solely for failure to vote. Obviously, that’s not remotely what Ohio does.”
Husted says his efforts removed nearly 560,000 dead people from the rolls and resolved the cases of more than 1.65 million Ohio voters with multiple registrations.
Repeated notices are sent to voters whose names have been flagged, he says, giving them ample time to update their registrations. He also says the policy has been in place for decades, including when Democrats occupied the secretary of state’s office.
In papers filed with the court, Attorney General Mike DeWine’s office said the “failure to respond to a notice, not a failure to vote, is the sole proximate cause” for a voter being removed from the registration rolls.
But critics say many voters mistake the notices the state sends as junk mail and have little idea that they are being targeted. They also charge that the purging effort was ramped up beginning in 2015 as the 2016 presidential election neared.
Saphire said people have a right not to vote, particularly if they don’t like the candidates offered by the major parties.
“It turns out that system is purging lots and lots of people who are fully qualified to vote, (and) who have registered to vote,” Saphire said. “You are purged and nobody tells you about it.”
Court’s interest a surprise
That the high court is considering the case at all surprised some legal analysts. A three-judge panel of the 6th U.S. Circuit Court of Appeals in 2016 ruled the Ohio system violated federal laws approved by Congress in 1993 and 2002.
Because there was no disagreement among different federal appellate courts, few expected the Supreme Court to take the case.
But the justices last May said the court would hear the case in the current term. And because four justices are needed to make such a call, the move suggests at least four members of the court are sympathetic to Ohio’s case.
The appeal to the high court was filed by Husted and DeWine, who have formed a ticket for governor and lieutenant governor in this year’s Republican primary.
Opponents of the purging policy have argued that it benefits mainly Republicans. Ezra Rosenberg, co-director of the Voting Rights Project for the Lawyers Committee on Civil Rights in Washington, D.C., said Ohio’s system has a disproportionate impact among minority voters “because studies show minority populations are more likely to have a history of not voting.”
Here is how the system works: If a registered voter does not vote in a state or federal election during a two-year span, it triggers notices from the county board of elections inquiring whether there was a change of address. If the voter does not either respond to the notices or fails to vote in the next four years, the voter’s registration is cancelled.
In the 2016 election, the ACLU determined roughly 7,500 people in Ohio showed up to vote only to discover that their registrations had been cancelled.
Although President Donald Trump won Ohio by a wide margin in the 2016 presidential election, scores of Ohio elections have been decided by a handful of votes, which means the voter list can determine who wins elections.
In Virginia, control of the state’s House of Delegates was determined by a name drawn from a film canister, after one district race ended in a tie.
Just last week, Husted said 29 local elections were decided by a single vote or tied during last November’s elections, including 25 local races and four local issue campaigns.
“When we say ‘one vote matters,’ it’s not just a saying — it has proven true 141 times in Ohio over the last five years,” Husted said in a statement. “Last November’s election was another reminder why eligible voters need to be active participants in the democratic process.”
The Associated Press contributed to this report.
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