Case No. 16-980 | 6th Cir. Decision
Voting is a critical part of the United States’ political system because it allows citizens to participate in shaping our democracy. Citizens’ votes affect change on all levels—local, state, and federal—where they not only vote on propositions and policies, but also for the individuals who will be tasked with implementing those items. Voting is a right granted to citizens so that each person, regardless of ideals, race, gender, or any other characteristic, is entitled to voice their opinion. As Justice Ginsburg reminded us during the Gill v. Whitford oral arguments, the United States system is grounded upon “one person, one vote.”
The concept of one person, one vote is important because as long as there has been voting, there have been attempts at, and claims of, voter fraud. Whether it was organized crime bosses telling people to “vote early and vote often,” Boss Tweed of Tammany Hall, or President Trump’s claims that millions of people voted illegally in the most recent election, voter fraud is a common topic of conversation and one that must be prevented, especially when elections, such as the 2000 Presidential election, can be decided by a handful of votes.
In order to effectively monitor who can vote, state’s must occasionally purge voter rolls to ensure that citizens who have moved, died, or are otherwise no longer eligible to vote in a jurisdiction’s election do not remain on the voter roll. While there are many ways to decide which voters should be removed from voter rolls, not all are equally effective. Whether the method Ohio uses is appropriate will soon be determined by the Supreme Court.
Ohio’s process for clearing the State’s voter roll of citizens is to use nonvoting as the trigger. Ohio sends notices to individuals who have not voted in the last two years. If no response is received from these individuals and the individual does not vote over the next four years, the voter is removed from the voter roll. Thus, simply because a voter elects not to vote for six years, for whatever reason, and fails to respond to a mailed notice, they will be removed from Ohio’s voter roll.
The plaintiffs in this case sued Ohio’s Secretary of State arguing that the “Supplemental Process,” implemented by Ohio to remove voters from the voter rolls “who are no longer eligible to vote due to a change of residence,” was not only inappropriate, but that it also violated the National Voter Registration Act of 1993 (the “Act”). A. Phillip Randolph Inst. v. Husted, 838 F.3d 699, 702 (6th Cir. 2016) The Act specifically states that: “Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office . . . shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of a person’s failure to vote.” 52 U.S.C. § 50207(b)(2).
The Secretary of State countered this argument by pointing out that the Act was modified by the Help America Vote Act of 2002 (“HAVA”) which adds limiting words to section (b)(2). HAVA states that “no registrant may be removed solely by reason of a failure to vote.” 52 U.S.C. § 21083(a)(4)(A).
The Sixth Circuit agreed with the plaintiffs and held that HAVA’s language does not change the analysis because the trigger to remove a voter from the rolls is “ultimately based ‘solely’ on a person’s failure to vote.” Husted, 838 F.3d at 711. The Supreme Court agreed to hear the case to decide whether “52 U.S.C. § 20507 permit[s] Ohio’s list maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter” under the National Voter Registration Act and the Help America Vote Act. The outcome of this case could affect voter maintenance procedures in many states, and ultimately determine whether voters have been incorrectly removed from voter rolls.