Will The Supreme Court Allow States To Penalize Americans Who Don’t Vote?

About 100 million eligible voters chose not to vote — or were unable to — in the November 2016 presidential election. That’s more individuals than the number of people who cast their ballot for Hillary Clinton, the winner of the popular vote, or for Donald Trump, the winner of the White House.

As Donald Trump reminds us daily (usually through Twitter), we are all punished when such a substantial portion of the population does not participate in voting, the corner-stone of our democracy.

A good portion of these non-voters have never been registered, while others managed to register but have become inactive voters. For those in the latter category living in Ohio (and states with similar laws), the state removes them from the roll entirely if they are inactive for two years, then fail to respond to a letter, and then don’t vote within the next four years.

This purging process is the focus of a voting rights case called Husted v. A. Philip Randolph Institute, et al, which the U.S. Supreme Court has agreed to hear. They will address whether federal law prohibits Ohio from penalizing its citizens for not voting over a six-year-period by removing them from the voter rolls.

The Court of Appeals for the 6th Circuit sided with the voting rights advocates who sued Ohio over this process. Will the Supreme Court come to a different conclusion? I hope not.

I do not see how the federal laws at issue in this case — the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA) — permit states to remove infrequent voters from the voting roll without a better indication that they are ineligible, such as change of address information from the postal service. Section 20507(b)(2) of the NVRA states:

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… shall not result in the removal of any person from the official list of voters in an election for Federal office by reason of the person’s failure to vote.

If there’s evidence the person has moved, then the state may send that person a letter, and finally remove them from the rolls if they don’t respond to the letter and don’t vote within the next four years. Section 20507(c)-(d). HAVA did not alter this process, saying, “nothing in [HAVA] may be construed to authorize or require conduct prohibited under [the NVRA], or to supersede, restrict, or limit the application of [the NVRA.].” 52 U.S.C. 21145(a).

So, based on my reading of these laws, the state needs more than the mere fact that someone didn’t take an affirmative step to maintain their right to vote either by responding to a letter (how many letters have you forgotten to reply to?) or voting within a certain period of time (four years after the letter, six years total).

Six years of non-voting may seem like a long time, but not to me, not when I look at my six-year-old daughter and think about how fast she’s growing up. It also doesn’t seem like a long time when I think about how life’s disturbances can be a challenge to voting for many people, especially when they either don’t know much or don’t care for the candidates running in any particular race.

Importantly, the right to vote encompasses the right not to vote. So, then, why would we penalize Americans who didn’t do it by making it harder for them to ever do it? Taking a person off the roll, forcing them to re-register, is a barrier to voting.

Ohio claims that it must have a way of removing infrequent voters from the rolls to maintain the “integrity of the electoral process,” which is often code for rooting out theoretical voter fraud in a way that benefits a particular party. As I wrote in my comments on this blog about Ari Berman’s book, Give Us the Ballot:

Berman notes that when the Bush Administration made voter fraud the focus of a Justice Department initiative, the probe ‘resulted in only eighty-six convictions out of three hundred million votes cast’ between 2002 and 2007.

Meanwhile, to reduce the virtually non-existent problem of voter fraud, the state of Ohio is willing to take away the voting rights of thousands of its citizens. In the 2016 Presidential election alone — a single election — 7,515 people voted (because of a court order in this case) who would not have been permitted to vote at all under Ohio’s purging process.

My state, Pennsylvania, may employ a similar process targeting infrequent voters. In my precinct, where I am the Judge of Elections, it’s my job to tell hopeful voters that their names do not appear on our rolls. On November 8, 2016, based on my phone records, I spent more than three hours of my time trying to track down where people were registered. Sometimes, it’s another precinct, another ward, or another county; other times, they are registered nowhere at all, despite their clear memory of having voted before. They can file a provisional ballot, which may or may not be counted, but they cannot go into the booth. They walk away with a voter registration application (to get the chance to vote in the future) and the feeling that the state took away their right to vote.

Ohio wants as many people as possible to feel that way. The process they are fighting for in the Husted case is a voter suppression scheme.

In Ohio’s brief to the Supreme Court, on pages 5-6, state Attorney General Michael Dewine and his colleagues said:

It is a tragic fact of history that, before 1965, some States enacted registration rules to “deny registration” to African Americans rather than ensure fair elections. Congress passed the Voting Rights Act to remedy this “extraordinary’ problem.”

Those quotes around “deny registration” and “extraordinary” in Ohio’s brief may as well be sneer quotes considering how disingenuous the state’s position is. It is not merely a tragic fact of history that some states enact rules to deny registration to individuals they believe will not vote for the party in control of those rules. Ohio is fighting for the ability to do that right now.

Lillian’s Right to Vote, a children’s book authored by Jonah Winter and illustrated by Shane W. Evans, poignantly displays the history of the voting rights struggle for racial minorities and women in the United States. It ends with a sobering note that discusses the Supreme Court’s evisceration of the Voting Rights Act and leaves readers with a call to action: “The right to vote still needs protection. Will a new generation rise and continue this fight?”

The answer must be yes.

I am thankful for organizations like the ACLU and Demos, which together filed the lawsuit against Ohio. I hope the Supreme Court does not undo their hard work.

____________________

*To read the briefs submitted to the Supreme Court in this case, go to SCOTUSblog.

18 thoughts on “Will The Supreme Court Allow States To Penalize Americans Who Don’t Vote?

  1. Pingback: We March(ed) – A #Resistance Check-In – The Misfortune Of Knowing

  2. Just discovered your blog, and I’m loving it!

    I’m curious about countries with compulsory voting laws (such as Argentina, Australia, etc.). Do these laws increase engagement and voters’ participation in the process (i.e. belief that their vote matters and that political leaders care about satisfying voters’ demands)? Are compulsory laws applicable to all citizens within the country, or would certain populations be excluded, such as those with a criminal history?

    1. Those are great questions! I don’t know the answers off the top of my head, but I plan on looking into it at some point. I doubt the US would ever require citizens to vote because it goes against our society’s sense of individual liberty, and lawmakers typically don’t want to enact changes that could erode the power structure that has benefited them. What I’d like to see is universal registration–no one should show up at the polls only to be told that we can’t find their name on the rolls– but even that is unlikely in a country where lawmakers want to make sure only a tiny fraction of the country has the right to vote.

      Thanks for stopping by!

  3. Pingback: Voting & Incarceration: “The More Things Change, The More They Remain The Same.” – The Misfortune Of Knowing

  4. Wow. Thanks for the insightful read! I did not realize there were states that would drop you from the voter rolls because you missed a few ballot casting opportunities. That’s insane! I mean I think that we need to make sure that our voter rolls don’t have people on them that have moved out of state or have died but I think this is taking it way to far. Like you said, the right to vote means also having the right not to vote.

  5. I feel exhausted and furious thinking about the various voting suppression efforts Republicans have been putting in place. What’s maddening is how unoriginal these efforts are — it’s the exact same nonsense they were doing Jim Crow, and they’re depending on everyone not to notice. I NOTICE.

  6. Do you think Ohio HONESTLY thinks it’s working to improve voter integrity, or do you think it’s a sly way of denying people the right to vote? I think you lean toward “sly,” but I wanted to verify. It seems confusing that anyone would think voter fraud is happening regularly, but because many Americans are not well-educated (the statistics on how few people read anything, let alone the numbers of those who are illiterate, is astounding) and hear constantly from Trump that voter fraud is real.

    I would love to read a blog post from you about voting and the prison population. I’m not sure I understand what rights inmates have/don’t have and why.

  7. This is horrible! I hope the Supreme Court does the right thing on this one. The law should make it harder for voters to be removed from the rolls, not easier.

    1. I hope the Supreme Court does the right thing on this one, but I’m worried they’ll overturn the 6th Circuit. The 6th Circuit decided the case appropriately. We’ll see.

  8. Vijayalakshmi Harish

    American politics has always been confusing to me, but right now a lot of it seems wilfully nasty and icky 😔

    1. Yes, it is awful right now. Voter suppression efforts aren’t new, though. Every generation seems to reinvent a new way of ensuring that racial minorities don’t vote. It’s terrible.

  9. It’s such bull. It’s obvious they’re trying to keep the most disenfranchised and dissatisfied voters further disenfranchised. They are such sore losers. I can’t even deal.

    1. Voter suppression efforts like this are such a threat to our democracy. It’s shameful that Ohio is fighting to keep this process. I am worried about what the Supreme Court will say, but even if they decide that the federal laws PERMIT this process, that doesn’t mean states should do it. It’s patently unfair.

    1. I understand how you feel. Ohio’s public officials should be ashamed of themselves. Even if the federal law permits this process–which I don’t believe it does (but we’ll see what the Supremes say)–Ohio shouldn’t do it. It’s unfair.

  10. I hate what I see happening in this country at so many levels, all the way to the top. 😦 Lately, politics makes me feel angry and impotent, an uncomfortable combination.

    1. It makes me feel the same way. I just can’t believe how badly our institutions are failing. We need a new Congress to stop the abuses of the Executive branch, and voter suppression efforts will not help us get there.

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