Supreme Court to rule on state efforts to purge voters
By RICHARD WOLF | USA Today | Published: January 9, 2018
WASHINGTON (Tribune News Service) — Joe Helle served six years as an Army infantryman and sergeant, including 15 months in Iraq and four months in Afghanistan a decade ago. Ohio rewarded him in 2011 by taking away his right to vote.
Helle, now 31 and the mayor of tiny Oak Harbor (pop. 2,759), had become a casualty in Ohio's effort to maintain accurate voter registration rolls. Because he had not voted in six years and did not return a warning notice, his most basic right was removed.
"I broke down into tears," the war veteran recalls.
Now Helle is among those closely watching the Supreme Court, which on Wednesday will hear state officials contest lower court rulings that their process of cleaning up voter rolls — the strictest in the nation — violates federal laws. He thinks it's an open-and-shut case.
“It’s absolutely voter suppression," Helle, a Democrat in a state run by Republicans, says. "There is no other good reason for it.”
He's not alone. Groups representing racial and ethnic minorities, veterans, and people with disabilities have joined the opposition in what's become the latest in a series of battles against states' efforts to restrict voting rights and combat alleged voter fraud.
The Supreme Court has heard a bevy of voting rights cases since its controversial 2013 decision striking down a key section of the Voting Rights Act, which had forced mostly Southern states to clear changes in election laws with federal officials.
Last term, the justices nixed the excessive use of race in redistricting by legislatures in North Carolina and Virginia. This term, it faces cases from Wisconsin and Maryland challenging what opponents claim were election maps drawn by state legislators for purely partisan gain. Another case is pending from Texas.
Several other states that use the failure to vote as a trigger in efforts to cleanse their registration rolls could be affected by the high court's decision in the Ohio case, including Georgia, Oklahoma, Pennsylvania, Tennessee and West Virginia. But according to the League of Women Voters, "no other state ... has a practice as ham-handed and draconian as Ohio's."
The state — often a bellwether in national elections — has removed thousands of people who voted in 2008, when Barack Obama was elected president, but who didn't try to vote again until at least 2015. The process is run by county officials in a haphazard fashion, according to a 2016 investigation last year by the Cincinnati Enquirer and USA TODAY Network.
Under federal laws enacted in 1993 and 2002, states cannot remove voters from registration lists because of their failure to vote. But they can do so if voters don't respond to confirmation notices.
The question for the Supreme Court to resolve is whether a failure to vote can be the initial trigger leading to removal. The U.S. Court of Appeals for the 6th Circuit in 2016 said no, resulting in the votes of 7,515 Ohioans being restored.
"None of these voters had become ineligible to vote by reason of a change in residence or otherwise," the voting rights group Demos, representing the A. Philip Randolph Institute, argued in court papers. "Nonetheless, all had been purged from the rolls."
One vote can matter
Most voters who suffer that fate initially fail to vote in midterm elections. About 70% of registered voters turn out for presidential elections in Ohio, but the percentage drops below 50% in midterms, such as the one coming up in November.
By sending notices to those people, "Ohio is assuming that more than half of its voters may have moved," says Dale Ho, director of voting rights for the American Civil Liberties Union.
Navy veteran Larry Harmon was among those purged from the rolls in 2015. He voted in 2008 but skipped the next two years. He doesn't recall getting a warning from the state in 2011, after which he continued to skip voting. But he never moved away, as the state assumed.
That usually isn't the case. According to Census Bureau data, most people fail to vote because they don't like the candidates, or their busy schedules get in the way. The decline is particularly acute among minorities. Active-duty military and veterans, meanwhile, face other hurdles when registering, receiving ballots and voting.
The state's procedure for deciding who can vote and who cannot is crucial to the results. Last week, Secretary of State Jon Husted announced that 29 local races or issues were decided by one vote or tied during the fall elections, bringing the five-year total to 141. In Virginia, control of the House of Delegates was decided by picking a name from a hat following a tie vote.
Ohio argues in court papers that the mailed warning notice — not the failure to vote — is the key to the process. Those knocked off the rolls are penalized for failing to respond.
But Stuart Naifeh of Demos says about four in five voters who receive the notices don't send them back. “People don’t look at their mail all that closely,” he says.
The state also contends that the impact is exaggerated by opponents, noting only 7,515 voters had their rights restored in 2016 as a result of the lawsuit. About 5.6 million ballots were cast statewide.
Opponents respond that the number doesn't include those who didn't want to vote, learned that they were not registered, sought to vote by mail, or left the polls rather than casting a "provisional" ballot.
The Trump administration has changed sides in the case, one of several in which it has disagreed with the position taken by the Obama administration. In fact, the Justice Department had opposed the vote-purging process for a generation, threatening legal action against Alaska and South Dakota and filing "friend of the court" briefs against Ohio and Georgia.
States are divided, with 17 mostly Republican-dominated states siding with Ohio and 12 mostly Democratic-run states in opposition. That's reflective of the broader national debate between Republicans fighting alleged voter fraud and Democrats battling against voter suppression.
Each side has weighed in with its preferred statistics. Conservatives cite a 2012 study by the Pew Center on the States that found about 24 million voter registrations were invalid or inaccurate. Pew also found that 1.8 million deceased persons are still listed as voters, and 2.75 million are registered in more than one state.
Liberals note that most of those statistics are not linked to fraud at the polls, which has been shown to be rare. Kansas, a leader in prosecuting alleged fraud under Secretary of State Kris Kobach, has charged 15 people with double voting since 2015. The conservative Heritage Foundation identified 755 criminal convictions for voter fraud nationwide.
States that have faced lawsuits, meanwhile, are watching the case closely so that they can comply with the result.
"Some challenges are like this one, alleging that a list-maintenance process removes people who should not be removed," Georgia and 16 other states note in court papers. "Other times the challenge comes from the other side, alleging that a state has not sufficiently complied with its obligation to maintain accurate registration lists.
"And some states are whipsawed with both kinds of litigation at the same time."