Justices Sonia Sotomayor and Elena Kagan expressed deep misgivings about the legality of an Ohio election law which they argued uses a person’s failure to vote to set in motion a process to strike the voter from the election rolls.
In oral arguments today in the U.S. Supreme Court, Sotomayor and Kagan sharply questioned Ohio solicitor Eric Murphy, with Sotomayor repeatedly asking why a person’s failure to vote during a two-year period would “suggest” to the state that the voter has moved.
As more than 50 people demonstrated against the law outside the court, Sotomayor asked Murphy why Ohio’s election law relied so heavily on a person’s failure to determine whether he or she had moved from the state, a system she warned would lead to “disenfranchising” minorities who tend to vote in fewer elections.
Instead, Sotomayor said the state could have relied on “dozens of other ways” to determine whether a vote had moved, such as relying on change-of-address notices sent to the U.S. Post Office.
“People have a right not to vote,” Sotomayor said.
Murphy insisted that under Ohio law “nobody is removed solely by reason of their failure to vote,” adding “they're removed if they fail to respond to a notice and fail to vote over six years.”
Justice Samuel Alito appeared to side with the state when he said that failure to vote “plays a part in determining” whether an Ohio voter has moved. By doing so, the justice appeared to reject the argument that Ohio was simply relying on a person’s failure to vote as a reason to begin removing them from the rolls.
The arguments before the high court centered on whether Ohio has violated federal election by removing registered voters from the rolls because they either failed to vote or did not respond to notices from their county board of elections.
Among those gathered outside the court to protest the Ohio law was Joe Helle, 31, mayor of Oak Harbor, which is between Sandusky and Toledo. Helle is now running for state representative in his northwest Ohio district.
Helle enlisted in the military when he was 18, and was eventually deployed to Iraq and Afghanistan. He said he voted absentee while he was deployed, but when he returned to Ohio he discovered that the ballot apparently never arrived and he had been purged from the voter rolls.
In August 2011, he went to vote on a school district levy only to discover that he had been dropped from the rolls.
“I cried because of it,” he said.
But then he became outraged.
“An American Army service veteran defending this right comes home and cannot exercise it,” he said.” I cannot explain how terrible that is.”
Sen. Sherrod Brown, D-Ohio, a former Ohio secretary of state who filed legal papers with the court in opposition to the state law, said the case was about the “government trying to choose who should get to vote. That’s wrong.”
When Brown was secretary of state, the Ohio constitution required voters be purged from the rolls if they had not voted in at least one election in any consecutive four-year period.
Brown enforced that provision, although his aides said he publicly reminded voters that if they did not vote or update their registration, they could be removed from the rolls. When elected to the U.S. House in 1993 he supported a 1993 law designed to make it more difficult for voters to be purged and which overturned part of the Ohio constitutional amendment he had been required to enforce.
Blaine Kelly, a spokesman for the Ohio Republican party, said the “the statements made today by Sherrod Brown proves that his partisanship knows no bounds.”
“Claiming that Ohio’s current law is ‘a direct attack on democracy,’ without acknowledging the same about his own enforcement of stricter laws, is a textbook example of hypocrisy,” Kelly said.
But Brown defended his efforts to register more voters outside the court Wednesday, saying when he was secretary of state, utilities would include voter registration materials in their bills, made registration applications available at unemployment offices and when people went to renew their driver’s license. He even convinced the McDonalds fast food chain to put voter registration applications on their tray liners. To this day, he says, some voter registration applications are stored that are stained with catsup.
Ohio Secretary of State Jon Husted, who is running for lieutenant governor on a Republican ticket headed by Ohio Attorney General Mike DeWine, attended the argument. After the argument, he argued Ohio makes it easy to vote and hard to commit fraud.
“Everyone that we’re talking about in this particular case has been reached out to multiple times by the state of Ohio and everybody wants to ask them to participate in our system of democracy,” Husted told reporters outside the court.
The decision, which could be released within the next six weeks, pits the American Civil Liberties Union against an Ohio election law that was enforced by Democratic and Republican secretaries of state. The ACLU argues the state penalizes people for not casting votes.
If the justices strike down the Ohio requirement, then not only will state lawmakers have to revise the law, but legislatures in more than a dozen other states will have to revamp their laws as well.
Under the 1994 Ohio law, if a person skips voting in a federal or state election over a two-year period, it triggers a notice from the registered voter’s county board of elections to check if they still live there.
If they don’t reply, they receive a number of mailings during the next four years, such as request for absentee ballots, a change of address card, or a notice on polling sites.
If the voter responds to any of those notices - or votes even once during those same four years - they remain registered. If elections officials don’t hear from a voter in the six-year period - no votes, no response to mailings - their name is purged from the list of eligible voters. The voter can register again to regain eligibility.
A federal judge sided with Ohio, but in 2016 a three-judge panel of the 6th U.S. Circuit Court of Appeals ruled the Ohio system violated federal law.
In the 2016 elections, the ACLU determined that roughly 7,500 people in Ohio showed up to vote only to discover that they had been purged.