U.S. Supreme Court upholds Ohio's process for updating voter registration rolls: Read the decision here

WASHINGTON, D.C. - A divided U.S. Supreme Court on Monday upheld Ohio's method for removing ineligible voters from its rolls, saying it does not violate any part of the National Voter Registration Act.

Failure to cast a ballot for two years triggers Ohio's removal process. Notices are sent to voters whose registration is flagged. Registration is canceled if there's no response to the notices, no votes are cast during the next four years and the voter's address isn't updated.

"Ohio removes the registrants at issue on a permissible ground: change of residence," said the 5-4 decision authored by Justice Samuel Alito. "The failure to return a notice and the failure to vote simply serve as evidence that a registrant has moved, not as the ground itself for removal."

The decision said that as long as the trigger for sending voter removal notices is   "uniform, nondiscriminatory, and in compliance with the Voting Rights Act ... States may use whatever trigger they think best," to start the voter removal process, including the failure to vote.

Organizations and individuals who challenged the law said Ohio's process was illegal under federal laws that ban states from using voter inactivity to spark removal from the rolls. In 2016, an appeals court ruled Ohio's process violated the National Voting Rights Act of 1993 and the Help America Vote Act of 2002. The Supreme Court overturned that decision Monday.

Ohio Secretary of State Jon Husted called the ruling in the case known as Husted v. A. Philip Randolph Institute  "a victory for election integrity, and a defeat for those who use the federal court system to make election law across the country."

"This decision is validation of Ohio's efforts to clean up the voter rolls and now with the blessing nation's highest court, it can serve as a model for other states to use," said a statement from Husted, who is Attorney General Mike DeWine's running mate in this year's governor's race.

"I am pleased that the United States Supreme Court agreed that Ohio was following federal law in maintaining accurate voter rolls," added a statement from DeWine. "I congratulate our attorneys throughout this case for their exceptional work in documenting how this process used by Democrat and Republican secretaries of state is indeed lawful."

While Husted and DeWine argued Ohio's procedure is needed to remove dead people from the voting rolls and resolve the cases of voters who have multiple registrations, the challengers argued it might be more appropriate to use driver's license and post office change-of-address information, non-forwardable mail, and databases that show whether voters have moved.

Ohio's practice of removing infrequent voters from the registration rolls disproportionately disenfranchises low-income voters and voters of color, said a statement from Andre Washington, president of the Ohio A. Philip Randolph Institute, one of the organizations that challenged the state's law.

He said that in 2015 alone, hundreds of thousands of infrequent voters were purged from Ohio's voter rolls, including more than 40,600 registrants in Cuyahoga County, many of whom live in low-income communities and communities of color.

For people who already have trouble getting to the polls, Monday's decision creates another hurdle: the need to reregister, said Stuart Naifeh, senior counsel at Demos, which led the legal team challenging the state's practices. He said organizations that challenged Ohio's law "will continue to fight practices that deny people their fundamental rights to vote."

"Today's decision is a blow, not just to Ohio voters, but to the democratic process," said a statement from Freda Levenson, legal director at ACLU of Ohio. "Giving the green light to Ohio's purge process could have a ripple effect across the entire country. Despite this setback, the court's decision will not hinder our current and future advocacy efforts. Marginalized populations remain extremely vulnerable to state-sanctioned voter suppression and disenfranchisement, and we will continue to fight to uphold the rights of eligible voters in the 2018 midterm elections, and beyond."

Levenson said her organization and its allies will urge Ohio voters to check their online registration records, and reregister if they were erroneously purged.

Dale Ho, director of the ACLU's Voting Rights Project, said Georgia, Pennsylvania, West Virginia, Oklahoma, Oregon and Montana have laws that are similar to Ohio's. An ongoing challenge to Georgia's legislation that argues not voting is Constitutionally protected free speech could affect those laws if courts sympathize with that argument, Ho said.

"The Supreme Court got this one wrong. The right to vote is not 'use it or lose it'," added Chris Carson, president of the League of Women Voters of the United States. "The public trust in the fairness of our elections is badly shaken. This decision will fuel the fire of voter suppressors across the country who want to make sure their chosen candidates win reelection--no matter what the voters say."

The case is the latest skirmish in a nationwide partisan war over ballot access. Republicans say voter rolls need scrutiny to prevent fraud and promote ballot integrity, while Democrats insist the efforts are meant to reduce turnout from Democratic-leaning groups such as racial minorities.

An analysis by Reuters found the policy favors Republicans in the state's largest metropolitan areas by removing voters from the rolls in Democratic leaning neighborhoods at roughly twice the rate as in Republican neighborhoods.

"I am deeply disappointed the Supreme Court once again failed to protect the fundamental right of all Americans to participate in our democracy," said a statement from Warrensville Heights Democratic Rep. Marcia Fudge. "All of us, including our highest court, should be doing everything we can to make sure people CAN vote, not allowing their right to vote to be stripped away. As usual, the decision will hurt the poor more than anyone. .... Voting rights are under attack. Enough is enough."

A dissent written by Justice Sonia Sotomayor observed that the National Voter Registration Act was enacted to fight "substantial efforts by States to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections." She argued the court's decision sanctions "the very purging that Congress expressly sought to protect against."

A separate dissent authored by Justice Stephen Breyer and joined by Justices Ruth Bader Ginsburg, Elena Kagan and Sotomayor agreed with the challengers' contention that Ohio's procedure violates the law by removing voters who fail to cast ballots.

"Very few registered voters move outside of their county of registration," it said. "But many registered voters fail to vote. Most registered voters who fail to vote also fail to respond to the State's 'last chance' notice. And the number of registered voters who both fail to vote and fail to respond to the 'last chance' notice exceeds the number of registered voters who move outside of their county each year."

They noted that in 2012, Ohio identified about 1.5 million voters - nearly 20 percent of the 8 million who registered - as potentially ineligible to vote in federal elections because they might have changed their residences. They noted that more than 1 million of those voters did not respond to the notices the state sent them, and said that did not constitute a reason to assume they moved.

"The streets of Ohio's cities are not filled with moving vans; nor has Cleveland become the Nation's residential moving companies' headquarters," the dissent said.

Alito's ruling, which was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch, dismissed that view.

"The dissenters may not think that the failure to send back the card means any- thing, but that was not Congress's view," Alito wrote. The National Voter Registration Act "plainly reflects Congress's judgment that the failure to send back the card, coupled with the failure to vote during the period covering the next two general federal elections, is significant evidence that the addressee has moved."

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