News: CJ Exclusives

State elections officials see negligible impact from court ruling on inactive voters

CJ Photo by Kari Travis
CJ Photo by Kari Travis

A divided U.S. Supreme Court decision upholding Ohio’s method of removing inactive voters from election registration rolls shouldn’t affect North Carolina’s maintenance of voting records too much, a spokesman for the state elections board says.

The justices ruled 5-4 Monday, June 11, that Ohio complied with the National Voter Registration Act, often called the “motor voter act,” and the Help America Vote Act when it pruned people from voter rolls.

The state removed names if they failed to vote for two years, didn’t respond to a follow-up postcard to verify they lived at the address on their voter registration, and then didn’t vote in two federal elections over the next four years.

The majority said Ohio did what the law instructed. “Not only are states allowed to remove registrants who satisfy these requirements, but federal law makes this removal mandatory,” Justice Samuel Alito wrote for the majority. He was joined by Justices John Roberts, Neil Gorsuch, Anthony Kennedy, and Clarence Thomas, who wrote a concurring opinion.

Staff at the Bipartisan State Board of Elections and Ethics Enforcement followed the Ohio case closely.

“North Carolina’s voter list maintenance process is somewhat similar to Ohio’s,” said Patrick Gannon, a spokesman for the board. It follows all applicable state and federal laws, Gannon said, and the board anticipates no changes based on the Supreme Court decision.

“However, because 2018 is the end of a federal election cycle, we do anticipate a spike in removals from the rolls in late 2018 and early 2019 as the 100 counties remove voters who have not had any contact with elections officials, and have not voted in at least eight years,” Gannon said.

“It’s not clear to me whether this has broader implications, or whether more and more states would adopt these laws” to clean up voter rolls after Monday’s ruling, said constitutional scholar John Dinan, a Wake Forest University political science professor.

“I’m not sure how many state legislatures were waiting around, poised to add these laws,” Dinan said.

Justice Stephen Breyer strongly dissented. He was joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, who wrote a separate dissent. They expressed concern some people might be improperly removed from voter rolls.

Breyer said Ohio went too far, as federal law prohibits removing someone who doesn’t vote from voting lists. He said Ohio shouldn’t have sent postcards to verify addresses of people who didn’t vote and then purged those who didn’t respond. Breyer said people might not return postcards for a number of reasons.

Sotomayor cited constitutional concerns, including the past use of measures suppressing turnout by minority, low-income, disabled, and veteran voters. Breyer also touched on that theme.

Alito said the dissenters were asking the wrong questions. The case revolved around implementing the voter registration law — not whether Ohio’s practice of removing inactive voters from the books was unconstitutional. “Justice Sotomayor’s dissent says nothing about what is relevant in this case — namely, the language of the NVRA,” Alito wrote.

The decision displayed a rift in values among the justices.

“Some judges really say we ought to err as much as possible on the side of not purging someone improperly, and another set of judges saying, ‘Well, that’s a value, but there’s also a set of values of having accurate voter rolls,’ ” Dinan said.

“We’re not talking about a constitutional objection here. We’re really talking about how to interpret a law that Congress had written, and whether Ohio was satisfying that law,” Dinan said. The ruling helped to clarify the federal laws in contention.

Alito made that clear in his opinion.

“The dissenters may not think that the failure to send back the card means anything, but that was not Congress’ view,” Alito wrote. “It was Congress’ judgment that a reasonable person with an interest in voting is not likely to ignore notice of this sort.”

Alito wrote the court “has no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date. The only question before us is whether it violates federal law. It does not.”

Dinan wondered if critics of the ruling will push for additional steps to prevent voter registrations from being canceled improperly.

“I think in some ways Congress is urging states to do what they can to get accurate voting rolls,” Dinan said.

Jay DeLancy, director of the Voter Integrity Project, said his Raleigh-based watchdog organization has tried to help in those efforts, but its work was foiled when U.S. District Court Judge Loretta Biggs issued a preliminary injunction in November 2016 ordering the state to restore thousands of voter registrations. The Voter Integrity Project identified 6,700 individuals who failed to return address verification postcards after not voting, and challenged those registrations. The voters were removed from registration lists. The NAACP filed a lawsuit, and Biggs ruled it was illegal to cancel registrations as a bloc in the waning weeks of an election cycle.

DeLancy said Ohio’s process for canceling voter registrations is even more aggressive than North Carolina’s which bodes well for any challenges to North Carolina law. Ohio sends out address verification cards to voters who miss one federal election. North Carolina waits two federal election cycles before making contact.

To be considered inactive, a North Carolina voter would have to miss two federal election cycles; fail to update an address, change party affiliation, sign a valid petition, request an absentee ballot, and the like; not respond to a mailing confirming the voter’s address; or have a confirmation letter returned as undeliverable.

Even so, the voter would remain registered and eligible to vote. But if the voter didn’t contact a board of elections after two more federal election cycles — four more years — then he would be removed from the rolls.

An inactive voter can cast a provisional ballot. Those votes would still be counted if the voter could show he has resided in the county continuously.