Terry H. Schwadron
June 17, 2018
It was a great disappointment to see the Supreme Court decide 5–4 last week to allow Ohio’s aggressive campaign to purge its voting rolls of those who skip an election.
It was a disappointment on the merits: The decision runs afoul of an individual’s right to protest a ballot full of bad candidates, for example.
But it was a bigger disappointment because the decision, again a one-vote majority by the more conservative wing of the court, will ensure and encourage a continuing series of moves to limit voting rather than to encourage new voting.
This one focuses on the migrant nature of our lives. When we move, we have to change voting registration as well as drivers’ licenses and the usual paperwork of our institutional lives. Often people register without cancelling the previous address, perhaps in another city or state, and Ohio’s lawmakers wanted to jump on that fact as preventive act towards voter fraud.
Among all the weird aspects of modern life is the continuing decline of a voting public. That basic apathy of Americans to drop out of our communal, political life leads inevitably to less (small d) democratic policies that run counter to common sense and tend to favor lobbyists, big business and big political donors.
Whether the court was right on the legal foundations here, the court was busily hiding behind blinders not to notice that we have a problem with right-wing groups, in particular, going out of their way to try to make it more difficult for new voters, particularly among the poor and people of color. More and more states are passing various versions of laws that are serving as obstacles, all of which get appealed to the courts, and most of which have been rejected.
The court ruled that a state may kick people off the rolls if they skip a few elections and fail to respond to a notice from state election officials. The case concerned Larry Harmon, a software engineer and Navy veteran who lives near Akron, Ohio. He voted in the 2004 and 2008 presidential elections but did not vote in 2012, saying he was unimpressed by the candidates. He also sat out the midterm elections in 2010 and 2014.
But in 2015, Harmon did want to vote against a ballot initiative to legalize marijuana and found that his name had been eliminated from the voting rolls.
Federal laws prohibit states from removing people from voter rolls “by reason of the person’s failure to vote.” But they allow election officials who suspect that a voter has moved to send a confirmation notice.
The central question in the case was whether a failure to vote could be the reason to send out the notice.
Ohio apparently is more aggressive than any other state in purging voter rolls. After skipping a single federal election cycle, voters are sent a notice. If they fail to respond and do not vote in the next four years, their names are purged from the rolls. A few other states use similar approaches, but not one of them moves as fast. The U.S. Court of Appeals in Cincinnati ruled in Harmon’s favor in 2016, saying that Ohio had violated the National Voter Registration Act of 1993 by using the failure to vote as a “trigger” for sending the notices.
Without that decision, “the ballots of more than 7,500 eligible Ohioans would have gone uncounted in the November 2016 election,” Harmon’s lawyers at Demos, a liberal think-tank, and the American Civil Liberties Union wrote in a Supreme Court brief. “Ohio is the only state that commences such a process based on the failure to vote in a single federal election cycle,” said a brief from the League of Women Voters and the Brennan Center for Justice. “Literally every other state uses a different, and more voter-protective, practice.”
A Reuters study in 2016 found that at least 144,000 people were removed from the voting rolls in recent years in Ohio’s three largest counties, which are home to Cleveland, Cincinnati and Columbus. That study found that voters from (big D) Democratic party-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods. Neighborhoods that have a high proportion of poor, African-American residents are hit the hardest.”
Twelve states, generally led by Democrats, filed a brief supporting Mr. Harmon. Seventeen states, generally Republican, filed a brief on the other side.
The Justice Department for decades took the position that failing to vote should not lead to disenfranchisement. In the appeals court, the Obama administration filed a brief supporting Mr. Harmon. Once Donald Trump was election, the Justice Department switched sides switched sides in the case.
What is so maddening about all of this is that when we look overseas to countries like Iraq or Afghanistan, we take great pride in seeing that people are willing to stand in line for hours for the chance to vote for a government that previously had been an autocracy.
In this country, Trump appointed — and ended up disbanding — a national committee to search out voting fraud led by former Kansas secretary of state Kris Kobach, which demanded voting roll information from all states to prove that “millions” of voters had cast fraudulent votes. That is a claim that has no evidence behind it.
But before giving up, Kobach pursued a campaign of wanting to show name matches across states to say that individuals (he said illegal immigrants) would show up in multiple states. In fact, such individuals as Stephen K. Bannon, the former White House senior official, was one such case. Being registered in multiple jurisdictions does not mean that individuals vote more than once, of course.
In recent months, anti-gun advocates, civil rights groups and anti-Trump forces all have vowed to sign up new voters in hopes of putting together effective voting blocs.
As in so many other areas, it would be nice to see our governmental institutions actually doing more to encourage voter registration and actual voter participation rather than seek to preserve their own political lives by denying the vote to would-be opponents.