Last Updated at 1:49 p.m. ET
Ohio is among a handful of states where voters can be kicked off voter registration rolls after not voting in three federal elections. During oral arguments on Wednesday, the U.S. Supreme Court appeared split on whether that practice violates federal election laws.
Once a registered voter skips two years' worth of elections, Ohio mails them a confirmation notice and then purges voters who don’t respond and don’t vote for another four years. In 2015 and 2016, Ohio purged 426,781 voters this way.
Ohio Attorney General Mike DeWine, who is running for governor this year with Secretary of State , argues that the state’s voter removal policy isn’t based on a history of not voting -- it’s based on whether people respond to the mail confirmation request. However, critics point out that the mail request only occurs because the state first seeks out inactive voters.
“It’s comparable to someone saying, ‘it’s not my bullet that killed you, it’s your failure to go to the hospital,” says Allegra Chapman, director of voting and elections at Common Cause, a national voting rights advocacy group that argues the Ohio policy is illegal.
The Trump administration is on Ohio's side, having reversed the Obama adminstration's stance on the case in August.
The case is part of a larger national debate about voting rights that has been heightened by President Donald Trump. In recent years, Republicans have advocated for and passed laws throughout the states that effectively make it harder to vote, especially for minorities, the poor and young people. They argue that voter ID laws and voter-purge policies are meant to reduce voter fraud, while Democrats argue that their intent is to suppress voter turnout. The consensus among most academics and election officials is that voter fraud is a rare occurrence.
The hearing took place one week after Trump announced the dissolution of the Presidential Advisory Commission on Election Integrity that he launched to investigate voter fraud, citing states' refusal to cooperate with its requests.
Two federal election laws are at issue in the Ohio case. The first, the National Voter Registration Act (NVRA) of 1993, instructs states to maintain accurate and current voter registration rolls, but also warns states that those list maintenance programs "shall not result in the removal of the name of any person [...] by reason of the person's failure to vote."
The second law, the Help America Vote Act (HAVA) of 2002, again calls for state voter registration records that "are accurate and are updated regularly" but clarifies that "no registrant may be removed solely by reason of a failure to vote."
At the hearing, many of the justices asked about the legal reasons why a state would send a confirmation notice -- and whether failing to vote is one of them. Did a state need evidence to suggest that a person had moved and, if so, how reliable did that evidence need to be?
"Suppose the [Ohio] state statute said that if you have not voted for 20 years, then we're going to send out the notice," said Justice Samuel Alito, Jr. "Would that violate this act?"
Paul Smith, the attorney arguing on behalf of A. Philip Randolph Institute and other groups challenging Ohio's law said, yes, because states cannot use failure to vote -- even for 100 years -- as the reason to purge voter rolls.
Justice Sonia Sotomayor asked Eric Murphy, the state solicitor for Ohio, to justify his state's use of nonvoting as the initial trigger for the purge process.
"How can we read this statute to permit you to begin a process of disenfranchising solely on the basis of that -- with no independent evidence whatsoever -- that the person has moved?"
Under federal law, failure to vote cannot be the sole basis for removal, Murphy said, but "it says nothing about sending a notice."
Colorado Elections Director Judd Choate describes the National Association of State Election Directors as “a pretty tight group,” but on the issue of removing registered voters, “it is a bit of a schism in our ranks.” In fact, even in Ohio, a group of 36 current and former election officials filed a brief against their own state, noting that the policy may remove eligible voters who move jurisdictions within the state.
Choate notes that most states have erred on the side of caution and don't use lack of voting as a means to identify potential ineligible voters. Instead, most compare addresses with the U.S. Postal Service, and a growing number of states participate in the Electronic Registration Information Center, a national data-matching partnership that allows states to compare voter registration records with motor vehicle licensing data and the Social Security Administration master death index list.
"There is a panoply of methods that you can employ that no one argues are in violation of federal law," he says. "This one [in Ohio] is much closer to the line and may very well be illegal."
The voter-purge issue is largely a partisan one among the states. The amicus briefs filed for and against Ohio illustrate that: All 15 state attorneys general defending Ohio are Republicans (with one independent exception), and all 12 state AGs against Ohio are Democrats.
Attorneys general for states opposed to the Ohio policy say it punishes populations with lower rates of voter turnout, such as racial minorities and young voters. AGs from states supporting Ohio, meanwhile, say states can use voter inactivity in assessing the eligibility of voters so long as it is not the sole or deciding factor in removing someone from the rolls.
The case was brought by Larry Harmon, a U.S. Navy veteran who didn’t vote in the 2009 or 2010 elections and didn’t respond to a mailed notice from the state’s election board. When he went to the polls in November 2015, he learned that he had been removed from the state’s voter rolls, despite having lived in Ohio for more than 16 years.
The Supreme Court has not previously weighed in on the tension between protecting a voter's right not to cast a ballot and a state's duty to keep its voter lists updated. The current division among states suggests policymakers do not know how to reconcile the two competing mandates from Congress.
“You’ve got this push and pull,” says Wendy Underhill, a program director for the National Conference of State Legislatures, a national bipartisan organization that filed a brief supporting Ohio. “States are probably going to be grateful to get some guidance from the court.”