Can a properly registered American voter lose the right to vote simply by failing to return a postcard? Yes, according to a controversial U.S. Supreme Court case decided this June on a 5-4 vote.
The case, Husted vs. A. Philip Randolph Institute, centered on Larry Harmon, a software engineer and Navy veteran. Like 70 million other registered voters, Harmon hadn't cast a ballot in the 2012 presidential election. He also hadn't voted in the 2010 and 2014 midterms, or in any primary, local or special election over a six-year period.
Ohio election officials had no evidence that Harmon had moved from his address of 16 years. But his non-voting record generated that postcard, which essentially demanded, "Tell us you still live here, or we might purge you from the voting rolls." Harmon, who testified that he didn't recall getting the notice, was then refused a ballot when he showed up in 2015 at his neighborhood polling site.
Voting-rights activists were predictably incensed. "Anti-democratic" and "chilling" were just some of the milder epithets. Advocates and editorial writers warned that millions of infrequent voters would be disenfranchised should other states adopt Ohio's approach.
As a former election official -- I served as Oregon's secretary of state from 1991 to 1999 -- I agree that Ohio's law unnecessarily disenfranchises too many voters, who also happen to be disproportionately young, lower-income and minority. But amid the trees here is a far more important forest. The Husted case reveals a remarkable opportunity for using a slightly different kind of postcard to accomplish two important goals that too often are seen as conflicting: dramatically improving the accuracy of voting rolls while helping millions of Americans never come close to losing their voting rights.
Voters who, like Harmon, remain at a given addresses but seldom vote are the much smaller challenge for election officials. Far more voters, in Ohio and elsewhere, eventually get purged because they have changed their official residences but haven't told election officials. Census data show that about 20 million American adults change their legal addresses each year, about 11 percent of the population.
Election officials in 18 states similarly use the U.S. Postal Service's National Change of Address (NCOA) database largely for this negative purpose: to identify -- and potentially purge -- voters who've moved. Voters whose cards are returned with no forwarding address are presumed to be inactive and potentially purge-worthy. When a new in-county or in-state address is indicated, the voter then typically receives a second card at the new address with this message: We think you've moved; you must let us know if you want us to update your registration.
Ohio sent address-verification postcards to 1.5 million people during the 2012 election cycle; 1.2 million failed to respond. Recent national data compiled by the federal Election Assistance Commission suggests a similar non-response rate of 75 percent among 20 million such notices.
This "opt (back) in" approach, putting the onus on the voter, stands in sharp contrast to the "opt out" approach to NCOA-based registration updates that's long been used by the "vote-at-home" states of Colorado, Oregon and Washington. (The accuracy of voting rolls especially matters when ballots are mailed out to 100 percent of active registered voters.) Our NCOA-prompted postcards have a far more proactive, voter-friendly message, along these lines: "Since official records indicate you've moved to Address B, we've automatically updated your voter registration to that address. Please let us know if you don't want us to do this." For voters who don't return the card, but who want to keep their old address for official voter-registration purposes, there's still a fail-safe: Inactive voters can re-update their registrations back to their old addresses. In Colorado, even wrongly purged voters can re-register up through Election Day.
The vote-at-home states that use this NCOA-based process of automatic registration updates approach typically get a 2-4 percent return rate of non-forwardable ballots, in sharp contrast to states where 10 percent or more of existing voting records map back to an incorrect or outdated address.
Would such a system solve all our registration problems? Of course not. For starters, not every moving voter fills out a postal change of address form. However, the 40 percent figure cited in Justice Samuel Alito's majority opinion in Husted is so spurious that it would be almost laughable were it not for Alito's heavy reliance on it to rationalize Ohio's "gotcha" approach in this arena. NCOA data show the share of individuals who don't inform postal officials when they move is closer to 10 percent.
While federal law requires all states to use motor-vehicle records to help update their rolls, voters might go years between such transactions. Using monthly updates from NCOA in this proactive way can make the registration update process far more immediate, seamless and automatic for the vast majority of voters.
The Postal Service and its workers have done a remarkable job in making mail-based election systems run smoothly (and with much higher turnout, too) in vote-at-home states. But even without immediately embracing that system, a lot more states could start using the U.S. mail to help -- and not hinder -- voters in protecting their most important of constitutional rights.