Voter Purge Law Upheld in Husted: An Ineffective Mechanism to Prevent Voter Fraud

By Anna Iskikian, CLS ’20

The Supreme Court recently upheld Ohio’s process to remove registered voters from the federal voter roll, a process colloquially known as voter “purge” laws.[1]Respondents, consisting of two advocacy groups and an Ohio citizen, argued that Ohio’s process to remove voters violated the National Voter Registration Act (“NVRA”) and the Help Americans Vote Act (“HAVA.”)[2]The NVRA requires states to comply with certain procedures before removing the names of registered voters who have changed residences, such as providing the voter with prior notice.[3]Specifically, respondents contended that Ohio’s process violated the NVRA’s “failure-to-vote” clause.[4]The “failure-to-vote” clause prohibits the use of nonvoting as the grounds for removing registered voters from the voter rolls.[5]

Writing for the majority, Justice Alito concluded that respondents’ reading of  the “failure-to-vote” clause would “cannibalize subsection (d)” of § 20507.[6]Subsection (d) prohibits the removal of a voter’s name on change-of-residence grounds except in the following two situations: (A) the voter confirms in writing his or her change of residence, or (B) the voter fails to respond to a preaddressed, postage prepaid notice and fails to vote or to appear to vote for four years following the date of the notice.[7]Ohio’s Supplemental Process complies with the requirements in subsection (d)[8]. Justice Alito points to HAVA’s amendment of the “failure-to-vote” clause, which provides that “nothing in this shall be construed to prohibit a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters if the individual” has failed to return the preaddressed, postage prepaid notice “and then has not voted . . . in two or more consecutive general elections for Federal office.”[9]HAVA also adds that “no registrant may be removed solelyby reason of a failure to vote.”[10]Accordingly, the majority concluded that because Ohio’s Supplemental Process does not rely on “nonvoting as the sole criterionfor removing a registrant,” it does not violate the NVRA and HAVA.[11]

According to the dissent, the majority’s interpretation renders the failure-to-vote clause superfluous.[12]Respondents and the dissent argued that because, under Ohio’s Supplemental Process, the failure to vote for two years triggers the sending of the preaddressed, postage prepaid notice, Ohio violates the NVRA’s prohibition against the use of nonvoting to remove registrants from the voter roll.[13]This difference in statutory interpretation resulted in the 5-4 decision. In a separate dissent, Justice Sotomayor criticized the majority opinion for “ignore[ing] the history of voter suppression against which the NVRA was enacted and uphold[ing] a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.”[14]Justice Sotomayor asserted that most states have maintained accurate voter roles without relying on nonvoting to initiate the removal process.[15]

In its brief as amicus for the Petitioner, the United States cited the prevention of “voter fraud” as one of the policy goals that Congress identified in enacting the NVRA.[16]Hustedis one of many examples of the Justice Department shifting its position from one administration to the next; under the Obama administration, the Justice Department argued that Ohio’s process was unlawful.[17]The Justice Department’s shift is consistent with the Trump Administration’s allegations of rampant voter fraud plaguing the 2016 elections. Specifically, President Trump has claimed that ineligible voters, namely, undocumented immigrants, have been casting votes unlawfully. Several reports and publications have published research to debunk these voter fraud allegations or to demonstrate that such claims greatly overstate the extent to which fraudulent voter activity has been occurring.[18]

Even taking these allegations at face value, it is difficult to see how a voter purge law like the Ohio process is effective in preventing or detecting voter fraud. For instance, ineligible voting, duplicate voting, and false registrations have been identified as the most common forms of voter fraud.[19]All of these involve an affirmative act, such as filling out a voter registration form with false information or voting twice. Affirmative acts go unnoticed in a purge scheme like the one at issue in Husted. Instead, Ohio’s removal process operates to remove inactive voters. If voter John Doe were to vote in an election once in Minnesota and then in Ohio, his behavior would go undetected and unprevented under Ohio’s Supplemental Process; in fact, his unlawful duplicate vote would actually shield him from the removal process, by the virtue of the very fact that he voted, albeit unlawfully. Similarly, Ohio’s removal scheme does nothing to filter out ineligible voters from voting. As far the removal process is concerned, those who vote, whether lawfully eligible or not, will not be subject to the notice and removal procedure. Whether one thinks Ohio’s purge scheme is generally good policy in its effort to maintain current and accurate voter rolls is one matter. But at their best, such purge laws prescribe an ineffective mechanism for preventing fraudulent voter activity.

[1]Husted v. A. Philip Randolph Institute, 138 S. Ct. 1833 (2018).

[2]Id. at 1841.

[3]See e.g., 52 U.S.C. § 20507(d)(2) (“[a] notice is described in this paragraph if it is a postage prepaid and pre-addressed return card, sent by forwardable mail, on which the registrant may state his or her current address”).

[4]Husted, 138 S. Ct. 1833, 1841.

[5]See52 U.S.C. § 20507(b)(2) (“Any state program . . . shall not result in the removal of the name of any person from the [list of registered voters] in an election for Federal office by reason of the person’s failure to vote”).

[6]Husted, 138 S. Ct. 1833, 1843.

[7]52 U.S.C. § 20507(d)(1).

[8]Husted, 138 S. Ct. 1833, 1842 (“Ohio’s Supplemental Process follows subsection (d) to the letter.”)

[9]Husted, 138 S. Ct. 1833, 1840 (quoting 52 U.S.C. § 20507(b)(2)).

[10]Id. (quoting 52 U.S.C. § 21083(a)(4)(A)) (emphasis added).

[11]Id. at 1842. (emphasis added).

[12]Id. at 1858-1859

[13]Id.

[14]Id. at 1865

[15]Id.

[16]Husted v. A. Philip Randolph Institute, 2017 WL 3485554 (U.S.), 3 (U.S.,2017)

[17]Brent Kendall & Jess Bravin, Trump’s Justice Department Takes U-Turns on Obama-Era Positions, Wall St. J. (Jan. 5, 2018), https://www.wsj.com/articles/trumps-justice-department-takes-u-turns-on-obama-era-positions-1515148200?mod=article_inline.

[18]Debunking the Voter Fraud Myth,Brennan Ctr. for Justice(Jan. 31, 2017), https://www.brennancenter.org/sites/default/files/analysis/Briefing_Memo_Debunking_Voter_Fraud_Myth.pdf.

[19]A Sampling of Election Fraud Causes from Across the Country, The Heritage Foundation, https://www.heritage.org/sites/default/files/voterfraud_download/VoterFraudCases_5.pdf. (last visited Nov. 7, 2018).