Column: Is the right to vote a use-it-or-lose-it proposition?


Is the right to vote conditional on actually voting?

An Ohio man, a Navy veteran and software engineer named Larry Harmon, sat out some elections, including the 2012 presidential race. Neither candidate did anything for him. Then, when he did show up to vote against a marijuana legalization initiative in 2015, he found he no longer was a registered voter.

Ohio’s voter purge law is the most aggressive in the nation, and the Supreme Court, by a 5-4 vote, has declared it’s legal to unregister a registered voter — for not voting. Voter purging joins the toolkit of steps that a number of state legislatures and secretaries of state are taking to keep people from the polls in the first place — and those techniques, as much as the votes that are cast, can shape the results of elections.

Daniel P. Tokaji is a professor of law at Ohio State University and was a co-counsel in the lawsuit against Ohio’s purge policy, one that he worries will be copied by other states, and disenfranchise more Americans.

What’s the underlying premise of this case? Is it that when it comes to voting, it’s use it or lose it?

Unfortunately, that is the effect of the Supreme Court’s ruling, at least in the state of Ohio, and I fear that that contagion will spread to other states. Our argument was that this practice, which has accelerated and intensified in recent years, violates federal voting rights law, in particular the National Voter Registration Act, which was enacted in 1993, signed by President Clinton.

That law expressly prohibits state programs that result in the removal of anyone from the rolls by virtue of their failure to vote. In our view, this was a clear violation of the plain language of the statute. A 5-4 majority of the Supreme Court, in an opinion by Justice Sam Alito, saw things differently.

Justice Alito looked at the intent of the law, it seems, and not the impact, when he said that there was no evidence that Ohio carried this out with any intent to discriminate.

Our case wasn’t predicated on a showing of discriminatory intent. You don’t need to prove an intent to discriminate against Democrats or African Americans or poor people in order for there to be a violation of the National Voter Registration Act.

The problem is that the court really didn’t pay close attention to what the statute actually said. And Ohio’s program results in the removal of people from the rolls by virtue of their failure to vote.

There is an exception where states follow a process where they get information from the post office and use that as the trigger for removing people from the rolls. But the state of Ohio, while it does that, was trying to do something that’s not permitted by the statute, and to use the simple failure to vote as a trigger for the purge process.

If you don't find out that you're not on the rolls until within 30 days of an election, boy, then you're out of luck.

— Daniel Tokaji

I think that the four dissenters, and in particular the dissenting opinion by Justice [Stephen] Breyer, got it exactly right in saying that, hey, if you look closely at the plain language of the statute, this is a pretty clear and straightforward case.

But unfortunately, the five Republican appointees on the Supreme Court who joined the majority opinion — they are no friends to the right to vote. And I’m fearful not only of the consequences of this particular ruling, but of what it portends for the Supreme Court protecting — or more to the point, not protecting — our fundamental right to vote in future cases.

When did Ohio put this law in place, and was it argued that this is just the voter roll equivalent of spring cleaning — you just clear out the clutter?

That is more or less the argument that they made, and the policy itself has been in effect for many years. But the number of people purged has increased greatly over the past several years, something on the order of 2 million people purged from the rolls over a five-year period. The number of people purged in Ohio vastly exceeds that in other states.

And look, there’s nothing wrong with removing people from the rolls if there’s good reason to believe that they’ve moved or died or otherwise become ineligible and if you follow the process that federal law prescribes.

But you’ve got to have some good reason for believing that someone has moved in order to start that process. For example, let’s say a board of elections office gets mail returned as undeliverable. That could be a basis for initiating the process. They might also get information from another state, and such information, that someone has moved, could be the basis for initiating the removal process,

Anything affirmative that would say, Howdy Doody is no longer a resident here; Howdy Doody now lives one state over, so you can take him off your voter rolls.

All of those are good bases, appropriate bases for initiating the process. What you can’t do as a matter of, we think, very clear federal law is to initiate this process simply because of someone’s failure to vote.

The process that Ohio put in place sounded rather reasonable: You had to miss two elections, you didn’t return a postage-paid card that the registrar sent out to you and then they would wait another what, four years — six years — before striking you from the rolls?

What happens is that if you haven’t voted over a two-year period, you get this card, and then if you don’t vote in the next two federal elections, you’re removed from the rolls. On its face, I’m sure to most people — at least people who are regular voters — that sounds very reasonable.

But here’s the thing: A lot of people don’t vote in every election. There are a lot of people out there who only vote in presidential elections. And what this policy means is if you miss one presidential election, you’re effectively liable to get purged from the rolls.

Now, you do get this mailing from election officials, but we all know how much junk mail we get. It’s very easy for people, especially those with limited literacy, to miss the significance of what they’re getting and get purged from the roles without having any idea of why.

The people who then decide, after missing a few elections, that they want to go vote and go to the polling place that they’re used to — what do they encounter?

Here’s the thing. If you’re in Ohio, and in many other states, the deadline for registering is 30 days before the election, which means if you discover more than 30 days before the election that you’re not registered, well, you can reregister.

But if you don’t find out that you’re not on the rolls until within 30 days of an election, boy, then you’re out of luck. It’s too late to reregister at that stage, which means you effectively lose your right to vote.

You’ve got to remember that a lot of people really aren’t engaged and paying close attention to elections until they’re about to happen. A lot of people become interested and engaged just a few weeks, or even days, before the election.

If you’re in one of the handful of states that have election day registration, well then, you’re in luck. You can go and register and vote on that day. But that’s not an option that’s available in Ohio and most other states.

Between the National Voter Registration Act of 1993 you spoke of and the Voting Rights Act of 1965, how is it that these two pieces of legislation cannot protect people from purges like the sort you describe?

The Supreme Court’s ruling was based solely on the National Voter Registration Act. We did not bring a claim under the Voting Rights Act in our case. We didn’t have to prove and didn’t have to introduce evidence of a racially disparate impact. But as Justice [Sonia] Sotomayor pointed out in her dissent, that kind of claim would still be available and could be brought in another case, if it were shown that a purge policy had the effect of disproportionately kicking African Americans or Latinos or Native Americans or Asian Americans off the rolls.

So it’s still possible that there could be claims brought against purge policies in Ohio and elsewhere in the future.

It seems that this is one of the battles in the war over elections, which has changed from not so much persuading voters but to controlling and deciding who votes and who counts votes.

These fights over who can votes and who can’t vote, who’s excluded from voting, they’re actually nothing new in American history. We all know, of course, about the long disenfranchisement of African Americans as well as women.

Even after African Americans were given the right to vote under our Constitution — or I should say won the right to vote under our Constitution with the 15th Amendment — they were systematically kept from voting.

And it wasn’t just African Americans; it was also ethnic minorities in many cities, in particular, who were often excluded from voting by various insidious practices, including the manipulation of voting lists.

But over the roughly 18 years since the Florida 2000 election and Bush versus Gore, we’ve seen a renewed interest in both access to the ballot and, on the other side, some determined efforts to make it more difficult for some people to vote through voter identification laws, through restrictions on early and absentee voting, through limits on the counting of provisional ballots and through barriers to registration.

In fact, I think voter registration practices, at least according to the political science evidence, probably have a greater impact on who votes and who doesn’t than any other kind of election rule.

Your colleague there at Ohio State, Edward Foley, said this ruling is narrow in its scope and potential effect. Do you agree?

No, I don’t agree. If other states adopt this rule, or if the Department of Justice starts to put pressure on states to tighten their registration lists, the implications are a lot more serious than some people might recognize.

What about the big picture? Ohio is clearly a battleground state like Florida, and like Florida, this argument over who gets to vote occupies front and center. Do you expect them to be imitated by other states?

This remains to be seen, but I’m very worried that other states are going to follow Ohio’s unfortunate example and try to really put the screws on voters by kicking people off the rolls.

So, yeah, if you just look at this one case, the voter purge case, you might say, well, this is just one particular practice. But it is part of a bigger battle, one might even say a war, over voting rules that has been going on for many years,

I’m very concerned about what our Supreme Court has done and will do to our democracy, to our ability not only to cast our votes but to cast meaningful votes. We’ve seen a lot of issues pertaining to the dilution or weakening of votes, including the problem of gerrymandering. I hope that the Supreme Court will do something constructive, but I’m very worried about whether they will.

And the Supreme Court, regrettably, especially since John Roberts became chief justice, has been making things worse rather than better, weakening the right to vote of those who are less affluent, and especially of racial minorities and tying it to bigger issues of race.

This is a court that has not been friendly to affirmative action or other measures designed to remedy longstanding racial inequality. And this purge ruling, as well as other rulings, threaten to erode the progress that has been made not only on voting rights in issues of democratic equality, but on issues of racial justice more generally.

Dahlia Lithwick, who writes about legal matters for Slate, called Ohio “the purgiest of all the purgy states.” Is she right?

We’re certainly a leading contender. There are some respects in which I think Ohio has made some progress since, in particular, the 2004 election, where we quite fairly got a lot of negative attention.

But in other respects, we’ve taken steps backward. And the purge policy is unfortunately one of the areas in which things have actually gotten worse rather than better over the years.

But we’re certainly not alone. There are efforts in lots of other states — and let me just be blunt about this — especially states that are governed and led by Republicans, where there are strenuous efforts to make it more difficult for people both to vote and to have a meaningful voice in our political system. We need to continue to fight back against those anti-voting rights efforts.

From a broader perspective, it is virtually certain that these fights over access to the ballot and the equality of our votes are going to continue. And so I think it’s very important for people to engage, to express their views, to join groups that are fighting to protect their right to vote, to speak out through whatever means are available to them because ultimately it is the right to vote that guarantees our equality as citizens and ensures that our democracy functions, and that right is very much threatened at the present day.

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