Supreme Court Heard Oral Arguments in Key Ohio Election Law Case

On last Wednesday, the Supreme Court heard oral arguments in the Husted v. Philip Roth Institute case involving maintaining voter rolls and removing ineligible voters in Ohio.

The case concerns U.S. Navy Veteran and Ohio resident Larry Harmon being unable to vote in the November 2015 election because his name was removed from the voter rolls. He voted in the 2004 and 2008 presidential elections but skipped the next one, saying he was unimpressed by the candidates. He also sat out the midterm elections in 2010 and 2014. Harmon has lived in the same place near Akron, Ohio for more than sixteen years and claims he does not recall ever receiving a notice. He is challenging Ohio’s current removal practice on grounds that it violates federal laws.

In 1993, Congress enacted the National Voter Registration Act which sought after two goals: (1) increase the number of eligible who register to vote and (2) protect the integrity of the electorate process by guaranteeing accurate and current registration lists. Although, in maintaining voter rolls, Congress specifically stated that a voter may not be removed just because they had not voted. When Congress enacted the Help America Vote Act in 2002, it included state requirements to maintain voter registration systems to remove ineligible voters from the list, and allowed for removal of a voter that has not responded to a notice regarding their eligibility status and have not voted in two consecutive federal elections. However, they once again specified that “no registrant may be removed solely by reason of a failure to vote.”

Under Ohio’s current law, if a voter does not vote for two years, the voter is sent a notice asking to confirm that they are still an eligible voter. If the voter does not return the notice, or continuously fails to cast a ballot for the next four years, then the voter is removed from the voter lists.

During the oral argument, state solicitor general Eric Murphy argued on behalf of Ohio that their current practice does not violate federal law because voters are not removed based on their failure to vote, but rather due to their failure to respond to the notice sent to them and also continuing to not vote for more than four years.

The federal government was represented by U.S. Solicitor General, Noel Francisco arguing in support of Ohio. Justice Sotomayor questioned him on the federal government’s shift in opinion saying, “there’s a 24-year history of solicitor generals who have taken a position contrary to yours. It seems quite unusual that your office would change its position so dramatically.”

Much of the discussion between the challenger’s representation Paul Smith and the justices focused on if and how states can gather reliable evidence that a person has moved with Smith repeating to Justices that a voter’s failure to cast a ballot does not provide reliable evidence that they have moved and should therefore be stricken from the voter roll.

The verdict of this case still remains uncertain. Justices Kagan and Sotomayor were critical of Ohio’s removal process, and Sotomayor pointed out the difficulty that the homeless, working poor, minorities and others already face in voting, and how Ohio’s practice unjustly affects them. The more conservative justices on the bench seemed to align more with Ohio’s argument that their current practice does not appear to be violating federal law. However, Justices Thomas and Gorsuch refrained from asking questions, so how they may vote on this is not as apparent yet.

A decision is expected by summer 2018.