Karen Hobert Flynn is president of Common Cause.
Nearly 63 million Americans voted for Donald Trump in 2016, and nearly 66 million cast ballots for Hillary Clinton. But the votes for Trump and Clinton fell well short of the number cast for no one at all; more than 95 million eligible Americans just didn’t vote.
Some of those nonvoters probably just didn’t like Trump or Clinton or any of their minor-party challengers. Some were ill or disabled or out of the country or couldn’t get away from work to vote. Some had no way to get to the registrar’s office before the registration deadline or to the polls on Election Day. And, sad to say, some didn’t vote because they’ve given up on politics and government.
Whatever their reasons, the nonvoters had the same right to vote — guaranteed by our Constitution — as the people who voted. But because they didn’t vote, millions of Americans now face the loss of that right at the hands of state officials who ought to be protecting it.
This is wrong, and the Supreme Court now has a chance to stop it. Next week, the court will hear a case giving the justices a chance to decide whether states can purge people from the voter rolls for not voting. Since 2011, Ohio Secretary of State Jon Husted has wiped about 2 million Ohioans off the books; he wants the high court’s blessing to purge even more.
Husted is among officials in more than a dozen states who — in the name of ballot security — have used purges, limits on early voting and voter registration, and other tactics to stop millions of qualified Americans from casting ballots.
None of those steps have made our elections more secure. Voter purges didn’t protect Ohio’s election systems last year when Russian hackers tried — with some success — to penetrate them. Purges don’t help states buy modern, secure voting equipment, nor did they help implement auditing procedures that make sure votes are tallied accurately.
Instead, Ohio’s electoral system under Husted’s leadership assumes that any voter who fails to vote for two years “may have moved” and mails a “confirmation notice” to his or her registered address. The notice is the state’s only attempt to contact nonvoters; those who do not respond and fail to vote in the next four years are purged from the rolls.
A lower court has halted Husted’s purges, but if he wins at the Supreme Court, they will resume and election administrators in other states will have license to follow Husted’s example. At least one, Georgia Secretary of State Brian Kemp, already is running purges on the Ohio model; an appeals court is considering a challenge to the Georgia purges brought by Common Cause and the Georgia NAACP.
Husted argues that Ohio’s purges are part of his responsibility to maintain accurate voter lists. But the National Voter Registration Act, signed in 1993 by President Bill Clinton with bipartisan support, specifically bars states from purging voters for not voting.
Everyone agrees that having accurate voter records is important, but purge policies such as those used in Ohio deprive legally qualified voters of a fundamental right. Consider the case of Larry Harmon, who lives near Akron, Ohio, and a plaintiff in the case before the Supreme Court. After voting in the 2008 presidential race, Harmon missed several elections. When he went to his polling place in 2015 to vote on a ballot initiative, he learned he’d been removed from the rolls.
“You know, I pay my taxes every year, and I pay my property taxes, and I register my car. So the state had to know I’m still a voter,” Harmon told PBS’s “NewsHour” a few months later. He added: “I’m a veteran, my father’s a veteran, my grandfather’s a veteran. Now they aren’t giving me my right to vote, the most fundamental right I have? I just can’t believe it.”
Harmon’s case ought to be unbelievable. Several federal voting laws were enacted to ensure that every qualified citizen can cast a ballot. But thanks to misguided decisions by the Supreme Court, most notably on the Voting Rights Act, and partisan gridlock on Capitol Hill, the laws have lost some of their bite. Meanwhile, partisans have been emboldened to manipulate voting laws to swing elections in their favor.
The Supreme Court has a chance to change its course. The justices must decide whether our democracy belongs to every citizen or if those entrusted with maintaining the levers of power can control who gets to pull them.