Chiraag Bains is Director of Legal Strategies at Demos, which served as lead counsel to the plaintiffs in Husted v. A. Philip Randolph Institute along with the American Civil Liberties Union. He previously served as senior counsel to the assistant attorney general of the Justice Department’s Civil Rights Division.
In the United States, if you don’t buy a gun for several years, you do not lose your Second Amendment right to bear arms. If you never write a letter to the editor or participate in a street demonstration, you retain your full First Amendment rights to free speech. If you skip church for years on end, the government cannot stop you from finally attending a service.
But according to a decision by the Supreme Court this week, if you fail to cast a ballot, you can be removed from the voter rolls and denied your fundamental right to vote.
The case, Husted v. A. Philip Randolph Institute, involved Ohio’s flawed presumption that citizens who do not vote during a two-year period have moved out of their voting district and become ineligible to vote there. Ohio sends these voters a postcard that is easily overlooked and, if they don’t respond or vote over the next four years, the state cancels their voter registration.
That’s what happened to Larry Harmon, a Navy veteran and software engineer who voted in 2008 but sat out the 2012 election because he didn’t like the candidates. Ohio claims to have sent him a postcard in 2011, though he doesn’t remember receiving it. Then, when he went to the polls to vote on a ballot measure in 2015, election workers told him he wasn’t on the list. They did not let him vote.
Ohio has the most aggressive voter-purge practice in the country. The state kicked more than 2 million voters off its rolls from 2011 to 2016. A Reuters study found that voters in predominantly African American neighborhoods were purged at more than twice the rate of voters in predominantly white neighborhoods.
During the 2012 election cycle alone, Ohio sent postcards to a staggering 1.5 million people — around 20 percent of its voters. More than 1.2 million didn’t respond. There’s no reason to think these people had moved. And the state often independently knows they haven’t. Harmon had lived in the same home for 16 years when he was turned away from the polls, a fact reflected in Ohio’s tax records.
Ohio’s practice is a classic example of what Congress sought to abolish when it passed the National Voter Registration Act in 1993. The law prohibits voter-list maintenance programs that “result in the removal of the name of any person . . . by reason of the person’s failure to vote.” We sued Ohio on behalf of Harmon and two civil rights groups, winning an injunction that preserved the rights of 7,500 wrongfully purged individuals to vote in 2016.
A 5-to-4 conservative majority of the Supreme Court has now removed that protection. In the opinion for the court, Justice Samuel A. Alito Jr. managed to read the NVRA to allow precisely what it appears to forbid. Relying on an argument not even advanced by Ohio, he held that a state can purge voters so long as nonvoting is not the “sole criterion” for doing so. Even the slightest additional reason — not responding to a one-time mailing — makes their removal permissible. This logic ignores Congress’s own statement when passing the NVRA that people should not be removed “due to their failure to respond to a mailing.”
The court also ignores the many reasons people do not vote. Wage workers, seniors, people with disabilities and people who rely on uneven public transportation or are homeless often find it difficult to get to the polls. Many people vote only in presidential elections — including in Ohio, where turnout drops from about 70 percent to less than 50 percent during nonpresidential election cycles. Others deliberately stay home to register their dissatisfaction.
The ruling likewise dismisses the history of voter suppression that the NVRA was meant to eradicate. States created voter-registration requirements after Reconstruction in response to the enfranchisement of former slaves and rising immigration. Purges became a favored vote- suppression tactic, alongside poll taxes and literacy tests. That ugly history lives on. As Justice Sonia Sotomayor recognized in her dissent, purges disproportionately disenfranchise people of color and working-class voters.
The court’s decision is a major setback for voting rights. Ohio’s secretary of state has already called on other states to follow his lead. President Trump, who has pushed the lie that he lost the popular vote because millions of people voted illegally, celebrated on Twitter.
But the fight for voting rights is too important to give up. At Demos, we will continue to litigate to stop unlawful purges, including on the basis that they are discriminatory — an issue not resolved by the Husted decision. And Americans must also take to the halls of their state legislatures to demand the repeal of purge laws and the enactment of pro-voter measures, such as automatic voter registration and early voting. Now more than ever, those who favor an inclusive democracy must make their voices heard.