By Carrie L. Davis, Director, Democracy Program

In upholding Ohio’s aggressive policy of removing people from voter rolls, the U.S. Supreme Court approved a process that disproportionately affects voters based on race, income, disability, veteran status, and political affiliation.

This decision is troubling news, as it opens the door for states to engage in more aggressive voter purging. However, there is much that can be done to push back and make sure eligible voters get registered and stay registered. That’s the charge for voting rights advocates.

At issue in the Supreme Court’s 5-4 decision on June 11 were provisions in the National Voter Registration Act of 1993 (NVRA), which created uniform national standards for voter registration. The law was intended to protect eligible voters from being kicked off the voter list and then having to re-register – a practice with roots in southern states’ tactics to keep African Americans from voting.

States routinely clean up voter lists by removing the names of people who have moved and are no longer eligible to vote in their old precinct, but Ohio’s process is the most aggressive in the nation and controversial because it assumes that someone who doesn’t vote may have moved.

The state flags voters who failed to vote in a single two-year federal election cycle as “inactive,” starting the clock on a process to remove them. If “inactive” voters do not return a postcard notice (which, it turns out, most do not) and do not vote in the next four years, they are purged.

What’s the problem?

Think about the consequences of this for a moment. Someone skips voting for two years, maybe only voting in presidential elections – and they’re flagged as “inactive.” If they don’t respond to the state’s postcard, and don’t vote during the next four years due to lack of interest, difficulty getting to the polls, work, etc. they’re kicked off the rolls -- even if they are still eligible.  

The Supreme Court’s decision could embolden other states to adopt Ohio’s purge process. In fact, several states said they would do just that if the Supreme Court ruled in Ohio’s favor.

Who is affected?

As it turns out, a whole lot of people. In 2012, Ohio sent postcard notices to about 1.5 million of the state’s 8 million registered voters (nearly 20%) using this process. Of those 1.5 million, only about 295,000 responded.

Having more than one million voters on the purge pipeline list could have huge implications in the battleground state.

The demographics are startling too. 

A Reuters survey of voter lists showed that in the state’s three largest counties – which include Cleveland, Cincinnati and Columbus – voters were struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods. And neighborhoods that have a high proportion of poor, African-American residents are hit hardest. In Cincinnati, the number of voters removed after 2012 due to inactivity was larger than Obama’s 2012 margin of victory, and more than 10 percent of registered voters were removed in heavily African American neighborhoods compared to 4 percent in white suburbs.

Lawsuit explainer

First off, let’s be clear about what this case was not. It was not a constitutional challenge; it was brought under a statute, so the Court did not say Ohio’s purge is constitutional (because they weren’t asked to). Nor was this a case alleging discrimination (we’ll come back to this).

A group of civil liberties organizations sued Ohio arguing that the state was violating a provision of the NVRA forbidding states for purging voters based on failure to vote,.

The Supreme Court broke along ideological lines, with the Court’s conservative justices agreeing with the State of Ohio, and the liberal justices dissenting.

The majority interpreted the NVRA to only prohibit purging based solely on inactivity. The Court reasoned that since Ohio used the postcard notice process allowed by the law, that meant removal was not based solely on failure to vote, but also on failure to return the postcard. The danger here, under the majority’s reading, is that a state could cook up virtually anything as a pretext to claim nonvoting wasn’t the sole factor.

Four Justices dissented, arguing that using failure to vote as the trigger violates the letter and spirit of the NVRA. The real “mic drop” came in a dissent by Justice Sonia Sotomayor:

 “Congress enacted the NVRA against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections …. The majority entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.”

What’s next? What can voting rights advocates do?

It turns out, there is a lot that can be done to push back – in the courts and in Congress or state legislatures. Justice Sotomayor, in her dissent, laid out a path for future legal challenges based on the discriminatory impact of purges.

Congress has the power to clarify federal law and put clearer protections in place to ban using failure to vote as any reason for removal. States also have the power to change their own laws and practices.

Advocates can push for better, more modern ways to conduct voter registration. The voting experts at the Brennan Center for Justice at NYU list several voter registration reforms that both help states keep their rolls clean and make sure eligible voters are registered so they can vote -- solutions such as Automatic Voter Registration, Portable Registration, and Election Day Registration.

In states that have a purge process, advocates can hold officials accountable. Find out if and how your state removes voters from the rolls. Keep an eye on who is impacted by those removals – does it affect everyone equally or some demographics more than others?

Yes, this decision did make advocates’ work harder and more urgent, but it is not the end of the story.