OH counters that voters aren't removed because they don't vote; the removal only happens if they fail to respond to the notice that is mailed to them and then abstain from voting for four more years. Supporters of the OH policy say it's necessary to prevent voter fraud, but voting rights groups counter that such fraud is exceedingly rare and that the state's voter purges are both error-prone and unfair, because they punish citizens who choose to exercise a constitutional right not to vote.
The case is the latest in a series of battles against some states' efforts to restrict voting rights and combat alleged voter fraud.
But the Court could get to the heart of the matter simply by asserting that anyone's decision not to vote alone shouldn't put one's right to vote on a short track to extinction.
"You have a right not to vote", said Sonia Sotomayor. He asked Smith how the state of Rhode Island, for example, could know if one of its eligible voters had moved to Tasmania and died there. Under the policy, such registration is deleted if the person goes six years without either voting or contacting state voting officials.
The United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled in favor of Mr. Harmon in 2016, saying that OH had violated the National Voter Registration Act of 1993 by using the failure to vote as a "trigger" for sending the notices. "Isn't that enough even to spark an inquiry?" he asked.
Under Ohio's system, a voter who does not vote in a two-year period is sent a notice. If a voter fails to return the notice, and does not vote over the next four years, the voter is removed from state rolls. But it also could effect the election process in other states that have or may purse similar policies. The NVRA is created to balance competing interests, intended as it is to "increase the number of eligible citizens who register to vote" and, simultaneously, to "ensure that accurate and current voter registration rolls are maintained".
After more than an hour's debate, neither side had a clear majority, largely because Justices Neil Gorsuch and Clarence Thomas - likely to be on Ohio's side - remained silent. "Whatever the motive of the Secretary of State, if OH or any other state is purging people from the rolls due to their failure to vote - that's a clear violation of federal law, period". "What we're talking about are the best tools to implement that objective". Overall, though, Kennedy was relatively quiet during the arguments, leaving his position unclear.
Justice Samuel Alito was the most vocal of the court's conservative justices, asking several questions about the "sole proximate cause" claim by OH that seemed created to press his colleagues on the court into agreeing that the notification process did not violate the NVRA. Smith said that of the 1.5 million notices OH sent to voters who missed an election, 1.2 million were ignored and not mailed back. According to a Reuters analysis of voter rolls in Ohio's three largest counties, people in Democratic neighborhoods were struck from the rolls at twice the rate of people in Republican areas.
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Breyer said OH and other states want precise voter rolls to make sure voters are in the correct districts and to avoid voter fraud and impersonation.
Smith said failure to vote was hardly a reason to believe someone had moved. But, she continued to prod, is that a "reasonable effort" since the process results in disproportionately disenfranchising minority voters?
She suggested it was unreasonable to use non-voting as a trigger for the voter-purge process, saying, "People have a right not to vote if they choose".
The American Civil Liberties Union of OH and the New York-based public advocacy group Demos sued Republican Secretary of State Jon Husted over the practice. Better, he said, to use driver's licenses or some other database.
In response to Sotomayor, Murphy stressed that "nobody is removed due to their failure to vote..." If they fail to respond, the state can remove them from the voting rolls. But, he added, under the government's current reading of the law, there is no requirement that states have "reliable evidence" of a move.
But U.S. Solicitor General Noel Francisco - whose office changed sides in the case after Trump was elected - said OH has a right to streamline "over-inflated" and "bloated" voter registration rolls. As Justice Sotomayor noted to the Solicitor General, it is "quite unusual that your office would change its position so dramatically".
The Randolph Institute argues OH is looking at its voter-registration process wrong.