The Supreme Court’s recent ruling to uphold Ohio’s controversial voter purge law spotlights the growing clout of right-wing “election integrity” groups that have aggressively bullied and sued states and jurisdictions into kicking thousands of voters off their rolls.
Such groups, which include the deep-pocketed legal outfit Judicial Watch, and the Public Interest Legal Foundation, headed by J. Christian Adams, a leading proponent of voter fraud myths, hailed the high court’s ruling in Husted v. A. Philip Randolph Institute as a major victory. Both Judicial Watch and the PILF called on states to follow Ohio’s lead and “clean up” their voter rolls—a practice that in Ohio’s case has meant blocking thousands of eligible voters from casting ballots.
Cheering from the wings was Kansas Secretary of State Kris Kobach, a key architect of the Trump administration’s voter-unfriendly policies. The Justice Department, having sided against Ohio in the Husted case under President Obama, reversed course under Trump. The courts have thus far blocked Kobach’s efforts to require proof of citizenship for voter registration in Kansas, but his goal is to take that policy nationwide. The DOJ also wrote 44 states last year, demanding to know how they plan to remove ineligible voters from the rolls. That could signal a coming federal push for voter purges.
It’s not clear how many states will rush to emulate Ohio, given that Justice Samuel Alito, writing for the 5-4 majority, upheld the state’s law on fairly narrow grounds, and reaffirmed voters’ right to receive notice before being purged. Only five other states use the failure to vote in previous elections, as Ohio does, as a trigger to initiate the removal process. In Ohio, voters who have skipped just one election are asked via postcard whether they have moved. Voters whose postcards are undeliverable or not returned, and who fail to vote in the next four years are then purged. The others states—Georgia, Oklahoma, Oregon, Pennsylvania, and West Virginia—wait anywhere from three to eight years before asking nonvoters whether they have moved.
But even in Ohio, which may now resume voter purge practices that had been blocked, anywhere between tens of thousands and hundreds of thousands of votes may be at stake, says Stuart Naifeh, senior counsel at Demos, who led the legal team challenging the Ohio law. Ohio removed two million voters from the rolls between 2011 and 2016. Demos is now working with the A. Philip Randolph Institute, the NAACP, and other allies to identify voters in danger of being purged, and take steps to re-register them.
“The problem with voter purges is that they can happen behind closed doors with the stroke of a keyboard, and most of the time people don’t find out about it until it is too late,” says Myrna Pérez, deputy director of the Brennan Center for Justice at New York University’s School of Law, which has called voter purges “one of the biggest threats to the ballot in 2018.” Such purges have a history of being inconsistent and error-prone, according to the Brennan Center, which warns in a forthcoming report that states are purging many more voters than they did a decade ago, and with fewer legal protections.
Discriminatory voter purges were part of what prompted Congress to enact the National Voter Registration Act in 1993, wrote Justice Sonia Sotomayor, in a scathing dissent in the Husted case. In upholding the Ohio law, argued Sotomayor, the High Court is “ultimately sanctioning the very purging that Congress expressly sought to protect against.” In Ohio, purges have disproportionately removed minority, low-income, disabled and veteran voters from the rolls, she noted. In the state’s five largest counties, residents in mostly African American neighborhoods were twice as likely to be purged than those living in predominantly white parts of town, a Reuters study found.
Largely overlooked in the Husted debate is that Ohio’s voter purge law originated in a 2014 legal settlement with Judicial Watch and the right-wing group True the Vote, which had sued the state on the grounds that it was not maintaining accurate voter rolls. It was just one of many suits and legal threats leveled by a cluster of conservative groups that includes Judicial Watch, True the Vote, the Public Interest Legal Foundation, and the American Civil Rights Union, which argued that states must clean up their error-riddled voter rolls to protect against fraud.
But while states do have work to do cleaning up their rolls, voter fraud is extremely rare in the United States. Invariably, conservatives have filed suit in counties with high percentages of African American, Latino, and/or Democratic voters. The American Civil Rights Union’s only suit in Pennsylvania targeted Philadelphia, and its only Florida suit zeroed in on Broward County—both dominated by voters of color. The ACRU also sued heavily Latino or African American counties in Texas and Mississippi. Judicial Watch sued Los Angeles, where non-whites abound, and the state of California, which is key to Democrats’ hopes of a blue wave in 2018.
“Secretaries of state across the country … have been bullied into some fairly false notion about the need to police some voter fraud epidemic that is just fiction,” says Ben Thorpe, a lawyer with Bondurant, Mixson & Elmore, which represented Common Cause and the NAACP in a lawsuit alleging that Georgia election officials illegally removed tens of thousands of eligible voters from the rolls. That suit has now been withdrawn in light of the Husted ruling, though Common Cause is evaluating alternative avenues for possible state or federal litigation to protect voters. For the moment, however, the Supreme Court has given Georgia and other states the green light to purge away.
This post has been updated.