No concept is more central to American democracy than the right to vote. In 2016, Cincinnati, OH, resident Larry Harmon went to his polling station only to find out he was no longer on the voting rolls. His name had been purged from the record in accordance with Ohio’s “Supplemental Process,” a procedure that aims to identify voters who have changed their address or passed away, and to remove them from the registry. The US Supreme Court heard Harmon’s case, Husted v. A. Philip Randolph Institute, in which Ohio argued for the statutory compliance of the Supplemental Process to the National Voter Registration Act (NVRA), and upheld Ohio’s purging policy with a slim 5–4 majority in a June 2018 opinion.1The majority included Justices Alito, Roberts, Kennedy, Thomas, and Gorsuch. The dissent, written by Justice Breyer, also included Justices Ginsburg, Kagan, and Sotomayor. See Husted, Ohio Secretary of State v. A. Philip Randolph Institute Et Al., 684 U.S. (2018). This decision is key to the dialogue surrounding voting rights in American democracy, as Ohio’s policy limits voting access for eligible voters. From gerrymandering to voter ID laws to roll purging, recent voting restrictions that make it harder for citizens to exercise their right to vote compose the latest chapter in a long history of voting constraints in the United States. In this essay, I will argue that restrictions like these may not only affect individual election outcomes, but that they also hint at the precarious integrity of US electoral institutions.
Voter roll purging and the National Voter Registration Act“Ohio can invalidate an otherwise eligible voter after only two inactive presidential election cycles.”
While the 1993 National Voter Registration Act (NVRA) has served as the basis for registering voters for the past 25 years, states decide how to implement it, including how they maintain their own voting rolls. Ohio, for example, pursues voter registry purging the most vigorously, as their Supplemental Process for removing voters begins after only two years of not voting.2Five other states use nonvoting as a catalyst for removal from the voting rolls, but Ohio is the fastest moving with their two-year inactivity threshold. See “Husted v. A. Philip Randolph Institute,” Brennan Center for Justice, last modified June 11, 2018, https://www.brennancenter.org/legal-work/husted-v-philip-randolph-institute-0. Following this two-year period, the state sends voters a confirmation notice by mail. If the voter does not respond to this notice, four additional years of inactivity—e.g., not registering to vote, not voting, not officially changing one’s voting address—result in removal from the state voter rolls. As a result, Ohio can invalidate an otherwise eligible voter after only two inactive presidential election cycles.
The NVRA includes an aptly titled Failure-to-Vote clause prohibiting states from removing people from rolls “solely” for not voting. However, what this means for the logistics of roll maintenance is up for interpretation. Justice Alito’s majority opinion relies heavily on the 2002 Help America Vote Act (HAVA), which adds language to the NVRA that explicitly supports residence checking through confirmation mailings.3Husted, 684 U.S. However, Justice Breyer’s dissent argues that voter inactivity is effectively the only relevant factor in deciding which voters to remove from the rolls. According to the dissent, the address confirmation card sent by mail does little to actually confirm whether or not a voter has moved, and it does not fulfill this statutory requirement.4Husted, Ohio Secretary of State v. A. Philip Randolph Institute Et Al., 684 U.S., 7 (2018) (Breyer, J. dissenting). Failing to vote both begins and ends the process, violating the Failure-to-Vote clause.
Husted’s impact on access to the vote
Now that the highest court has found Ohio’s Supplemental Process to be in accordance with federal statutes, one serious concern is that Ohio will remove eligible voters from the rolls. Along these lines, the dissent’s opinion deems it unreasonable for the Supplemental Process to effectively remove people who have changed address from the voter rolls.5Husted, 684 U.S., 11 (Breyer, J. dissenting). In a country where the typical voter turnout for presidential elections cannot seem to break 60 percent, not to mention the dismal local elections turnouts, it is extremely unlikely that nonvoting primarily indicates having moved.6Drew Desilver, “US Trails Most Developed Countries in Voter Turnout,” FactTank: News in the Numbers (blog), Pew Research Center, May 21, 2018, http://www.pewresearch.org/fact-tank/2018/05/21/u-s-voter-turnout-trails-most-developed-countries/. During the 2016 elections, almost a quarter of eligible voters who did not cast a vote cited “dislike of the main candidates or campaign issues” as the reason.7Gustavo López and Antonio Flores, “Dislike of Candidates or Campaign Issues was Most Common Reason for not Voting in 2016,” FactTank: News in the Numbers (blog), Pew Research Center, June 1, 2017, http://www.pewresearch.org/fact-tank/2017/06/01/dislike-of-candidates-or-campaign-issues-was-most-common-reason-for-not-voting-in-2016. Not casting a ballot is often a political statement in itself, as opposed to representing a permanently inactive voter. In 2012, Ohio sent out 1.5 million confirmation cards. Out of the nearly 300,000 responses they received, only around 20 percent confirmed an address change—an overall success rate of about 4 percent.8Husted, 684 U.S., 13 (Breyer, J. dissenting). Furthermore, the general response rate of 300,000 out of the 1.5 million cards is worryingly low.9Husted, 684 U.S., 13 (Breyer, J. dissenting). These findings indicate failures with the initial identification and confirmation processes that could result in the removal of eligible voters from the registry.“According to Sotomayor, the purpose of voting regulations should be to make the voting process as clear and accessible as possible.”
There is also evidence that Ohio’s purging policy impacts less-affluent voters, minorities, and veterans in higher proportions.10Many amicus briefs were submitted to the court in order to explain this result, including by the National Association for the Advancement of Colored People (NAACP), the National Disability Rights Network, and the VoteVets Action Fund. Sotomayor references all of these amici in her concurring dissent. This is a familiar story, as voter regulations like literacy tests and poll taxes have historically had the same results. By emphasizing the disproportionate effect of the Supplementary Process in her concurring dissent, Justice Sotomayor invokes this process as a threat to participatory democracy.11Husted, Ohio Secretary of State v. A. Philip Randolph Institute Et Al., 684 U.S., 1 (2018) (Sotomayor, J. dissenting). According to Sotomayor, the purpose of voting regulations should be to make the voting process as clear and accessible as possible. When a country’s laws hinder its citizens from voting, they undermine the very basis of democracy as we understand it.12See Robert Dahl, Polyarchy: Participation and Opposition (New Haven, CT: Yale University Press, 1972).
Ohioans, particularly those part of disproportionately affected groups like minorities who usually lean Democratic, will experience the short-term implications of this decision as they head to vote in the 2018 midterm elections. The effect on the 2020 election could be even more pronounced, with voter turnout unpredictable due to the polarized political climate. If unmotivated voters from previous election cycles want to exercise their right in this upcoming presidential election, the implications of purging based on prior inactivity will be felt all the way down the ticket. Outside of Ohio, this ruling’s precedent could have a long-term impact on voting access nationwide. While most states have some method of updating their rolls, Ohio’s is the strictest. For the 15 states who have spoken out in favor of Ohio’s method, including Ohio’s fellow battleground states Michigan and Nevada, the Husted decision could serve as the impetus for their own internal voting reform based on the Supplemental Process.13Brief of Georgia and 14 other states as Amicus Curiae, p. 19, Husted v. A Philip Randolph Institute, 684 U.S. (2018). Alaska, Idaho, Kansas, Louisiana, Michigan, Missouri, Montana, Nevada, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and West Virginia.
The “stealth authoritarianism” of voter roll purges
While restricting access to the polls is the clearest direct impact of this Supreme Court decision, voter roll purging is also part of a larger political story. The narrative of preventing corruption and “cleansing” the rolls fits with the alt-right populist rhetoric that has become prevalent in US discourse.14See Jan-Werner Müller, What Is Populism? (Philadelphia: University of Pennsylvania Press, 2016). A common justification for roll purging maintains that frequent and intensive voter purges are necessary to prevent corruption in the voting booth. What if someone moves and is on the voter rolls in two counties? Playing upon a populist fear of a corrupt system, supporters claim that this scenario could open up the door for voter fraud.15See Müller, What Is Populism? See also Jane Timm, “Trump Administration Stirs Alarm over Voter Purges,” NBC News, August 7, 2017, https://www.nbcnews.com/politics/supreme-court/trump-administration-stirs-alarm-over-voter-purges-n789706. However, voter fraud in the United States is extremely rare. A 2017 working paper analyzed the 2012 election records and found a maximum of 0.02 percent of votes could have been cast by the same person—most of which were likely due to cataloging errors.16Sharad Goel et al., “One Person, One Vote: Estimating the Prevalence of Double Voting in U.S. Presidential Elections” (working paper, Harvard University, 2017).
Proponents of roll purging claim to make the democratic process more efficient, but they not only ignore how ineffective the process of purging is for finding out whether a voter has moved, but they also foster a false sense of security within the system.17Goel et al., “One Person, One Vote.” Using rhetoric that claims to “clean up” voting rolls assuages fear of corruption and concern of outsiders being able to influence the system. According to this logic, more legal barriers to voting ensures that only legitimate, rule-abiding Americans have access to the polls. Through this reasoning, politicians have found an apparently democratic justification for an action that will prevent eligible voters from voting.18See “Debunking the Voter Fraud Myth,” Brennan Center for Justice, last updated January 31, 2017, https://www.brennancenter.org/analysis/debunking-voter-fraud-myth. Framing these electoral law regulations as positive creates a potential avenue for what political scientist Ozan Varol calls “stealth authoritarianism”—a term for a government’s use of legal avenues to obtain results that negatively impact democracy.19Ozan Varol, “Stealth Authoritarianism,” Iowa Law Review 100, no. 4 (2015): 1673–1742.
Small changes to the system that are presented as bolstering democracy, like keeping the voting rolls up-to-date, can actually hide gradual erosion of civil liberties under the guise of law and efficiency. So while it would be undue to cry large scale “constitutional regression” after this Supreme Court decision—as the electoral effect will stop short of impacting the rule of law or freedom of speech, for example—structural changes like Ohio’s make clear the fragility of American democracy.20Huq and Ginsburg identify “constitutional regression” as a “substantial negative movement that happens simultaneously across three margins: electoral competition, rights of speech and association, and the rule of law.” Aziz Huq and Tom Ginsburg, “How to Lose a Constitutional Democracy” (working paper, Public Law, University of Chicago, 2017), 73. Neither the threat of a military coup nor a complete reversion to authoritarianism are the primary threats to American democracy, but rather backsliding as a result of these seemingly insignificant changes under the pretense of legality and fraud prevention. This Supreme Court decision in particular brings to light one underlying weakness of our system that could allow these changes to slip through: the failure of judicial interpretation of congressional statutes to check Congress’ electoral lawmaking power.
The limits of statutory interpretation“While this kind of statutory analysis is necessary, Husted points to the larger problem of the judicial check’s failure to limit Congress’s ability to influence electoral outcomes via vaguely worded legislation.”
The Husted decision, like many Supreme Court decisions, is founded on statutory interpretation. As has become the norm in similar cases and decisions, the arguments on both sides focus primarily on language. Both the majority and the dissent inevitably base their opinions on interpretations of the law in question, arguing that the language of the statute supports their side of the case, and citing dictionary definitions and examining word usage. In Husted’s case, the statute in question was part of the NVRA. Because the NVRA is unclear on nonvoting as it relates to voter rolls, the court had to interpret Congress’s legislation for the states. While this kind of statutory analysis is necessary, Husted points to the larger problem of the judicial check’s failure to limit Congress’s ability to influence electoral outcomes via vaguely worded legislation. It means that Justice Alito’s majority opinion can support voting roll purges not by explicitly advocating for them on an ideological or democratic basis, but by saying, “It’s out of my hands—they’re in accordance with this technical interpretation of the statute’s language.” Therefore, when the Supreme Court’s interpretation of Congress’s statutes stands only as a weak check on voting regulations, there is little room left in the process for weeding out undemocratic methods.
In her concurring dissent, Justice Sotomayor hints at a serious flaw with this method of interpreting statutes: it largely ignores the original context of the legislation.21Husted, Ohio Secretary of State v. A. Philip Randolph Institute Et Al., 684 U.S. 1 (2018). (Sotomayor, J. dissenting). Formulated after the controversial 2000 elections, the HAVA addition to the NVRA was meant to encourage all eligible voters to exercise their right to participate in the democratic process.22See Lynette Holloway, “Counting the Vote,” The New York Times, November 23, 2000, https://www.nytimes.com/2000/11/23/us/counting-vote-broward-county-validity-dimpled-ballots-will-be-assessed-one-one.html. The majority’s interpretation, which relies on diction and legal reasoning, ignores a large part of the original intent of the act. Statutory interpretation excludes historical context, leaving the door open for a reading of key legislation that, instead of ensuring equal access to the polls, will prevent eligible voters from exercising their right to vote.
Despite the absence of judicial oversight, some states have voting roll maintenance policies that result in less-targeted discrimination than the Supplemental Process and that could set a high national standard. Emphasizing the importance of action below the federal level, Justice Sotomayor encourages states and communities to be “even more proactive and vigilant” and to look to states like New York as examples.23Husted, Ohio Secretary of State v. A. Philip Randolph Institute Et Al., 684 U.S. 5 (2018). (Sotomayor, J. dissenting). See also Heather Gerken, “We’re about to See States’ Rights Used Defensively against Trump,” Vox, December 12, 2016, https://www.vox.com/the-big-idea/2016/12/12/13915990/federalism-trump-progressive-uncooperative. New York’s amicus brief cited several more “direct and reliable” ways for states to keep their rolls updated, including US Post Office databases, undeliverable returns from regular mailings, and existing sources like the census, the DMV, tax records, and other states’ data.24Brief of New York et al. as Amicus Curiae, pp. 23–8, Husted v. A Philip Randolph Institute, 684 U.S. (2018). Excepting states’ diligence, the alternative path toward more effective roll purging would necessitate that Congress strengthen the NVRA’s language in order to establish a system that does not rely almost exclusively on nonvoting. Conflict of interest makes this unlikely, however, just as it affects other key voting rights issues like redistricting.
A threat to America’s electoral integrity
Changes in voting roll regulations have the potential to impact America’s elections. Even if a seemingly politically inconsequential number of eligible voters are stricken from the rolls, the undemocratic nature of the process draws attention to the potential weaknesses in the US electoral lawmaking system and the potential failure of a judicial check. Even in the absence of these large-scale concerns, the overblown threat of voter fraud would not justify such arbitrary barriers to voting—especially if such barriers would disproportionately impact particular groups of voters due to faulty identification methods. Barriers like biased roll purging that exist under the guise of preventing fraud should be seen for what they are: attempts to hinder the population from exercising its right to elect a representative government. Voting, the key tenet of democracy, should not be a “use it or lose it” right.
Banner photo credit: Tim Evanson/Flickr