Supreme Court Considers Ohio's "Use it or Lose it" Process for Purging Voter Rolls

Husted v. A. Philip Randolph Institute 

By Leland Ware, Louis L. Redding Chair and Professor of Law, University of Delaware 

On January 10, 2018 the Supreme Court on heard oral arguments in Husted v. A. Philip Randolph Institute. This case will decide whether the State of Ohio's procedure for removing individuals from voter rolls violates federal law. 

In 1993 Congress enacted the National Voter Registration Act (NVRA). The law requires states to maintain voter registration lists and prohibited them from removing an otherwise-eligible voter from the rolls solely because the person had failed to cast a ballot.

Nine years later, Congress enacted the Help America Vote Act. It required states to maintain a voter-registration system and to remove ineligible voters from voter lists. These systems can remove voters who have not responded to a notice and who have not voted in two consecutive federal elections. However, Congress also stated no registrant could be removed based solely on a failure to vote.

Ohio's "use it or lose it" procedure for cleaning up its voter rolls uses two different procedures to maintain its voter-registration lists. It compares the Postal Service’s change-of-address database with its own voter-registration database to identify any registered voters who may have moved. The state mails a notice to these voters. If they don’t respond and don’t vote for four more years, their registrations are cancelled.

The first procedure allowed registered voters to fall through the cracks if they move but do not notify the Postal Service. In an effort to address this problem, Ohio devised a supplemental procedure. Election boards mail notices to registered voters who have not voted in two years asking them to confirm that they are still eligible to vote. If a voter does not return the notice, that person’s registration is cancelled.

After a suit was filed a federal trial court ruled in Ohio’s favor, holding that the process is permissible because voters were not removed from the registration rolls solely for failing to vote. The Court of Appeals for the 6th Circuit disagreed. It held that Ohio’s procedure violated federal law because the state used failing to vote as the trigger for the notice.

Ohio contends that federal law merely prohibits states from enacting programs that result in a voter being removed based solely that person’s failure to vote. Under the state’s supplemental procedure it is not the failure to vote that causes a voter to be removed. The removal results from the failure to respond to the notice.

The challengers argue the NVRA protects registered voters against removal from the voter rolls simply for failing to vote. After Ohio residents register they should remain on the rolls as long as they are eligible to vote. The NVRA only allows states to remove registered voters from the voter rolls for five specific reasons: when they have requested to be removed, been convicted of a crime, become mentally incapacitated, die, or move out of the jurisdiction. During the oral arguments the Justices seemed to be divided on the merits. A decision is expected to by the end of June.