A Victory for Voting Law

A 5-4 Supreme Court majority saves the day for accurate voter rolls.

Voters arrive at a polling station in downtown Cincinnati, Nov. 7, 2017. Photo: John Minchillo/Associated Press
By The Editorial Board
June 11, 2018 7:25 p.m. ET


A 5-4 majority of the Supreme Court on Monday upheld Ohio’s policy of clearing from registration rolls voters who don’t show up for several years. This is a victory for federalism and the plain reading of the law, notwithstanding howls that this is somehow about purging minority voters.
In Husted v. Randolph Institute, left-leaning groups challenged Ohio’s procedure for removing people from its voter rolls under the 1993 National Voter Registration Act, which was intended to increase voter registration and protect the integrity of the ballot. More than 10% of Americans move every year, and 2.75 million are estimated to be registered in more than one state.
The federal law requires states to “conduct a general program that makes a reasonable effort to remove the names” of voters who are ineligible “by reason of” death or change in residence. But it also prohibits states from removing registrants unless they fail to return a prepaid postage card ascertaining that they still live in the district. States also cannot remove people “solely” for failing to vote.

Within these limits states have wide latitude to cull their rolls to prevent fraud. Ohio sends postage cards to registered voters who haven’t voted for two years to verify that they still live at the same address. Those who don’t return cards or vote for four more years are removed from the rolls.
Liberals argued that the National Voter Registration Act says states can’t remove people “by reason of the person’s failure to vote.” But the law says that “nothing in [this prohibition] may be construed to prohibit a State from using” other procedures identified in the law including the failure to return a card.
Congress added in 2002 that “registrants who have not responded to a notice” and “have not voted in two consecutive general elections for Federal office shall be removed.” It’s hard to be clearer than that. As Justice Samuel Alito explained in his majority opinion, “no sensible person would read the Failure-to-Vote Clause as prohibiting what [other sections of the law] expressly allow.”
The four liberal Justices disagreed, though their real gripe is with Congress. Justice Stephen Breyer opined that Ohio’s process violates the law’s requirement that states make a “reasonable effort” to remove ineligible voters because failing to return a postage card doesn’t provide enough information to make such a judgment. But the federal law expressly endorses the postcard test.
Justice Sonia Sotomayor claimed the majority upholds a scheme that promotes the “disenfranchisement of minority and low-income voters,” but there’s no evidence that the law has been applied in a biased fashion.
Voter registration has become an emotive political issue on the left, and the four liberals are riding that political wave in wanting judges to define what is reasonable under the federal statute. Too bad they don’t have the law on their side.
Appeared in the June 12, 2018, print edition.

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