By: Robert Bryson and Jessica Colburn

In our journey down the rabbit hole of voter fraud, we have discussed how voter identification laws are still a thing, and whether voter fraud even happens. We also talked about Trump’s commission on voter fraud and its ultimate decommissioning. Most recently, we considered the delicate balance between encouraging voter participation and limiting the potential for fraudulent votes. The Supreme Court, in possibly the most influential case on voting rights since Shelby County v. Holder, accepted certiorari of a series of cases, including, Husted v. A. Philip Randolph Institute.

Background

This case concerns the method in which states keep and maintain their voter rolls. Voter rolls are lists of people who (1) are eligible to vote and (2) are registered to vote. States are incentivized to keep voter rolls are accurate as possible because it saves on costs[1] and accelerates the voting process – if names are more easily matched, then votes are more easily counted.

However, there is a tension between aggressive efficiency and in allowing voters to choose when and how they vote. Husted deals with the dichotomy of that tension. On the one hand is the State of Ohio which has, in the opinion of its solicitor general, a simple rule. If a person does not in two previous consecutive elections and fails to return a voter confirmation postcard, that person will be removed from the voter rolls and must re-register to vote in the next election.

On the other hand, you have Mr. Harmon. Harmon is a long-time Ohio resident who was registered to vote in his county. While he voted in the 2008 Presidential election, he opted out of the 2009 state elections and 2010 midterm. In the subsequent four years, he exercised his right not to vote. According to the State of Ohio, Harmon was sent a postcard confirmation notice in 2011, however, he does not recall receiving it. Nevertheless, the postcard was never sent to the Ohio Secretary of State.

However, in 2015, Harmon decided to vote in the Ohio November 2015 election whereupon he discovered he was no longer registered and ineligible to vote. Harmon was declared ineligible because he failed to vote in two consecutive prior elections and did not fill out and return the confirmation postcard.[2] To put it simply, when it comes to the right to vote, the Ohio Secretary of State, John Husted, takes the position “use it or lose it.”

The Lawsuit

Harmon sued the state of Ohio and its Secretary of State for violation of the National Voter Registration Act (NRVA). Harmon argues that, because Ohio’s Supplemental Process does not reliably identify when a voter has legitimately relocated, it is not a reasonable method for removing a name from the voter rolls.  Citing what he believes to be straightforward language in the NRVA, Harmon alleges that the State of Ohio is cherry-picking as he sees fit and treating one of the exceptions listed in the NRVA as a concrete rule. Further, Harmon argues that the confirmation notices are irrelevant, because it does not inform voters they must respond to avoid consequences.[3]

Ohio’s Defense

The State argues that it was not Harmon’s failure to vote that caused him to be removed, but his failure to respond to a notice that was mailed to his home alerting him to the possibility of removal. In other words, Ohio believes it did everything possible to allow Harmon the right to vote – if only he had mailed the postcard!  

Secretary Husted relies on very specific interpretation of Ohio’s Supplemental Process. He argues that the language in the document that reads, “[A] cancellation ‘shall not result’ from a ‘failure to vote’ except when coupled with the failure to respond to an address-confirmation inquiry” (emphasis added), which Husted believes, gives Ohio the authority to revoke voting rights. [4] Secretary Husted’s argument did not impress the court of appeal, however, which found that such a reading of the NVRA would completely contradict an insistence made myriad times by the Supreme Court: “a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous.”[5]

Why “Cull” Voter Rolls?

According to the Landmark Legal Foundation, if even a handful of votes are illegitimate, people might not vote because of the blow to their faith in the electoral system. Essentially, they argue, people cheat on their taxes, therefore no one pays taxes. Or put another way, people download music illegally, therefore no one will pay for music. It is why the government (1) never collects your taxes and (2) why musicians all over the world are profoundly destitute. Or not.

How Will Husted be Interpreted, and What Does it Mean?

There are few things more central to the American identity than the right to vote. To have a voice in how the country is run, to feel heard when important questions are before our states, and to take pride in being part of such a system are all things we view as unimpeachable. Voting is a right. It is a cornerstone of our democracy. It is a fundamental part of who we are and how we operate.

Because voting is such an inherently passionate and personal issue, it is important the country watch the development of Husted. How SCOTUS rules, and how the states interpret it, will undoubtedly reach everyone. Regardless of how each person feels about the validity of voter rolls, or voter identification, or purging voter rolls – regardless of all the static – every single person must pay attention, and make sure their name stays on their state’s voter rolls, where it belongs.

[1] http://www.scotusblog.com/2018/01/argument-preview-justices-consider-ohio-voter-purge-practices/

[2] http://www.scotusblog.com/2018/01/argument-preview-justices-consider-ohio-voter-purge-practices/

[3] Ohio A. Phillip Randolph Inst. v. Husted, No. 2:16-cv-303, 2016 U.S. Dist. LEXIS 84519 (S.D. Ohio June 29, 2016)

[4] Id. at 41

[5] Clark v. Rameker, 134 S. Ct. 2242, 2248, 189 L. Ed. 2d 157 (2014) (quoting Corley v. United States, 556 U.S. 303, 314, 129 S. Ct. 1558, 173 L. Ed. 2d 443 (2009))