The U.S. Supreme Court ruled in favor of Ohio’s voter purge policy on Monday, which allows the state to remove residents off voter rolls if they haven’t voted recently and haven’t responded to a mailed notice to confirm residency.
In his opinion, Justice Samuel Alito said that the Ohio policy does not violate the National Voter Registration Act or its “failure to vote” clause, making the policy lawful. Under the Ohio law, voters are sent a notice after failing to vote for two years. Then, if they do not respond to the mailed notice or vote in any election within four years, they are removed from the state’s voter rolls.
“We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date,” Alito wrote in the decision. “The only question before us is whether it violates federal law. It does not.”
The decision could have nationwide implications, particularly as the Trump administration institutes a broader push against voting rights and for voter purge policies. In June 2017, the Department of Justice sent letters to 44 states asking for their procedures in maintaining voter lists, which the Brennan Center for Justice suggested could be “the first step in a move to force [states] to conduct voter purges.”
The Ohio ruling could affect similar purge policies in Georgia, Montana, Oklahoma, Oregon, Pennsylvania and West Virginia, as well as influence other states to adopt their own policies.
“The public trust in the fairness of our elections is badly shaken. This decision will fuel the fire of voter suppressors across the country who want to make sure their chosen candidates win re-election — no matter what the voters say,” Chris Carson, president of the League of Women Voters, said in a statement.
And there’s evidence that these voter suppression tactics could work. History has shown how voter purge policies have been tied to narrow election victories — and analyses of the Ohio policy suggest the voter purge tactics could have an effect in the swing state.
How voter purges have affected past elections
The most notorious case of voter purges playing a role in an election is the 2000 presidential election, where in Florida, the razor-thin election’s most contentious state, had recently undertaken a massive voter purge effort.
In an attempt to remove felons and other ineligible voters from their voter rolls, Florida compiled a list of more than 50,000 names to be removed ahead of the 2000 vote. Voters whose names appeared on the list had to prove their innocence or would otherwise be removed, although the Tampa Bay Times noted that a number of counties ignored the state’s directive.
The attempt to target ineligible voters, however, ensnared a number of valid Florida voters. Names of voters were added to the list if there was just a 70% match between their name and a name on the felon database, and names could be added even if middle names, nicknames, suffixes, races or genders didn’t match.
How many voters were mistakenly removed from the list remains in dispute. Database Technologies, the Boca Raton-based company who handled the purge, reported that 12,000 voters should not have been labeled felons, though the Tampa Bay Times noted that it was unclear how many of the 12,000 were actually purged. A lower estimate from a 2001 Palm Beach Post investigation found that 1,100 voters were wrongly purged, while a Vanity Fair piece identified 20,000 voters as being wrongly included in the purge list.
With the margin of victory between former President George W. Bush and Al Gore being just 537 votes, though, even a smaller number of purged voters likely played a pivotal role — particularly as the purge disproportionately targeted black voters, a group that Gore won in Florida with 90% of the vote.
A similar narrow victory played out in the 2013 Virginia race for the state’s attorney general, where weeks earlier the Virginia Board of Elections had purged more than 38,000 names from its voter rolls. One county registrar, Lawrence C. Haake III, reported in an affidavit for a legal challenge against the voter purge that he had determined approximately 10% of the names that had been given to him to be purged were of eligible voters.
Incorrectly removed voters were allowed to cast provisional ballots, however, and the Brennan Center noted that a total 3,000 were ultimately cast. In the initial vote, Democratic candidate Mark Herring won by just 165 votes — a margin later expanded to 907 votes after a recount — suggesting the voter purge policy could have played an influential role.
Ohio’s voter purge policy could have an effect
How big of an impact Ohio’s voter purge policy could play in a future presidential election, when Ohio’s “swing-state” status gives the Buckeye state an outsized influence, remains to be seen. A court order kept the voter purge policy, which was first adopted in 1993, from being in effect for the 2016 election. According to the U.S. Election Assistance Commission, at least 846,391 Ohio voter registrations were canceled prior to the election between 2010 and 2014.
It’s likely that many of those canceled registrations could be for eligible voters. In his dissent on Monday’s Supreme Court ruling, Justice Stephen Breyer noted that Ohio sent notices to 1.5 million voters — 20% of Ohio’s total voters — in 2012 warning that their registration could be cancelled. Of those, more than one million voters did not respond to the message, and it’s unlikely all of those voters would have moved out of their district, Breyer predicted.
“If those 1 million or so registered voters (or even half of them) had, in fact, moved, then vastly more people must move each year in Ohio than is generally true of the roughly 4% of all Americans who move to a different county nationwide (not all of whom are registered voters),” Breyer said in the dissent.
“But there is no reason to think this. Ohio offers no such reason. And the streets of Ohio’s cities are not filled with moving vans; nor has Cleveland become the nation’s residential moving companies’ headquarters.”
If even a portion of those targeted eligible voters were ultimately purged, the voter purge policy could potentially be enough to effect Ohio’s elections. In swing states, Miami University political scientist Christopher Kelley told the Associated Press that anything that “put[s] your finger on the scales” can have an impact.
President Donald Trump carried the state by 446,841 votes in 2016, though former President Barack Obama won by a narrower margin of 166,214 votes in 2012. In 2012 and in the past four elections combined, the difference between Democratic and Republican votes was just 144,818 votes out of more than 21.6 million total votes — a difference of just one percentage point.
The upheld Ohio policy particularly affects the state’s Democratic voters. A 2016 Reuters analysis of the policy found that voters in Democratic-leaning neighborhoods were struck from voter rolls at roughly twice the rate of those in Republican neighborhoods. Neighborhoods with a high proportion of poor, black residents were the most disproportionately affected, the analysis found.
“Communities that are disproportionately affected by unnecessarily harsh registration laws should not tolerate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by,” Justice Sonia Sotomayor wrote in her own dissent to Monday’s SCOTUS ruling. “Today’s decision forces these communities and their allies to be even more proactive and vigilant in holding their states accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.”