Under the disputed procedure, OH mails notices to people who haven't voted in two years, asking them to confirm that they still live at that address. Because it laid out the four-year timetable for purges but also said voters could not be removed "by reason of the person's failure to vote".
Kennedy followed up by asking whether the state could mail the notice to all voters in OH, rather than just those who hadn't voted over the past two years, to start the process, which Smith said would violate federal law - just in a different way.
The court's two most conservative justice, Justices Clarence Thomas and Neil Gorsuch did not speak during the oral argument, while Justice Anthony Kennedy's questions didn't reveal much about his thinking.
The left-leaning justice, whose family is Puerto Rican, underscored that Ohio's purging of voter lists had mostly affected people from ethnic minorities and from the poorer segments of society. Justice Sonia Sotomayor focused on what she described as the "essence of this case".
In response to Sotomayor, Murphy stressed that "nobody is removed due to their failure to vote..." Whether all OH citizens will be allowed to exercise their right to vote in November is up to the nine justices.
"It's us trying to say to the voter, 'Gee, have you moved?"
But he said a reexamination of the issue within the Trump administration convinced him that Congress intended states could use the failure to vote as a trigger for a broader process. Justice Elena Kagan was perplexed by this argument, however.
But civil rights groups, ethnic groups, and people with disabilities have joined forces, saying that OH, which has the strictest voter roll laws in the nation, is violating their constitutional right to vote. Harmon says he never received Ohio's notice in 2011, and was barred from voting against a marijuana referendum in November 2015.
Conservative Justice Samuel A. Alito Jr. appeared to think Ohio's other protections were adequate. That is why Congress adopted federal laws that prohibit what OH is attempting to do.
Solicitor General Noel Francisco said they concluded the law is poorly drawn, but there's no way for it to make sense unless states are given some flexibility to manage their lists. It seems quite unusual that your office would change its position so dramatically. "How", Sotomayor continued, "did the solicitor general change its mind?"
Questioned by Justice Ruth Bader Ginsburg about why the government no longer believes that non-voting is not a reliable indicator of residence change, Francisco attempted to explain that the statute does not require it to be a reliable indicator. She asked Murphy how the state could begin a "process of disenfranchisement" without reasonable evidence someone had moved. Unless you return the notice, it removes you from the rolls.
But Alito pushed back. When those citizens showed up to vote, they'd be told they could not; they had to re-register and could vote until the next election. "We don't want them on the voter roll", Breyer declared.
Passed with bipartisan support in 1993, the National Voter Registration Act was created to protect and advance the most fundamental of our American rights: the right to vote. But it could be the key to cases like this, where the state deems keeping accurate registration rolls important enough to treat nonvoting as a signal that a voter may have moved.
The high court will hear arguments in Husted v. A. Philip Randolph Institute, an appeal of a lower court ruling that found OH violated federal law by purging voters from the rolls because of inactivity. Chief Justice John Roberts skeptically asked Paul Smith, the counsel for the plaintiffs opposing Ohio's policy.
Every year, Breyer noted, some residents move or die. In June, the agency sent a letter to 44 states, asking about their plans to "remove the names of ineligible voters". Would that be a problem? Only 20 percent of those who are sent the card return it, with only 10 percent of the cards returned as undeliverable. It specifically prohibited removal based on failure to vote.
Roberts expressed surprise at Smith's answer.
The issue in the case is whether Ohio's procedure comports with federal law, which bars removal of people from voter roles for failing to vote.
Voting-rights activists say the notices only go out after someone doesn't vote, so lack of voting is still the cause of being erased. "The evidence we have in the record is that most people throw it in the wastebasket", Smith said. That, said Smith, would be OK. A decision is expected this summer.
This post was originally published at Howe on the Court.
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