The Right to Not Vote Goes to the Supreme Court 


In 2015, a software engineer named Larry Harmon wanted to vote against a ballot measure to legalize marijuana in Ohio. Problem was, when he showed up to the polls that November, he learned he was no longer able to vote. After Harmon sat out a couple of elections, the state of Ohio started a process that eventually removed his name from the voter rolls even though he was still perfectly eligible to vote.

Not voting is not unusual. Each election year, millions of eligible voters remain unregistered, and millions of registered voters don’t actually vote.

So Harmon’s predicament is not an outlier, and the Ohio law that removed him from the rolls—which sends a blanket mailer to anyone who hasn’t voted in two years that, if they fail to respond to it, begins a process of purging their registration if they don’t vote for an additional four years—has already impacted thousands of others across the state.

Now the case—Husted v. A. Philip Randolph Institute—is before the Supreme Court, which is poised to hear oral arguments on Wednesday morning. The legal challenge touches a lot of things—the National Voting Registration Act, the intent of voting laws packaged in neutral language, the threat of massive voter purges, a national context in which black voters and voters of color are being kept out of the voting booth—but it’s also about the right not to vote. Which is almost as fundamental as its opposite.

I reached out to Leah Aden, senior counsel with the NAACP Legal Defense Fund, which filed an amicus brief in the case, to talk through what’s at stake and what the fate of the Ohio law means for voting rights nationally.

Our conversation has been condensed and lightly edited for clarity.

The question before the court in this case is whether an Ohio law that triggers the process of removing people from the voter rolls if they go two years without voting violates a federal law that is at least partly meant to protect the right not to vote. If that’s the intent of the federal law, how is Ohio defending its position?

So the two important federal statutes at issue are the ‘Motor Votor Law,’ more expressly known as the National Voter Registration Act, and the Help America Vote Act. Just based on the names of the legislation, both of those bills together are supposed to encourage and ensure that more people get to vote rather than exclude people from the voter process.

The National Voter Registration Act in particular was meant to ensure that people could register to vote where they interact with the government, whether that was at the DMV or other public assistant agencies. Similarly, the Help America Vote Act, as it’s termed, was intended to get more people to participate.

Ohio is reading and interpreting the language of those statutes together to, rather than keep people on the voter rolls, exclude people from the voter rolls based on inactivity. From our perspective, we believe voting is a fundamental right, and as much as we want to ensure that people have no barriers to voting, it is also people’s choice not to vote. And there are many, many reasons why people don’t vote.

So voting inactivity, based upon those two statutes, is not supposed to trigger voting purges. States and localities do have the power to purge people from voter rolls, but it’s under certain circumstances. There has to be reliable data that they are no longer eligible to be registered: because they die, or because of shameful felony disenfranchisement laws, or because they moved out of the district where they are registered. There has to be reliable data that they are no longer eligible to be registered, but simply not voting for a number of years, we think, runs afoul of this.

So the Trump administration’s position is a reversal from the Obama era, but the facts of the case remain the same. Have they given any reason why their position might change, other than the ideological flip between these two administrations?

They haven’t expressed a meaningful basis beyond the change in administration. So we encourage the Supreme Court to be highly skeptical of the DOJ’s position when it’s not based upon a change in law, when it’s not based upon changing societal standards. There are many reasons why it might be proper for an administration to change positions, but they have not advanced a meaningful one.

In 2015, around 40,000 voters were purged from a single Ohio county. Do we know anything about who those voters were?

We believe this purge, Ohio’s purge, is likely to have a disproportionate impact on black registered voters. If you are implementing a purge process such as Ohio’s, even if you’re doing it for purportedly non-racial reasons, if the impact is on one party—and here, where we have data [in the state’s three largest counties], it’s likely to be Democrats, and black voters are more likely to be Democrats—then it’s likely to have a disproportionate impact on black voters.

Again, this case is part of a larger struggle in our country right now where it’s about the elected officials choosing voters rather than voters choosing elected officials, right? Following the 2010 census, following the 2008 and 2012 elections, we saw in Ohio and other places in this country more people of color, more young people participating in the political process. Rather than working to ensure that these laws, by their purpose and by their plain text, serve the mission of keeping people on the voter rolls and encouraging participation, [this law] is part of a larger effort to choose voters and skew the political process.

I know the LDF filed an amicus brief in this case, and that the argument is a bit more expansive than just the impact on Ohio voters. Can you tell me more about the LDF position here?

Some things we’ve seen at the local level [across the country] are organizations where certain lawyers have been targeting heavily minority Southern states— like Alabama, Mississippi, and other places—and going after them for purportedly not maintaining their voting rolls. This is happening at the local level. For the Supreme Court to endorse what Ohio has been doing and seeks to do, would signal to states that voter inactivity—which is people’s right—can be a basis for kicking people off the rolls. It could unleash other states to use voter inactivity in the same way.

It’s interesting that this is a voting rights case that is as much about not voting as it is about voting.

There are so many reasons people don’t vote. Voter identification laws, redistricting that allows officials to choose their voters. People often times don’t vote because they don’t like the choices of their candidates. Maybe they’re overseas. Maybe in states that don’t have early voting or expansive opportunities to vote, they can’t get off work because they’re trying to provide for their families. These federal statutes are meant to encourage people to get on the rolls and stay on them.

Being kicked off the rolls and having to go through the process of re-registering is both a disincentive for voters and a costly and administratively difficult thing for the jurisdictions and organizations going about reregistering people. That’s a waste of time. The plaintiffs being represented by the ACLU and the A. Philip Randolph Institute, these people are registered to vote. They chose not to vote. Their eligibility is not what is at issue in this case. They have every right to participate or not participate. Lack of voting should not be a trigger for being kicked off the rolls.

So this is a weaponization of what sounds like a neutral standard or goal: keeping clean voter rolls. We often see neutral language used to enforce highly discriminative laws, so I wonder how you see this case in the context of other historic disenfranchisement efforts?

We have a history in our country of having dual registration systems, where historically, black and white voters had different processes for registering. We have a long history of voter purgers. And this is, unfortunately, part of that history.

Once more people participate, states and others pull out similar repressive tactics that they’ve used in the past. Maybe they’ll tweak it, but it’s the same: People go into their bag of tricks and pull out the means, creative means, often, to keep people from participating. All of these repressive measures had been done for some purportedly neutral reason, but those are all ruses, they are pretexts and excuses.

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