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In a 5-4 decision (PDF), the U.S. Supreme Court ruled that the state of Ohio’s process for canceling voters’ registrations and removing them from the rolls does not violate the federal National Voter Registration Act’s “failure to vote” clause. Ohio’s process is similar to the one used in Texas.

The Act requires states to take reasonable steps to ensure their registration lists are accurate, which in turn requires the removal of voters who no longer appear to be living at their registered addresses. The Act requires a state notify a voter that he or she will be removed from the list and provide the means for that voter to remain on the list. However, a voter’s registration may not be canceled merely because of a failure to vote.

Ohio’s process begins by identifying voters who did not cast ballots during the previous two years. The state mails a pre-addressed, postage-paid card to those voters’ last known mailing addresses to verify that the their residence is correct. Voters who do not return this card and do not vote for another four years are presumed to no longer reside at that address. They are then removed from the rolls following at least six years of inactivity.

Petitioners sued, arguing that the state was violating the Act because failure to vote was the triggering incident that led to voters’ registrations being canceled. A district court sided with the state, but a divided appeals court ruled for the petitioners.

The Supreme Court ruled that Ohio’s process does not violate federal law because it does not use “nonvoting as the sole criterion for removing a registrant.” Instead, the Ohio process “removes registrants only when they have failed to vote and have failed to respond to a change-of-residence notice.”

In a lengthy dissent, Justice Stephen Breyer agreed with petitioners’ claims that the act of nonvoting triggers the process and is thus prohibited by the Act. “The failure to respond to a forwardable notice is an irrelevant factor in terms of what it shows about whether that registrant changed his or her residence,” Breyer wrote. “To add an irrelevant factor to a failure to vote … cannot change Ohio’s sole use of ‘failure to vote’ into something it is not.”

In a separate dissent, Justice Sonia Sotomayor wrote that the majority opinion “contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against.”

Writing for the majority, Justice Samuel Alito wrote that the dissents are arguing policy changes, not statutory interpretations. “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. “The only question before us is whether it violates federal law. It does not.”

Texas follows a similar procedure. When a voter’s registration renewal certificate is returned as undeliverable, the voter is placed on the suspense list. Between November 15 and December 6 of odd-numbered years, county voter registrars mail renewal certificates to registered voters who are not on the suspense list. Section 14.023, Election Code requires the county voter registrar to “deliver a confirmation notice” via forwardable mail to each voter on the suspense list between January 1 and March 1 of an even-numbered year. Voters who fail to respond to that notice using its pre-addressed, postage-paid form or otherwise take action to confirm or update their registrations remain on the suspense list. Section 16.032, Election Code provides that the registration of voters on the suspense list will be canceled following the second even-year November general election for which they do not cast a ballot or otherwise update their registrations.

As of the March primary election, more than 2.1M registered voters – nearly 1 out of every 6 registrations – in Texas was on the suspense list.

The main difference between the states’ procedures is how the process begins. In Ohio, it begins when a voter does not participate in an election during a two-year period. In Texas, it begins when a voter registration renewal certificate is returned as undeliverable (They do no forward to new addresses.). Significantly more registered voters do not vote during an election cycle than move to a new address. Around 9M registered voters did not participate in any election during the 2013-14 election cycle, but just 1.7M registered voters were on the suspense list at the time of the November 2014 general election.

In either state, a registered voter has four years after a confirmation notice is mailed to confirm or update their registration, or vote, before he or she is removed from the voter rolls.

©2018 Texas Election Source LLC