A narrowly divided Supreme Court on Monday upheld Ohio’s system for culling its voter rolls, blessing a process that could undercut Democrats by reducing the turnout of minority and younger voters.
The 5-4 ruling found that Ohio’s practice of stripping voters from its rolls if they don’t vote over a six-year period and don’t respond to mailed warnings did not violate a pair of federal laws.
Writing for all the court’s Republican appointees, Justice Samuel Alito said Ohio’s process of sending a notice to people who don’t vote during a two-year period, then removing them if they don’t respond to a second notice or vote in the next two federal general elections, complies with the requirements Congress set out back in 1993.
"The dissenters may not think that the failure to send back the card means anything, but that was not Congress’s view," Alito wrote. "The NVRA plainly reflects Congress’s judgment that the failure to send back the card, coupled with the failure to vote during the period covering the next two general federal elections, is significant evidence that the addressee has moved."
Alito rejected the notion that the notice resembles the kind of junk mail that many people throw away without opening. "It was Congress’s judgment that a reasonable person with an interest in voting is not likely to ignore notice of this sort," he wrote.
The decision could embolden red states to be more aggressive about policing their voter rolls. Voting rights advocates say such practices disproportionately remove minority and younger voters. These groups tend to move more often than older white voters, and some younger voters accustomed to doing business online may be less attentive to so-called snail mail.
The ruling was a victory for the Trump administration, which reversed the Obama administration’s position in the case and endorsed Ohio’s system for policing its rosters of registered voters.
Justice Stephen Breyer, in his dissent, said Ohio was too reliant on voters’ failure to respond to the forwardable notices.
"A forwardable notice that elicits no response whatsoever tells the State close to nothing at all," he wrote, joined by the court’s Democratic appointees. Breyer said Ohio’s system leaves many voters in the position of being stripped from the rolls simply by failing to vote, which federal law prohibits states from using as a reason to remove voters.
"Ohio’s system adds to its non-voting-based identification system a factor that has no tendency to reveal accurately whether the registered voter has changed residences. Nothing plus one is still one," the Clinton appointee added. "To add an irrelevant factor to a failure to vote, say, a factor like having gone on vacation or having eaten too large a meal, cannot change Ohio’s sole use of ‘failure to vote’ into something it is not."
Breyer’s role in crafting the main dissent was something of a surprise, since he was the Democrat-appointed justice who sounded most amenable to the state’s position at oral arguments earlier this year.
Alito said his dissenting colleagues’ arguments were misplaced in a case about interpreting the provisions of federal law.
"The dissents have a policy disagreement, not just with Ohio, but with Congress," he wrote. "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."
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