The 1993 National Voter Registration Act has served as the basis of the United States’ voter registry for the past 25 years, but one factor has recently come under scrutiny and is up for a Supreme Court decision: can voters be removed from the registry after a period of inactivity at the polls? In Ohio, the state that pursues this method of “cleaning up” its voter registry most vigorously, the process of “purging” voters begins after only two years of not voting. After this two-year period, they are sent a confirmation notice. In an instance of non-response, four additional years of inactivity will result in removal from the registry. So after only two inactive presidential election cycles, the state of Ohio can invalidate a voter.
In 2016, the Sixth Circuit Court of Appeals in Cincinnati ruled in favor of Mr. Harmon, a man kicked off of the voting rolls and the main litigant in the Supreme Court case, citing a violation of the National Voter Registration Act. If the court had ruled the other way, however, more than 7,500 voters would have had their ballots invalidated due to inactivity. Now it is up to the Supreme Court to determine whether to uphold this decision or whether the purged voter rolls will take effect before this November’s midterm elections. The stakes are high, and in Ohio this decision could have very real effects on the results of 2018 Congressional races.
A common justification for this practice is that it is preventing corruption. What if people have moved, and they are on the voter’s log twice? What if they have passed away? These scenarios could open up the door for voter fraud. But in a country where the typical voter turnout for presidential elections cannot seem to breach 60% (not to mention the dismal local elections turnouts), it is extremely unlikely that non-voting is primarily an indicator of having moved or becoming permanently inactive. In practicality, instead of identifying truant voters, this system targets less affluent neighborhoods and minority groups (areas that vote predominantly Democrat).
Based on responses to oral arguments, the Supreme Court’s decision (which should be announced early this summer) seems split, but leaning in favor of Ohio’s purging policy. A decision supporting this method of kicking voters off of the voting rolls is a scary prospect for voting rights in the United States. Although the method itself is concerning, the precedent such a ruling would establish could have a dangerous long-term impact on access to the polls. No threat justifies such arbitrary barriers to voting – especially if they wind up impacting particular cohorts over others. States’ attempts to implement such barriers under the guise of preventing fraud should be seen for what they are: attempts to hinder the population from exercising its right to elect a representative government.
The rhetoric of preventing corruption and “cleansing” the rolls is also extremely dangerous, as it masks the anti-democratic nature of the procedure. Claims of making the democratic process more efficient not only ignore that this is not the most effective manner of finding out if a voter has moved, but also foster a false sense of progress and security within the system. Law professor and author Ozan Varol cites electoral laws as one of the key mechanisms for “stealth authoritarianism,” which he defines as “the use of legal mechanisms that exist in regimes with favorable democratic credentials for anti-democratic ends.” Varol concedes that some regulation is necessary, but claims that rhetoric of “fairness and stability” is often used to hide undemocratic ends, as is apparent in this National Voter Registration Act case.
And although stricter voter registration laws are not enough in themselves to indicate the “constitutional regression” that Huq and Ginsberg discuss in their piece “How to lose a Constitutional Democracy,” they are enough to justify a closer look at the preventions against democratic backsliding present in the United States. Small changes to the system masked as bolstering democracy, like keeping the voting rolls “up-to-date,” hide gradual erosion of civil liberties under the guise of law and efficiency. Structural changes like this one make clear the fragile points of American democracy. It is not the threat of a military coup or a complete reversion to authoritarianism that is a threat to democracy, but rather these small, seemingly insignificant changes under pretense of legality and preventing fraud. Specifically, Huq and Ginsberg identify a key issue in the United States: the multitude of potential interpretations of law and the Constitution. Justice Alito labelled the ongoing National Voter Registration Act a case of “statutory interpretation,” meaning that it will be up to the court to interpret the act. This 1993 piece of legislation is especially vague, and we thus rely on the judicial system to establish its application. This leaves the door open for a reading of key legislation that would prevent people from exercising their right to vote.
Whether the Supreme Court stands with Cincinnati’s Sixth Circuit decision or not, there is serious cause for concern – seventeen states filed a brief supporting Ohio’s purging policy, and the current Trump administration backs it as well. In a country like the United States, where those who stand to gain and lose from changes in electoral law are in positions to alter it, vigilance is key. Although incremental changes in electoral law (like striking small numbers of the voting population from the voting rolls) might not gain as much press as larger scale processes like gerrymandering, they deserve our attention. Voting, a key tenet of democracy, should not be a “use it or lose it” right.