“Limit voter fraud at the expense of disenfranchising eligible voters.” That’s the message that the Ohio state legislature and the U.S. Supreme Court are sending with their latest decision in Husted v. A. Philip Randolph Institute (2018). The 5-4 vote to uphold the Ohio law decided a controversial issue regarding Ohio’s voter roll maintenance process. However, just because the Supreme Court ruled on it, doesn’t make the issue any less controversial or the consequences any less harmful for democracy.
There is a tradeoff to be made as state legislatures pass restriction after restriction on voting rights; Passing a law may potentially reduce the chances of voter fraud, but will also disenfranchise eligible voters in the process. This continues as recurring pattern of election officials not realizing the anti-democratic nature of their laws. One recent example demonestrates this tradeoff. In an attempt to keep voter rolls up-to-date, the Ohio legislature has limited its citizens’ ability to have a say in government.
What exactly did Ohio do?
Ohio created a two-part process to maintain up-to-date voter registration rolls, which is required under the National Voter Registration Act (NVRA). First, they obtain a list of names from the United States Postal Service’s registry of people that have reported their change of address. They send these people a notice saying that their names will be removed from the voter registry if they don’t respond or confirm that they have moved. However, USPS has estimated that up to 40% of people don’t report their move to them. As a result, Ohio has implemented a so-called “supplemental process” that obtains a list of people who haven’t had any voter activity in the past two consecutive years. These individuals are sent a notice they must respond to as well.
What’s the issue?
The primary reason why the Ohio law was so controversial was that it selectively targeted individuals for their lack of electoral participation over the past two years. The NVRA says that states cannot remove a voter from the rolls because of their failure to vote. When you send voters who don’t vote for two consecutive years a notice that they must respond to and remove them from the registry if they don’t respond, does that mean you’re removing individuals from the rolls because they failed to vote? This is where the controversy lies.
Why is removing people who don’t vote bad?
The short answer: it’s anti-democratic. One way to conceptualize this issue is through the framework of democratic backsliding called “stealth authoritarianism.” Stealth authoritarianism describes the phenomenon where a leader uses legal means to increase the cost of voting the incumbent out of office. One mechanism of stealth authoritarianism is structuring electoral laws in a way that favors the incumbent, undermining the electoral process. We see this with the Ohio law.
The Ohio law disenfranchises eligible voters. Let’s talk numbers. The notices sent by Ohio have a high nonresponse rate: Of the 1.5 million notices sent in 2012, over 1 million failed to respond. To make matters worse, the error rate of Ohio’s supplemental process in identifying voters who moved is extremely high: only 20% of those who responded confirmed that they had actually moved. If we use the same proportion and apply those numbers to the 1 million people who didn’t respond, it would mean about 200,000 people had moved. This leaves 800,000 Ohio voters who were incorrectly taken off the list and disenfranchised in 2012. The bottom line: people who don’t vote are unlikely to return the postcard, but this doesn’t mean that they have moved and are no longer eligible to vote.
The Ohio law gives more weight to Republican voters. When looking at the subset of individuals who are identified by Ohio’s supplemental process, it contains a disproportionate amount of minority, low-income, disabled, and veteran voters. We also know that this subset of voters largely vote Democrat. Reuters conducted a study in 2016 that yielded similar trends. Their study found that voters were twice as likely to be taken off the voter roll in Democratic-leaning neighborhoods than in Republican-leaning ones. Poor, African-American voters were also at an increased risk of getting removed. These effects combined would provide a partisan advantage to Republicans.
How exactly does this exemplify stealth authoritarianism?
As evidenced above, Ohio’s voter maintenance process modifies electoral laws in a way that provides a systematic advantage to the Republican party. Under the guise of limiting the amount of fraud in elections, they use a democratic process to their advantage and disenfranchise a strategic subset of people. This decreases the amount of say that those people have in our local government, which by definition makes the country less democratic.
But how is this “stealthy”? Because the policy is disguised as a state initiative to reduce voter fraud, it appears to the public as a valid and even laudable state interest. But that precisely is what makes this so malicious. An initiative that results in democratic backsliding but is portrayed as a beneficial measure, makes it much harder to identify and eradicate. The added benefit of being carried out through legal means, as this Ohio law was, makes it harder to argue in court why that law should be struck down.
What does this mean for American democracy?
This policy has larger implications for electoral participation in our country. Not only is this Ohio law disenfranchising legally registered voters, but it’s also discouraging people from voting. If their vote isn’t going to make a difference anyway, why bother? It falls under the responsibility of every state legislature to not enact voting laws that facilitate this mindset. Electoral participation is something we should incentivize in a democracy, not impede.
By relying on electoral participation as a measure of whether or not an individual has moved, Ohio is not doing its due diligence in trying to avoid disenfranchising a significant subset of voters. If we begin placing restrictions on people who don’t actively vote in every election, there’s no saying where it will end. This Supreme Court ruling provides a precedent that other states can use to enact similar anti-democratic legislation. The significant impact this law has made in Ohio will only be exacerbated if other states enact similar legislation.
Ultimately, we must ask ourselves whether this law actually accomplishes its goal. The stated purpose of the Ohio law was to protect the integrity of elections by reducing the chances of voter fraud. Does wrongfully disenfranchising hundreds of thousands of registered voters really protect the integrity of elections? Or does it continue the historical pattern of silencing minority voices?