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Supreme Court Appears Divided Over Ohio's 'Use-It Or Lose-It' Voter Registration Rule


At the U.S. Supreme Court today, the justices heard arguments in an important voting rights case. It tests whether Ohio's system of purging voters from its registration rolls violates federal law. The system in Ohio is the most aggressive in the country. It automatically strikes voters from the registry if they don't vote in two consecutive elections and if they fail to return a mailed card confirming their address. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In 2016, a federal appeals court ruled that Ohio's voter purge law violates the National Voter Registration Act. That law requires states to take steps to keep their voting rolls up to date and accurate, but it specifically bars states from removing anyone from the rolls for failure to vote. On the steps of the Supreme Court today, Ohio's Republican secretary of state, Jon Husted, defended the state's purge system.


JON HUSTED: We believe our state is one where we make it easy to vote and hard to cheat. We make every effort possible to try to reach out to voters to get them registered to vote.

TOTENBERG: After Husted left the microphones, he was confronted by Joe Helle, the mayor of Oak Harbor, Ohio, and a former Army sergeant who served in Iraq and Afghanistan.


JOE HELLE: Because I was an active duty soldier that maintained my home of record...

HUSTED: Absolutely.

HELLE: ...In the state Ohio, came back home after defending that right and could not exercise it because of this archaic, terrible policy.

HUSTED: All you have to do is use your right to vote.

HELLE: From a mountainside, sir, while driving...

HUSTED: We email you your ballot.

HELLE: What about our soldiers serving overseas anywhere in the world, riding around in a Humvee, conducting missions 20 hours a day...

HUSTED: We're for them. We'll help you...

HELLE: What I know is that I was wrongfully purged along with the plaintiff in this case...

HUSTED: You weren't wrongfully purged.

HELLE: I was. I was six years serving, came home, couldn't exercise my right to vote.

UNIDENTIFIED CROWD: (Crowd chanting) Shame, shame, shame.

TOTENBERG: Inside the Supreme Court chamber, the argument focused on how to interpret various provisions of the federal law, with conservative and Republican-appointed justices appearing to side with the state, the more liberal and Democratic-appointed justices appearing to side with the challengers - and Justice Kennedy the likely deciding vote. Justice Alito said that the best interpretation was that the law bars removal of voters solely because they fail to vote. But Justice Kagan countered that the word solely was nowhere in the statute's key provision. And Justice Ginsburg pointed out that the statute provides a safe harbor for states. They can rely on change-of-address forms filed with the post office to strike voters from the registry.

In reply, the state's lawyer said the safe harbor is woefully insufficient in cleaning up the rolls. When U.S. Solicitor General Noel Francisco rose to support the state's position, he faced a prickly question from Justice Sotomayor. There's a 24-year history of solicitor generals under presidents of both political parties taking a position contrary to yours, she said. Forty states read this law the way your opponents do - everybody but you today. It seems quite unusual that your office would change its position so dramatically. Francisco contended that the law was trying to strike a balance between increasing voter participation and giving states the flexibility they need to manage issues that arise when you have, quote, "overinflated voter rolls." Representing the challengers, lawyer Paul Smith said there was no balance struck with Ohio's system, that, in fact, most people just tossed the address confirmation card in the trash - if they get it that is. Only 20 percent of those who are sent the card return it, with only 10 percent of the cards returned as undeliverable.

Justice Breyer - what are states supposed to do? Every year, a certain number of people die and a certain number of people move to California. So how does the state know to take them off the voting rolls? Dead people are no problem, replied Smith. There's a national database now that catalogs every death in the country. And states other than Ohio have used literally dozens of other methods of tracking who moves - from income and property tax forms to license plate databases that require people to notify the DMV of changes in address in Ohio, for instance, within 10 days of moving. Breyer persisted - suppose the state, instead of just sending a card, marked it do not forward, and then deleted names from the rolls when a card is returned as undeliverable. That, said Smith, would be OK. It's exactly what 14 states do right now. Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF BONOBO'S "KERALA") Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.