The right to vote 🗳 is one of the most precious legacies of our free society. No one would argue with that self-evident truth. How to protect, foster, encourage and expand that right while maintaining the integrity of the electoral process is not always as self-evident.

At issue in a recent Supreme Court case was whether Ohio’s process for removing ineligible voters from state voting rolls violated federal law.

More specifically at issue was whether or not Ohio’s procedure for removing voters based on a change of residence was consistent with the National Voting Rights Act (NVRA).

The Court, in a 5-4 decision, held that it was.

The NVRA addresses the issue of removing ineligible voters from state voting rolls based on a change of residency. Maintaining reasonably accurate voting rolls by updating information based on changing circumstances is one of the goals of the Act. At the same time, one of the basic principles enunciated in that Act is that states may not remove voters solely because of a failure to vote.

Ohio sends registered voters a preaddressed, postage paid return card asking them to verify their address when it believes they may have moved. One of the triggers for sending such a notice is a failure of the voter to vote in an election for two consecutive years. These cards are forwarded by the post office to the person’s new address if they have notified the post office of a relocation and left a forwarding address. If the person does not return the card and fails to vote for four years after the card is sent, their name is pruned from the voting rolls. In effect, they are assumed to have relocated.

This procedure of sending the cards in order to confirm that a voter has moved appears in all respects to comply with the plain language of a key provision of the NVRA. The majority opinion seemed to stress that Ohio’s procedure was in harmony with the most natural reading of the statute.

The main sticking point seemed to be whether or not it was reasonable for the state to assume in the first instance that a person had relocated based on their failure to vote. The dissenting justices believed it was not. They also believed that failure to return a card was not a reliable indicator that a person had moved.

The dissent stressed that the statutory scheme provides, in essence, a two-tiered approach for determining whether a voter has relocated: 1) first, the state must identify voters who may have relocated; 2) second, once the state has identified voters who may have relocated, it must follow a procedure for confirming that the voter has relocated.

Ohio’s procedure for confirming that a voter has relocated (I.e., sending the preaddressed, postage prepaid cards) does not seem to be the issue. The question is whether Ohio’s use of the failure to vote as a trigger in identifying voters who may have relocated is permissible under the statute. In the majority’s view, it is. This is because the failure to vote is not the sole reason Ohio uses to purge its voter rolls. It also uses the failure to return the self-addressed stamped card as a reason.

But the dissent felt that under Ohio’s procedure the failure to vote is, in reality, the proximate reason for removing certain voters. This is because the failure to vote is used as one of the triggers in sending out the notices. The dissent relies on statistics that it believes show the majority of people do not return such self-addressed cards. Thus, the entire procedure, when it relies on failure to vote in identifying voters who may have moved, does not comply with the statute’s mandate to not purge voter rolls by reason of the failure to vote.

But the majority found this reasoning unsupported by the language of the statute. It was concerned about Judges substituting their notions of what was reasonable for the plainly expressed intent of the statute. The majority believed that a fair reading of the statute, coupled with subsequent clarifying language, revealed that the law’s intent was to disallow failure-to-vote only as the sole reason for purging voters from the rolls. Under such a reading, the failure to vote can be one causal reason, maybe even the proximate reason for removal, as long as it is accompanied by at least one other reason. The majority questioned the usefulness of the statistics relied upon by the dissent where it appeared that the state had complied with the letter of the law.

It is a difficult issue. If the majority is correct in a strictly legal sense, perhaps the dissent has more nearly divined the true intent of the statutory scheme as a whole. The reader is encouraged to read the decision and form his or her own opinion of the matter.

See Husted v. A. Phillip Randolph Institute, 584 U.S. __________ (2018).