WASHINGTON — The Supreme Court appeared sympathetic Wednesday to states that seek to prune their voting rolls by targeting people who haven't voted in a while.
The justices heard arguments in a case from Ohio, among a handful of states that use voters' inactivity to trigger a process that could lead to their removal from voter rolls. A ruling for Ohio could prompt other states to adopt the practice, which generally pits Democrats against Republicans.
Signaling support for Ohio's defense of the process, Justice Anthony Kennedy said states are "trying to protect their voter rolls...What we're talking about are the best tools to implement that reason, to implement that purpose." Kennedy's vote often is decisive in voting cases that otherwise split conservative and liberal justices.
Justice Stephen Breyer also asked questions that suggested he too could side with Ohio. Breyer repeatedly pressed the lawyer for opponents of the process, but had no questions for the lawyer representing Ohio.
The opponents say a 1992 federal law prohibits using voting inactivity to trigger purges and that Ohio purges registered voters who are still eligible to vote. A federal appeals court sided with the challengers.
Partisan fights over ballot access are being fought across the country. Democrats have accused Republicans of trying to suppress votes from minorities and poorer people who tend to vote for Democrats. Republicans have argued that they are trying to promote ballot integrity and prevent voter fraud.
Under Ohio rules, registered voters who fail to vote in a two-year period are targeted for eventual removal from registration rolls, even if they haven't moved and remain eligible. The state said it only uses the disputed process after first comparing its voter lists with a U.S. postal service list of people who have reported a change of address. But not everyone who moves notifies the post office, the state said.
So the state asks people who haven't voted in two years to confirm their eligibility. If they do, or if they show up to vote over the next four years, voters remain registered. If they do nothing, their names eventually fall off the list of registered voters.
Ohio is backed by 17 other mostly Republican states and the Trump administration, which reversed the position taken by the Obama administration.
Justice Sonia Sotomayor questioned Solicitor General Noel Francisco at length about the switch. "Seems quite unusual that your office would change its position so dramatically," Sotomayor said.
Francisco said the new administration thinks the National Voter Registration Act reflects a compromise between "dramatically increasing the number of voters on the voter rolls" and "giving states the flexibility they need to manage the issues that arise when you have overinflated voter rolls."
A decision for Ohio would have widespread implications because it would fuel a broader effort to make it more difficult and costly to vote, Ohio's opponents said. A dozen mainly Democratic states also want the Supreme Court to declare that Ohio's system violates federal law.
Paul Smith, representing civil rights groups at the Supreme Court, said most people who receive notices from the state never return them. "The evidence we have in the record is that most people throw it in the wastebasket," Smith said.
The state learns nothing about whether someone actually has moved if a notice is not returned, he said.
He said a process that used a notice which could not be forwarded and would be returned as undeliverable if sent to a wrong address would satisfy the opponents.
But Chief Justice John Roberts said he regarded Smith's comment as a concession that states could use evidence of non-voting to trigger the process.
"Your argument really turns on the adequacy of the notice," Roberts said.
Outside the court following the argument, Ohio Secretary of State Jon Husted, a Republican, defended the state's election system.2 comments on this story
"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," Husted said.
Mayor Joe Helle of Oak Harbor, Ohio, who was dropped from the rolls while serving in the U.S. Army, confronted Husted on the court's plaza. Helle, a Democrat, called Ohio's process "archaic" and "terrible policy."
A decision in Husted v. A. Philip Randolph Institute, 16-980, is expected by late June.