The Trump administration had weighed in in support of Ohio's position, with US Solicitor General Noel Francisco arguing that Ohio's process is OK for that very reason - that the "protective process" (as in, the notice mailing) makes Ohio's process different than a "use it or lose it" process where nonvoting could lead to voter registration removal. According to a Reuters analysis, OH has purged at least 144,000 voters in the state's three largest counties-home to Cleveland, Columbus, and Cincinnati-since the 2012 election, with voters in Democratic-leaning neighborhoods twice as likely to be removed as those in Republican-leaning ones.
"Ohio is the only state that commences such a process based on the failure to vote in a single federal election cycle", said a brief from the League of Women Voters and the Brennan Center for Justice.
All of the U.S. Supreme Court justices - or at least the seven that spoke on Wednesday - seemed to agree that voting can not be a "use it or lose it" right.
Breyer repeatedly pressed the lawyer for opponents of the process, but had no questions for the lawyer representing Ohio.
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Tokaji said the law also prohibits states from purging registered voters from the rolls just because they have not voted. Jesse Helms' re-election effort, was re-nominated by President Trump for federal district court judge in the state. Politically, the issue of voter list management has become a partisan one, with Republicans claiming that threats of voter fraud necessitate more stringent cleaning of voter rolls, while Democrats argue that such tactics serve to suppress voter participation.
It's an issue embedded in the controversy before the Supreme Court today involving Ohio's practice of purging the voter-registration rolls of anyone who doesn't vote in two consecutive elections and then doesn't answer a piece of mail asking for an address confirmation (or doesn't subsequently vote in two additional elections). Algorithms are being developed that couple multiple databases from state records, and could more accurately identify what OH claims they are looking for, residential changes, without accidentally removing eligible voters from the lists. How, he asked Smith, are states supposed to track people who die or move out of state, to figure out whether they need to be removed from voter-registration lists? "Well, it makes sense it some cases because when a student graduates from Bowling Green University, I'm sure that the first thing they thought of was not to call the Board of Elections and ask them to remove them from the voter rolls". If they do not return the notice and fail to vote for the next four years, their voter registration is canceled. She noted that voters who did not return the mailers were immediately put on the inactive list, meaning they would not receive the notices active voters received about their polling places and upcoming elections. It "seems quite unusual that your office would change its position so dramatically", she said sternly. States face plenty of hurdles, including limited resources, to keeping accurate and updated voter records.
Civil rights groups contend that a decision for OH would have widespread implications because it would fuel a broader effort to make it more hard and costly to vote.
Without that decision, "the ballots of more than 7,500 eligible Ohioans would have gone uncounted in the November 2016 election", Mr. Harmon's lawyers at Demos and the American Civil Liberties Union wrote in a Supreme Court brief. Ohio's process "is vastly overbroad by design", he said. The justice said the case might come down to an "empirical question" about exactly what happens when the notices are mailed.
"Look, we've removed nearly 600,000 deceased voters from the voter rolls since I became Secretary of State", said Husted. "We are fighting in every state to protect and expand the right to vote".
The policy was blocked by a federal district court sitting in OH in April 2016 for violating the 1993 National Voter Registration Act. But a case coming before the U.S. Supreme Court on Wednesday explores whether some states are aggressively purging voter rolls in a way that disenfranchises thousands of voters. The system in OH is the most aggressive in the country.
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