In a rare move, the Department of Justice (DOJ) reversed its position this week on Ohio's controversial policy of removing infrequent voters from its rolls.
In Ohio, if a voter does not cast a ballot for two years, the secretary of state's office sends the voter a notice asking to confirm her registration. If the voter doesn't respond or cast a ballot over the next four years, she is purged from the rolls. In 2016, the American Civil Liberties Union sued Ohio Secretary of State John Husted over the policy, claiming the procedure ran afoul of the National Voter Registration Act, which requires accurate voter rolls and prohibits states from cancelling voter registrations for failure to vote.
When the Sixth Circuit Court of Appeals heard the case last year, the DOJ—still then under the Obama administration—filed an amicus brief in support of the ACLU's position. But the state appealed to the Supreme Court, which is set to hear oral arguments in November. On Monday, the DOJ filed a new brief reversing its previous position and arguing that registrants are not removed only for their failure to vote. "Registrants are sent a notice because of that initial failure, but they are not removed unless they fail to respond and fail to vote for the additional period," the brief states. The new brief was not signed by any career attorneys from the DOJ's Civil Rights Division, the Washington Post reports.
Pacific Standard spoke with Freda Levenson, the legal director of the ACLU of Ohio, about what the reversal means for the case.
To start off, why did the ACLU file suit against the secretary of state in the first place? What are the main problems with the policy?
This purge process is a real threat to voting rights. The fact is that hundreds of thousands of Ohioans have been purged over the years through this process. These are perfectly eligible voters. The voter hasn't done anything like get convicted of a felony, or die, or move—it's just the voter doesn't vote. These notices are just little slips of paper that get mailed out so that the voters that we're aware of didn't even realize they'd gotten anything in the mail. Many people only vote in presidential elections, which means they're only going to vote every four years. So after two years this process comes up, and if for some reason they miss a presidential election, then they are purged. Some people don't vote because they're sick, or too busy, or caring for a sick family member, or have transportation or work problems. Some people—including the main plaintiff in our case—don't vote because they don't support any of the candidates.
No one realizes that voting in Ohio is a use-it-or-lose-it right. People assume if they've duly registered they remain registered. They don't receive any notice that they have been purged. The only way they learn about it is when they go to vote in an election that they care about and they come to their polling place and the elections official says "Your name's not in my book." They're entitled to vote provisionally, but a provisional ballot isn't counted unless the voter is registered. In other words, they can fill out a ballot but it doesn't count, so they are disenfranchised. So hundreds of thousands, perhaps millions, of Ohioans have been disenfranchised by this.
What does the DOJ's reversal mean for the case?
The Department of Justice is not a party in the case, but the department filed what's called a statement of interest, an amicus brief, when we were in the Sixth Circuit that supported our position. The position they took with the Sixth Circuit had been their position for decades; they articulated this position in other cases too. But now with the change of administration, and the case going to the Supreme Court, the same Department of Justice abruptly, with no explanation, reversed its position and now says that the secretary of state can purge people for failure to vote. You would think they would articulate a reason as to why they should see it differently, why they were wrong before, or why facts and circumstances have changed so that they should view it differently. There's no new facts here. It appears the reason for the difference in position is just that there's a new administration weighing in on this.
What do you make of the argument in the DOJ's new brief that the policy doesn't violate the law because it's not canceling registrations for failure to vote, but for failure to reply to the notice?
The whole process is triggered by the individuals failure to vote. They wouldn't have been targeted for removal if they hadn't failed to vote, so the voter is removed for their failure to vote. They don't send these notices to everybody, they send them to people who have failed to vote. There's no question about the eligibility of these individuals who have been purged. Neither the state nor federal government has ever raised any question about the eligibility of these people. This isn't a question of keeping illegal voters or ineligible voters or dead voters off the rolls. This is a way to remove people who are entitled to vote from the rolls.
Is there a better way to keep the voter rolls accurate?
One way—which the secretary of state already does—is when people send in a change of address form to the post office, the post office sends that information to the secretary of state, and those people are removed. The Ohio Department of Health reports death records, so people who are deceased are removed. People who are incarcerated for a felony reports go to the secretary's office for that and those people are removed. What the secretary is doing is using failure to vote as a proxy for having moved, but it's an imperfect proxy. Many people fail to vote who have not moved. It's a very very lazy, inaccurate proxy for moving.
This interview has been edited for length and clarity.