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Don’t purge voters for choosing not to vote

Saturday, October 28, 2017

President Donald Trump’s so-called election integrity commission — stocked with voting rights foes — wants to make it harder for U.S. citizens to exercise their fundamental right to vote. As Trump’s commission hopes to lay the groundwork for new voter suppressions measures, the Supreme Court is about to hear an important case, Husted v. A. Phillip Randolph Institute, about whether Ohio’s purge of inactive voters violates the National Voter Registration Act.

Voter purges, like Ohio’s, can result in the disenfranchisement of hundreds of thousands of U.S. citizens. Consider what happened to Larry Harmon, one of the individuals who challenged Ohio’s purge. Harmon skipped a few elections, unable to find a candidate he liked. As a result, Ohio took away his right to vote. When Harmon tried to vote in 2015, he was turned away.

If the court upholds Ohio’s policy — one of the harshest in the nation — it could open the door to widespread use of voter purge laws to make it harder for individuals to exercise their right to vote. Not surprisingly, the Trump administration’s Department of Justice abandoned the department’s longstanding opposition to such voter purge laws to support Ohio’s appeal.

Almost all states update their voter rolls when citizens declare that they have changed their residence. Ohio goes much further, however, seeking to purge inactive voters. In Ohio, if a voter does not vote in a two-year period — in essence, if he or she misses any federal election cycle — Ohio starts the purge process. If that voter does not respond to a confirmation notice and fails to vote in the next four years, Ohio takes away the individual’s right to vote. This violates the National Voter Registration Act.

Enacted in 1993, the NVRA makes it harder for states to throw citizens off the voting rolls one they’re registered. Using the power the framers gave Congress to protect the right to vote in federal elections, the act prohibits state laws that “result in the removal of the name of any person from the official list of voters registered to vote in an election for federal office by reason of the person’s failure to vote.”

The NVRA allows states to remove individuals from the rolls because of “death” or “a change in the residence of the registrant,” but it refuses to allow states to strip U.S. citizens of the right to vote for failing to exercise it. Congress sought to end the practice of purging voters simply because they had not voted in the past.

The NVRA reflects an important constitutional principle: We do not give up our constitutional rights simply because we don’t exercise them. “Use it or lose it” may be a rule in some areas of life, but not when fundamental constitutional freedoms are concerned.

Under the NVRA, the fact that you haven’t voted cannot be used to take away your fundamental right to cast a ballot.

Voters decide not to cast a vote for all sorts of reasons, including because they dislike the candidates or they think the election won’t be close. In midterm elections, many citizens often do not turn out to vote. In 2016 — even with a hotly contested presidential election — 29 percent of Ohio’s registered voters did not vote. The NVRA’s protections guarantee that voters won’t be stripped of their fundamental right because they made that choice.

This case poses a crucial test for conservatives on the Supreme Court, who have repeatedly insisted that courts must enforce federal law as written. Chief Justice John Roberts has written that “[i]n every case we must respect the role of the legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.”

Justice Neil Gorsuch, who joined the court last April, has already emphasized a number of times that courts must not rewrite federal laws in the guise of construing them. The NVRA means what it says: Voters may not be disenfranchised because of their failure to exercise the right to vote.

Ohio’s voter purge disenfranchises U.S. citizens because they choose not to vote. This constricts the electorate and harms our democracy. And it does so in contravention of a law passed by Congress. The Supreme Court should strike down Ohio’s voter purge policy.