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Now that President Trump has dissolved his shady voter fraud commission, a Supreme Court case being heard Wednesday represents fraud alarmists’ next best chance to boost their voter purge campaigns.
The case, Husted v. A. Philip Randolph Institute, is a challenge to Ohio’s scheme for purging people who haven’t voted recently from the voter rolls, a scheme the state implemented under pressure from conservative legal activists, including one who later joined the Trump voter fraud commission.
Voting rights advocates fear that a ruling in favor of Ohio’s system will be used by voter fraud alarmists to pressure other states to more aggressively kick voters off the rolls. Conservative groups like the American Civil Rights Union and Judicial Watch for years have been bullying local election officials with notices and in some cases lawsuits pushing them to purge their rolls.
“They want the ability to use non-voting to remove people,” Demos senior counsel Stuart Naifeh, who is representing the Ohio challengers, told TPM. “And in these cases that they’ve brought or threatened to bring, they want counties or states to adopt that as a practice.”
Under Ohio’s regimen, if a person does not vote in a two-year period, they are mailed a notice to verify or correct their address. If they do not respond to the mailer, and don’t vote within the next four years, they are removed from the voter rolls.
Tellingly, four Republican commissioners from Trump’s now-defunct commission are involved in legal briefs supporting Ohio in the case. Trump’s Justice Department is also backing Ohio, a reversal from the Obama administration’s position.
The case is just one battlefront of a larger war being waged against the National Voter Registration Act — the so-called “Motor Voter” law that streamlined the process by which people can registered to vote and put standards on how states could clean their voter rolls.
“It really seems like this is the direction that people who want to restrict voting are moving in,” said Dale Ho, the director of the ACLU’s Voting Rights Project. “And this case, by potentially weakening the NVRA’s restrictions on purging, could help with that effort.”
The list maintenance issue is “harder to track” than voter ID, Ho said, because “you don’t need law to do a purge, it’s just an administrative practice.”
J. Christian Adams, a Republican on the Trump commission, himself said recently that voter ID was “yesterday’s fight.” Adams was listed of counsel on a 2012 lawsuit pushing Ohio to more aggressively purge its voter rolls. Ohio adopted the new purge scheme as part of settling that case. Voting rights advocates challenged the new scheme in court, and the Supreme Court is now taking it up after an appeals court ruled against Ohio.
Even before the Trump administration took over the White House and started sending signals of its own voter purge pressure campaign, a group of exiles from George W. Bush’s scandal-plagued Justice Department began filing under-the-radar lawsuits against local election officials alleging that they weren’t doing enough to clean their rolls. Two of these DOJ alum — Adams and Hans von Spakovsky — went on to serve on Trump’s commission. A third, Robert Popper, was a witness at the commission’s September meeting. (The purge process that is being challenged was the result of a lawsuit brought by Popper’s group Judicial Watch, the same lawsuit in which Adams was listed of counsel.) A Judicial Watch spokesperson told TPM Popper was not available to comment for this story.
All three men are named in legal briefs supporting Ohio’s purge protocol, as are two other Republicans on the commission, former Ohio Secretary of State Ken Blackwell and U.S. Election Assistance Commissioner Christy McCormick.
A few other states and localities have adopted the use of non-voting to begin their purge protocol — in some places, as the result of settlements prompted by lawsuits that Adams’ group, the Public Interest Legal Foundation (PILF), brought on behalf of the American Civil Rights Union, on whose board Blackwell sits.
If the Supreme Court greenlights Ohio’s use of non-voting to trigger its purge protocol, it could lead to other states adopting the process or embolden PILF to step up its browbeating of local election officials into changing their practices. Some 17 states have joined a brief in support of Ohio’s scheme, led by Georgia which has a similar regimen and has emerged as a voting rights battleground as Democrats seek to make electoral gains there.
“A ruling that communicates that states need to be more aggressive in their purges is likely to have outcomes that we have seen before, where sloppy purges lead to eligible voters not being able to vote on election day,” said Myrna Perez, deputy director of the Brennan Center’s Democracy Program.
PILF, in response to TPM’s inquiry, sent a statement from Adams accusing the “interest groups” opposing him in the case of “keeping voter rolls filled with dead and ineligible voters.” Von Spakovsky, who sits on PILF’s board, did not respond to TPM’s inquiry.
The legal question at hand is a complicated one, as the Supreme Court will have to muck through NVRA language that is murky and at times, contradictory on whether non-voting is a permissible reason to begin purging a voter.
According to Perez, there’s a possibility that the Supreme Court will hand down a narrow opinion saying Ohio’s process in particular, by starting the process after just one federal election cycle without a vote cast, is too unreliable.
In the friend-of-the-court brief, Adams filed supporting Ohio, he not only defended the process, but suggested that it should be the model elsewhere.
“Other states should be encouraged to take similar and even further action to protect the sanctity of our nation’s elections,” he said.
