New York Times

October 23, 2017

By Adam Liptak

 

 

Voters at a polling station in Dublin, Ohio, in 2012. After skipping a single federal election cycle, Ohio voters are sent a notice. If they fail to respond and do not vote in the next four years, their names are purged from the rolls. Credit Aaron P. Bernstein for The New York Times

 

 

WASHINGTON — Larry Harmon, a software engineer who lives near Akron, Ohio, says he is “a firm believer in the right to vote.” But sometimes he stays home on Election Day, on purpose.

 

In 2012, for instance, he was unimpressed by the candidates. He did not vote, he said, because “there isn’t a box on the ballot that says ‘none of the above.’”

 

Three years later, Mr. Harmon did want to vote, against a ballot initiative to legalize marijuana. But his name was not on the list at his usual polling place.

 

It turned out that Mr. Harmon’s occasional decisions not to vote had led election officials to strike his name from the voting rolls. On Nov. 8, the Supreme Court will hear arguments about whether the officials had gone too far in making the franchise a use-it-or-lose-it proposition.

 

Failing to vote — or deciding not to vote — is not unusual. In 2016, more than 70 million registered voters did not cast ballots, according to the United States Election Assistance Commission. That was more than a third of all registered voters.

 

Even in Ohio, a swing state where votes really matter, about 29 percent of registered voters did not cast ballots in 2016.

 

Ohio is more aggressive than any other state in culling its voter rolls based on the failure to vote. After skipping a single federal election cycle, voters are sent a notice. If they fail to respond and do not vote in the next four years, their names are purged from the rolls.

 

The idea behind the notices is that failing to vote suggests that the voter may have moved. State officials say their approach protects the integrity of the voting rolls.

 

Mr. Harmon, a Navy veteran, said he had voted in 2004 and 2008 but skipped the next presidential election, along with the midterm elections in 2010 and 2014.

 

When he tried to vote in 2015, he had lived in the same place for about 16 years.

 

“I’ve been living in Ohio my whole life,” he said. “I pay property taxes and income taxes. I register my car. They obviously had all the data to know that I was a resident. They could have looked it up, but they were too cheap.” 

 

The question for the justices is whether two federal laws allow Ohio to cull its voter rolls using notices prompted by the failure to vote. The laws prohibit states from removing people from voter rolls “by reason of the person’s failure to vote.” But they allow election officials who suspect that a voter has moved to send a confirmation notice.

 

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled in favor of Mr. Harmon last year, saying that Ohio had violated the National Voter Registration Act of 1993 by using the failure to vote as a “trigger” for sending the notices.

 

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.

 

There are other ways to calculate the impact of Ohio’s approach. A Reuters study last year found that at least 144,000 people were removed from the voting rolls in recent years in Ohio’s three largest counties, which are home to Cleveland, Cincinnati and Columbus.

 

“Voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods,” the study found. “Neighborhoods that have a high proportion of poor, African-American residents are hit the hardest.”

 

State officials say they sent Mr. Harmon a notice in 2011. He said he never saw it.

 

“I don’t remember getting that, and I don’t know why they sent it in the mail,” he said. “I’m out in a rural area, and sometimes I get other people’s mail. Sometimes other people get my mail.”

 

Twelve states, generally Democratic-leaning, filed a brief supporting Mr. Harmon. Seventeen states, generally Republican, filed a brief on the other side.

 

The Justice Department for decades took the position that failing to vote should not lead to disenfranchisement. In the appeals court, the Obama administration filed a brief supporting Mr. Harmon. After the last presidential election, the department switched sides in the case, Husted v. A. Philip Randolph Institute, No. 16-980.

 

Mr. Harmon said he suspected something larger was afoot in some states’ efforts to restrict voting.

 

“I really never had a problem with voter ID, because I’ve always had a driver’s license,” he said. “But now I really feel that they’re trying to get rid of voters.”

 

Mr. Harmon said Ohio’s system for managing its voting rolls would never pass muster in the private sector.

“As an engineer,” he said, “we have to collect data all the time from all over the world and manage information. It doesn’t seem like they’re even trying.”

 

A few other states use variations on Ohio’s approach, but none of them move as fast. “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. “Literally every other state uses a different, and more voter-protective, practice.”

 

Mr. Harmon said he hoped the Supreme Court would protect his right to vote.

 

“In most other aspects of civil liberties, the government goes out of the way to make sure your rights are enforced,” he said. “The right to vote is the most important right you have. If you can’t vote, you really don’t have a democratic system.”

 

 

https://nyti.ms/2zuF9eh