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13 January 2018, 01:05 | Lucy Hill
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Smith said yes, "because the Act says you can't use failure to vote as the reason for purging somebody from the roll".
Justice Sonia Sotomayor spoke at length about voter disenfranchisement, and noted that the state's policy disproportionately affected marginalized groups.
Backed by 17 other mostly Republican states, OH said it is complying with federal law.
The justices are hearing argument Wednesday in a case from Republican-led OH, one of a handful of states that use voters' inactivity to trigger a process that could lead to their removal from voter rolls. Most of the states supporting OH have Republican governors or legislatures; most of those opposed are governed by Democrats.
The state "purges registered voters who are still eligible to vote", former and current OH elections officials said in a brief supporting the voters. The Ohio voting rights decision will be one of several voting rights cases heard by the Supreme Court during this term.
Breyer aimed all of his questions at Smith, the challengers' lawyer.
The high court's decision could determine whether or not millions of potential voters can cast their ballots in OH and the other states concerned.
The case is the latest episode in a nationwide partisan war over ballot access. Sotomayor voiced concerns about the effect the law had on poor and minority communities, whom she said were substantially less likely to vote and therefore more likely to be disenfranchised.
OH voters who do not cast a ballot for two years are sent a mailer asking if they wish to remain registered. States can use change-of-address forms filed with the U.S. Postal Service, as well as government tax records, census lists and motor-vehicle department databases, the challengers say.
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That issue formed the majority of Smith's time at the lectern, with Smith arguing that the state not receiving the notice back tells "nothing" about whether the person moved. The state says it removes names only after local election boards send notices and theres no subsequent voting activity for the next four years. Registration is canceled if there's no response to the notices, no votes are cast during the next four years and the voter's address isn't updated.
The 1993 measure allows people to register to vote at the same time that they apply for or renew a driver's license, or try to obtain public assistance.
Sotomayor noted that President Donald Trump's administration had switched sides in the case to support OH, breaking with a position held by previous Republican and Democratic administrations.
Sotomayor questioned Solicitor General Noel Francisco at length about the switch. It seems quite unusual that your office would change its position so dramatically.
"Voting is the foundation of our democracy, and it is much too important to treat as a "use it or lose it" right", lawyer Stuart Naifeh of Demos told Reuters. When the U.S. Court of Appeals for the 6th Circuit said the law could not be enforced in the November 2016 elections, at least 7,500 voters participated who would have otherwise been ineligible.
But he said a reexamination of the issue within the Trump administration convinced him that Congress intended states could use the failure to vote as a trigger for a broader process.
Later, questioning Smith about Ohio's procedure, Alito said: "Does it say the failure to vote is a ground for removal, or does it say that moving out of the district is a ground for removal, and failure to vote plays a part in the determination of whether a person has moved out of the district?" Noting the low return rate on mailed warnings, he said, "you're going to vastly over-purge people". Breyer questioned whether states have enough other tools to purge people who have moved away or died in far-away places. He said he never saw the notice.
"Look, we've removed nearly 600,000 deceased voters from the voter rolls since I became Secretary of State", said Husted. "We should be working to make voting easier, not more hard, for Americans that want to participate in the electoral process". "Under federal law, not voting isn't sufficient to get you purged from the rolls and denied the right to vote". They called Ohio's policy the most aggressive.
Harmon, who does not remember receiving a notice, brought his challenge to Ohio's scheme with the nonprofit A. Philip Randolph Institute and the Northeast Ohio Coalition for the Homeless, alleging violations of the National Voter Registration Act.
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