Given these methods of cleansing the voting rolls, there simply is no justification for also using voter inactivity as an independent basis for eliminating registrations. But some states like Ohio and Georgia persist in canceling registrations of voters simply because they have not voted recently and failed to return a mailed notice. There is every reason to be concerned that this practice continues because it has a political skewing effect. Failure to vote regularly correlates with lower socioeconomic status and, at least in some places, with being a member of a racial minority.
Unfortunately, the courts have so far not provided the remedy that is needed. In 2016, voting rights advocates from Demos and the American Civil Liberties Union sued the State of Ohio on behalf of the A. Philip Randolph Institute, claiming that that state’s aggressive purge policy violated the National Voter Registration Act (NVRA). This was logical because the NVRA governs states’ obligations to purge ineligible names from the voting rolls while also providing that a person may not be purged “by reason of the person’s failure to vote.” Two years later, however, the Supreme Court ruled 5–4 in Husted v. A. Philip Randolph Inst. that the NVRA did not bar Ohio from continuing its policy of purging voters solely because they had failed to vote for two years, they failed to return a notice sent to them in the mail, and they failed to vote for four more years. The Court essentially held that, as long as a state mails the notice and waits four more years—two steps required by the NVRA as a protection to voters who are slated for purges—there is no statutory problem, regardless of how little justification the state may have had for identifying candidates for purges in the first place.
Whatever the merits of that statutory ruling, the Constitution ought to provide a remedy here. Under the Fourteenth Amendment, a state-law burden on voting is unconstitutional unless it produces some legitimate benefit that outweighs the burden. This so-called “Anderson-Burdick” balancing test stands as a bulwark against aspects of state election administration policies that do more harm than good. And that is what we have here. In one recent test of a constitutional argument, a federal court in Georgia, in a case brought by Fair Fight Action, denied a preliminary injunction seeking to restore the registration status of 98,000 Georgians who had had their registrations canceled solely because of a period of non-voting and non-return of confirmation notices. But the hope in that case and others is to persuade the courts that this kind of voter purge is outmoded and unjustified.
How do we know that? An assessment of the data supplied by the states themselves shows why purges based only on non-voting and non-return of a notice are guaranteed to dump a high percentage of people off the voting rolls who have not moved anywhere and otherwise remain eligible to vote in some future election. Those data are collected and published annually by the federal Election Assistance Commission. Take Georgia, for example. Even in the two very high-turnout elections of 2016 and 2018, well over a third of the state’s voters did not vote. Clearly, there are many people who have not moved away who choose not to participate in every election. How about the mailed notices that the NVRA requires? Unfortunately, those appear to be routinely ignored by most people. Georgia sent out almost half a million such “confirmation notices” to registered voters in 2017. Less than 10 percent were returned by recipients, about 15 percent were returned “addressee unknown,” and more than 75 percent elicited no response at all. So, the notices provide only limited information and do not seem to be effective as warnings that they are in the pipeline toward a registration purge.
Protecting the right to vote is one of the most important things our courts can do. Even those who rail against “judicial activism” and in favor of democratic decision-making ought to recognize that when the democracy is distorted by the actions of elected officials, only the courts can help. Stopping unnecessary and unjustified voter purges is a prime example.