Fifteen states have filed an amicus curiae (“friend of the court”) brief in the U.S. Supreme Court asking it to hear a case in order to clarify if and how states may use evidence of non-voting as a factor in removing voters from the rolls.
The question stems from an Ohio case I wrote about last April. There, plaintiffs challenged the state’s “supplemental process” for list maintenance, which uses failure to vote over a two-year period as a trigger for mailings seeking confirmation that the voter still wishes to vote. The allegation is that the use of non-voting as a trigger violates the Nation Voter Registration Act (NVRA), which expressly prohibits the removal of voters simply for failure to vote.
That argument failed to persuade the trial court to block the law, but last September a panel of the federal Sixth Circuit Court of Appeals voted 2-1 to direct the lower court to hear the case, finding that the use of non-voting as a trigger should be understood as “resulting” in a voter’s removal for failure to vote. Ohio has petitioned the U.S. Supreme Court to hear the case….
While it’s worth noting that all 15 state amici, like Ohio, have Republican chief state election officials – and thus a point of view on voter list maintenance that may be in conflict with others, including their Democratic counterparts – this is still an important issue needing clarification. Plaintiffs, and some other states, agree with the appeals court that using non-voting data to trigger confirmation mailings as part of list maintenance programs violates the law – but having clarity from the Supreme Court would likely go a long way in helping states nationwide structure their processes. Either way, what the Court decides (or lets stand by not deciding) is likely to have significant impact on states’ voter roll maintenance.