“Notice, Due Process, and Voter Registration Purges”

Anthony Gaughan has posted this draft on SSRN (forthcoming, Cleveland State Law Review). Here is the abstract:

In the 2018 case of Husted v. A. Philip Randolph Institute, a divided United States Supreme Court upheld the procedures that Ohio election authorities used to purge ineligible voters from the state’s registration lists. In a 5-4 ruling, the majority held that the Ohio law complied with the National Voter Registration Act of 1993 (“NVRA”) as amended by the Help America Vote Act of 2002 (“HAVA”). 

This Article contends that the controlling federal law — the NVRA and the HAVA — gave the Supreme Court little choice but to decide the case in favor of Ohio’s secretary of state. But this article also argues that the Ohio procedure fails to constitute good public policy even though it complies with federal law. At a time when email and junk mail have marginalized the U.S. Postal Service as a communication platform, Ohio’s policy of sending a single postcard mailer to inactive voters provides inadequate notice that they face removal from the state’s voter registration lists. 

Accordingly, this Article proposes a set of reforms to the notification process used in the states’ list maintenance procedures. Federal law should require states to do far more than send a single postcard warning to inactive voters. In addition, in the aftermath of the Husted ruling, plaintiffs challenging voter registration purges should consider bringing constitutional claims under the due process clause.

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