WASHINGTON -- States can purge their voting rolls by targeting people who haven't cast ballots in a while, the Supreme Court ruled Monday in a case that split the conservative and liberal justices.
By a 5-4 vote, the court rejected arguments in a case from Ohio that the practice violates a federal law intended to increase the ranks of registered voters. Nineteen states, including Arkansas, use voter inactivity in the process of purging their databases.
Justice Samuel Alito said Ohio is complying with the 1993 National Voter Registration Act. He was joined by his four conservative colleagues in an opinion that drew praise from Republican officials and conservative scholars.
The four liberal justices dissented, and civil-rights groups and some Democrats warned that more Republican-led states could enact voter purges similar to Ohio's.
Ohio is of particular interest nationally because it is one of the larger swing states with the potential to determine the outcome of presidential elections. But partisan fights over ballot access are playing out across the country. Democrats have accused Republicans of trying to suppress votes from minority groups and poorer people who tend to vote for Democrats. Republicans have argued that they are trying to promote ballot integrity and prevent voter fraud.
Ohio's contested voter purge stems from a requirement in federal law that states have to make efforts to keep their voter rolls in good shape by removing people who have moved or died.
But Ohio pursues its goal more aggressively than most, relying on two things: voter inactivity over six years, encompassing three federal elections; and the failure to return a card, sent after the first missed election, asking people to confirm that they have not moved and can continue to be eligible to vote.
Voters who return the card or show up to vote over the next four years after they receive it remain registered. If they do nothing, their names eventually fall off the list of registered voters.
The case before the Supreme Court concerned Larry Harmon, a software engineer and Navy veteran who lives near Akron, Ohio. He voted in the 2004 and 2008 presidential elections but did not vote in 2012, saying he was unimpressed by the candidates. He also sat out the midterm elections in 2010 and 2014.
In 2015, Harmon wanted to vote against a ballot initiative to legalize marijuana and found that his name had been stricken from the voting rolls.
The case hinged on a provision of the voter registration law that prohibits removing someone from the voting rolls "by reason of the person's failure to vote."
Alito said the two factors show that Ohio "does not strike any registrant solely by reason of the failure to vote."
"Instead, as expressly permitted by federal law, it removes registrants only when they have failed to vote and have failed to respond to a change-of-residence notice," he wrote.
Justice Stephen Breyer countered in his dissent that "In my view, Ohio's program does just that." Breyer said many people receive mailings that they discard without looking at them. Failure to return the notice "shows nothing at all that is statutorily significant," he wrote.
In a separate dissent, Justice Sonia Sotomayor said Congress enacted the voter registration law "against the backdrop of substantial efforts by states to disenfranchise low-income and minority voters." The court's decision essentially endorses "the very purging that Congress expressly sought to protect against," she wrote.
Alito said the dissenters "have a policy disagreement" with Ohio and Congress. "We have no authority to second-guess Congress or to decide whether Ohio's Supplemental Process is the ideal method for keeping its voting rolls up to date," he wrote.
Still, Alito suggested that Congress was pursuing a worthy objective by encouraging states to cull their databases. He began his opinion by citing a Pew Center study estimating that 24 million registrations are either invalid or significantly inaccurate.
Richard Hasen, an election law expert at the University of California at Irvine, called the case "a close question of statutory interpretation." Hasen said the lawsuit the court resolved Monday did not involve allegations of discrimination against minority-group voters, and he suggested the laws in Ohio and other states could be vulnerable to a legal challenge on those grounds.
Civil-rights groups said the court should be focused on making it easier for people to vote, not allowing states to put up roadblocks to casting ballots.
"With the midterm election season now underway, the court's ruling demands heightened levels of vigilance as we anticipate that officials will read this ruling as a green light for loosely purging the registration rolls in their community," said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law.
Some activists said they feared that Ohio's model will now be used in other Republican-leaning states.
"Voters should not be purged from the rolls simply because they have exercised their right not to vote. This ruling is a setback for voting rights, but it is not a green light to engage in wholesale purges of eligible voters without notice," said Dale Ho, director of the American Civil Liberties Union's Voting Rights Project.
Ohio has used voters' inactivity to trigger the removal process since 1994, though groups representing voters did not sue the Republican secretary of state, Jon Husted, until 2016. As part of the lawsuit, a judge last year ordered the state to count 7,515 ballots cast by people whose names had been removed from the voter rolls.
Husted called the decision "a victory for election integrity, and a defeat for those who use the federal court system to make election law across the country." He is running for lieutenant governor this November on the Republican ticket headed by Mike DeWine, the current attorney general.
DeWine hailed the court's decision in a statement Monday.
"I congratulate our attorneys throughout this case for their exceptional work in documenting how this process, used by Democrat and Republican secretaries of state, is indeed lawful," he said.
The Justice Department for decades took the position that failing to vote should not lead to disenfranchisement. In the appeals court, President Barack Obama's administration filed a brief supporting Harmon. But after the last presidential election, the department switched sides in the case, Husted v. A. Philip Randolph Institute, No. 16-980.
The Trump administration was joined by 17 states in its support of Ohio. New York led a group of 12 states, plus the District of Columbia, that opposed the Ohio system. They said officials have better tools to identify voters who have moved, including government tax records, census lists and motor-vehicle department databases.
ARKANSAS' LAW
According to Chris Powell, spokesman for Arkansas Secretary of State Mark Martin, the county clerks in each of the state's 75 counties maintain their voter rolls.
Under Section 11 of 1964's Amendment 51 to the Arkansas Constitution, county clerks cancel the registration of voters who:
• Failed to respond to address-confirmation mailings and have not voted or appeared to vote in any election during a period starting on the date of the notice and ending the day after the second general election for federal office held after the notice was mailed.
• Changed their residence to an address outside the county.
• Died.
• Have been convicted of a felony and have not discharged their sentence or been pardoned.
• Are not lawfully qualified or registered electors of this state or of the county.
• Have been found mentally incompetent.
Under Arkansas Annotated Statute 7-5-903, a county clerk sends written notice to a voter who has been removed or purged from a voter registration list. The voter has 30 days to challenge the removal.
The secretary of state's office informs the counties of some changes in status of voters, such as when they are deceased or have lost voting rights as a result of being a felon.
OTHER RULINGS
In other action Monday, the Supreme Court left in place a lower-court order that Washington state must restore salmon habitat by removing barriers that block fish migration.
The justices divided 4-4 in the long-running dispute that pits the state against American Indian tribes and the federal government. The tie serves to affirm a lower-court ruling.
Justice Anthony Kennedy stepped aside from the case because he participated in an earlier stage when he served on the 9th U.S. Circuit Court of Appeals.
At issue is whether the state must pay billions of dollars to fix or replace hundreds of culverts -- large pipes that allow streams to pass beneath roads but can block migrating salmon if they become clogged or if they're too steep to navigate.
The Supreme Court in April heard the state's appeal of a ruling by the 9th U.S. Circuit Court of Appeals. That court affirmed a lower-court order in 2013 requiring the state to fix or replace hundreds of the highest-priority culverts within 17 years.
The court on Monday also sided with a man's children over his ex-wife in a dispute about who should get more than $180,000 in life insurance proceeds.
The justices ruled in a case involving the breakup of Mark Sveen and Kaye Melin. When the Minnesota residents divorced in 2007, they didn't specify who should be the beneficiary of his life insurance policy.
A 2002 Minnesota law says that when a couple divorces, the ex-spouse gets automatically removed as the life insurance beneficiary.
But after Sveen's 2011 death, Melin argued she should get the money, not Sveen's two children from a previous marriage. Melin argued the law couldn't apply to the policy because it was purchased before the law was written. The Supreme Court ruled 8-1 against her.
The court also decided to leave in place a lower-court decision dismissing a lawsuit filed against the Chicago Cubs by the owners of rooftop clubs adjacent to Wrigley Field.
Skybox on Sheffield and Lakeview Baseball Club sued the Cubs in 2015, arguing in part that a right-field video board the team was adding would block their views of the ballpark and violate terms of a 2004 revenue-sharing agreement.
A federal judge dismissed the case, and a three-judge panel of the 7th Circuit U.S. Court of Appeals upheld the decision. The Supreme Court declined to hear the case, leaving the lower-court decisions in place.
Information for this article was contributed by Mark Sherman, Dan Sewell, Julie Carr Smyth, Phuong Le, Rachel La Corte and staff members of The Associated Press; by Adam Liptak of The New York Times; by Greg Stohr of Bloomberg News; by David G. Savage of the Tribune News Service; and by staff members of the Arkansas Democrat-Gazette.
A Section on 06/12/2018