Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
People who live in cities and are vulnerable to displacement will be most heavily affected by the SCOTUS decision to let Ohio continue its questionable purging practices.
There are two key things to understand about the U.S. Supreme Court’s 5-4 Husted vs APRI decision yesterday, which allows the state to punish infrequent voters by purging them from voter lists.
- This ruling will further erode the voting power of people who live in cities because the areas most affected by purges in Ohio are its largest metropolises: Cleveland, Cincinnati, and Columbus.
- The stakes just heightened for people who get evicted or are displaced from their homes, adding possible disenfranchisement to their list of problems.
At question in this case is the state’s Supplemental Process for purging voters, which goes like this: If you live in Ohio and you decide to, for whatever reason, skip voting in one federal election, this can trigger the state to send a document to your listed residence asking you to confirm that you still live there. If you do not send this document back and don’t vote for another few elections, the state assumes you no longer live at this address and will remove your name from your local voter list. This means that the next time you decide to vote, you will likely not be able to—or at best, you can vote provisionally. This is what happened to Navy veteran Larry Harmon when he tried to vote in 2015 but was denied because he failed to vote in 2009 and 2010 and didn’t respond to the address confirmation mailer that was sent to him.
Harmon and the A. Philip Randolph Institute sued the state with the backing of several other civil rights and social justice organizations, such as the Northeast Ohio Coalition for the Homeless (NEOCH), Demos, and the ACLU. The U.S. Department of Justice also filed a legal brief in 2016 on their behalf stating that Ohio’s purging process violates the National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA). The Justice Department has held and defended the position that a person can’t be purged for not voting dating back to NVRA’s passage in 1993, through both Democrat and Republican administrations. But states have resorted to all sorts of questionable voter purging schemes, often disproportionately affecting voters of color. The NVRA’s anti-purging provisions were further strengthened by HAVA in response to the 2000 Bush-Gore election, which was bungled in large part because of the reckless voter purging that happened in Florida.
A district court sided with Harmon in 2016, but that decision was overturned by a federal appeals court later that same year. Harmon’s defenders appealed to the U.S. Supreme Court, but this time the Justice Department, under a leadership that is unfriendly to civil rights, decided to reverse the position it previously held for two decades. In a new brief, it posited that Ohio’s Supplemental Policy actually does not violate NVRA or HAVA. Yesterday, SCOTUS agreed. Justice Samuel Alito, writing for the majority, pointed to a clause in the NVRA that said a person could be purged if he has “failed to respond to a notice” and “has not voted” for a certain period of time.
But what Harmon’s advocates were contesting was how Ohio was going about this: The purge process can begin when a person misses voting once, after which they are sent the address confirmation notice. Meanwhile, even HAVA states that a person can’t be purged solely for a failure to vote. Ohio is the only state that has a purging policy like this, but thanks to yesterday’s SCOTUS decision, it likely won’t be the last. The ruling opens the door to other states to employ the same kind of purging process. If the current test case is any indication, that would be devastating for major cities because in Ohio, those are the jurisdictions that have been most heavily impacted. According to a Reuters study from 2016:
Voters of all stripes in Ohio are affected, but the policy appears to be helping Republicans in the state’s largest metropolitan areas, according to a Reuters survey of voter lists. In the state’s three largest counties that include Cleveland, Cincinnati and Columbus, voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods.
That’s because residents of relatively affluent Republican-leaning neighborhoods are more likely to vote in both congressional elections and presidential contests, historical turnouts show. Democrats are less likely to vote in mid-term elections and thus are more at risk of falling off the rolls.
Justice Sonia Sotomayor noted as much in her dissent, and also explained that people of color have been disproportionately impacted as well:
It is unsurprising in light of the history of such purge programs that numerous amici report that the Supplemental Process has disproportionately affected minority, low-income, disabled, and veteran voters. As one example, amici point to an investigation that revealed that in Hamilton County, “African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity” since 2012, as “compared to only 4% of voters in a suburban, majority-white neighborhood.”
Harmon’s defense argued that Ohio is incorrect to assume a person has moved just because they dodged an election or two—indeed, Harmon had been living in the same place for 16 years when his name was scrubbed from voter lists. There are myriad reasons for not voting, not least of which is because you just might not want to. Perhaps there is no candidate who best encapsulates your interests. This might often be the case for Democrats living in cities when considering participating in statewide elections, given the way cities are gerrymandered out of power and trapped by Republican-dominated state legislatures and governors that cater to suburban districts.
However, people of color, of low-income, and people who live in cities will always be vulnerable to residency-based purging schemes because they are the people most likely to change addresses. Cities have larger populations of people who rent (in many cities, renters are upwards of half the total population). Cities are also staging grounds for frequent neighborhood change—public housing gets razed for mixed-income complexes, new urban development plans kick off, gentrification kicks in—all of which lead to higher rates of displacement of families than are found in suburbs.
Even homeowners of color were more likely to not only get foreclosed upon during the recent housing crash, but also most likely to not have recovered. Many are living in transitional and temporary housing. Not to mention, cities are at the heart of the long-running eviction crisis in the United States. Cincinnati figures among the top ten metros for this, with an eviction rate that is 2.36 times the national average, according to Eviction Lab. Cleveland’s and Columbus’s eviction rates are not far behind.
With this ruling, the displaced can now add disenfranchisement to their list of worries while seeking resettlement. People of color can add this to the lately growing list of voting rights setbacks and obstacles experienced of late. Justice Sotomayor said in her dissent that the majority’s ruling neglects to acknowledge the history of voter discrimination and suppression that led to voter protection laws like NVRA and HAVA to begin with. Justice Alito replied that racial discrimination at the polls was not relevant to this case.
“The only question before us is whether [Ohio’s Supplemental Process] violates federal law,” said Alito. “We have no authority to second-guess Congress.”
And yet second-guessing Congress is exactly what SCOTUS did in 2013 when it ruled to strip away key provisions of the Voting Rights Act that Congress had almost unanimously reauthorized and did not ask SCOTUS to correct. Those provisions mostly protected people of color living in southern states with long histories of racial discrimination. If those same southern states decide to launch purging schemes like the one now rendered constitutional in Ohio (Florida has tried similar), then voters of color there will have even less protection.
Ohio’s Secretary of State Jon Husted said these purges are necessary to prevent voter fraud, but study after study has pointed to the fact that this happens at such a vanishing rate that it’s not worth mentioning. Donald Trump disbanded his voter fraud commission earlier this year because it was unable to unearth such fraudulent activity. There’s little reward or incentive for illegal voting in Ohio, where the penalty for this is a felony that could land one in jail for five years.
There is a solution, though, if Ohio is truly worried about keeping accurate voter registration files. It’s called automatic voter registration, which, as its name suggests, automatically updates a voter’s registration information whenever they get a new driver’s license, state ID, or apply for state benefits. It’s been adopted in roughly a dozen states so far and can be effective in reducing the chances of losing track of voters whether they move or not. A bill was introduced in Ohio in February 2017 to initiate automatic voter registration, and is still pending. Ohio Secretary of State Husted opposes it.