A Few Notes on Ohio Case Heading to SCOTUS

[Screenshot via supremecourt]

The U.S. Supreme Court announced yesterday that it was granting certiorari (agreeing to hear) an Ohio case regarding voter list maintenance. Media coverage of the case suggests that the underlying issue is election integrity or “purging” voters – at least those will be the talking points – but as usual it’s a little more nuanced than that.

As background, here are three posts I’ve done over the years about this case and the underlying issue:

20 Years Later, NVRA – And Controversy – Still Going Strong In Ohio [May 2013]

Another Elect’n, Another Suit: New Challenge To Ohio Voter List Maintenance Practices [April 2016]

15 States File Amicus Brief Seeking Clarification On NVRA, Non-Voting And List Maintenance [March 2017]

As the case reaches the Court, a few things to keep in mind:

  1. The Court rarely grants cert to affirm. The fact that the case will be heard suggests that that the Court is inclined to disagree with the Sixth Circuit, which sided with plaintiffs on the propriety of using non-voting data for list maintenance. That’s not an absolute prediction of the outcome, which will depend on oral arguments, but it’s an indication of where this case is likely headed.
  2. The case will provide some crucial guidance on list maintenance and the NVRA.  As I wrote in March, there is disagreement within the election community about the proper use (if any) or non-voting data as a trigger for list maintenance. States cannot remove voters solely for failure to vote, but Ohio and other states are using the fact of non-voting as a reason to send address confirmation requests, with failure to respond used as a reason to remove voters from the rolls. Clarity on whether that’s allowed will be useful – even if voting rights advocates fear it will lead to increased “purges” of non-voters.
  3. This case highlights the downstream impact of technological improvements. As I wrote way back in 2013, this issue arose because Ohio was finally able to link voting records to motor vehicle address records. It’s a helpful reminder that technological changes and legal changes are rarely if ever separate in the elections field.

Next step in the case is an oral argument, likely this fall – with a decision sometime next year. I have no doubt there will be much more to say, given the policy and partisan overtones of the case … Stay tuned!

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