Based on all the evidence, as you know, voter fraud is minuscule in America. So there is only one rational answer for why the need for voter ID is pushed by the GOP. You know the answer to that one.
"Karen Handel and voter suppression in Georgia’s 6th"
Protesters gather on Wednesday as the Supreme Court heard oral arguments in a challenge to Ohio's voter roll purges. | Win McNamee/Getty Images
By JOSH GERSTEIN
01/10/2018 01:39 PM EST
A challenge to Ohio's system for purging voters got a skeptical reception at the Supreme Court on Wednesday, with two of the court's Republican-appointed justices and one Democratic appointee sounding sympathetic to the state's use of a voter's failure to vote to trigger a process that often leads to being dropped from the registration rolls.
At issue is how to interpret a prohibition in a 1993 federal law, the National Voter Registration Act, on the use of non-voting as a basis for removing people from the list of registered voters.
Civil rights groups contend that language means a failure to vote cannot be used to initiate a voter's removal, while Ohio contends it is permitted to use two years of non-voting to send out mailings that can ultimately result in voters being dropped. Voting rights activists say the process leads disproportionately to minorities being disenfranchised.
During an hourlong oral argument session at the high court, Justice Samuel Alito expressed the strongest support for Ohio's position, while Chief Justice John Roberts repeatedly sought to poke holes in the arguments of those challenging the state's practices. Justice Anthony Kennedy also seemed skeptical about the challenge, although his stance seemed less definitive.
Three of the court's Democratic appointees — Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg — expressed disagreement with the state's interpretation of the law. Morning Score newsletter
Alito argued that the law is most logically read as a prohibition on using non-voting as the sole basis for removing a voter from the rolls. "The statute itself takes failure to vote into account," he observed, referring to sections talking about how long a voter must be kept in an inactive status before being struck altogether.
However, Kagan suggested Alito was departing from his professed loyalty to textualism by reading in something that isn't actually in the portion of the law that's in dispute.
"Isn't that just adding a word into the statute that Congress wrote?" she asked "To add that word, 'solely,' is to change the meaning of the statute and that word is not in that provision. Usually we say Congress knows how to do a 'solely' provision and it didn't do it here."
Sotomayor suggested the state's actions were part of a pattern of making it harder for certain groups of voters to cast their ballots.
"What you do results in disenfranchising disproportionately certain cities where large groups of minorities live, where large groups of homeless people live," she said.
Sotomayor also said it was "not a reasonable inference" to say someone moved because they did not vote and didn't answer a mailing. She noted that a Senate report related to the legislation asserted that voters had the right to stay home.
"They believed failure to vote was a constitutional right. You have a constitutional right not to vote," Sotomayor argued.
Later in the argument, Roberts picked up on that issue, suggesting that the courts, or at least the Supreme Court, have never resolved that issue.
"There are many democracies that require you to vote, right? Australia ... you get a fine if you don't vote. And other places. And I have certainly seen it proposed it would be a good idea, given the low voter turnouts in our country, that we adopt something like that as well," the chief justice said.
One surprise came from Justice Stephen Breyer, a Democratic appointee, who said he believed that states needed a viable process to remove voters who have either died or moved.
"What are they supposed to do?" he asked. "I don't believe Congress would pass a statute that would prevent a state from purging a voter file of people who died or moved out of state."
Kennedy seemed to strike a similar tone, sympathetic to states trying to clean up their rolls.
"The reason they're purging them is they want to protect the voter roll from people ... that have moved and they're voting in the wrong district. That's the reason. What we're talking about are the best tools to implement that reason, to implement that purpose," he said.
However, when Solicitor General Noel Francisco rose to defend Ohio's practice, Sotomayor immediately challenged him, pointing out that the Trump administration has reversed the interpretation of the law held by the Justice Department under Presidents Bill Clinton, George W. Bush and Barack Obama.
"It seems quite unusual that your office would change their position so dramatically," Sotomayor said.
Francisco said he concluded that earlier interpretations that a state needed "reliable evidence" before initiating the process to remove a voter had no foundation in the statute. "That's found nowhere in the text. ... Congress in fact rejected" such proposals, he said.
While defending his interpretation, the solicitor general did allow that some aspects of the law might be murky. "The NVRA is not one of those statutes that I would hold up as a paradigm of legislative drafting," he quipped.
Defending the Buckeye State's laws, Ohio State Solicitor Eric Murphy said officials needed to do more than simply use postal change of address lists to clean up voter rolls, a practice he said was "woefully inadequate" to the task because people often fail to file such forms.
While some activists have argued that the law prohibits triggering removal of voters based on failure to vote, the lawyer challenging Ohio's practices, Paul Smith, actually took a more subtle position Wednesday. He said failure to vote could play a part, but simply sending out a forwardable mailing and then removing a voter for failing to respond left states with no relevant basis for acting except non-voting.
Smith appeared to concede that a non-forwardable mailing returned by the postal service as undeliverable would give a state enough information to move forward with switching a voter's registration to inactive and, eventually, deleting it.
Roberts said he felt that concession, that non-voting could sometimes be a factor in starting the process, undercut Smith's case.
Despite the extensive arguments on the issue, no lawyer or justice mentioned that many people now rarely or never look at their so-called snail mail, preferring to communicate almost exclusively by electronic means, like email, text or social media.
However, Breyer did say that on occasion he does junk all his postal mail without reading it. "I confess to doing that sometimes," he said.
Smith said that practice is common and underscores the dangers in Ohio's system of sending a single mailed notice to those who haven't voted for two years.
"Most people throw it in the wastebasket. ... It doesn’t provide any evidence at all," he said, adding that officials are left with no information about where a voter is living and "no idea which trash can it was thrown in."
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