Weekly Legislative Report: U.S. Supreme Court Upholds Ohio's Voter Maintenance Process

Following the marathon week they had last week, neither the Ohio Senate or House had sessions this week. As such, we'll focus our attention on the federal courts, which were abuzz with Ohio-related news. 


U.S. Supreme Court Upholds Ohio's Voter Maintenance Process 

On Monday, the U.S. Supreme Court ruled that Ohio's long-running process for maintaining its voter rolls, including the practice of removing voters who have not voted in multiple elections or confirmed their voting address, does not violate federal law.  


It was a 5-4 decision, and not unlike most issues dealing with voting rights, conservatives and liberals had very different reactions to the news. The ruling will undoubtedly be a major issue in the race for Ohio Secretary of State between Republican Senator Frank LaRose, who praised the decision, and State Representative Kathleen Clyde who condemned it.  


Organizations including Demos, the American Civil Liberties Union (ACLU), ACLU of Ohio, Campaign Legal Center, Ohio A. Philip Randolph Institute, and Northeast Ohio Coalition for the Homeless had sued the state over its voter maintenance program, which under both Democratic and Republican Secretaries of State, involves sending a notice to voters who have not voted in two federal election cycles asking them to confirm their voting information to stay on the rolls. Eventually, if the voter does not confirm their address, they are removed from the Statewide Voter Registration Database. The plaintiffs argued that the process violated the Help America Vote Act (HAVA) and the National Voter Registration Act (NVRA) and hurts poor and minority voters.  


Supporters of Ohio's process, including current Secretary of State (and candidate for Lt. Governor) Jon Husted defend the process as critical to voter integrity and for keeping Ohio's voter rolls accurate and up to date and argues that it is in line with the goals of federal voting laws.  


Justice Samuel Alito, writing for the majority in Husted v. A. Philip Randolph Institute, agreed saying that the process does not violate HAVA or NVRA because "It does not strike any registrant solely by reason of the failure to vote," Alito wrote. "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." Alito also wrote that dissenting opinions are more about a policy disagreement than statutory interpretation. "We have no authority to second-guess Congress or to decide whether Ohio's supplemental process is the ideal method for keeping its voter rolls up to date," Alito wrote. "The only question before us is whether it violates federal law. It does not."  
 
In his dissent, Justice Stephen Breyer wrote that Ohio's process "erects needless hurdles to voting of the kind Congress sought to eliminate" by enacting the NVRA. He said that while the state's notification to a voter will sometimes provide confirmation that the voter has moved, "more often than not, the state fails to receive anything back from the registrant, and the fact that the state hears nothing from the registrant essentially proves nothing at all."  


While the Court said federal law permits Ohio to continue this process, it does not require it, opponents of the decision have been quick to point out. How it is administered in the future will largely depend upon the next Secretary of State.  


Speaking of which, the current Secretary of State issued a directive to county boards of elections soon after the decision, directing them that despite the Court ruling upholding Ohio's process for removing individuals from the voter rolls, no action to remove non-responsive voters is to be taken until after the November 2018 election.  


US Senators Split Regarding President Trump's Nominations of Murphy, Readler to 6th Circuit ... 

Last Thursday President Donald Trump formally nominated State Solicitor Eric Murphy and Acting Assistant U.S. Attorney General Chad Readler to the U.S. 6th Circuit Court of Appeals, but Republican Senator Rob Portman and Democratic Senator Sherrod Brown disagree as to whether they should be approved.   

 

Portman said both men are well qualified for their prospective posts. Brown and other progressives pointed to Murphy and Readler's role in voter litigation, including Murphy's defense of the state's voter maintenance program (above) and similar efforts by Readler while at the law firm of Jones Day, where both nominees worked in private practice. 


...Then Announce Bipartisan Process for Filing Vacancy in Southern District 
Meanwhile, as part of their bipartisan process for evaluating potential candidates for federal court vacancies, Portman and Brown have announced that they are accepting applications for the U.S. District Court vacancy for the Southern District, created when the Honorable Susan Dlott took senior status in May. Interested parties must apply by July 6, 2018. 

 
Week Ahead 

The Ohio House will be in session on Wednesday, June 20, while the full Senate is not scheduled to meet until the following week.   


Tracking OSBA Legislation    

You can always track bills we are watching and OSBA priority legislation via the Legislative section at www.OhioBar.org.  ​

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