Under Attorney General Jeff Sessions, the Department of Justice has switched sides in several key court battles, reversing positions the agency took during the Obama era. Already, the DOJ has withdrawn its opposition to Texas’ draconian voter ID law and to mandatory arbitration agreements designed to thwart class actions. Now the agency has made another about-face: On Monday, it dropped its objections to Ohio’s voter purge procedures, which kick voters off the rolls for skipping elections. The DOJ is now arguing that such maneuvers are perfectly legal. Ohio’s voter purges are at issue in a Supreme Court case, Husted v. A. Philip Randolph Institute, which the justices will hear next term. The state purges voters from the rolls relentlessly, removing around 2 million people between 2011 and 2016—with voters in Democratic-leaning neighborhoods twice as likely to be purged as those in Republican-leaning neighborhoods. While most states regularly clean up their voter rolls, Ohio is unusually aggressive in targeting individuals because they have not recently cast a ballot. Up to 1.2 million of those 2 million purged voters may have been removed for infrequent voting.
There’s a problem here: Federal law prohibits states from purging voters for casting ballots irregularly. The National Voter Registration Act of 1993 declares that voter-roll upkeep “shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.” Civil rights groups sued Ohio on behalf of purged voters, and shortly before the 2016 election, the 6th U.S. Circuit Court of Appeals ruled that the state’s purging procedures violated the NVRA. At least 7,500 additional Ohioans were able to cast ballots because of the court’s decision.
In the lower courts, the Justice Department sided against Ohio, asserting that the state’s purges ran afoul of the NVRA. The agency’s reasoning was simple: Unlike most states, Ohio targets voters for removal when they do not cast a ballot for two years. It sends these individuals a confirmation notice demanding they confirm or update their addresses. If a voter does not respond to the notice and does not vote in the next four years, her registration is cancelled.