Political apathy worried Jean-Jacques Rousseau. In a healthy republic, he wrote in “The Social Contract” in 1762, citizens “fly to the assemblies” and take an active role in public affairs. He would frown on America’s voter turnout, which hovers at 40% for mid-term elections and seldom goes much higher than 55% for a presidential race. But he might have been even more alarmed by laws that sideline infrequent voters from politics. On January 10th a rule that has disenfranchised hundreds of thousands of Ohioans comes under the Supreme Court’s microscope. Husted v Philip Randolph Institute concerns what the League of Women Voters and the Brennan Centre for Justice calls the most restrictive approach to winnowing voter rolls found anywhere in America. Since 1994, in addition to nixing people who have died or moved—which all states do—Ohio has sent a postcard to voters who have not voted for two years. If they fail to return the address confirmation and then miss two more federal elections, they are taken off the rolls.
Ohio says its “supplemental process” for trimming voter lists is authorised by two laws: the National Voting Rights Act (NVRA) of 1993, which demands “accurate and current voter registration rolls”, and the Help America Vote Act (HAVA) of 2002. Challengers reply that Ohio’s procedure clashes with the primary mission of the NVRA: protecting the “fundamental” right of American citizens to vote. When the Sixth Circuit Court of Appeals considered Husted in 2016, it sided with the plaintiffs by a 2-1 vote. Inactivity, the majority found, is an illicit basis for wiping registered voters from the rolls. According to the NVRA, no individual may be removed from state lists “by reason of the person’s failure to vote”. In their brief to the justices, lawyers for the American Civil Liberties Union explained why Congress insisted on this caveat: “While voting is a right, people have an equal right not to vote,” a Senate report declared, “for whatever reason.”
The core of Husted involves a tricky detail of statutory interpretation: how to read a line in HAVA barring states from removing individuals from voter lists “solely by reason of a failure to vote”. The challengers and the Sixth Circuit majority contend that Ohio de-registers voters based only on inactivity—and thus falls foul of the law. Ohio’s Republican secretary of state, Jon Husted, and the dissenting Sixth Circuit judge, counter that the erasure results from that fact and another omission: the individual’s failure to confirm his address by sending the postcard.