American Public Media Reports (AUDIO): They Didn’t Vote … Now They Can’t

This story was reported in collaboration with WABE in Atlanta, KCUR in Kansas City and Reveal from the Center for Investigative Reporting.

A handful of states, most of them led by Republicans, are using someone’s decision not to vote as the trigger for removing them from the rolls. No state has been more aggressive with this approach than Georgia, where Brian Kemp, the secretary of state, oversaw the purging of a growing number of voters ahead of his own run for governor, according to an APM Reports investigation. Voting rights advocates call it a new form of voter suppression, and they fear it will soon spread to other states. …

One of the first people to wonder about the recent impact of “use it or lose it” policies in Georgia was an Atlanta-based attorney named Emmet Bondurant. It was 2012, and he was reading an article in the Atlanta Journal Constitution about a decline in the state’s voter registration. How, he wondered, could a state growing as fast as Georgia have shrinking rolls?

“We haven’t had a black plague. We haven’t had more than the usual number of people convicted of crimes. We haven’t had a major recession like the Dust Bowl that drove the Okies to California,” Bondurant said on a recent afternoon from the corner office of his corporate law firm, which, on a clear day, offers a view of the distant Appalachian Mountains. “The population in the state has increased and grown above the national average,” he recalled thinking. “And yet the number of registered voters [was] going down.”

Bondurant, 81, is a successful corporate attorney and somewhat of a voting rights legend in Georgia. He got his first big break in 1963 when, at 26, he argued and won a case before the Supreme Court that challenged the undue political influence of sparsely populated, rural areas at the expense of larger more urban ones. It was a significant victory for African-American voting rights in the state; by granting rural areas more influence, the state had prolonged white control. The next year, he was part of a legal team that scored another victory in the high court over similar voter suppression in Georgia. The cases were part of a string of victories for voting rights advocates, culminating in passage of the Voting Rights Act in 1965 that outlawed barriers to voting implemented by the Jim Crow South, including literacy tests in Georgia. Bondurant has continued to do pro-bono voting and other civil-rights cases in the six decades since.

As Bondurant saw the voter rolls shrinking, it dawned on him that the “use it or lose it” policy could be depressing registration numbers. And he wanted to do something about it. …

Georgia’s “use it or lose it” law remained in place. In years to come, a growing number of Georgians would find themselves purged from the voter rolls because of it. This rise in purges had alarmed Bondurant, and the increase had coincided with the tenure of Georgia’s new secretary of state — Brian Kemp. …

By 2016, Bondurant had had enough and decided to file a lawsuit with Common Cause Georgia, a nonprofit watchdog group, and the state chapter of the NAACP, challenging the legality of “use it or lose it.”

In the lawsuit in federal court, he argued that using failure to vote as the trigger for purging people from the rolls violated federal law. Meanwhile Kemp’s office counters that people have been notified and would remain active if they would take the time to respond to the notice sent out by election officials. Bondurant suspects that most people treat the pre-purge notices as “junk mail” and throw them away.

“It’s a First Amendment issue,” Bondurant said. “You have a right to speak out on something, but you also have a right not to speak out on something. And voting can be thought of in the same way.”

Around the same time that Bondurant filed his suit, voting rights advocates in Ohio were engaged in a similar fight. …

Bondurant, the Atlanta lawyer, was watching the Husted case closely. The lawsuit he’d filed in Georgia was on hold pending a decision by the high court. The partisan divide in the Ohio case, he said, only confirmed what he’d suspected all along. “Everybody on both sides of the political aisle sees that this benefits Republican voters.”

In their amicus brief to the Supreme Court, the dozen Democratic states argued that using failure to vote as a trigger for purges was a terribly inaccurate way to maintain the rolls because it doesn’t offer any evidence that people have actually moved. Only about 12 percent of Americans relocate in any given year, the Democratic AGs wrote in their brief, but the percentage of Americans who don’t vote has run as high as 60 percent in recent years. But the Supreme Court ultimately ruled that Ohio’s approach comported with federal law. Writing for the majority, Justice Samuel Alito wrote that “use it or lose it” may or may not be good policy but it didn’t violate federal law.

The ruling scuttled Bondurant’s case as well and ensured that “use it or lose it” would be in place in Georgia for the foreseeable future. Bondurant thinks that the case could get new life if there’s evidence that people of color are disproportionately affected by the purges in violation of the Voting Rights Act. “But until that research is done,” he said, “we’re stuck with secretaries of state like Kemp who, with great enthusiasm and vengeance, want to purge as many people as possible.”