Preserving Voting Rights after the Husted Case
The occurrence of huge voter purges months and weeks before major elections can be discouraging. It is especially frustrating that the Supreme Court has upheld voter roll update processes that are clearly being used to purge eligible voters. More recently, in the Husted case decided in June of 2018, the Supreme Court held that Ohio’s process of updating their voter rolls, by identifying people who have not voted in two years, was legal under the National Voting Rights Act (NVRA).
Laws facilitating voter purges are difficult to eliminate because they stem from the reasonable process of updating voter rolls. People move, pass away, change their name, and etc. So there has to be a way for voter rolls to reflect the everchanging status of voters in real time. The issue is some of the processes used to clear voter rolls are unfair and inaccurate. For example, under the law discussed in the Husted case, inactive voters are required to mail back a return card indicating that they had or had not moved. However, in the past, the vast majority of the inactive voters did not respond.
What resulted was many inactive voters, who had not moved, being removed from voter rolls. This approach is not an efficient way to update voter rolls because it results in a large number of eligible voters being purged from the voter rolls. Fortunately, the federal appeals court later ruled that the Ohio boards of elections must count provisional ballots in the 2018 midterm elections for certain individuals who were previously purged from the voter rolls. This is, of course, is a narrow solution for a much broader problem. Notably, “use it or lose it” laws disproportionately affect minority voters, low-income voters, disabled voters, and veteran voters. While these laws that cause voter purges are legal, they simply aren’t fair.
There are ways to update voter rolls that do not result in the purging of eligible voters. Having a comprehensive data collection program could eliminate the need for other less accurate processes. The Electronic Registration Information center or “ERIC” is a is a multistate partnership that uses a sophisticated and secure data-matching tool to improve the accuracy and efficiency of state voter registration systems. The program allows states to compare official data on eligible voters from voter and motor vehicle registrations, U.S. Postal Service addresses, and Social Security death records.
What distinguishes ERIC is the multiple sources it utilizes to keep voter rolls more complete and up to date. Other programs like the Interstate Crosscheck System only check if participating states have voter registrations with similar first name, last name, and date of birth resulting in many false positives. Not only is ERIC more accurate it also helps states sign up people who are eligible to be registered to vote but aren’t. At the moment, ERIC is the best way to update voter rolls while maintaining the integrity of the election process. Adding an extra step of contacting inactive voters when programs like ERIC exist just isn’t necessary.
As Justice Breyer pointed out during the Husted case, the reason we have the NVRA is not to allow states to test the fortitude and determination of the voter. The NVRA was created to “increase the number of eligible citizens who register to vote in elections for Federal office,”, as well as to “ensure that accurate and current voter registration rolls are maintained,”. Election officials are strongly encouraged to use the ERIC program and stay away from programs like the Interstate Crosscheck System that are prone to inaccuracy. It’ll keep voters updated without disenfranchising them and it’ll make administration easier too. Though we are facing significant challenges, we have the tools to push back against voter suppression. All is not lost, as long as we have people who are advocating for fair elections for all.