By Tiffany Bates and Hans A. von Spakovsky
National Review
(August 14, 2017)

Can a state ensure that its voter rolls aren’t filled with non-residents and dead people who shouldn’t be registered to vote? The Left doesn’t think so, but the U.S. Department of Justice answered yes recently when it filed an amicus brief in Husted v. A. Philip Randolph Institute. The Supreme Court will hear arguments in the case when it starts its new term this fall.

The Department of Justice is supporting Ohio in its attempts to keep its voter rolls accurate and up to date. Federal law requires states to do so under the National Voter Registration Act (NVRA). Over at the Washington Post, Sari Horwitz highlights the supposedly “radical change in philosophy from the previous Justice Department.” But look at the history of federal enforcement of the NVRA: It was under Obama that the Justice Department changed its position on the law, something you would never know from reading the Post story.

This case involves Ohio’s unremarkable process for removing ineligible voters from the rolls. To individuals who haven’t voted in two years, the state will send a confirmation notice, asking if they still live at their registered address. If the individual doesn’t return the notice and doesn’t vote for an additional four years, Ohio will remove them from the rolls.

Seems pretty sensible and straightforward. But in a sad example of statutory misinterpretation (including using a canon of construction that at least one Supreme Court justice has called “made up”), the Sixth Circuit Court of Appeals struck down Ohio’s process, claiming that it violated the NVRA. The court also managed to ignore the DOJ’s long history of enforcing the law.

To point out this major flaw, a group of lawyers (including Hans von Spakovsky, one of the authors of this article) who enforced the NVRA when they were with the Civil Rights Division of the Justice Department filed an amicus brief urging the Supreme Court to reverse the Sixth Circuit’s decision because it “directly contradicts the history of federal enforcement.” They wrote that the DOJ, which is charged with enforcing the NVRA, had “long interpreted the statute oppositely, and they helped the Justice Department negotiate settlements that would be illegal under the Sixth Circuit’s view.”

As DOJ lawyers, they negotiated settlements in Arkansas, Indiana, and Pennsylvania that “required a notice procedure indistinguishable” from Ohio’s process. For example, in 2007, the DOJ sued Philadelphia when it failed to put in place a process that made a “reasonable effort to remove the names of ineligible voters.” As part of a settlement agreement, Philadelphia agreed to “send a forwardable confirmation notice to any registered elector who has not voted or appeared to vote during any election” and to remove them “after the second federal general election following the date of the confirmation notice.”

That’s exactly the same procedure Ohio follows. Yet under the Sixth Circuit’s ill-conceived theory, the federal government forced Philadelphia and other localities to break federal law. The Philadelphia settlement was specifically mentioned in the Justice Department’s brief, on page 14. So was the fact that prior to the Obama administration, the DOJ had never “taken enforcement action against Ohio or the other States” that have the same type of procedures being challenged in this case.

(Hans A. von Spakovsky is a member of the ACRU’s Policy Board.)

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