Certain people should not vote, says the Supreme Court

Larry Harmon is a software engineer and a Navy veteran who lives in Ohio. Harmon voted in the 2004 and 2008 presidential elections but he choose not to vote in 2012 because he says he was unimpressed with the candidates.

In 2015 a ballot initiative to legalize marijuana was on the state ballot. Harmon discovered that his name had been struck from the Ohio state voting rolls, thus forbidding his vote on this issue. 

{mosads}In 2011 the state of Ohio sent a mailed note to him, asking him to confirm his eligibility to vote. Harmon did not respond to this notice. In 2016, the U.S. Court of Appeals for the Sixth Court in Cincinnati ruled in Harmon’s favor, stating that Ohio had violated the National Voter Registration Act of 1993.

The heart of that lower court’s decision was that failing to vote should not be a trigger for sending a notice.

I wholeheartedly agree with this principle. An individual voter should have the right not to participate in any election. In Hermon’s case, he said he was “unimpressed” with the candidates running – but the real point is that all Americans should have the right to determine in their own minds whether or not they want to vote in a particular election.

There is no good reason or bad reason to vote. It’s the individual’s choice to make. The central and most important point is that every American citizen should be on the voter rolls. Whether or not they vote is up to them.

Sending a notice reminding a voter to vote is a nice gesture, but it should not be viewed as a punishing directive to vote.

In Ohio’s case, the state has set up a punitive system that says if you fail to vote in a single federal election cycle and you get a notice and you do not respond, then your name is purged from the rolls.

The League of Women Voters said it best in a brief before the Supreme Court: “Ohio is the only state that commences such a process based on the failure to vote in a single federal election cycle. Literally every other state uses a different, and more voter protective, practice.”

Now. the villain in this particular case is Supreme Court Justice Samuel A. Alito, Jr. He defends his view by saying: “Ohio removes registration only if they have failed to vote and have failed to respond to a notice.” Alito seems to be saying that if you don’t respond to one notice, then punitively the government can throw you off the rolls and eliminate your right to vote.

That is patently wrong and unfair. 

An opposing sentiment was offered by Justice Stephen Breyer. He said Ohio sent 1.5 million notices to about 20 percent of the state’s registered voters. “Ohio received back about 60,000 returned cards (4 percent) which said, ‘You are right Ohio, I have, in fact moved.’ ” 

Breyer went on to say, “Ohio received back 235,000 return cards which said in effect, ‘You are wrong Ohio, I have not moved.’ In the end, however, there were more than 1 million notices — the vast majority of notices sent — to which Ohio received back no return at all.”

Here is the final, crucial point made by Breyer: Many Ohio voters who had not moved were removed from the rolls because of the “human tendency not to send back cards received in the mail.”

The four liberal justices made a compelling case against this ruling. In a separate dissent, Justice Sonia Sotomayor made, in my opinion, the most pertinent point: Ohio’s program was a part of “concerted state efforts to prevent minorities from voting and to undermine the efficacy of their votes.” She went on to point out that this was “an unfortunate feature of our country’s history.” 

Make no mistake about all of this. All you have to do is listen to Ohio Secretary of State Jon Husted, a Republican: “This decision is validation of Ohio’s efforts to clean up the voter rolls.” He suggested that it could “serve as a model for other states to use.”

Michael P. McDonald, a director of the United States Elections Project at the University of Florida, could not say it more clearly: “I think Republican states are going to embrace this ruling.”

A Reuters study found conclusively that “voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods. Neighborhoods (in which) a high proportion are poor, African American residents are hit the hardest.”

Look, this was not a legal decision. Let’s say what it was: The Republican majority on the court, by a vote of 5 to 4, decided to use a subtle but highly effective way of sanctioning voter suppression. They could spruce it up with legal niceties, but that’s what they did.

Federal laws specifically prohibit states from removing people from the voter rolls “by reason of the person’s failure to vote.” This most recent Supreme Court ruling clearly, emphatically repudiates and contradicts this most precious principle of democracy. 

Quite simply, it’s a Republican strategy with the current Republican-controlled Supreme Court to present a legal case for widespread disenfranchisement of people they don’t want to be able to go to the polls.

Mark Plotkin is a contributor to the BBC on American politics. He previously was the political analyst for WAMU-FM, Washington’s NPR affiliate, and for WTOP-FM, Washington’s all-news radio station. He is a winner of the Edward R. Murrow Award for excellence in writing.