Ohio removes people from the voting rolls if they have failed to vote in the past two years and then fail to respond to a notice and fail to vote during the next four years after that. But federal law says that you can’t remove someone from the rolls for failure to vote. So is Ohio breaking the law, since failure to vote is what precipitates this process? Or are they OK because there’s more here than just failure to vote?
That depends on what the law actually says. I was curious, so I took a look at the text of the 1993 motor voter law. Here’s the relevant section:
Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office…shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote, except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) of this section to remove an individual from the official list of eligible voters if the individual – (A) has not either notified the applicable registrar (in person or in writing) or responded during the period described in subparagraph (B) to the notice sent by the applicable registrar; and then (B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal office.
Section (c) is about purging voter rolls based on change-of-address information from the Post Office. Here is section (d):
A State shall not remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence unless the registrant…has failed to respond to a notice…and has not voted or appeared to vote…in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice.
The Ohio program follows this to the letter: they send a notice, and then purge you from the voting rolls if you fail to vote over the next four years—which is two federal elections. The only remaining question, then, is the same one we started with: Does the precipitating event have to be evidence of a change of residence, or can it be failure to vote?
Section (c) of the law is all about using change-of-address information as a reason to start the removal process, and the fact that there’s a separate Section (d) implies that there can be other reasons too. The question, then, is whether failure to vote for two years can be one of them. As near as I can tell, the motor voter law is silent about that.
I have to confess that Ohio’s procedure doesn’t sound entirely unreasonable to me. No one questions that there’s a legitimate state interest in keeping voter rolls up-to-date, and there are a limited number of ways to do that. I’m not sure what the technical legal standard is here, but my personal view is that this seems like an arguably sensible approach that’s probably within the purview of a state to enact. I suspect the Supreme Court will see it the same way.