The Supreme Court’s Voter List Maintenance Decision, In Context

June 2018 3 min read by David Becker

Today, by a 5-4 vote, the Supreme Court held that Ohio’s supplemental voter list maintenance process is legal under the terms of the National Voter Registration Act of 1993 (NVRA). Ohio’s process was initiated in the mid-90s and has continued consistently under both Republican and Democratic Secretaries for two decades.

In a nutshell, here’s how the supplemental process works. Every two years, Ohio identifies voters who haven’t voted in the last two years (including one federal general election), and sends them a non-returnable mailing, seeking confirmation of whether they’re still at the address on file. Those that do not respond to the mailing (a majority) are placed on inactive status and kept there for the next two federal election cycles (including at least one presidential election). If they do not vote or have any other contact with election officials during that time—a total of six years—they are removed from the voter lists. The Supreme Court held that this process does not constitute a removal for “failure to vote,” which is prohibited by the NVRA, but rather a failure to respond to the mailing. The Court said the mailing can reasonably be applied as a trigger for inactivation, and, if no further contact ensues within the next four years, as a trigger for removal from the voter list.
Whether or not the Court made the right decision here about the legality of this process—and I think that was always a close call—it’s helpful to take a step back and make sure we understand what was actually at play here, and what the future impact could be.

First, we should acknowledge, as Justice Alito did at the beginning of his opinion, that the states have a strong and understandable interest in keeping their voter lists accurate and up-to-date. Keeping accurate lists assures the public that our election system works well, and that the results are fair. It’s undeniably true that inaccurate voter lists have fueled a lot of the overblown rhetoric about potential voter fraud. Most notable were President Trump’s outlandish and false claims about illegal votes cast—claims that, when challenged, he attempted to support by citing a report I authored while at Pew, which was solely about inaccurate voter records, not alleged voter fraud. Good list maintenance is good for democracy, not just because it means more efficient elections, but because it confirms to the electorate that the vote isn’t rigged.

Second, it’s helpful to think about how difficult a challenge it was, twenty years ago, to keep up with voter mobility. There were no tools available that could reliably identify when a voter had moved. So perhaps it’s understandable that states, seeking some information that could help them, would resort to mailings like these, hoping that the postal service and voters would provide the information they needed. Members of both parties used this process, and while the results weren’t great, they were better than nothing.

Fortunately, however, election officials have much better tools available today, and that’s why I believe the impact of this decision will be minimal. Why? Because despite the heated rhetoric on both sides, in the more than twenty years I’ve worked in elections, I’ve found that almost all election officials—Democrats, Republicans, and non-partisans—want to get this right. They want all eligible voters, and only eligible voters, on the lists. They realize old and inefficient tools like mass mailings are not only very expensive, they yield highly questionable results. Just because the Supreme Court says Ohio’s process is strictly legal, doesn’t make it a good idea.

Which brings us to the Electronic Registration Information Center (ERIC). This data center, run by the states that comprise it, can effectively find voters who have moved since they last voted, as well as those who are deceased, and give election officials enough information to accurately update voter records, consistent with the NVRA. Since I led the effort to found ERIC in 2012, a bipartisan group of 23 states—from Alabama and Utah to Connecticut and Oregon—have found ERIC data to be cost-effective and reliable, resulting in over 8 million voter records that have been successfully updated, and over 200,000 deceased individuals removed from the rolls. ERIC member states have added more eligible voters to the lists, while ensuring that those lists are more accurate than ever before. And there’s one key fact that shouldn’t be lost in this conversation: in 2016, after realizing that they needed a better list maintenance tool, Ohio joined ERIC.

Ohio’s supplemental process is legal, but while it was state-of-the art in the 1990’s, like AOL, it’s a dinosaur today. States are probably just as likely to choose to adopt such a process as you or I might be to go out and sign up for AOL dial-up internet again.

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