The Justice Department has reversed its position in a high-profile voting case in Ohio, siding with the state in its effort to purge thousands of people from its rolls for not voting in recent elections.
In a court filing late Monday, Justice Department attorneys took the opposite position from the Obama administration in a case that involves Ohio's removal last year of tens of thousands of inactive voters from its voting rolls.
In their brief, government lawyers say they reconsidered the Ohio vote-purging issue after the “change in Administrations,” and they argue that the state’s actions are legal under federal law. The case is headed next to the Supreme Court.
Ohio’s procedure allows the state to purge voters who meet certain criteria for being inactive. If a voter has not cast a ballot in two years, the person is sent a notice asking them to confirm their registration. If the voter does not respond and does not cast a ballot over the next four years, the person is removed from the rolls.
The Trump administration has signaled in other ways that it intends to back added requirements for voters as part of a crackdown on alleged fraud.
President Trump in May created an advisory commission on election integrity that has been tasked with determining the extent of illegal voting. The president earlier made the baseless allegation that illegal voting cost him the popular vote against Democrat Hillary Clinton in the 2016 presidential election.
The commission's only notable act so far has been to request massive amounts of voter data from the states, a move that has provoked lawsuits accusing the panel of breaching Americans' privacy.
The case in Ohio is not the first time the Justice Department has reversed course in a major legal battle over voting rights. In February, shortly after Jeff Sessions became attorney general, the department dropped its position in a long-running case that argued Texas intended to discriminate against minorities when it passed a strict voter-ID law.
The Texas law, passed in 2011, required that voters present certain forms of identification, such as a driver's license or a weapons permit, but the state did not allow other forms, including IDs issued by colleges. Critics said these restrictions targeted voters, such as young people and minorities, who are more likely to vote Democratic. A number of courts found the Texas law to be unconstitutional, and a federal court in April found that the Texas legislature intentionally discriminated against black and Hispanic voters.
Voting rights advocates said the Justice Department’s action on Ohio represented a major change in direction for the U.S. government’s stance on access to the polls.
The move “signals the broader agenda of the administration to roll back voter rights in this country,” said Vanita Gupta, former head of the Justice Department’s civil rights division under President Barack Obama and now president of the Leadership Conference on Civil and Human Rights.
Ohio’s purging process has been defended by Ohio Secretary of State Jon Husted, a Republican who is running for governor. He said the method of removing inactive voters has been used by both Republicans and Democrats to clear the rolls of people who have moved away or died.
"Maintaining the integrity of the voter rolls is essential to conducting an election with efficiency and integrity," Husted said in a statement in May, after the Supreme Court said that it would hear the case.
“I remain confident that once the justices review this case they will rule to uphold the decades-old process that both Republicans and Democrats have used in Ohio to maintain our voter rolls as consistent with federal law,” Husted said.
Civil rights groups last year challenged Ohio’s process, arguing that such purges are prohibited under the National Voter Registration Act. The Justice Department under Obama filed a friend-of-the-court brief siding with the groups.
The brief filed Monday takes the side of Ohio, and unlike the prior one was not signed by career attorneys in the department's civil rights division.
“The law hasn’t changed since the department accurately told the court that Ohio’s voter purge was unlawful,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “The facts haven’t changed. Only the leadership of the department has changed. The Justice Department’s latest action opens the door for wide-scale unlawful purging of the voter registration rolls across our country.”
Justice Department spokeswoman Lauren Ehrsam said that the department’s position is supported by “the National Voter Registration Act’s text, context and history.”
“The question is what states are allowed to do in order to maintain their voter registration records — not what they are required to do,” Ehrsam said. “A ruling in Ohio’s favor would simply uphold a practice already in use in many states without requiring any state to change how it maintains its rolls.”
The brief defends the process by noting that multiple steps are required before a voter is removed from the rolls.
“Registrants are sent a notice because of that initial failure, but they are not removed unless they fail to respond and fail to vote for the additional period,” the brief says.
But Justin Levitt, a professor at Loyola Law School who worked in the Obama administration on this issue, said the brief suggested that Ohio "can purge people who have ostensibly moved without any evidence that they have actually moved."
Levitt said that not voting and not responding to one piece of mail are not enough to determine that someone is ineligible to vote — and that the procedure affects “less active” voters, who tend to be nonwhite, young and poor.
