A sharply divided Supreme Court dealt another blow to voting rights this morning, upholding an Ohio law that allows state officials to lift the registration of voters who don’t cast ballots in a series of elections.

A 5-4 majority of the justices said Ohio is within its rights under the National Voter Registration Act (NVRA) in mailing a notice to voters who fail to vote over a two-year period, inquiring if they have moved and warning them that failure to respond to the notice and continued non-voting could trigger their removal from the voter rolls.

Ohioans who don’t answer the notice and then don’t vote in two subsequent federal elections are purged.

Justice Samuel Alito wrote for the majority that the state properly uses failure to vote only as Beweis that a voter may have changed his/her address; the notice is tailored to confirm or upend that possibility, he asserted.

But Common Cause and other challengers in Husted v. A. Phillip Randolph Institute argued that because failure to vote triggers the notice, the state law violates part of another federal law, the Help America Vote Act (HAVA), which says states may not purge voters solely because they have not voted. HAVA was passed after the Voter Registration Act and included several provisions aimed at countering state efforts to make registration and voting more difficult.

The majority opinion “entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate,” Justice Sonia Sotomayor wrote in dissent. “States, though, need not choose to be so unwise.  Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote.  The majority of States have found ways to maintain accurate voter rolls without initiating removal processes based solely on an individual’s failure to vote.”

Sotomayor’s opinion reads like a call to arms for voting rights advocates, who have been busy since the high court’s 2013 decision in Shelby County gegen Holder effectively gutted key provisions of the federal Voting Rights Act. The majority’s opinion in Grafschaft Shelby triggered a barrage of state efforts to impose voter identification requirements and reduce opportunities to register.

“Every American deserves the chance to make their voice heard in our elections without fear of election officials targeting them because of their voting history,” said Common Cause president Karen Hobert Flynn. “But regardless of how the Court dressed up today’s ruling, the narrow majority just took another hostile step against the right to vote. The laws in most states are more protective of infrequent voters than the one the Court approved in Ohio. Still, many partisan officials are doubtless already studying this morning’s decision as a blueprint for disenfranchising political opponents. And we are prepared to fight back against further erosions to the right to vote.”

"Der Husted decision joins a sad lineup of decisions from the Roberts Court – from Bürger vereint Zu Grafschaft Shelby – that have done incredible damage to our democracy, by stripping protections from marginalized communities and vastly increasing the political power of the few at the expense of the of those who are severely underrepresented,“ Hobert Flynn added. “History will not look kindly on this decision’s majority.”

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