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Arguments for and against using voter inactivity as a trigger to remove names from voter lists

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All states have rules under which they maintain voter rolls—or, check and remove certain names from their lists of registered voters. Federal law requires states to make efforts to remove deceased individuals and individuals who have become ineligible to vote in a jurisdiction due to a change of address, and it outlines a mail notice process for confirming registrants' addresses. As of 2023, at least twenty states used a certain period of voter inactivity—not voting or having other forms of contact with election officials—to trigger the process that could lead to removing names from voter lists.[1]

Whether states should consider voter inactivity as evidence of ineligibility to vote is a subject of debate. Many of the arguments for and against have been advanced in the context of the U.S. Supreme Court case Husted v. A. Philip Randolph Institute (2018), in which the court upheld Ohio's practice of identifying voters who have not voted in the last two years, sending them address confirmation notices, and removing them from voter lists if they do not respond to the notice or vote in the next four years. See more about the case and Ohio's specific law below.

Supporters of using voter inactivity as evidence of ineligibility argue that it is a reasonable method, that it helps prevent voter fraud, and that it increases voter confidence and participation.
Opponents of using voter inactivity as evidence of ineligibility argue that it is overly aggressive and risks removing eligible voters, that it disproportionately impacts certain demographic groups, and that supporters' claims about voter fraud are unfounded.


On this page, you will find:

Arguments at a glance

This section includes quotes briefly summarizing some of the most prevalent arguments for and against using voter inactivity as evidence of ineligibility.

Arguments for and against voter inactivity as a factor for determining ineligibility
SupportOpposition
"[W]hat happens if [voters] move to another state? People all the time move to another state, and they don't tell us and end up getting on the voter rolls in two different states. We've had the same person voting twice in two different states in presidential elections. So there's a reason you keep the voter rolls current and up to date. ... We don't have near the problems other states have with voter fraud, I believe, but we do have it."

- Brian Kemp (R), former Georgia secretary of state (2018)[2]
"There are many reasons why someone may miss voting in an election. This should not result in their removal from voter registration rolls for subsequent elections. Purges can also affect underrepresented populations disproportionately, which has a deleterious effect on representative democracy."

- U.S. House Administration Committee report (2019)[3]

Support arguments in detail

Three arguments in favor of using voter inactivity as evidence of ineligibility are that it is a reasonable method, that it helps prevent voter fraud, and that it increases voter confidence and participation. This section includes quotations detailing those arguments from a variety of sources.

Using voter inactivity is a reasonable method for determining ineligibility

In 2017, six former attorneys of the Civil Rights Division of the U.S. Department of Justice filed a brief with the U.S. Supreme Court in the case Husted v. A Philip Randolph Institute defending Ohio's use of voter inactivity as a factor for determining whether a person has moved and become ineligible to vote.

“

Individuals who move to a new jurisdiction are no longer eligible to vote in their old jurisdiction and should not remain registered there. Although states can track some of these voters through the Postal Service’s change-of-address database, that data is underinclusive. Many people who change residences do not use this service. ... To maintain accurate voter rolls, states need to be able to use other reliable indicia of ineligibility—including a lack of voter activity.[4]

”
—Karl Bowers, Christopher Coates, Christy McCormick, Robert D. Popper, Bradley J. Schlozman, and Hans A. von Spakovsky, Former Civil Rights Division attorneys (2017)[5]


Using voter inactivity as evidence of ineligibility helps prevent fraud

In response to the U.S. Supreme Court's decision in Husted v. A. Philip Randolph Institute, Judicial Watch wrote the following, saying Ohio's process of using voter inactivity as a factor in determining ineligibility helps prevent voter fraud.

Judicial Watch describes itself as "a conservative, non-partisan educational foundation, promotes transparency, accountability and integrity in government, politics and the law."[6]

“

Earlier this month, we sued Colorado over its failure to comply with the National Voter Registration Act. In our new study, 42 Colorado counties—or two thirds of the state’s counties—had registration rates exceeding 100%. Particular data from the state confirms this general picture. As the complaint explains, a month-by-month comparison of the ACS’s five-year survey period with Colorado’s own registration numbers for the exact same months shows that large proportions of Colorado’s counties have registration rates exceeding 100%. ... The data highlights the recklessness of mailing blindly ballots and ballot applications to voter registration lists. Dirty voting rolls can mean dirty elections. ...

Certain state voter registration lists may also be even larger than reported, because they may have excluded “inactive voters” from their data. Inactive voters, who may have moved elsewhere, are still registered voters and may show up and vote on election day and/or request mail-in ballots.[4]

”
—Judicial Watch (2020)[7]


In a piece discussing the Supreme Court's decision in the Husted v. A. Philip Randolph Institute case, Hans A. von Spakovsky and Jason Snead of The Heritage Foundation argued that processes like Ohio's were designed to address problems with inaccurate registrations and double voting.

The Heritage Foundation says it is an organization whose mission is "to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense."[8]

“

According to one 2012 Pew study, 24 million voter registrations nationwide—one out of every eight—are inaccurate or outdated, and some 2.8 million voters are registered in two or more states.

A study of the voter registration records in just 21 states by the Government Accountability Institute showed that almost 8,500 individuals voted illegally in more than one state in the 2016 presidential election.

Clearly, voter rolls need some cleaning up. Lawmakers in Columbus set out to do just that, adopting a state law creating a mechanism to remove voters believed to have moved out of the state.[4]

”
—Hans A. von Spakovsky and Jason Snead, The Heritage Foundation (2018)[9]


Using voter inactivity as evidence of ineligibility increases voter confidence and participation

In their 2017 brief to the U.S. Supreme Court regarding the Husted v. A. Philip Randolph Institute case, six former attorneys of the Civil Rights Division of the U.S. Department of Justice argued that Ohio's use of voter inactivity as a factor for determining ineligibility can instill greater confidence in the electoral system and therefore increase voter participation.

“

Congress enacted the NVRA “to ensure that accurate and current voter registration rolls are maintained” and “to protect the integrity of the electoral process.” 52 U.S.C.§ 20501(b)(3)-(4). These objectives are complementary. ... “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). Programs like Ohio’s Supplemental Process are an important tool in achieving these goals.[4]

”
—Karl Bowers, Christopher Coates, Christy McCormick, Robert D. Popper, Bradley J. Schlozman, and Hans A. von Spakovsky, Former Civil Rights Division attorneys (2017)[5]

Opposition arguments in detail

Three arguments against using voter inactivity as evidence of ineligibility are that it is overly aggressive and risks removing eligible voters, that it disproportionately impacts certain demographic groups, and that supporters' claims about voter fraud are unfounded. This section includes quotations detailing those arguments from a variety of sources.

Using voter inactivity as evidence of ineligibility is overly aggressive

Leigh Chapman and George Hornedo of Let America Vote argued that Georgia's process for removing names from voter registration lists was overly aggressive. In Georgia, those who didn't vote for five years (or for three years prior to 2019) were sent an address confirmation notice, and if they didn't respond or vote within two federal general election cycles, their names were removed. Read more below.

According to the group's website, Let America Vote says it is a progressive group that was established in order to "fight back against proposals across the country that make it harder for eligible voters to exercise their constitutional right to cast a ballot."[10]

“

Earlier this year, we submitted a public records request to Georgia Secretary of State Brian Kemp requesting detailed information on who was purged from the voter rolls and why. The results were stunning: about 1.3 million Georgians were removed from the rolls between 2013 and 2017, representing perhaps 18 percent of the state’s eligible voting population.

We invited data scientists to analyze the records. They found that while a third of these voters — about 417,000 — were removed because they were deceased, ineligible felons, duplicative registrants, had moved out of state, or for other legitimate reasons, the vast majority — more than 850,000 — were removed simply because they didn’t vote in two general election cycles. (The analysis found younger voters were disproportionately impacted by the purge as well).

This “use it or lose it” approach, in which Georgia purges voters simply for not having voted, is overly aggressive and ultimately counterproductive to the goal of civic engagement.[4]

”
—Leigh Chapman and George Hornedo, Let America Vote (2018)[11]


Using voter inactivity as evidence of ineligibility affects demographic groups differently

The U.S. Commission on Civil Rights argued in its 2018 report to President Donald Trump (R) titled, "An Assessment of Minority Voting Rights Access in the United States," that using voter inactivity as a factor in determining ineligibility disproportionately affects minority voters.

The U.S. Commission on Civil Rights "is an independent, bipartisan agency established by Congress in 1957," its report said.

“

Purges for inactivity may disparately impact minority voters in ways that could potentially violate the VRA. In 1993, the NVRA prohibited removing voters for inactivity. This prohibition was enacted after such procedures were found to be unfair and in at least one case, racially discriminatory and in violation of Section 2 of the VRA. “Critics further pointed out that the poor and minority groups were disproportionately affected by these purges both because they voted less frequently and because they had greater difficulty navigating reregistration once their registrations were purged.”[4]

”
—U.S. Commission on Civil Rights (2018)[12]


The NAACP filed a brief with the Supreme Court in the Husted v. A. Philip Randolph Institute case stating that Ohio's supplemental process disproportionately affected African-American communities and Democratic-leaning neighborhoods.

The NAACP (National Association for the Advancement of Colored People) describes its mission as "to secure the political, educational, social, and economic equality of rights in order to eliminate race-based discrimination and ensure the health and well-being of all persons."[13]

“

[O]ne study found voters in certain neighborhoods in the three most populous and diverse counties in the state were up to 200% more likely to be removed from voting rolls as a result of the Supplemental Process. Hamilton County presents a grave contrast: African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity, compared to only 4% of voters in a suburban, majority-white neighborhood. ... In Franklin County, home of Columbus, 11 percent of voters in Democratic-leaning neighborhoods have been removed for inactivity since 2012. Yet only 6 percent of voters in Republican-majority neighborhoods were removed.[4]

”
—NAACP (2017)[14]


There is no evidence of widespread voter fraud related to multiple voter registrations

The U.S. Commission on Civil Rights, in its 2018 report to President Trump, argued against the idea that multiple voter registrations lead to voter fraud.

“

There is no evidence to support allegations that double registration leads to double voting. Many voters are registered in two states because they moved without filing a change of address form with the U.S. Postal Service, which may be used by states to update their voter rolls under the National Voter Registration Act (NVRA). A jurisdiction’s failure to perform voter list maintenance and fulfill its duties under the NVRA to remove voters who have moved state-to-state, after notice has been attempted to verify such a move, also does not mean that the voter has voted in both states. ... However, allegations of persons being registered to vote in two states are often used to justify aggressive voter list maintenance to remove voters from the rolls.[4]

”
—U.S. Commission on Civil Rights (2018)[12]

Background

Most states are subject to the parameters set by the National Voter Registration Act (NVRA).[15] The NVRA requires states to make efforts to remove deceased individuals and individuals who have become ineligible to vote in a jurisdiction due to a change of address. It lays out circumstances under which states may and may not remove names from their registration lists and says that their methods for removing names must be uniform and nondiscriminatory.[16][1]

The NVRA prohibits removing registrants from voter lists within 90 days of a federal election due to change of address, unless a registrant has requested to be removed. It also prohibits states from removing people from voter lists solely because they have not voted. The law allows states to remove names from voter lists if a voter has not responded to a mailed notice attempting to confirm their current address and if they do not vote by the end of the second federal general election cycle after the confirmation notice was sent. States use different processes for attempting to identify when voters have moved and for triggering the mailed address confirmation process.[16]

Noteworthy cases

Husted v. A. Philip Randolph Institute (2018)

In 2018, the U.S. Supreme Court upheld Ohio's process for removing registrants' names from its voter lists. As of 2019, the state's process, called the "supplemental process," involved sending notices to registered voters who have not voted or made other forms of contact with election officials in two years in an attempt to confirm whether they still live at the registered address. If the individual does not reply to the notice and if they do not vote within the next four years, their names are removed from the registered voter list. Ohio began using the supplemental process in 1994.[17]

Advocacy groups and Larry Harmon, whose name was removed from the voter list by the above process, sued the state concerning the supplemental process. A federal district court ruled that the state's process was in line with the NVRA because "voters are never removed from the voter registration rolls solely for failure to vote." The groups appealed to the United States Court of Appeals for the Sixth Circuit, which reversed the lower court's ruling, saying the supplemental process violated federal law because it used failure to vote as a trigger for sending the address confirmation notices.[17] The state appealed to the U.S. Supreme Court, which decided the case in June 2018.

The Supreme Court upheld Ohio's supplemental process, ruling that it did not violate federal law because failure to vote was not the sole reason for removing registrants' names from voter rolls.[18]

Common Cause v. Kemp (2016-2018)

Common Cause and the NAACP filed a lawsuit against Georgia Secretary of State Brian Kemp in 2016 concerning Georgia's process for removing registrants' names from voter lists. Plaintiffs withdrew the suit after the Supreme Court decided the Husted case described above, given the similarity between the two cases.[19]

Georgia's process, implemented in 1997, began with compiling a list of registrants with whom election officials had had no contact (including in the form of the registrant voting) in three years. Then, those individuals were sent address confirmation notices. If there was no attempt to vote or contact made for two federal general election cycles, the registrants' names were removed from the voter list.[20]

Plaintiffs alleged that "Kemp has removed hundreds of thousands of registered, qualified voters from Georgia’s voter rolls based on their exercise of their right not to vote, in violation of the First Amendment" and that the process violates NVRA's prohibition against removing names from voter lists due to failure to vote.[21] A district court dismissed the suit, and the plaintiffs appealed to the United States Court of Appeals for the Eleventh Circuit.[20] The appeals court vacated the dismissal and sent the case back to the district court, instructing it to 1) consider the pending Supreme Court decision in Husted v. A. Philip Randolph Institute, and 2) "conduct a more detailed analysis of the First Amendment question."[22] Plaintiffs withdrew the suit in June 2018.

In 2019, Kemp, as governor of Georgia, signed a law extending the amount of time for which voters must have had no contact with election officials before receiving an address confirmation notice from three years to five years.[23]

External links

  • Voter List Accuracy—A short summary of voter list maintenance policies from the National Conference of State Legislatures.

See also

Footnotes

  1. ↑ 1.0 1.1 NCSL, "Voter Registration List Maintenance," July 21, 2023
  2. ↑ APM Reports, "They Didn't Vote ... Now They Can't," October 19, 2018
  3. ↑ United States Congress, "H. Rept. 116-15 - For the People Act of 2019," accessed September 25, 2019
  4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  5. ↑ 5.0 5.1 Judicial Watch, "Brief of Former Attorneys of the Civil Rights Division of the United States Department of Justice as Amici Curiae in Support of Petitioner," March 9, 2017
  6. ↑ Judicial Watch, "About," accessed September 25, 2019
  7. ↑ Judicial Watch, "Voter Registration in 353 Counties in 29 States Exceeds 100%" October 16, 2020
  8. ↑ The Heritage Foundation, "About Heritage," accessed September 20, 2019
  9. ↑ The Heritage Foundation, "Supreme Court Gives States the Green Light to Clean Up Voter Rolls," June 11, 2018
  10. ↑ Let America Vote, "About," accessed June 16, 2017
  11. ↑ Let America Vote, "Georgia’s ‘Use it or Lose It’ Voter Purge Forced More than 850,000 Eligible Voters off the Rolls," accessed September 25, 2019
  12. ↑ 12.0 12.1 The U.S. Commission on Civil Rights, "An Assessment of Minority Voting Rights Access in the United States," September 12, 2018
  13. ↑ NAACP, "Our Mission," accessed September 25, 2019
  14. ↑ SCOTUS blog, "Brief of Amici Curiae National Association for the Advancement of Colored People and the Ohio State Conference of the NAACP in Support of Respondents," September 22, 2017
  15. ↑ The Justice Department notes, "Six States (Idaho, Minnesota, New Hampshire, North Dakota, Wisconsin, and Wyoming) are exempt from the NVRA because, on and after August 1, 1994, they either had no voter-registration requirements or had election-day voter registration at polling places with respect to elections for federal office."
  16. ↑ 16.0 16.1 The United States Department of Justice, "The National Voter Registration Act of 1993," accessed August 20, 2019
  17. ↑ 17.0 17.1 SCOTUS blog, "Argument preview: Justices to consider Ohio voter-purge practices,"January 4, 2018
  18. ↑ U.S. Supreme Court, "Husted v. Philip Randolph Institute," June 11, 2018
  19. ↑ McClatchy DC Bureau, "Supreme Court decision halts Georgia voting rights lawsuit," June 12, 2018
  20. ↑ 20.0 20.1 Moritz Law, "Civil Action File Number 1:16-cv-452-TCB," March 17, 2017
  21. ↑ Moritz Law, "Complaint for Injunctive Relief and Declaratory Judgment," February 10, 2016
  22. ↑ United States Courts, "D.C. Docket No. 1:16-cv-00452-TCB," March 12, 2018
  23. ↑ APM Reports, "Georgia governor signs law to slow 'use it or lose it' voter purges," April 11, 2019
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