A Q&A with Mary Frances Berry and Adam Eichen

Photo credit: AgnosticPreachersKid

“Just won big Supreme Court decision on Voting! Great News!” That’s what Donald Trump tweeted from Singapore when the Supreme Court ruled, on June 11, that Ohio could purge voting rolls of people who hadn’t cast ballots in a while. This means that someone would have to register once again to vote. And the Supreme Court’s ruling concluded that Ohio’s voter purge system does not violate federal laws. Other states plan to follow Ohio’s example. What are the implications of this, especially for midterm election season? Our blog editor Christian Coleman asked Mary Frances Berry, author of Five Dollars and a Pork Chop Sandwich, and Adam Eichen, co-author of Daring Democracy, to find out. 

Christian Coleman: So why did the Supreme Court vote in favor of allowing voter purges in Ohio? 

Mary Frances Berry: The Court Republican majority simply joined the effort to remove people who would likely vote for Democrats from the rolls. However, even if registered voters don’t vote, there is no compelling reason to remove them from the rolls.

Adam Eichen: I won’t speculate on the Court’s ulterior motivations in Husted v. A. Philip Randolph Institute, but this case certainly appeared to use statutory interpretation to green light discriminatory voting policy.

Some context about the case: In Ohio, when someone does not vote in a federal election, that person is sent a notice in the mail to confirm that they still reside at the same address. If the individual fails to return the mailer and does not vote in subsequent two federal elections, he or she will be removed from the voter rolls.

Very few people respond to these mailers. According to Justice Breyer, who dissented, only 235,000 out of 1.5 million postcards were returned in 2012. Ohio’s Republican Secretary of State, Jon Husted (after whom this case is named) admitted that over 2 million voters were removed from the rolls from 2011 to 2016. (Ohio is one of six states that uses failure to vote as a means of starting the purge process—the only one that does it after missing only one federal election cycle.)

The Supreme Court had to decide whether this purging process violated the National Voter Registration Act (and the subsequent Help America Votes Act), which explicitly says “no registrant may be removed solely by reason of a failure to vote.”

The Court ultimately ruled that Ohio’s voter purge system “treats the failure to return a notice and the failure to vote as evidence that a registrant has moved, not as a ground for removal.” In other words, since the purges don’t take place solely on the basis of non-voting, it’s acceptable. As Demos’ Chiraag Bains retorts, “This logic ignores Congress’s own statement when passing the NVRA that people should not be removed ‘due to their failure to respond to a mailing.’”

So what does this decision mean? To put it bluntly: vulnerable communities will be purged from voter rolls at disproportionately high rates. Justice Sotomayor aptly put it in her dissent that the Court’s ruling “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.”

CC: Is the voter purge another form of voter suppression, and if so, are there other examples of this happening in recent history? 

MFB: Shades of Bush v Gore when the Supreme Court handed the 2000 election to George W. Bush by permitting widespread voter suppression, including purges in Florida. Justice Scalia explained that the court majority refused a recount just to end the dispute. He repeatedly expressed the view that people should just “get over it.” But there were numerous denials of the right to vote that went unremedied. The United Civil Rights Commission’s 2001 report showed the right to vote was violated not just by what ballots were not counted but also that likely Democratic voters who were registered were told they were not and prevented from voting, disabled people in wheelchairs were assigned to inaccessible polling places (one had a big ditch outside).

In recent years, we have examples of states enforcing strict ID laws; closing polling places on Sunday, which had been prime voting day for some black church goers; understaffing, leading to long lines that discouraged voters; moving polling places at the last minute; closing down some registrar offices all to suppress the vote, mainly of Blacks and Latinos.

AE: Liberals and conservatives alike should agree: Verifying and updating voter rolls is a necessary part of our elections system. And our voter rolls are often out-of-date—after all, people move or pass away every day.

But ordinary list maintenance is different than aggressive voter purging, especially one, like Ohio’s, that is premised on “use it or lose it.” This kind of “list maintenance” is nothing more than voter suppression of vulnerable groups.

There are many ways to assure well-maintained lists, such as implementing automatic voter registration—which updates a citizen’s registration with every eligible governmental interaction. There is no need for aggressive and wanton purging to clean up our voter rolls.

Purging, though, is just one sliver of American voter suppression tactics. Since the Supreme Court gutted the Voting Rights Act in 2013, states are increasingly passing discriminatory election laws such as voter ID requirements, reduction of polling places, and burdensome voter registration restrictions. To put it bluntly, voter suppression is ubiquitous.

CC: Republicans are arguing that they’re trying to promote ballot integrity and prevent voter fraud. Is voter fraud the real issue here? 

MFB: No. Voter fraud is rare, but the fraud that exists consists mainly of buying votes in exchange for favors, not ID fraud or any of the other false claims Republicans make. Vote-buying is done by campaigns in both parties, because the real voting problem is voter turnout, which remains abysmal. People who are registered and are in places where violence or economic pressure doesn’t prevent them from voting don’t vote because they aren’t interested in the candidates they are offered and think voting doesn’t help them or their communities. An elderly Black woman I describe in my book, Five Dollars and a Pork Chop Sandwich, whose vote politicians routinely bought, described the process to her state voter fraud investigator. Politicians promise to do something, and they never do what they say, but she voted because at least she could count on being given a small amount of money and a sandwich and cold drink after she voted.

AE: Of course not. There is no evidence of widespread voter fraud. Period. Study after study proves as much. Again, updated voter rolls are integral, but not at the expense of purging voters. This is about increasing the odds—even if only slightly—to win elections.

CC: Since midterm season is here, what can voters do to make sure they get their voices heard? 

MFB: Register if they haven’t already and help other people to register who need help with ID or travelling to the registrar’s office. Vote in state and local elections where the rules that lead to disfranchisement are made. Pick candidates who at least promise to do what they think is important, vote, and then remember who is elected and hold them accountable. Even if your candidate loses, hold the winner accountable. They still have a responsibility to implement the duties of the office. It’s not unusual for people not to even know who their elected office-holders are. Vote based on policy, not personalities.

AE: Register everyone you know to vote and then vote. Elections, for better or worse, are a moment to reshape the political landscape—to remake what is politically possible.

But voting is not enough. Even if we were to elect an entirely new Congress, the same institutional pressures—the need to raise money to run for office, lobbyists flooding politicians with corporate-sponsored white papers, a voting system that produces an unrepresentative electorate—will remain. The America that we collectively want will remain unattainable because our broken democratic system will continue to distort popular opinion.

So, I urge everyone to join organizations that fight for meaningful democracy reforms (The Field Guide to Democracy Movement offers a list of relevant groups). Every state needs to do better—even the Democratic ones. We must all demand—and I truly mean demand—pro-democracy policies, such as automatic voter registration, same-day registration, pre-registration for sixteen year olds, public financing of elections, independent redistricting commissions, and ranked choice voting.

For these midterms, there will also be pro-democracy initiatives on the ballot in states across the country. If there is one in your state, ensure its passage. If there isn’t, develop creative ways to make democracy reform central in every local, state, and federal election.

A better democracy is possible if enough people demand it.

About Mary Frances Berry and Adam Eichen 

Mary Frances Berry is the Geraldine R. Segal Professor of American Social Thought and professor of History and Africana Studies at the University of Pennsylvania. She is the former chairwoman of the US Commission on Civil Rights, a Distinguished Fellow of the American Society for Legal History, the author of twelve books, and the recipient of thirty-five honorary degrees. Dr. Berry has appeared on Real Time with Bill Maher, The Daily Show, Tavis Smiley, PBS NewsHour, CBS Evening News, Al Jazeera America News, and various MSNBC and CNN shows. She is the author of History Teaches Us to Resist: How Progressive Movements Have Succeeded in Challenging Times. Follow her on Twitter at @DrMFBerry and visit her website.

Adam Eichen is the Communications Strategist at Equal Citizens and a Democracy Fellow at the Small Planet Institute, cofounded by Frances Moore Lappé. He is the co-author of Daring Democracy: Igniting Power, Meaning, and Connection for the America We Want. Follow him on Twitter at @AdamEichen.