This law also placed limits on how states could remove voters from the rolls once they registered.
Smith said yes, "because the Act says you can't use failure to vote as the reason for purging somebody from the roll". But is that a reasonable conclusion to draw, she asked, when it has a disproportionate effect on areas with large groups of minorities, poor people and the homeless? Neither Justice Clarence Thomas nor Justice Neil M. Gorsuch asked any questions during oral arguments in the case, Husted v. A. Philip Randolph Institute.
On Wednesday, the Court will hear oral arguments in his case, which challenges Ohio's policy of removing people from its voter rolls for inactivity. A ruling for OH could prompt other states to adopt the practice, which often pits Democrats against Republicans.
Several other states that use the failure to vote as a trigger in efforts to cleanse their registration rolls could be affected by the high court's decision in the OH case, including Georgia, Oklahoma, Pennsylvania, Tennessee and West Virginia. The court's consistent swing vote, Kennedy's vote may, as it has in many cases over the years, end up being decisive in Husted.
Justice Samuel Alito was the most vocal of the court's conservative justices, asking several questions about the "sole proximate cause" claim by OH that seemed created to press his colleagues on the court into agreeing that the notification process did not violate the NVRA.
Federal law prohibits states from disqualifying voters because they sit out elections.
Chief Justice John Roberts challenged the idea that nonvoting was the only factor OH was using, since the state also sent out the confirmation mailers.
The state of OH claims that these regulations have "dueling purposes" of facilitating access to the ballot, but also ensuring the integrity of the process, which in their view necessitates regularly cleaning and purging voter lists. "So the Secretary is purging vast numbers of completely eligible voters just to try to target a small, tiny handful of people who may have moved", Levenson said. At issue is whether Republican-drawn electoral districts in Wisconsin and Democratic-drawn districts in Maryland were fashioned to entrench the majority party in power in such an extreme way that they violated the constitutional rights of certain voters.
It's an issue embedded in the controversy before the Supreme Court today involving Ohio's practice of purging the voter-registration rolls of anyone who doesn't vote in two consecutive elections and then doesn't answer a piece of mail asking for an address confirmation (or doesn't subsequently vote in two additional elections).
In Ohio, the local election board uses change-of-address data from the U.S. Postal Service to identify voters who have moved without providing updated information.
So the state asks people who haven't voted in two years to confirm their eligibility. She noted that voters who did not return the mailers were immediately put on the inactive list, meaning they would not receive the notices active voters received about their polling places and upcoming elections.
But U.S. Solicitor General Noel Francisco - whose office changed sides in the case after Trump was elected - said OH has a right to streamline "over-inflated" and "bloated" voter registration rolls.
"There's a 24-year history of solicitor generals of both political parties under. presidents of both political parties who have taken a position contrary to yours", Sotomayor said, adding that it "seems quite unusual that your office would change its position so dramatically".
Hundreds of thousands of voters are purged from the state's lists each year.
The A. Philip Randolph Institute, represented by Campaign Legal Center's Paul Smith, argued on Wednesday that OH violates federal voting laws by basing its decision to remove voters on their failure to vote.
A federal court just ended a almost four-decade-old ban on caging, and one of the GOP's notorious vote suppressors in North Carolina has been again nominated for a federal judgeship in that state.
"There might be surveys about how many people throw everything in the wastebasket", Breyer said.
Smith responded that it would not be, as long as the state only removed people from lists when the cards were returned as undeliverable. Noting the low return rate on mailed warnings, he said, "you're going to vastly over-purge people".
Justice Breyer - what are states supposed to do? But the state isn't giving up on its fight to stifle democracy; Secretary of State Jon Husted is calling on the Supreme Court to overturn the Sixth Circuit's decision. "We should be working to make voting easier, not more hard, for Americans that want to participate in the electoral process". That law requires states to take steps to keep their voting rolls up to date and accurate, but it specifically bars states from removing anyone from the rolls for failure to vote.
The plaintiffs in the OH case include Larry Harmon, a software engineer and U.S. Navy veteran who was blocked from voting in a 2015 marijuana initiative, and an advocacy group for homeless people. They called Ohio's policy the most aggressive.