Carrying the Voter Purge Torch in West Virginia
One WV Senate bill copies straight from the Ohio voter purge playbook
With the GOP in full control of every branch of government in West Virginia, the Senate majority is now trying to “secure” our elections. It seems strange to me, since they didn’t question our state elections when they were winning in November.
One of the changes put forward in WV Senate Bill 565 seems mundane enough, but it follows in the footsteps of a voter purge program trialed in Ohio and spiritually descended from voter suppression tactics of the Jim Crow south.
The specific clause of concern is listed in the summary as
changing the time period of voting inactivity required for county clerks to initiate the confirmation notice mailing process designed to identify voters who may have moved without filing a forwarding address, moved with a forwarding address under another name, died in a another county or state so that the certificate of death was not returned to the clerk of the county commission, or who otherwise have become ineligible, from four years to two years
At the bottom of the legislation in the notes, it clarifies that this is a motion “to adopt the list maintenance idle voter procedure from the State of Ohio, which was upheld by the United States Supreme Court of Appeals in Husted v. A. Philip Randolph Institute (2018).”
Husted v. A. Philip Randolph Institute dealt a big blow to voting rights in 2018. The 5-4 conservative majority ruled that Ohio’s Secretary of State, John Husted, was legally permitted to continue his aggressive purge of Ohio voters.
The key question at hand was whether John Husted, as Secretary of State, was breaking the law according to the National Voter Registration Act of 1993, which makes it illegal to maintain a voter-list by using a process that removes “the name of any person from the official list of voters… by reason of the person’s failure to vote.”
Reuters reported in 2016,
“All U.S. states periodically cleanse their voter rolls, but only a handful remove voters simply because they don’t vote on a regular basis. And nowhere could the practice have a greater potential impact in the state-by-state battle for the White House than Ohio, a swing state that has backed the winner in every presidential election since 1960.
Voters of all stripes in Ohio are affected, but the policy appears to be helping Republicans in the state’s largest metropolitan areas, according to a Reuters survey of voter lists. In the state’s three largest counties that include Cleveland, Cincinnati and Columbus, voters have been struck from the rolls in Democratic-leaning neighborhoods at roughly twice the rate as in Republican neighborhoods.
That’s because residents of relatively affluent Republican-leaning neighborhoods are more likely to vote in both congressional elections and presidential contests, historical turnouts show. Democrats are less likely to vote in mid-term elections and thus are more at risk of falling off the rolls.”
The U.S. Court of Appeals for the 6th Circuit ruled that Husted was violation the law because his process used the failure to vote as a “trigger” that began a process that could ultimately result in a person’s removal from the voter rolls.
Husted challenged that decision.
With Federalist Society-approved Neil Gorsuch freshly creating a slight conservative majority on the Supreme Court, it was little surprise that the ruling came down 5-4 in favor of John Husted’s voter purges.1
Their ruling depended on splitting the finest hair.
Justice Samuel Alito authored the meandering majority opinion, which boiled down to, the process was legal because
“It does not strike any registrant solely by reason of the failure to vote. […] it removes registrants only when they have failed to vote and have failed to respond to a change-of-residence notice.”
Justice Stephen Breyer was less than impressed with the reasoning, pointing out in his dissent that the whole premise was ridiculous.
“The record shows that in 2012 Ohio identified about 1.5 million registered voters—nearly 20% of its 8 million registered voters—as likely ineligible to remain on the federal voter roll because they changed their residences. […] Ohio then sent those 1.5 million registered voters “last chance” confirmation notices. In response to those 1.5 million notices, Ohio only received back about 60,000 return cards (or 4%) which said, in effect, “You are right, Ohio. I have, in fact, moved.”[…] In addition, Ohio received back about 235,000 return cards which said, in effect, “You are wrong, Ohio, I have not moved.” In the end, however, there were more than 1,000,000 notices—the vast majority of notices sent—to which Ohio received back no return card at all. Ibid.
What about those registered voters—more than 1 million strong—who did not send back their return cards? Is there any reason at all (other than their failure to vote) to think they moved? The answer to this question must be no. There is no reason at all.” [Emphasis Added]
He wasn’t quite done there, highlighting that “those 1 million or so voters accounted for about 13% of Ohio’s voting population,” and that only 4% of all Americans nationwide move counties every year.
Justice Sonia Sotomayor wrote even more to the point:
“Congress enacted the NVRA against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections. The Court errs in ignoring this history and distorting the statutory text[.]”
Pema Levy reported on the case for Mother Jones at the time in 2018,
The court’s 5-4 decision is likely to resurrect an era that the NVRA was meant to end. The practice of purging voters dates back more than 100 years. Just as today, it was justified as a necessary tool to thwart fraud and maintain the integrity of elections. But in practice, it was often used to suppress the votes of those who might not support the party in power. The result of the aggressive purges was that Americans participated in elections at a far lower rate than citizens of other Western democracies. Purges were often more aggressive in Southern states, particularly after the civil rights movement removed other barriers, such as poll taxes, for African Americans to cast ballots.
History repeats itself.
One big difference between West Virginia and Ohio is that our county clerks manage our voter rolls instead of the secretary of state’s office, but that is a distinction without a difference.
The end effect of this legislation will be that voters who don’t vote in midterm elections will be the most likely to be purged, even if they are still alive and never moved.
As the Good Ol’ Boys in West Virginia seek to consolidate their oligarchy here, expect to see more attempts to suppress the vote and to make it easier to purge voters, all the while creating more and more channels for dark money to pour into the state and continue to poison our political well.
This will result in Republican voters getting purged too—but that’s okay as far as Republican strategists are concerned.
As Heritage Foundation co-founder Paul Weyrich declared to an assembly of conservative Christians in 1980,
"Now many of our Christians have what I call the "goo goo" syndrome. Good Government. They want everybody to vote. I don't want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country, and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down."
Those who want to make it harder to vote want to do so because they don’t care about good governance or a healthy democracy: they care about wielding power to destroy our government.
Then, in the vacuum of our government, the super-rich and private corporations can fill the void to speed up and maximize the privatization of our public services, commodification of our resources, and continued exploitation of our communities.
If SB565 becomes law, we all will have to be even more vigilant about checking our voter status and the voter status of our friends, families, and neighbors.
Likewise, future legislators will have to be prepared to pass laws that make it easier to register and to vote—not harder.
Because only when the majority of people are voting—only once our friends, families, and neighbors are all voting—can we begin to have a government that truly works for West Virginians.
I’m tempted to say that this ruling wouldn’t have happened if Mitch McConnell hadn’t stolen the Supreme Court seat for Neil Gorsuch; but who knows how Merrick Garland would’ve ruled had he been on the Court instead.