Supreme Court Upholds Ohio's Aggressive "Use It Or Lose It" Voter Purge System

The Supreme Court rules 5-4 to uphold Ohio’s aggressive voter purge system—the most severe in the nation—that removes voters from registration rolls if they fail to vote in a single federal election and don’t return a mailed confirmation notice. Justice Samuel Alito’s majority opinion greenlights aggressive voter purging nationwide, while Justice Sonia Sotomayor’s dissent warns that the ruling “entirely ignores the history of voter suppression” and enables disenfranchisement of minority and low-income voters.

Ohio’s “Use It Or Lose It” System

Ohio’s law allows the state to begin the purge process after a voter fails to vote in a single two-year federal election cycle. The state then mails an address-confirmation notice. If the voter doesn’t return the notice and doesn’t vote in the next four years (two more federal election cycles), Ohio removes them from registration rolls—even if they haven’t moved and remain eligible to vote.

This “use it or lose it” system is the most aggressive in the nation. While other states maintain voter rolls by checking death records, felony convictions, and address changes, Ohio uniquely treats non-voting as grounds for initiating removal. The system punishes voters for exercising their right not to vote—turning the franchise into an obligation that must be actively maintained through either voting or responding to easily-overlooked mail.

Between 2011 and 2016, Ohio purged approximately 2 million voters under this system. Critics argue many purged voters hadn’t moved and remained eligible—they simply didn’t vote and didn’t respond to mailed notices that often resemble junk mail.

The Supreme Court Decision

Justice Alito’s majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Gorsuch, rules that Ohio’s system does not violate the National Voter Registration Act (NVRA) or the Help America Vote Act. Alito argues that Ohio isn’t stripping voters of registration solely for not voting, but rather because they both didn’t vote and didn’t return the confirmation notice.

This reasoning is criticized as sophistry: the confirmation notice is only sent because someone didn’t vote, making non-voting the trigger for the entire purge process. The notice requirement provides only superficial cover for what is fundamentally a penalty for not voting.

The majority opinion interprets the NVRA narrowly, finding that Congress didn’t clearly prohibit using non-voting to trigger purges. This interpretation prioritizes aggressive list maintenance over voter protection, despite the NVRA’s explicit purpose of expanding voter registration and access.

Justice Sotomayor’s Dissent

Justice Sotomayor’s dissent, joined by Justices Ginsburg, Breyer, and Kagan, sharply criticizes the majority for “entirely ignor[ing] the history of voter suppression against which the NVRA was enacted” and for upholding “a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.”

The dissent emphasizes that the NVRA was enacted specifically to prevent states from purging voters based on non-voting. Congress passed the law in response to aggressive purging that disproportionately removed minority and low-income voters from rolls. Ohio’s system does exactly what the NVRA was designed to prevent.

Sotomayor notes that the confirmation notices are often ineffective—many voters never receive them due to mail delivery issues, or mistake them for junk mail and discard them without reading. Basing purges on failure to return these notices creates a system where eligible voters are removed through administrative failures rather than actual ineligibility.

The dissent also highlights disparate impacts: low-income voters, minority voters, and young voters are disproportionately affected by purges based on non-voting. These populations have lower turnout rates due to structural barriers (work schedules, transportation, ID requirements, long lines), making them more likely to be purged for exercising their right not to vote.

Impact and Implications

The ruling greenlights aggressive voter purging nationwide. Nineteen states, largely Republican-controlled, filed briefs supporting Ohio’s position, though none had systems as aggressive as Ohio’s. The Supreme Court’s approval allows these states to implement similar or more aggressive purging.

The decision comes just months before the 2018 midterm elections, enabling states to accelerate purges before crucial races. Voting rights advocates warn that the ruling will lead to widespread disenfranchisement, particularly affecting voters who participate sporadically or face barriers to consistent turnout.

The Ohio system particularly impacts voters in communities facing voter suppression through other means. If strict voter ID laws, limited early voting, polling place closures, and long lines suppress turnout in minority communities, those same communities then face higher purge rates due to lower participation—creating a compounding suppression effect.

Criticism and Context

Critics characterize the ruling as another step in the Supreme Court’s systematic dismantling of voting rights protections. Following Shelby County (gutting Voting Rights Act preclearance) and preceding Rucho v. Common Cause (removing federal court oversight of partisan gerrymandering), the Ohio purge decision represents the conservative majority’s consistent pattern of enabling voter suppression.

The decision reverses lower court rulings that had blocked Ohio’s purges. The Sixth Circuit Court of Appeals had found Ohio’s system violated the NVRA, but the Supreme Court’s conservative majority overrules this protection. The reversal demonstrates how Supreme Court composition shapes voting rights, with the conservative 5-4 majority consistently ruling against voting access.

The ruling’s timing relative to Ohio’s political context is notable. Ohio Secretary of State Jon Husted, who defended the purge system, is a Republican running for Lieutenant Governor in 2018. The purge system disproportionately affects likely Democratic voters in a crucial swing state, raising concerns about partisan motivation disguised as administrative list maintenance.

Demographic Disparities

Research shows Ohio’s purges disproportionately affect minority and urban voters. Analysis of purged voters reveals higher rates in Democratic-leaning urban counties, particularly neighborhoods with large Black populations. This pattern suggests the system achieves partisan and racial suppression regardless of its ostensible neutrality.

The use of non-voting as a purge trigger inevitably has disparate racial impact. Turnout gaps between white and minority voters reflect structural barriers including voter ID laws, polling place closures in minority neighborhoods, long lines, inflexible work schedules, and transportation challenges. When states then purge based on non-voting, they compound these barriers—punishing voters for failing to overcome suppression while simultaneously removing them from rolls.

Significance

The Supreme Court’s Ohio purge decision authorizes using non-voting as grounds for voter removal, fundamentally transforming the right to vote into an obligation to vote regularly or risk disenfranchisement. This represents a departure from the principle that voting is a right, not a duty—that citizens can choose whether to participate in particular elections without losing their registration.

The ruling demonstrates the limits of federal statutory protection for voting rights when courts interpret those statutes narrowly. Despite the NVRA’s clear purpose of preventing purges and expanding registration, the conservative majority reads it to allow aggressive removal based on non-voting—effectively nullifying the law’s protective intent.

The decision fits a broader pattern of the Roberts Court enabling voter suppression. The conservative majority consistently rules against voting rights in close cases, creating a legal landscape where states can suppress votes through ID requirements, purges, limited early voting, and gerrymandering with minimal federal court intervention.

The Ohio ruling also illustrates how facially neutral policies achieve discriminatory effects. The purge system doesn’t explicitly target minority voters, but its impact falls disproportionately on communities facing other voting barriers. This represents modern suppression’s characteristic approach: using neutral-sounding rules that predictably disenfranchise particular demographics.

The dissent’s warning about “ignoring the history of voter suppression” proves prescient. Within months, multiple states implement or expand aggressive purging, emboldened by the Supreme Court’s approval. The ruling enables a new wave of list-maintenance suppression, disproportionately affecting the same minority and low-income voters the NVRA was designed to protect.

Finally, the decision empowers partisan secretaries of state to shrink electorates through administrative policies. When election officials benefit from reduced turnout among opposition-leaning demographics, purge systems become tools for partisan advantage. The Court’s approval of Ohio’s system—defended by a Republican secretary of state in a swing state—validates this weaponization of voter roll maintenance for political gain.