Ohio Secretary of State Jon Husted - who administers Ohio's voting laws - argues that the process is needed to remove dead people from the rolls and resolve the cases of voters who have multiple registrations.
Opponents of what has been called "voter roll purging" say that voters whose names are removed from the rolls with practically no warning, find themselves unable to vote. Justice Sonia Sotomayor said minorities and homeless people appear to be disproportionately kicked off the rolls.
What makes the entire situation even more troubling is that the Justice Department abruptly switched sides in August, right in the middle of the case.
The justices are hearing argument Wednesday in a case from Republican-led OH, one of a handful of states that use voters' inactivity to trigger a process that could lead to their removal from voter rolls.
"If the court sides with OH", said Professor Rick Hasen, an election law expert at the University of California at Irvine, "you'll see more red states making it easier to drop people from the voter registration rolls, and it's going to continue what I call the voting wars between the parties".
"When I was in the Army, I didn't have time to worry about voting at home or absentee ballots, anything of that sort because I was an airborne infantryman, a parachutist, war fighter", Helle said. Politically, the issue of voter list management has become a partisan one, with Republicans claiming that threats of voter fraud necessitate more stringent cleaning of voter rolls, while Democrats argue that such tactics serve to suppress voter participation.
According to Secretary of State Jon Husted, the process goes like this- if a voter does not vote for two years, they are sent a mailer, which is created to ask a voter if they wish to remain registered to vote. Algorithms are being developed that couple multiple databases from state records, and could more accurately identify what OH claims they are looking for, residential changes, without accidentally removing eligible voters from the lists. That decision triggered a notice from the state's elections board in June 2011 to confirm he was still eligible to vote. Because it laid out the four-year timetable for purges but also said voters could not be removed "by reason of the person's failure to vote". Many of them arrived at the polls to vote only to learn that they were no longer registered.
A Philip Randolph Institute, is a challenge to a method OH uses to purge its voter rolls. "There's a 24-year history of solicitor generals under both parties taking positions contrary to yours", she told Solicitor General Noel Francisco, who argued for the United States government. It seems quite unusual that your office would change its position so dramatically.
Larry Harmon learned that his voter registration had been canceled when he arrived at his polling site for the 2015 state elections.
A divided federal appeals court blocked the OH procedure and let about 7,500 state residents cast ballots in 2016, even though they'd previously been struck from the list of eligible voters. The evidence shows, Smith responded, that most people throw such notices in the trash. Only 20 percent of those who are sent the card return it, with only 10 percent of the cards returned as undeliverable.
But Justice Samuel A. Alito Jr. said the laws appeared to permit OH to use its notification process.
Paul Smith, a Washington, D.C., lawyer representing the challengers, said the state's method is flawed. The justice said the case might come down to an "empirical question" about exactly what happens when the notices are mailed. "We are fighting in every state to protect and expand the right to vote".
"We're very proud of Ohio's system of elections", Husted said.
Sotomayor pressed U.S. Solicitor General Noel Francisco on the change during oral arguments Wednesday, saying that solicitors general from Democratic and Republican presidents alike had argued positions at odds with the one the Justice Department was now taking.
The Trump administration filed a brief in support of the OH "use it or lose it" voting policy past year in Husted v. A. Philip Randolph Institute, which will be heard in the nation's top court on Wednesday.