The Department of Justice has reversed itself in a voting case in Ohio after the Supreme Court said in May it would hear the dispute next term.
The Justice Department's amicus brief in support of Ohio in Husted v. A. Philip Randolph Institute means it now supports the state's purging of voters' names through the so-called "Supplemental Process."
In that process, if a voter does not vote during a single two-year period — aka one election cycle — then the voter gets a change-of-address confirmation. If the voter does not respond to the registration request by signing onto a four-year period, the voter is removed from the list of registered voters in Ohio's voter rolls.
"Yesterday's brief filed by the Department of Justice is supported by the National Voter Registration Act's text, context, and history. The question is what states are allowed to do in order to maintain their voter registration records -- not what they are required to do. A ruling in Ohio's favor would simply uphold a practice already in use in many states without requiring any state to change how it maintains its rolls," Justice Department spokeswoman Lauren Ehrsam told the Washington Examiner in an email.
The Obama administration had filed an amicus brief siding with the civil rights groups that had challenged the purges last year under the National Voter Registration Act.
Those challengers are the A. Philip Randolph Institute, an organization for African-American trade unionists, the Northeast Ohio Coalition for the Homeless, and Ohio resident Larry Harmon. Harmon was denied a ballot in 2015 after not voting since 2008 when he cast his ballot for Barack Obama.
In the Justice Department's new brief filed late Monday night, the signees argue Ohio is not the only state to use such a practice — and that the practice does not violate federal law.
Jeffrey Wall, acting solicitor general, and two other high ranking officials from the solicitor general's office signed the brief, as did Acting Assistant Attorney General John Gore. However, noticeably missing are the names of anyone from the Civil Rights Division.
The Supplemental Process does not violate the NVRA "because it does not remove registrants solely for their initial failure to vote. Registrants are sent a notice because of that initial failure, but they are not removed unless they fail to respond and fail to vote for the additional period," the brief reads.
Kristen Clarke, the president and executive director of the nonpartisan Lawyers' Committee for Civil Rights Under Law, called the Justice Department's reversal "the latest example of an agency whose leadership has lost its moral compass."
"The law hasn't changed since the department accurately told the court that Ohio's voter purge was unlawful," Clarke said in a statement. "The facts haven't changed. Only the leadership of the department has changed. The Justice Department's latest action opens the door for wide-scale unlawful purging of the voter registration rolls across our country."
In a blog post, Justin Levitt, a former deputy assistant attorney general in the Justice Department's Civil Rights Division, called the latest amicus brief "notable in and of itself."
"It's quite rare for the DOJ to change course after a filing a brief in the court of appeals: the Solicitor General's office is often called the 'Tenth Justice,' in part because while reversals happen, there's a thumb on the scale to treat DOJ filings with some internal quasi-precedential weight," wrote Levitt, who worked on the case in the Obama administration.
Ohio Secretary of State Jon Husted, a Republican who is also running for governor, called the process one that has been used by both Democrats and Republicans.
"Maintaining the integrity of the voter rolls is essential to conducting an election with efficiency and integrity," Husted said in a statement in May when the Supreme Court said it would hear the case.