NVRA v. W.V. SB 622
November 18, 2024
By: Andrew Flaxman
The National Voter Registration Act of 1993 (commonly referred to as the NVRA or “motor voter) set forth regulations on voter registration concerning elections for federal office. NVRA Section 8 contains requirements concerning the administration of voter registration and procedures to maintain accurate and current voter lists. Part of this includes protections to voters against arbitrary removal from voter rolls and a requirement of notice in advance to allow voters to confirm their voter registration. Specifically, in section (b), in 52 USC § 2050, states that a voter cannot be removed from the voter list if they aren’t given notice and have not voted in two consecutive federal elections. Section (b)(2) also prevents voters from being removed from the registry for lack of voting, also known as the failure-to-vote clause.
These provisions seem straightforward enough, so when West Virginia’s state senate proposed a bill, Senate Bill 622, which would have shortened the voting inactivity from two elections (four years) to one election (two years) before sending them notice, and removing them from the registry if they do not confirm their registration: it raises some NVRA questions. Yet, it passed the West Virginia Senate before stalling the House of Delegates. Senator Eric Tarr, the bill’s lead sponsor, said the bill is to ensure voters are not registered to vote in two different precincts and verify voter eligibility. It is a use-it-or-lose-it voting law. So naturally, this is a violation of Section 8, correct?
Incorrect, and that is with certainty because this question was already addressed by the Supreme Court in 2018 concerning a nearly identical law in Ohio. Advocacy groups and an Ohio resident sued the Secretary of State of Ohio, believing that Ohio’s law, which shortened the period of voter inactivity to two years before getting sent notice as inactive, violated the NVRA. In Husted v. A. Philip Randolph Inst., the Court, in a 5-4 decision, held that Ohio’s voter law did not violate the NVRA. In his majority opinion, Justice Alito reasoned that Section 8 in the NVRA does not prohibit Ohio from maintaining supplemental processes for identifying and removing voters. In addressing the alleged failure-to-vote clause violation, he opined that the clause does not prevent voting inactivity from being considered a factor in removal; it only precludes voter inactivity as the sole reason for removal. In this case, the voter’s inactivity and failure to return the card created enough presumption to remove the voter. Alito further explained that the NVRA requires no prerequisite period before a state can send a voter a return card. he differentiated of the period from a person’s inactivity to receiving notice and the period between receiving and responding to such notice. Therefore, the only period that requires two federal elections is between the sending of notice and failure to respond.
When turning to West Virginia’s Senate Bill 622, the bill targeted the period between voting inactivity and sending a return card to inactive voters, which lacks NVRA protections. Currently, West Virginia law declares a voter inactive if they fail to vote in two consecutive elections, which translates to inactivity for four years. This bill would half that period to one election or two years before sending notice. It would effectively shorten the period before a voter’s removal from eight to six years. Since, however, the bill still gives voters two federal election cycles to return the “return card,” it does not violate (b)(2). Neither does it violate section (d) because technically, removal wouldn’t be solely based on inactivity, but inactivity plus the failure to return the “return card” which the Supreme Court deemed ample justification.
Ohio’s law has had a noticeable impact as 150,000 Ohio voters have been purged from poll books since its implementation. West Virginia has gained some notoriety in recent years for the number of voters it has purged from voter rolls. Since 2016, West Virginia has purged 408,000 voters from state voter rolls. While many of these purges are noncontroversial (deceased and moving away from West Virginia), some citizen activist groups have raised concerns over the size of that number. While it will not be a factor for this election cycle, it will be interesting to see whether Senate Bill 622 will be reintroduced and passed to apply for future election cycles and the impact such a law could have on the state voter registry.