The Right to Vote: Use It or Lose It?

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The 2018 election was almost three months ago now, but Arizona Republicans, coming off a string of embarrassing losses, are still acting like sore losers and trying to take their ball and go home. As I wrote about before this legislative session started, we can expect AZ Republicans to respond to their electoral losses by following the lead of their GOP brethren around the country and attempting to restrict voting rights. And we’ve already seen it happening in a pair of bills introduced by Republican state senator Michelle Ugenti-Rita, the most brazen of which would make it illegal to drop off an early ballot on election day.

But beneath these very open and ham-handed attempts, sneakier attacks on voting rights are happening too. Perhaps the most important to pay attention to right now is HB 2130, a bill introduced by Republican Bob Thorpe that would kick voters off the rolls if they fail to vote in two consecutive elections.

Use It or Lose It

Some history is important here. In 1993, Congress passed the National Voter Registration Act (NVRA). This was the most comprehensive national voter protection law since the landmark 1965 Voting Rights Act, which made various changes to state-level voting laws in order to make it easier for voters to register and maintain their registration. The most famous is the requirement for states to allow voters to register at their local Department of Motor Vehicles, which gave the act its nickname, the “motor voter law.”

But among its many provisions was a prohibition of so-called “use it or lose it” laws under which states would remove a voter from the voting rolls if they did not vote in a certain number of consecutive elections. The law explicitly forbade states from using lack of past voting as a criterion for canceling someone’s voter registration.

So Thorpe’s law is pretty obviously in violation of the NVRA, right? You would think so, however, faced with a conservative Supreme Court with a known hostility to voting rights (see Shelby County v. Holder), Republican legislators around the country have gotten creative in circumventing voter protection laws in hopes John Roberts and the boys will back them up. So Ohio passed a “use it or lose it” law but just didn’t call it that. According to Ohio’s deeply legalistic and cynical reasoning, they were not kicking off people for not voting but simply clearing the rolls of people who had obviously moved out of state or died. And what proof did they have that they moved out or state or died? Why, the fact that they hadn’t voted in two consecutive elections of course!

And last year, the circle was completed when the Supreme Court, in a partisan 5-4 ruling, bought Ohio’s obviously nonsensical logic and ruled their voter purge law did not violate National Voter Registration Act. It was predicted that, now that the law had the Court’s blessing, it would spread and Republican legislatures across the country would try to pass copycat laws. Which is exactly what HB 2130 is.

Targeting Democratic Voters

As with other Republican attacks on voting rights, the “use it or lose it” law appears on its surface to not be partisan, as a Republicans and Democrats are theoretically affected equally by it. But beneath the surface, it is clearly designed to suppress Democrats and Democrat-leaning voters. Democratic voters tend to not vote as consistently as Republicans for a variety of reasons: they are younger, less affluent, and more likely to come from underrepresented communities. This makes them more likely to miss an election or two and makes it more difficult for them to navigate the often-complex process of registering to vote and verifying their registration.

Data from Ohio shows how the law has already disproportionately affected Democratic voters. A study by Reuters found that in Ohio’s three largest counties, African Americans (an overwhelmingly Democratic voting block) were twice as likely to be purged under the “use it or lose it” law than white voters. Other voting rights experts have pointed out how the law has a disparate impact on young voters, in particular, college students, another Democratic-leaning voting bloc.

If Ohio is any indication, this law could have a profound impact on the 2020 election and beyond. The same Reuters study found that in those three largest Ohio counties alone, 144,000 voters had been removed from the rolls. In the closely contested 2018 Senate race, Kyrsten Sinema won by less than 60,00 votes. A similarly slim margin is likely to decide the 2020 Senate special election and possibly even who gets Arizona’s 11 electoral votes in the Presidential election. Between this and the Republicans’ other voter suppression efforts, they could easily suppress enough votes to swing these important statewide races, to say nothing of races down the ballot.

Heads in the Sand

And while Thorpe’s “use it or lose it” law could have a major impact on Arizona elections all by itself, it is also an important canary in the coal mine for other Republican attacks on voting rights, including Ugenti-Rita’s bills. Chief Justice John Roberts and his conservative colleagues on the court have demonstrated a willful blindness when it comes to voting rights. As their decision in the Ohio case shows, they are willing to buy any argument that a law is not partisan or discriminatory, no matter how ridiculous, if it comes from Republican lawmakers. So long as Republican legislators do not directly say out loud that they are attacking a particular group of voters, Roberts and his buddies will give the law a pass.

And this is probably even more true now that relative wild card Anthony Kennedy, who demonstrated at least a passing recognition of the importance of civil rights laws, has been replaced by loyal, dim-bulb Republican stooge Brett Kavanaugh. In fact, as Roberts demonstrated in his notorious Shelby County decision, he is more likely to strike down attempts to remedy historical injustices because they deign to mention dirty words like “race.” They have given a green light to Republican lawmakers in Arizona and around the country to suppress voters at will, so long as they don’t say out loud that is what they are doing.