Though state solicitor Eric Murphy argued that OH needs a way to keep track of voters who move without informing the Postal Service, Justice Sonia Sotomayor questioned whether the state has a less-extreme option at its disposal.
The Justice Department supported the challengers in the early stages of the court fight, but the Trump administration switched sides and argued Wednesday for the state.
Challengers say the procedure is illegal under the National Voting Registration Act of 1993, which forbids states from using voter inactivity to spark removal from the rolls.
If the court decides that OH can no longer purge its voter rolls in this way, at least six other states may have to change their practices.
A decision upholding Ohio's law would pave the way for more aggressive vote purging efforts in OH and other states, while the law's elimination would "send a strong signal that the federal government and the National Voter Registration Act place important limits on what states can and can't do with their voter rolls", says Dale Ho, who heads the American Civil Liberties Union's Voting Rights Project. "What we're talking about are the best tools to implement that objective". Kennedy's vote often is decisive in voting cases that otherwise split conservative and liberal justices.
Breyer repeatedly pressed the lawyer for opponents of the process, but had no questions for the lawyer representing Ohio.
A majority of the Court appeared ready to sanction Ohio's voter purge program, which Democrats have linked to a broader voter suppression effort.
"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.
"There are many people, thousands of people, who don't vote in every federal election cycle, even in every presidential election", he said.
Murphy argued that failing to vote is not the sole basis for removing voters from Ohio's rolls, and that voters must ignore notices they're sent before they're dropped.
Ohio's process for maintaining its voter rolls has two parts: the first relies on change-of-address notices that voters send themselves to the U.S. Postal Service, and the second targets any voter who has not cast a ballot in two years. But not everyone who moves notifies the post office, the state said.
Joseph Helle was expecting a different sort of reception when he returned home from Army tours in Iraq and Afghanistan and showed up to vote in his small OH town near Lake Erie, the Associated Press reported December 31. Rather, a voter is removed well after they fail to return a confirmation notice. If they do nothing, their names eventually fall off the list of registered voters.
But U.S. Solicitor General Noel Francisco - whose office changed sides in the case after Trump was elected - said OH has a right to streamline "over-inflated" and "bloated" voter registration rolls.
Ohio, backed by 17 other mostly Republican states, said it is complying with federal law. A dozen mainly Democratic states also want the Supreme Court to declare that Ohio's system violates federal law. "The evidence we have in the record is that most people throw it in the wastebasket", Smith said.
"Calling the non-return of the notice the proximate cause is like saying when you strike out, the only proximate cause is strike two", Smith said.
He said a process that used a notice which could not be forwarded and would be returned as undeliverable if sent to a wrong address would satisfy the opponents. "We are fighting in every state to protect and expand the right to vote".
"Your argument really turns on the adequacy of the notice", Roberts said.
The Supreme Court hinted it may allow states more flexibility to remove registered voters from state rolls during a lively argument on Wednesday.
"My goal has always been to make OH a place where it's easy to vote and hard to cheat", he said. He even wondered aloud if not voting is a constitutional right; a voting requirement, he said, could boost low turnout levels. Helle, a Democrat, called Ohio's process "archaic" and "terrible policy".