“If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to,” legal scholar Thomas Reed Powell is supposed to have said, “then you have a legal mind.”
A dispute coming before the Supreme Court Wednesday can be read as an ordinary statutory question, or as a part of the extraordinary turmoil that, in 2018, surrounds citizens’ right to vote.
I say “ordinary” because construing statutes is the basic work of both lawyers and judges—far more important, year in and year out, than are constitutional issues. It’s how they earn their pay, because the work is both hard and boring. Statutes are written by committees and rewritten by large meetings; are long and complicated; and use specialized language—or ordinary language in surprising ways. Sometimes, in fact, lawmakers make a statute deliberately ambiguous, because they can’t agree on what it should say and want to punt the question to judges. Ask a lawyer what a newly passed statute means, and you are likely to get the answer, “We don’t know—the courts haven’t interpreted it yet.”
The core of Wednesday’s case, Husted v. A. Philip Randolph Institute, is a dispute over the meaning of the word “result.” The core definition of the word, from the Oxford English Dictionary, is “the effect, consequence, or outcome of some action, process, or design, etc.”—a meaning used, for example, in 1786 by Edmund Burke in his famous speech on the impeachment of Hastings.
So here is the conundrum. Let’s suppose your local board of elections reviews its records and finds that you haven’t voted for two years in a row. They decide you may have moved, or died, and so they send you a notice asking you to notify them whether you still belong on the rolls. No answer; so they remove you from the voting rolls without further notice—as you discover only when, regaining your enthusiasm for politics, you show up at the polls four years hence.
This is precisely what happened to Larry Harmon, a Navy veteran who has lived at the same address near Akron, Ohio, for 16 years. He voted in 2008, but was disgusted by his choices in 2009 and 2010. When he showed up at the polls in 2015, he was turned away—on the grounds that election officials had sent him a notice in 2011 which he did not return (and which, he says, he doesn’t remember getting) and that he had not voted soon enough thereafter.
So the question is, was his registration canceled as a “result” of failure to vote—or solely as a “result” of failure to answer the notice?
Harmon, and advocacy groups supporting him, say the purge of his registration “results” from the failure to vote, which set off the notice, which resulted in his removal. Speakers of non-lawyer English, I suspect, would tend to agree. The state of Ohio, defending its voter-purge process, says the word in this context has a special lawyer meaning. “Result” in the statute, they say, doesn’t mean “result” in the Edmund Burke sense. True, Harmon’s failure to vote was one cause of the purge, but they say the statute requires a different kind of result, called by lawyers—but nobody else in the world—proximate cause. This term—the scourge of first-year tort law students, is defined in Black’s Law Dictionary as “[a] cause that is legally sufficient to result in liability.” That’s a wonderfully circular term; to establish liability, a plaintiff must prove the defendant’s actions were the “proximate cause” of the harm. And we know whether they were the “proximate cause” when the court finds liability. In the real world, what the phrase usually means is, “Yes, the event wouldn’t have happened without whatever I did, but for some other reason I’d like you to ignore that.”
Here’s the reason why the dispute matters. Two federal statutes, the National Voter Registration Act, passed in 1993, and the Help America Vote Act, passed in 2002, both touch on the issue: NVRA says that state registration purges “shall not result in the removal of the name of any person from the official list of voters … by reason of the person’s failure to vote.”
HAVA says that “no registrant may be removed solely by reason of a failure to vote.” It then says that the state may remove a voter if the voter doesn’t respond to a notice and “then has not voted” in two or more federal elections in a row.
Ohio’s procedure doesn’t follow the HAVA model. Ohio begins with the failure to vote, then sends the notice, and then purges the rolls if the voter doesn’t respond or vote. HAVA, the plaintiffs argue, provides that a state can’t even send the notice for the sole reason that someone hasn’t voted—that implicates “result” and “by reason of.” As they construe the statutes, the state needs another reason to send it—such as a change-of-address notification by the Post Office. “A list-maintenance program may result in removal by reason of failure to vote only where failure to vote is used to confirm a state’s prior determination” that a voter may have moved away, they argue.
Under Ohio’s reading, a state can send out a lot more notices, and purge a lot more voters, than under the plaintiffs’. Of course, no one can know precisely why Ohio uses this unusually aggressive purge procedure. We can note that the state does heavy “list maintenance”—since 2011, according to a Reuters analysis, it has purged 2 million voters for various reasons, including 844,000 by reason of failure to vote and respond to a notice. The Secretary of State, Jon Husted, is a Republican, a former state senator, and a candidate for statewide office in 2018. It’s intriguing that the state’s notice postcards formerly demanded a driver’s license, Social Security number, or other proof of address in response to retain registration—in essence, reregistration—and did not make clear that failure to respond would result in being purged. (Since the suit was brought, the state has backed off and only requires a signature on the return postcard.)
The plaintiffs cite the undeniable fact that both the NVRA and HAVA were passed with the announced intention of expanding citizens’ access to the ballot. Ohio cites the undeniable fact that the statutes also require states to maintain accurate voter rolls, and to purge voters who have died, been convicted of crime, or moved away. Under citizen-suit provisions of the NVRA, in fact, a state can be sued either for purging too enthusiastically or for not purging enthusiastically enough. (Indeed, that precise consequence befell Ohio in 2012, when the conservative group Judicial Watch sued the Secretary of State for not doing enough to purge voters—producing a pre-trial settlement that requires notices be sent to any voter who hasn’t voted for two years in a row; it’s also, essentially, why it thinks it should get off the hook by invoking the idea of “proximate cause.”) Neither party disagrees that the right to vote, whatever its extent, includes the right to refuse to vote, and that citizens should not be penalized if, out of disgust or for any other reason, they stay home on Election Day.
The party briefs are thick with the all-but-indecipherable “canons of statutory construction” that supposedly guide a court in its reading complicated and ambiguous statutes.
Philosophies of statutory include “textualism,” which reads a statute the way fundamentalists read the Bible—attributing to each word a firm unchanging meaning; Justice Antonin Scalia was a pioneer of this school, and Justice Neil Gorsuch has vowed to carry his banner. The opposing school is often called “purposivism,” which means that you figure out what the legislature was trying to do and then read the statute to do that. Justice Stephen Breyer is the most enthusiastic purposivist on the current Court; but perhaps ironically, the best statement of the approach was given by Chief Justice John Roberts. The highly charged case of King v. Burwell pitted two readings of the Affordable Care Act against each other. One would have thrown Obamacare into chaos, while another made it work. Roberts, writing for the majority, adopted the make-it-work interpretation: “Congress passed the Affordable Care Act to improve health-insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
In the Ohio voting case, that’s easier said than done. As noted, the laws involved had twin purposes: to help eligible voters vote and to keep ineligible voters from doing so. Resolving that conundrum in the justices’ minds will involve not “canons” like “the rule against surplusage” or “a word is to be known by the company it keeps.” The opinion may deploy these chestnuts; but the majority, whichever way it decides, will be making a (perhaps unconscious) judgment about which of the two aims—participation by the eligible or exclusion of the ineligible—is more urgent, both generally and now.
The conservative majority has been no friend of the franchise. Will any of them rethink their attitude in light of the times we live in? Just the week before argument, for example, President Trump dissolved a bizarre “election integrity panel” he had formed with more or less explicit instructions to prove that without millions of nonexistent “fraudulent” votes, he would have won the popular vote nationwide. Celebrations of its demise are premature, however—he has now formally delegated the task to the Department of Homeland Security, the nation’s largest and, in many ways, most secretive, bureaucracy. Meanwhile, in the states, local officials are, like Husted, coming up with new approaches to “list maintenance”—approaches that somehow tend to throw eligible voters off the rolls.
These extraordinary facts are not before the Court. But they are inextricably attached to the dispute. The justices, however, may be capable of ignoring the context. For better or worse, we know that they all have fine legal minds.