“The dissents have a policy disagreement, not just with Ohio, but with Congress,” Justice Samuel Alito primly pronounced Monday in his majority opinion in Husted v. A. Philip Randolph Institute, the Ohio “voter purge” case. “But this case presents a question of statutory interpretation, not a question of policy.”
Whenever a court claims to be engaged in policy-free statutory interpretation, check your wallet. Sometimes the claim is true; but more often than not, somebody’s getting robbed.
Alito, writing for a five-justice majority, resolved a seeming conflict among provisions of federal voting law by concluding that the aggressive procedure Ohio (under the leadership of a conservative Republican secretary of state, Jon A. Husted) adopted to purge its voter rolls of supposedly ineligible voters, does not violate federal statutes. (He was joined by the other four conservatives—Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch; Justice Thomas wrote separately to suggest that voting-rights legislation in general is unconstitutional. Justice Stephen Breyer dissented for himself and the three moderate liberals—Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Sotomayor also wrote a short solo dissent.)
The statutes at issue are the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA). The text of the statutes offers a conflict between two values: first, the right of every eligible citizen to vote without unreasonable or discriminatory state obstacles, and, second, the need for accurate voter rolls “purged” of those who have died, lost the right to vote by criminal conviction, or moved away. No matter how that conflict is resolved, policy is in the house.
Ohio adopted a means of “purging” that, from the available evidence, leans sharply in the direction of voter-removal and gives less weight to the danger of inaccurate purging. The predictable result is that many Ohioans who should vote will not be allowed to; the other equally predictable result is that a disproportionate number of them will be poor or members of minority communities. The third predictable result is that disfranchisement of those voters will aid the Republican Party and disadvantage their opposition, the Democrats.
But of course Alito cares naught for that; he is—remember—engaged in value-free textual interpretation, you see. You got a policy beef, hoss, take it up with Congress.
The problem with that claim is that—as the two dissents point out—Congress has stated the policy it would prefer in the application of twin federal statutes at issue in Husted. Section 2 of the first of them, the National Voter Registration Act of 1993, in fact includes a long section on “findings and purposes,” which says, in part, that the act is designed to “increase the number of eligible citizens who register to vote” and enable voting officials at every level to enhance “the participation of eligible citizens as voters in elections for federal office.” The “purposes” section also provides that the act should “protect the integrity of the electoral process” and “ensure that accurate and current voter registration rolls are maintained.”
These purposes require officials, and reviewing courts, to strike a balance. Too much leniency could lead to inaccurate rolls. Too much security could strip the franchise from eligible citizens.
To Alito and the majority, the postcard-return method is a kind of Goldilocks compromise. The dissent argued that it violates not only the purposes but the very text of the statute.
Here’s how the Ohio system works. If a voter misses a federal election, the voter is flagged as possibly having moved. The state then sends a postcard asking the voter to return it if he or she is still eligible at the old address. If the voter returns the card, that’s it. But if not, the name stays flagged—and if the voter then does not vote in either of the next two federal elections, the voter’s name is purged.
Not only common sense but statistical surveys show that most people who receive such governmental postcards don’t return them—either because they don’t understand the legalese they bear, or because they mean to and forget, or because they just lose the card. In his dissent, Breyer cited figures showing that, in 2012, Ohio sent roughly 1.5 million postcards—and got back only about 235,000 replies. Justice Breyer’s dissent notes that Ohio’s system in 2012 used the combined failure to vote and the failure to return a postcard to begin the “purge” process for more than 1 million voters. If not returning a postcard meant the voter has moved, this suggests that nearly 13 percent of Ohio’s population had moved in the previous two years. But, he noted, “the streets of Ohio’s cities are not filled with moving vans.” In fact, it seems likely that at most a third of that number had actually moved, he said.
The policy argument to one side, the case also turned on another part of the text of the two statutes. The NVRA, as Alito noted, does allow the use of returnable postcards as a means of finding voters who have moved or died. That seems to come with a condition, though: The postcard method, it says, may be used when the state learns of “change-of-address information supplied by the Postal Service.” It can then use the postcards and wait through two cycles before purging. The majority read that simply as an example. Thus the states can also begin the purge process without any reason to suspect a change of address—that is, only because an individual has failed to vote.
And there’s the textual rub. The NVRA says that state programs “shall not result in the removal of the name of any person from the official list … by reason of the person’s failure to vote.” And the HAVA says that no voter can be removed “solely by reason of a failure to vote.”
The majority said that Ohio’s system doesn’t remove a voter “solely” for not voting; instead, the removal is for not voting and then for not answering the postcard. Breyer’s dissent argued that procedure clearly violates the text. If a voter has already filed a change of address, the postcard method, the monitoring of the vote for two elections, and the eventual purge are caused by the address information, not by failure to vote alone. If Ohio sends the postcard any time a voter doesn’t vote, however, then the postcard just verifies that the voter hasn’t voted—and not voting can’t be the reason for a purge.
In other words, if you don’t vote, and don’t answer when the state says, “Hey, you didn’t vote!” is not answering a separate cause for removal—or just part of not voting?
I grant you this is a hard textual question—which is precisely why, if I were a judge, I would draw on the “purposes” of the statute. Breyer’s opinion argued that failure to vote is only very slight evidence of having moved—people stay away from the polls for many reasons, including disgust with the often-disgusting choices. And failure to answer a postcard, he argued, “has no tendency to reveal accurately whether the registered voter has changed residences.” Thus, the only cause is the failure to vote: “Nothing plus one is still one.”
After Breyer’s textual exegesis, it fell to Justice Sonia Sotomayor to point out that the decision will have predictable real-world consequences: “Congress enacted the NVRA against the backdrop of substantial efforts by states to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections.” The majority opinion, she wrote, “entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.”
The implication—which, given the state of American politics in 2018, is hardly outlandish—is that the Ohio system will hit these voters hardest because, well, that’s what it was designed to do. And the twin statutes at issue, Sotomayor noted, forbid “discriminatory” applications of their provisions.
As voting-rights guru Rick Hasen pointed out immediately after the decision, Alito didn’t really answer this charge; instead, he wrote that the challengers had not relied on that argument, and that Sotomayor did not “point to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent.” Sotomayor’s dissent, Hasen noted, seemed designed to provide a roadmap for challengers who will be able to provide such evidence.
Monday’s decision will certainly spur an escalation in the war on the right to vote. That war is being waged largely in red states. The federal government, now under Republican control, has joined the battle as well. Though the Obama administration joined the plaintiffs in opposing Ohio’s system, it reversed its position when Trump took office.
Future skirmishes in the war will be refereed by this Court, whose majority has made its leanings clear.
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