Monday, June 11, 2018

A Brief and Obvious, But Nonetheless Necessary, Observation About Today's SCOTUS decision in the Ohio Voter Registration Case

by Michael Dorf

Today's ruling in Husted v. A. Philip Randolph Institute divides the Court 5-4, with the five Republican-appointed justices voting to sustain, and the four Democratic-appointed justices voting to invalidate Ohio's procedure for--depending on your priors--updating or purging the voter rolls. There is, to be sure, a genuinely difficult question of statutory interpretation that divides the justices, but one would have to be incredibly naive to think that that is where the real action lies.

The dispute in the case concerns how to read the National Voter Registration Act (NVRA) as amended by the Help America Vote Act (HAVA). Ohio mails a notice to anyone who hasn't voted in the last federal election asking whether they have moved. If someone doesn't answer and also fails to vote in the next two federal elections, they are purged from the voting rolls. The dissenters say this violates a provision of the NVRA that forbids purging voters from the rolls on the grounds of non-voting. The majority says that's wrong, because NVRA as amended by HAVA only forbids purging voters based "solely" on non-voting, and Ohio doesn't do that; it purges based on non-voting plus failure to return the pre-paid notice.

Who's right? I think that's a hard question. Justice Alito for the majority is surely right as a strict linguistic matter, but that doesn't get us very far. A hypothetical explains why. Suppose a state purged voters from the rolls if they didn't vote in three consecutive elections AND were unable to run a mile in under four minutes. His that's-not-based-SOLELY-on-non-voting would apply equally to such a procedure, but sustaining a voter-purging system based on such a procedure would be functionally equivalent to purging based solely on non-voting.

Now obviously it's much easier to return a postage-paid postcard saying "I'm still here" than to run a sub-four-minute mile, but Justice Breyer for the dissenters provides pretty good evidence that it's not a whole lot more relevant. Yes, people who have actually moved and failed to vote in a few successive elections will be correctly identified as having moved, but so will a great many people who haven't moved--given how people understandably treat what may look like junk mail. Accordingly, Breyer and the rest of the dissenters conclude that the Ohio procedure is not, in the words of the NVRA, "a reasonable effort to remove the names of ineligible voters."

The best counter-argument for Justice Alito is that NVRA/HAVA specifically refers to the postcard-return procedure, so therefore it can't be unreasonable. That's not a bad counter, but it's not clearly dispositive, because the postcard-return procedure as described in the federal law is not specifically triggered by failure to vote in one federal election. That's Ohio's own requirement, and the very question in the case is whether that's permissible.

My own conclusion is that the text is unclear. The majority, reflecting the values of the GOP, reads NVRA/HAVA as manifesting a concern with people voting illegally. The dissent, reflecting the values of the Democratic Party, reads NVRA/HAVA as concerned about people, especially members of disadvantaged minority groups, being able to vote. That's not my "take." The justices actually say as much. Justice Alito begins his majority opinion by citing a Pew study estimating "that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate." The opening paragraph of Justice Sotomayor's dissent accuses the majority of ignoring the purpose of the federal statutes, which she says, were adopted "against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters."

Is there anything illicit about the fact that the conservative justices would vote and write in a way that supports the Republicans' electoral interests while the liberal justices would vote and write in a way that supports the Democrats' electoral interests? Maybe.

First, to the extent that any of the justices (and Alito's opinion does this more than Breyer's) pretend they are just reading the text of the statutes, they are not being honest with us and perhaps not being honest with themselves.

Second, one hopes that the division among the justices reflects their respective different values and ideologies. It is neither surprising nor especially alarming that justices appointed by presidents of different parties would line up accordingly on questions implicating such values and ideologies. However, cases like this one--and Bush v. Gore and a few others--do not just align the justices based on values but based on seeming partisan identification. I would not accuse any of the justices of voting in voting rights cases based on a conscious calculation of what's best for the Republican or Democratic Party. But an inference of at least subconscious bias of this sort certainly fits the facts.


Joe said...

Thomas and Sotomayor on each side wrote separate opinions. I think if we want to look toward the motivations of each bloc, it's best to cite the main writers -- Alito and Breyer.

"Alito's opinion does this more than Breyer's"

I know it's required to say "both sides do it," but overall, I would generally say that Breyer and others like him are quite open in saying that judging* means making choices and it's not a matter of "the law forces me to" which is to be a blunt often b.s. in hard cases which is especially annoying when used by conservatives to complain liberals are "making stuff up" to advance their values.

We can be upset about the choices Breyer makes -- and Prof. Segall is somewhat atypical as to the extent he is concerned about judicial power on all sides [a Twitter back/forth with me involving U.S. v. Windsor suggests this though it was directly about Obama] -- but should respect his honesty about it in his writings and so forth.

As to partisan biases, it is often hard to separate partisanship and ideology. Political parties tend to split on constitutional issues. Bush v. Gore is cited as a smoking gun here though even there it was complicated, which in no way justifies the result. Which btw was 5-4, Breyer in particularly signing on to Stevens' dissent.

Finally, I think constitutional principle will help settle these close questions, including protecting the right to vote. An argument can be made that the majority furthered that principle but net the five justices there seem to be concerned about other matters.


* [sic] with apologies to Prof. Segall.

Sherry F. Colb said...

Nicely done! I wonder whether there might be a legitimate distinction between those who use their interpretive license to prevent people from voting (in order to help their political party) and those who use their interpretive license to enable people to vote (also to help their political party). I suppose the other side would say that fraudulent voting interferes with democracy as much as unrepresentative voting does. That may be true, but we do have evidence that voter fraud is an unusual occurrence, so the main downside risk seems to be on the side of over-preventing legitimate voting rather than under-preventing fraudulent voting. It also seems relevant to me that in addition to the partisan motivations of justices, the law itself (and its application) may reflect a desire to suppress unfriendly but legitimate votes.

Cody Fenwick said...

I agree with the post, but I think there's a way of understanding the justices' partisan biases in a less troubling light.

Partisan divisions have thoroughly crept into the media and information one consumes and digests. By understanding the world through partisan media, justices, and everyone else, get a different perception of what actual problems exist in the world, their extent, and how important they are. Put simply: If you watch a lot of Fox News, you're likely to perceive voter fraud as a serious threat. If you mainly consume so-called mainstream or liberal news, you probably don't think voter fraud is a big deal and you may be more worried about voter suppression.

Based on these different factual understandings of the world, justices may have disagreements about what count as reasonable burdens, reasonable interpretations, and the original intentions of laws. This could lead justices to make biased judgments on both sides, but they would not be biased in a deeply pernicious sense of simply wanting one's team to win. (This argument is not really applicable in the case of Bush v Gore, in which the legal disputes at issue did not rest on matters of disagreements in conflicting worldviews.)

Jim said...

I'm not sure why Cody thinks it is "less troubling" if Supreme Court justices are deciding cases based on "factual [sic] understandings of the world" that derive from watching a lot of Fox News.

egarber said...

...copy and paste suspicion of politics when the political gerrymandering ruling comes down. Gerrymandering has been a big Republican business in recent years, given Democrats' inability to win at the local level.

Bob Moss said...

The procedure has no provision to ensure that the original notice got delivered. Whatever the percentage, first class mail does get lost. Within the last few years, I picked up a letter from the sidewalk and dropped into the mailbox at the address listed, and two or three times have taken mail to neighbors which came to my house. Suppose I determined that my neighbors vote differently than me, and decided not to give them their mail?? This factor alone should invalidate the procedure on Constitutional grounds. At the very minimum, the notice must be sent by registered or certified mail, return receipt requested.

Michael A Livingston said...

Anyone who thinks Republicans don't try to suppress minority voting probably isn't a Republican

Asher Steinberg said...

I mean, the statute just *does* manifest a concern with voters voting illegally; the provision the Court was interpreting requires states to make an effort to remove the names of ineligible voters from the rolls. And the requirement of a "reasonable effort" doesn't restrict the effort; it means the effort has to be reasonable, i.e., not unserious. I doubt that anyone outside of this litigation has understood "make a r easonable effort to x" to mean "make an effort to do x, but don't do x to an unreasonable degree." Reasonable effort always means the opposite; don't unreasonably do too little.