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.