On Monday, the U.S. Supreme Court took a flamethrower to the voting rights of people of color in this country—what little remained of them, anyway.
In Husted v. A. Philip Randolph Institute, the biggest voting rights case since the Court decimated the Voting Rights Act in Shelby v. Holder back in 2013, the Court said that an Ohio law that purges voters from the rolls if they sit out one presidential and two midterm elections, and then fail to return a piece of government mail, is perfectly lawful under the National Voter Registration Act (NVRA)—which Congress enacted to prevent these kinds of purges from happening in the first place.
Justice Samuel Alito penned the majority opinion, joined by conservative Justices John Roberts, Clarence Thomas, Neil Gorsuch, and swing voter Anthony Kennedy. Meanwhile, Justice Stephen Breyer—perhaps at his nerdiest (he both attached homework to his dissent in the form of appendices with the relevant statutory text attached and tells people to refer to it, and spends a full two pages pondering the difference between forwardable and nonforwardable mail)—wrote a dissent joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.
Both opinions are a dry parsing of two voting rights statutes—the NVRA (commonly known as the “motor voter law”) and the Help America Vote Act of 2002. Neither place the statutes into greater context.
But then, Justice Sotomayor branched off on her own—much as she did in her famed dissent in Utah v. Strieff. She wrote a separate dissent, in which she does in five pages what Breyer could not do in 19: draw the connection between historical voter suppression and the pernicious effects of Ohio’s voter purge process. And it’s her dissent, rather than the snoozers of Breyer and Alito’s opinions, that puts into perspective just how much is at stake with the Court’s refusal to safeguard voting rights.
“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,” Sotomayor wrote. “In concluding that [Ohio’s process] does not violate the NVRA, the majority does more than just misconstrue the statutory text. It 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.”
Clearly irritated at this accusation, Alito wrote that the NVRA has a provision prohibiting state programs that are discriminatory—and that plaintiffs in the case could have raised the issue and didn’t. “And Justice Sotomayor has not pointed to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent,” Alito sniffed, despite knowing (presumably) that, as University of California, Irvine law professor Rick Hasen noted for Slate, “plaintiffs alleging a violation of the Voting Rights Act need not prove discriminatory intent; discriminatory impact is enough.”
Alito’s arguments are not particularly provocative, steeped as they are in textual analysis and unmoored to any real-world consequences; he argues that Ohio followed the letter of the law (according to his interpretation) and ignores any deleterious effect the law may have on actual voters. As NPR reports, Alito cited “the same Pew Center on the States study that incoming Trump White House officials cited—misleadingly—to make the case that voter fraud was occurring and immigrants in the U.S. illegally were voting.”
And Breyer’s dissent is professorial, which is of no surprise to anyone familiar with his data-driven writing. Both opinions are fairly dry; and although I agree with Justice Breyer, when it comes down to it between the two of them, it’s a close call who has the better interpretation of the two statutes. (Notably, one of the rules of statutory interpretation is that when it’s a close call, the Court is supposed to look to the legislative history that prompted Congress to enact the law in the first place. Sotomayor does that. Alito doesn’t.)
Breyer does pay lip service to the disenfranchising nature of voter purge policies, noting that literacy tests and poll taxes were used to “keep certain groups of citizens from voting.” But you’d be hard-pressed to know which people were kept from voting. Sotomayor, though, doesn’t mince words. After noting that states “erected procedures requiring voters to renew registrations ‘whenever they moved or failed to vote in an election,’” she specifically references the fact that these kinds of practices “sharply depressed turnout, particularly among blacks and immigrants” (emphasis mine).
That’s exactly what happened in Ohio, Sotomayor points out: In Hamilton County, majority Black neighborhoods in downtown Cincinnati had 10 percent of their voters purged as compared to white suburban neighborhoods where only 4 percent of eligible voters were purged.
“The Court errs in ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against,” Sotomayor writes.
Just as she did in Utah v. Strieff, Sotomayor draws connections between the law, which can often seem stale and antiquated, and real life—where the stale and antiquated laws affect real people’s lives. (Do you see why #TeamLegal spent an entire episode of the #BoomLawyered podcast explaining that Sonia Sotomayor is an absolute boss?!)
And that’s why I would encourage you to not bother sleep-reading through Breyer and Alito’s attempts to parse the statute, but to instead look at the bigger picture that Sotomayor paints. She says that Congress enacted the motor voter law with the express purpose of increasing the number of eligible voters, with the recognition that “discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation … and disproportionately harm voter participation by various groups, including racial minorities.”
She notes that “for many minority, low-income, disabled, homeless, and veteran voters,” voting or responding to government mail can be difficult, thus exposing these vulnerable populations to unwarranted purging. She even gives a shout out to libertarians and principled nonvoters who might be purged as well.
The Court’s decision is a bad one. It will have a domino effect that will lead to more states using voter purge practices to depress turnout among voters of color. But that’s the point, isn’t it? Republicans decided that voter fraud was a problem despite all evidence to the contrary, and began looking for solutions that would conveniently target people who most often vote for Democrats.
Republicans have already won the voter ID battle, which also disproportionately affects voters of color: In 2014, the Supreme Court decided in Crawford v. Marion County Election Board that Indiana’s voter ID requirement was constitutional. Voter purging is simply the new frontier—especially when it comes to the current frenzy over immigration.
As conservative activist and voter fraud fabulist J. Christian Adams (whom Trump picked to serve on his election integrity commission alongside Kris “Voter Suppression King” Kobach) told a group of ALEC members at a voting integrity panel discussion in December of last year, according to the Huffington Post, “Voter ID is an important thing, but it’s yesterday’s fight.”
Adams continued,“[T]he greatest foreign influence in our elections are aliens who are getting on the rolls and aliens who are voting.”
That’s not true. But conservatives need to cling to their trumped-up claims of voter fraud because facing the truth—that demographics shifts may mean fewer votes for the Republican party—is unacceptable to them.
And so they will continue to impose ever more strict voting requirements to keep reliably Democratic voters from the ballot box, and the Supreme Court, apparently, will continue to rubber-stamp those requirements. They won’t do so, however, without a firm word from Sonia Sotomayor, who recognizes these policies for what they are: tools of voter suppression.