Schrodinger’s Brief? New DOJ Filing in Ohio Case Is AND Isn’t a Big Deal

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The already high-stakes Supreme Court case regarding Ohio’s use of non-voting as a trigger for list removal got even more interesting recently when the Department of Justice filed a brief reversing its position in the case. The Washington Post has more:

The Justice Department has reversed its position in a high-profile voting case in Ohio, siding with the state in its effort to purge thousands of people from its rolls for not voting in recent elections…

In a court filing late Monday, Justice Department attorneys took the opposite position from the Obama administration in a case that involves Ohio’s removal last year of tens of thousands of inactive voters from its voting rolls.

In their brief, government lawyers say they reconsidered the Ohio vote-purging issue after the “change in Administrations,” and they argue that the state’s actions are legal under federal law. The case is headed next to the Supreme Court.

Ohio’s procedure allows the state to purge voters who meet certain criteria for being inactive. If a voter has not cast a ballot in two years, the person is sent a notice asking them to confirm their registration. If the voter does not respond and does not cast a ballot over the next four years, the person is removed from the rolls.

Not surprisingly, views on the brief are sharply divided by various litigants’ positions on the merits of the underlying case:

Ohio’s purging process has been defended by Ohio Secretary of State Jon Husted, a Republican who is running for governor. He said the method of removing inactive voters has been used by both Republicans and Democrats to clear the rolls of people who have moved away or died.

“Maintaining the integrity of the voter rolls is essential to conducting an election with efficiency and integrity,” Husted said in a statement in May, after the Supreme Court said that it would hear the case.

“I remain confident that once the justices review this case they will rule to uphold the decades-old process that both Republicans and Democrats have used in Ohio to maintain our voter rolls as consistent with federal law,” Husted said.

Civil rights groups last year challenged Ohio’s process, arguing that such purges are prohibited under the National Voter Registration Act. The Justice Department under Obama filed a friend-of-the-court brief siding with the groups.

The brief filed Monday takes the side of Ohio, and unlike the prior one was not signed by career attorneys in the department’s civil rights division.

“The law hasn’t changed since the department accurately told the court that Ohio’s voter purge was unlawful,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “The facts haven’t changed. Only the leadership of the department has changed. The Justice Department’s latest action opens the door for wide-scale unlawful purging of the voter registration rolls across our country.”

Justice Department spokeswoman Lauren Ehrsam said that the department’s position is supported by “the National Voter Registration Act’s text, context and history.”

“The question is what states are allowed to do in order to maintain their voter registration records — not what they are required to do,” Ehrsam said. “A ruling in Ohio’s favor would simply uphold a practice already in use in many states without requiring any state to change how it maintains its rolls.”

To be fair, this brief is notable as it signals that the new Administration is continuing to shift its position away from a vigorous defense against state efforts to tighten voter rolls and side with states that have made the decision to use non-voting as a trigger for such efforts. [My quick recap of the issue from last March is here.]

But what the brief isn’t, as I’ve seen suggested, is unprecedented. While the 2016 election and the accompanying partisan shift have generated some unusual behavior from the new White House, switching sides on an issue like this isn’t odd at all – in fact, it’s almost to be expected given how differently the two parties view voting issues like this one. If the current (revised) brief were still in place after another national election, one could easily imagine a new Democratic Administration switching back to the other side to favor more protections for voters. There has been some attention to the identity of the attorneys (not) involved, but even that’s not surprising given civil service protections and the overall slow pace of hiring by the new Administration.

So, the brief both is and isn’t notable – and in that way reminds me of the famous quantum physics paradox of Schrodinger’s Cat (famously popularized by CBS’ Big Bang Theory), in which a (fictional) cat is placed in a sealed box with a vial of poison that will open at a random time. Because we cannot see if the poison has been released, the cat can simultaneously be considered alive and dead – and we don’t know which until the box is opened.

So it is with this brief; it’s simultaneously a big deal – because of the switch on the merits and the potential impact it might have on SCOTUS’ consideration of the case – and not a big deal because that change of position could have been predicted and even expected due to the change in Administration. We won’t know until the Court “opens the box” at oral argument this fall and issues its opinion sometime afterwards.

Until then? Stay tuned …

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