[Image via PBS]

Yesterday, the U.S. Supreme Court handed down its decision in the highly-anticipated case of Husted v Philip Randolph Institute involving Ohio’s voter list maintenance procedures – and the result was what I expected: a narrow majority siding with the state on the issue of whether voters’ failure to vote may be taken into account when updating the rolls. SCOTUSBlog’s Amy Howe has an analysis of the opinion:

The Supreme Court today rejected a challenge to one of the practices used by Ohio to remove voters from the state’s voter rolls. By a vote of 5-4, the justices agreed that the practice under question – which cancels the registration of voters who do not go to the polls and who then fail to respond to a notice – does not violate federal laws governing voter registration. The decision could mean that more states will adopt similar laws to trim their voter rolls, particularly when (as the majority observed today) roughly one in eight voter registrations is “either invalid or significantly inaccurate.” Justice Sonia Sotomayor criticized the ruling in her dissent today, predicting that it could have a disproportionate effect on the poor, the elderly and minorities.

The case arose when U.S. Navy veteran Larry Harmon went to his local polling place in Ohio to vote in 2015. Harmon learned that, although he had lived in the same place for more than 16 years, he had been removed from the voter rolls because he had not voted in 2009 and 2010 and then also had not responded – because he said he didn’t remember receiving it – to a notice that the state elections board had sent him in 2011 to confirm his eligibility.

Harmon and Ohio civil rights groups went to court, arguing that Ohio’s practice conflicted with two federal voting laws. The first law, the National Voter Registration Act, was enacted in 1993 to advance two goals: Making it easier for would-be voters to register while at the same time guaranteeing “accurate and current” registration lists. The second law, the 2002 Help America Vote Act, directed the states to maintain a system to cull ineligible voters from their lists. Congress indicated that states can remove voters “who have not responded to a notice and who have not voted in 2 consecutive” federal elections, but it added that “no registrant may be removed solely by reason of a failure to vote.”

The majority opinion by Justice Alito concluded that Ohio’s practice does not violate the NVRA’s “failure to vote” provision:

In a decision by Justice Samuel Alito, the court emphasized that subsection (d) of the NVRA specifically allows states to remove a voter who “has failed to respond to a notice” and “has not voted or appeared to vote.” Indeed, the majority stressed, not only “are States allowed to remove registrants who satisfy these requirements, but federal law makes this removal mandatory.” The Ohio practice at issue in this case, the majority concluded, “follows subsection (d) to the letter”: “It is undisputed that Ohio does not remove a registrant on change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years.”

For the five justices in the majority – Alito, along with Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch – the extent to which Ohio’s practice hews to subsection (d) was enough. And they rejected the challengers’ argument that the state’s practice violates the ban on removing voters from the registration lists “solely by reason of a failure to vote” because it uses the failure to vote as the trigger for sending the return card. The majority reasoned that Ohio’s practice would violate the “failure-to-vote” clause “only if it removes registrants for no reason other than their failure to vote.” But here, the majority reiterated, the state “removes registrants only if they have failed to vote and have failed to respond to a notice.”

Two dissents (by Justices Breyer and Sotomayor) focused on the potential for disenfranchisement in the application of the policy – though the majority opinion (as is typical) addressed and responded to both critiques:

Justice Stephen Breyer dissented from today’s decision, in an opinion joined by Sotomayor and Justices Ruth Bader Ginsburg and Elena Kagan. Breyer would have struck down Ohio’s practice not only because it violates the provision prohibiting states from removing voters from their list “solely by reason of a failure to vote,” but also because he believes that Ohio is not complying with its obligation, under the same federal laws, to make a “reasonable effort” to remove ineligible voters from its lists. Breyer complained that the state reads too much into a voter’s failure to return a notice to confirm his eligibility. There is no reason to assume such voters have moved, Breyer suggested; for whatever reason, he posited, it’s simply human nature that people don’t return cards that they get in the mail.

Alito pushed back against the Breyer dissent, criticizing its reliance on its “own cobbled-together statistics” and “a feature of human nature of which the dissent has apparently taken judicial notice.” Breyer may not think that a voter’s failure to confirm his eligibility by taking what Alito characterized as “the simple and easy step of mailing back the preaddressed, postage prepaid card” or updating his information online has any significance, Alito wrote, but Congress disagreed. What Breyer’s dissent really boils down to, said Alito, is a “policy disagreement.” But this case is about interpreting federal statutes, Alito emphasized: “We have no authority to second-guess Congress” or to decide whether Ohio’s practice is the best way to keep its voter rolls current. “The only question before us,” Alito concluded, is whether the practice “violates federal law. It does not.”

The strongest objections to today’s ruling came from Sotomayor, who wrote alone to complain that the court’s opinion “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.” Sotomayor pointed to a “friend of the court” brief filed in the case indicating that “African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity” in the last few years, as “compared to only 4% of voters in a suburban, majority-white neighborhood.” Moreover, she added, most states have found a way to keep their voter-registration lists accurate without relying on the failure to vote as a trigger for their schemes. “Today’s decision,” Sotomayor concluded, “forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.”

Alito was equally dismissive of the Sotomayor dissent. He observed that the dissent “says nothing about what is relevant in this case,” because no one had argued that the practice ran afoul of a provision in the NVRA barring discriminatory state programs; indeed, he noted, Sotomayor had not actually “pointed to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent.” Strong words again, but almost certainly not the last ones we will see at the Supreme Court this month.

There were two “takes” in the aftermath of the opinion that I thought were particularly interesting. The first came from David Becker at the Center for Election Innovation and Research, who pointed out that the Husted case reflects voter list maintenance procedures which are becoming obsolete in many places, including Ohio:

[E]lection officials have much better tools available today, and that’s why I believe the impact of this decision will be minimal. Why? Because despite the heated rhetoric on both sides, in the more than twenty years I’ve worked in elections, I’ve found that almost all election officials—Democrats, Republicans, and non-partisans—want to get this right. They want all eligible voters, and only eligible voters, on the lists. They realize old and inefficient tools like mass mailings are not only very expensive, they yield highly questionable results. Just because the Supreme Court says Ohio’s process is strictly legal, doesn’t make it a good idea.

Which brings us to the Electronic Registration Information Center (ERIC). This data center, run by the states that comprise it, can effectively find voters who have moved since they last voted, as well as those who are deceased, and give election officials enough information to accurately update voter records, consistent with the NVRA… And there’s one key fact that shouldn’t be lost in this conversation: in 2016, after realizing that they needed a better list maintenance tool, Ohio joined ERIC.

Ohio’s supplemental process is legal, but while it was state-of-the art in the 1990’s, like AOL, it’s a dinosaur today. States are probably just as likely to choose to adopt such a process as you or I might be to go out and sign up for AOL dial-up internet again.

The other key observation comes from UC-Irvine’s Rick Hasen, who writes in Slate that the argument advanced by Sotomayor and rejected by Alito could be a preview of a new round of disagreements on how evidence of discrimination can be used in voting cases:

Whether Alito or Breyer had the stronger analysis of the interplay of the statutory provisions is unclear to me, but both opinions said little about the key political issue underlying the case, an issue Justice Sotomayor flagged in her separate dissent. After noting that Congress passed the Motor Voter law in light of a history of using restrictive registration and purge rules to suppress the vote, the Justice pointed to evidence showing that the process “has disproportionately affected minority, low-income, disabled, and veteran voters.” She noted evidence that in Hamilton County, Ohio, “African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity” since 2012, as “compared to only 4% of voters in a suburban, majority-white neighborhood.” She also cited amicus briefs explaining “at length how low voter turnout rates, language-access problems, mail delivery issues, inflexible work schedules, and transportation issues, among other obstacles, make it more difficult for many minority, low-income, disabled, homeless, and veteran voters to cast a ballot or return a notice, rendering them particularly vulnerable to unwarranted removal under” Ohio’s process. [NOTE: Pepperdine’s Derek T. Muller had a series of Tweets yesterday noting the origin of this statistic in a news story and highlighting the evidentiary challenges in cases like these.]

Justice Sotomayor pointed out that another provision of the Motor Voter law requires that any removal program “be uniform, nondiscriminatory, and in compliance with the Voting Rights Act,” and this part of the law provides a potential path forward. As more states enact laws like Ohio’s, it will become further apparent that these laws have discriminatory effects.

And aside from lawsuits, worries about voter suppression have energized the left to fight such laws politically. In at least some states, discriminatory laws like Ohio’s can be fought through legislative battles and at the ballot box.

Justice Alito’s response to Justice Sotomayor is quite telling. He rightly noted that the challenge in this case was not about whether Ohio’s law was discriminatory. But he added that Justice Sotomayor did not point “to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent.”

Contrary to Justice Alito’s intimation, plaintiffs alleging a violation of the Voting Rights Act need not prove discriminatory intent; discriminatory impact is enough. Justice Alito may be subtly signaling where the Court’s conservative majority is likely to go in future years. At some point the Court may well consider striking down as unconstitutional that part of the Voting Rights Act that holds it is illegal for states to pass voting laws that have a discriminatory impact. He may require plaintiffs to come up with proof of intentional racial discrimination, which is much harder to do.

Fortunately, as of now this part of the Voting Rights Act still stands, and Justice Sotomayor has laid out a two-part strategy to try to reverse discriminatory laws like Ohio’s. Today voting-rights activists lost the battle, but the war is not yet over.

If nothing else, SCOTUS’ decision clarifies one key question to which dozens of states (as friends of the Court) had sought answers: whether or not non-voting data can be used as Ohio does as part of list maintenance procedures. The answer to that question is “yes” – but there are so many more in the ruling’s aftermath:

  • Will other states seek to follow suit and if so will those processes raise new questions requiring new litigation?
  • Does the changing nature of list maintenance mean that Husted was an example of “fighting the last war”?
  • Will there be suits in Ohio or elsewhere about the discriminatory impact of voter list maintenance – and how will the courts evaluate them?

As always, SCOTUS’ opinion raises as many questions as it answers – and the fallout from the decision is worth watching for months and years to come. Stay tuned …

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