When the Supreme Court hears oral arguments this week in a case challenging Ohio’s voter-purge policies, there will actually be two conversations going on: what we’re supposedly talking about, and what we’re actually talking about.
Supposedly, Husted v. Philip Randolph Institute is a close case about a question of formal logic and statutory interpretation. In Ohio, non-voting triggers the sending of a notice letter—and if you don’t answer the notice, you’re removed from the rolls. Is that legal?
It depends on what the word “reason” means. Two voting-rights laws passed by Congress specify that voter-maintenance procedures “shall not result in the removal of the name of any person… by reason of the person’s failure to vote.”
Now, logically speaking, non-voting is not a sufficient reason to be purged under the Ohio policy—but it is a necessary one, a “trigger” in the words of the lower court opinion. So, the case is about whether Ohio isn’t allowed to purge you for not voting, but is allowed to start the purge process for not voting.
Several hundred pages of legal argumentation have bandied that back and forth.
But what are we really talking about? Why have two dozen nonprofits filed amicus briefs in the case? Why has the Department of Justice intervened, and made the exact opposite argument from the one it made two years ago?
The answer is simple, albeit largely unspoken: Democrats want as many people to vote as possible, and Republicans do not. That’s not because Democrats are more righteous. Rather, since Republican voters are disproportionately wealthy, white, and privileged, they’re more likely to jump through the hoops of a system like Ohio’s. So, the harder you make it to vote, the more likely Republicans are to win. Whereas, if you make voting easier, more disenfranchised voters, more people of color, and more economically disadvantaged voters—all Democratic constituencies—will show up. It’s really quite simple.
No one’s going to say that at the Supreme Court, of course, because in a way, that political calculation is irrelevant to the legal determination the court is going to make. And unlike recent cases in which voter suppression efforts were found to be a result of racial discrimination, Husted is just about legal formulas.
But as soon as you start to dig beneath that literal surface of the text—the fetish object of supposed “strict constructionists” like Justices Alito and Gorsuch—the murkier it gets.
First, consider the impact of this week’s case. In 2014, 4.6 million registered Ohioans didn’t vote, and had to respond to a single mailed notice to get back on the rolls (PDF). It’s not known how many of those responded, but the 2016 presidential margin in Ohio was 446,821—just 10 percent of the people caught in the policy after 2014. These cases determine elections.
Second, determining what Congress meant when it said “by reason of not voting” in 1993 is an exercise in futility. I was there, working on Capitol Hill at the time when the National Voter Registration Act (NVRA) was passed. It was a messy series of compromises.
In exchange for “Motor Voter,” i.e., the requirement that states enable people to register to vote at the DMV when they renewed their drivers’ licenses, Democrats had to give a little. So while the NVRA (and a successor law passed in 2002) urges states to make it easier to vote, it also urges states to maintain accurate voting rolls and purge ineligible voters.
Which is where things immediately get weird.
Enabling more people to vote is a clear objective; it’s good for society, and good for Democrats. But how can you justify preventing people from voting?
Since Republicans can’t say the real reason—namely, making it harder to vote helps Republicans—they’ve become very creative in answering that question. We have to prevent voter fraud, they say. Having bloated voting rolls is expensive, several states argued in Husted amicus briefs. Having ineligible people on the rolls lessens the value of the franchise itself.
OK, but is there any evidence for these claims? Not a whit. There is hardly any voter fraud in America. (In fact, a study by a Loyola law professor found that between 2000 and 2014, there were merely 31 reported instances of voter impersonation in the entire country. Out of more than a billion votes cast.) Ineligible voters rarely vote, and when they do, it’s usually by mistake. Yes, it costs a bit of money to maintain the voter rolls and send out notices to people, but it costs more money to go to the trouble of purging them.
But just like the right has concocted fake climate science to deny the actual scientific consensus on climate change, so it has concocted fake claims of voter fraud to create a crisis where none exists.
Given all this, is there any chance for truthfulness in Husted, or is it just going to be another judicial kabuki dance in which everyone wears masks and pretends?
Turns out, there is a small chance, if the court dares to take it.
Under President Obama, the Justice Department had argued that the NVRA forbids non-voting to be a “trigger.” Now, under Trump, the Justice Department has argued that it doesn’t (PDF). And while there’s a lot of verbiage in the DOJ brief about statutory construction, there is—surprise!—no evidence that a stringent voter-purge policy is actually necessary for any reason.
This about-face is important because, ordinarily, the Supreme Court gives great deference to how the Department of Justice interprets laws it is charged with enforcing. In a normal case, the DOJ brief would be accorded significant respect.
Here, however, several other amici noted that nothing occasioned the change of position other than the change in administration—politics, in other words.
Which really should give the lie not only to the Justice Department’s brief but to the fakeness of Husted itself. Everyone is wearing a mask: liberals arguing for necessary conditions, conservatives arguing for sufficient conditions, and everyone doing so for political reasons—except, of course, the Democrats have truth on their side, if that still matters.
If the Supreme Court chooses not to defer to the Justice Department’s brief, it could finally call the government’s bluff, noting that no new facts dictated the change in position—only a new political party. Because ultimately, facts are being played like cards in a poker game, and that is not what a Supreme Court case ought to be about.
At one point in the amicus brief filed by the NAACP Legal Defense Fund (PDF), the lawyers write that deference to the Justice Department “is based on the premise that the Department will represent the public interest, not simply parrot the ideological views of a new administration. As such, the Department must provide a principled basis for any change in its prior interpretation of federal law. Otherwise, that position deserves no weight.”
However the court rules on the merits of the case, that is a position it should wholly endorse. Call this charade what it is. Show us that the emperor has no clothes. Tell us that somewhere, the truth still matters.