ORIGINALISM FOR ME, NOT FOR THEE
The Supreme Court Just Let Ohio Commit a Massive Purge of Its Voters
Eight justices split legal hairs. Only one told us what this case is really about: the systemic disenfranchisement of black voters.
“What mighty contests rise from trivial things,” wrote the poet Alexander Pope. The Supreme Court today agreed.
In another ideologically divided, 5-4 decision, the conservatives of the Supreme Court allowed Ohio’s voter purge to stand, ruling that it does not violate the National Voting Rights Act, or NVRA. The number of voters it purges is more than enough to swing a presidential election—yet this case, Husted v. A Philip Randolph Institute, was decided on the tiniest of details.
The NVRA, passed by Congress in 1993, forbids states from using “failure to vote” as a criterion for purging a voter from the rolls. In Ohio, if you fail to vote in two federal elections, you’re sent a notice. If you fail to send back the notice, you’re purged from the rolls.
So, does this scheme (called the “Supplemental Process”) use “failure to vote” as a criterion? It depends on what the meaning of “as” is. Clearly, the failure to vote is a trigger for the purge process, but it’s only the first step in that process. In terms of formal logic, it’s a necessary condition, not a sufficient one.
Today, the court said that is acceptable. Writing for the 5-4 majority, Justice Samuel Alito held that the NVRA “forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way.” (Emphasis in original.)
Writing for the four more liberal justices, Justice Stephen Breyer disagreed, writing that the NVRA says “Do not target registered voters for removal from the registration roll because they have failed to vote.”
Unsurprisingly, each side offers solid statutory interpretation to back up its opinion. Alito cites subsequent laws that prohibit purging voters “solely by reason of a failure to vote.” Solely, he points out (citing Webster’s dictionary), means “alone.” Breyer cites the legislative history of the NVRA’s “failure to vote” clause, which strongly indicates that non-voting cannot be used even as a trigger.
But surely, these are trivial things: two different ways of reading a statute, both of which seem reasonable, both of which dance on the pinhead of a few words in the text. But if that’s true, why is this so controversial? And more to the point, why did the court split along ideological lines?
According to Alito, none of this should happen. He claims merely to be reading the statute as presented, without reference to policy goals—like ending the systemic disenfranchisement of black voters. As he wrote:
The dissents have a policy disagreement, not just with Ohio, but with Congress. But this case presents a question of statutory interpretation, not a question of policy. We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date. The only question before us is whether it violates federal law. It does not.
Is that true, though? Is it just a coincidence that it’s the court’s five conservatives who read the statute correctly and the four liberals read it incorrectly?
If Husted were really a case of close statutory interpretation, you’d expect different opinions, but not ones along such predictable ideological lines. Surely, the way this opinion split suggests that Alito is incorrect, and that something else is going on.
What’s really going on here is that Ohio is over-purging its voter rolls in a way that just so happens to hit less-affluent communities and communities of color while not reducing voter fraud. And yet only Justice Sonia Sotomayor’s dissent makes this argument:
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. 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.
Now, to a conservative, this may read like exactly what Alito described: a policy disagreement, and a Supreme Court justice who wants to make the law rather than merely interpret it. But is that accurate? the meaning of a law is, in part at least, informed by the reason the law was passed. And the court’s liberals are disposed to interpret the statute in light of that reality. They say the NVRA and similar laws are meant to remedy a historic injustice—decades of voter suppression—and that is the context here. Yes, close statutory interpretation—but in the context of, well, reality.
Strangely, the court’s conservatives don’t hesitate to examine constitutional claims in the light of history. That’s how we get pages of citations to obscure 18th-century English legal codes and quotes from the Founding Fathers. When it comes to, say, the Fourth Amendment’s right to be free of unreasonable searches—the issue in a case decided last month— “originalists” crack open the history books to understand the meaning of terms like “papers” and “effects.”
So why don’t they do the same when it comes to statutes like the National Voting Rights Act? Why does history matter when it comes to constitutional rights, but not when it comes to statutory rights?
These are some of the reasons “originalism” is not taken seriously in the mainstream legal academy, even though it is now prevailing dogma among the Federalist Society, the arch-conservative legal organization that is the primary feeder for Donald Trump’s judicial picks (including Justice Neil Gorsuch). Originalism is always selective; if it were consistent, corporations as we know them today would be unconstitutional.
Indeed, if originalists really took themselves seriously, last week’s Masterpiece Cakeshop case would have gone very differently. Remember, Masterpiece Cakeshop is a corporation, not a person, and the Founders were highly suspicious of any concept of corporate personhood. Yet in applying the First Amendment to that case, no one on the court pointed out that, per originalism, a business does not have constitutional rights. So much for the Founders’ intentions.
Now, in a case where looking beyond the four corners of the legal text seems entirely reasonable, the originalists are silent.
Only Sotomayor called the court’s bluff, rejecting the legalism of both the majority and the dissenters. Coming after 53 pages of linguistic jujitsu, her opinion reads like a breath of fresh air:
In concluding that the Supplemental 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.
And finally, she issues a cri de cœur to activists dismayed by the Court’s refusal to see the forest for the trees. Sotomayor writes:
Communities that are disproportionately affected by unnecessarily harsh registration laws should not tolerate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by. Today’s decision 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.