How Do YOU Think About the Right to Vote?

Posted in: Election Law

By a 5–4 vote, on June 10 the Supreme Court upheld the legality of Ohio’s Supplemental Process, which removed some voters from their registration to vote. Husted v. A. Philip Randolph Institute et al. Under that policy, Ohio sends notices to voters who have not voted for two years. The voters were removed from registration if they 1) fail to respond to the notice and 2) are then inactive in voting for an additional four years. The Court rejected the argument that Ohio violated the federal National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA) in its procedures. Justice Alito, joined by Roberts, Kennedy, Thomas, and Gorsuch, upheld the legislation. Justice Breyer, with Ginsburg, Sotomayor, and Kagan, dissented. Justice Thomas wrote a separate concurrence, and Justice Sotomayor added her own dissent.

The opinions reflect division over how to analyze the right to vote. Alito and Breyer disagreed about how to interpret NVRA and HAVA. Thomas added an argument protecting states’ constitutional rights to set election requirements. Sotomayor focused on the minority, low-income, disabled, and veteran voters whose voting rights were diminished more than others.

The opinion spends little time on the facts of the case. One of the persons who challenged the litigation for restricting his right to vote, veteran Larry Harmon, does not even appear in the opinion. With such disagreement, your assessment of the opinion, like mine and the justices’, will probably by based on how you think about the right to vote. Would you be upset if your home state contacted you for merely missing one election? Is the most important aspect of voting accuracy or anti-discrimination in voting registration?

Alito v. Breyer: Sparring Statutory Analyses

Alito and Breyer have sparring, somewhat arcane, statutory analyses of NVRA and HAVA. NVRA’s Section 8(b)(2) says the state’s conduct “shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.” HAVA reinforces that requirement by saying “no registrant may be removed solely by reason of a failure to vote.” Alito argues that the voters were not removed solely because of their failure to vote, while Breyer says they were.

That difference is based on the “trigger” to the investigation. Alito and the state think it is legal for the failure to vote to trigger an investigation into whether the voter’s residence has changed. By the time the voter loses her status, she has not voted for six years and has failed to return a letter to the state. Thus there is no way she has lost voting status solely because of her failure to vote. In contrast, Breyer and the law’s challengers conclude that the failure to vote cannot serve as a trigger for a change of address notification. If it does, people lose their voting status because they did not vote, which straightforwardly violates the statute.

The majority and the dissent also disagree about Section 8(d) of the NVRA and its mention in HAVA. According to HAVA, NVRA’s Section 8(b)(2), which was quoted above about failure to vote,

is amended by striking the period at the end and inserting the following: “, except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters if the individual—

(A) has not either notified the applicable registrar (in person or in writing) or responded during the period described in subparagraph (B) to the notice sent by the applicable registrar; and then

(B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal office.

Subsections (c) and (d) of NVRA cover “Voter Removal Programs” and “Removal of Names from Voting Rolls.” Alito and Breyer disagree about the meaning of subsection (d), which was at issue in this case. According to that part of the statute,

(d)(1) A State shall not remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence unless the registrant—

(A) confirms in writing that the registrant has changed residence to a place outside the registrar’s jurisdiction in which the registrant is registered; or

(B)(i) has failed to respond to a notice described in paragraph (2); and

(ii) has not voted or appeared to vote (and, if necessary, correct the registrar’s record of the registrant’s address) in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice.

Alito again thinks that Ohio’s Supplemental Process is consistent with subsection (d), because the state removes a registrant from the list of eligible voters only after the voter has failed to respond to the notice and not voted in two general elections. In contrast, Breyer thinks, once again, that subsection (d) is violated because the whole investigation starts with the state’s noticing someone’s failure to vote and acting upon it.

Alito and Breyer also disagree about the significance of a failure to respond to the state’s notice. Alito thought it was legitimately considered as evidence of a person’s change of address. Breyer, in contrast (and subject to some mockery by Alito), argues that it is a “human tendency not to send back cards received in the mail.” Such a tendency is not evidence of address change for the dissent.

Most of the majority’s and dissent’s analysis is this disagreement over the terms of the statute. Alito does not talk about the facts of individual Ohio voters. Breyer refers to them indirectly, mentioning the numbers of people who were inappropriately contacted in this case or who didn’t answer their mail. Readers who like strong and moving human stories will not find them described by these two authors.

The other two justices add a little more passion. Justice Thomas, who joined the majority, wrote a sole concurrence. And Justice Sotomayor, who joined Breyer’s dissent, wrote a sole dissent.

Thomas Concurrence: States’ Rights

Thomas told an alternative story, even though he “join[ed] the Court’s opinion in full.” He joined the majority’s opinion because it avoided serious constitutional problems. He agrees with the Court’s statutory analysis, but raises further constitutional objections to the challengers’ position.

According to Thomas, the Voter-Qualifications Clause gives states broad power to set qualifications for elections. U.S. Const., Art. I, §2. A victory for the voters in this case would have interfered with the states’ constitutional “authority to verify” whether voters are really qualified to vote. The states, not Congress, have the authority to decide “who can vote.” Thomas did not want the states’ constitutional power weakened here as it would have been, he concludes, if the dissent had won.

Sotomayor Dissent: Purged Voters

Justice Sotomayor emphasizes purged voters and voter suppression while joining Breyer’s dissent “in full.” She notes that the dissent’s reasoning is also consistent with the NVRA’s purpose to “increase the registration and enhance the participation of eligible voters in federal elections,” and not only to “ensure that accurate and current voter registration rolls are maintained.”

Sotomayor summarizes a long history of voter suppression and emphasizes that the statute’s goal is also to increase voting, not simply to remove voter eligibility. In her language, “Ohio’s Supplemental Process reflects precisely the type of purge system that the NVRA was designed to prevent.” She is especially concerned that minorities affected by this law either have to reregister or are denied right to vote. According to her dissent, amicus statistics show that, under Ohio’s law, African Americans are purged at 10 percent while the number is only four percent for white suburban voters.

For Sotomayor, such discrimination does not have to be litigated as a discrimination lawsuit. Instead, such facts make the Ohio law a violation of the “failure to vote” provision. At the end she encourages voters to work harder to overcome voting obstacles set for them by their home states.

The majority and dissent were not silent about these two opinions. Justice Breyer disagreed with Thomas’ constitutional analysis, concluding that the Constitution does not grant states the power to decide “who may vote.” Alito dismissed Sotomayor’s argument, concluding that the voters did not litigate this as a discrimination case and therefore cannot win it now as one.

How Do You Think About the Right to Vote?

Many stories initially written about this case focused on veteran Larry Harmon, who discovered when he went to vote in 2015 that he was no longer registered. He was removed due to Ohio’s Supplemental Process. He was not mentioned in the Supreme Court’s opinion. In pre-Court discussions as in the opinion, the state emphasized the accuracy of its registration while challengers defended their civil right to vote.

When the Court decided this opinion, Ohio was the only state that moved to investigate voters’ residences so quickly, only because they had missed one election. The Court’s result will probably encourage other states to do as Ohio did, and seek to remove voters more quickly from their registration lists.

Accuracy, per Alito or discrimination, per Sotomayor? Over time, I’ve learned the values of the dissenters’ discrimination perspective over the majority’s accuracy concerns.

It’s still surprising to me, and to the family, friends, colleagues and students who have known me for many years, that I did not vote in the 2016 presidential election. I am a law professor and I always vote. Unfortunately, I was at that time beginning a successful recovery from an attempted murder attack, which left me initially unconscious and then recuperating outside my home state. That would have entitled a state with Ohio’s laws to start investigating whether I had moved. And, from my perspective, that decision would be based solely on my failure to vote due to incredibly hard personal circumstances.

I’ve learned very slowly, and over time, that similar events happen to many people, especially minorities, low-income people, the disabled, the homeless and veterans like Larry Harmon, who face regular hardship and discrimination. Some people are too sick to vote, forget to vote, make a statement by not voting, or simply choose not to vote because they have other things to do.

That experience makes me more sympathetic with the first three purposes of the NVRA than with the last. The stated purposes of NVRA are:

  1. to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;
  2. to make it possible for Federal, State, and local governments to implement this Act in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;
  3. to protect the integrity of the electoral process; and
  4. to ensure that accurate and current voter registration rolls are maintained.

The Court’s decision in this case threatens that more states will spend time cleaning their books rather than encouraging people to vote in all circumstances. Learning about the lives of people who face regular discrimination encourages me to join Justice Sotomayor in asking them 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.”

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