Monday, June 11, 2018

Today's Voter Removal Case & Why This Court is Awful

The Supreme Court's decision today in Husted v. A. Philip Randolph Institute upheld Ohio's procedure for removing registered voters from the state's rolls. The vote was 5 to 4. The Justices were split along party lines. All the Republican appointees on one side. All Democratic appointees on the other.

In short, not one Republican Justice found merit in the position of the Democratic Justices. And not one Democratic Justice found merit in the Republicans' position. That, of course, is common with the Court in the last few decades. Certainly on the tough, politically-charged cases. And that doesn't say much for a judicial tribunal whose members are supposed to be neutral, detached, and certainly non-partisan.

This is not about judges--whether on the Supreme Court or some other tribunal--being valueless, disembodied intellects, blind to inequities or other injustices, or unconcerned about the consequences of their decisions. But it is about judges on a court being so polarized along partisan political lines. Not along lines of judicial philosophy, or modes of interpretation, or hierarchy of competing fundamental principles. But split upon the basis of political party and upon the respective political parties' policy preferences.

So in the Husted case, at issue was Ohio's removal of voters who had not been voting and who did not respond to a mailed inquiry. Now, anyone who has been paying any attention to the ongoing debates about voting rights is well aware that Republican and Democratic political officials have been on heated opposite sides. Republican politicians have usually been opposing measures to make registering to vote easier and favoring measures that make actual voting a bit more difficult--typically in the name of reducing voter fraud. Democratic politicians have been opposing and favoring exactly the opposite--typically in the name of protecting the voting rights of minorities, the elderly, and the poor.

And soooooo, before the Husted decision was handed down today, it was a very good bet that the Republican Justices on the Court would vote the way Republican politicians would, and the Democratic Justices the way Democratic politicians would. Indeed, that is precisely how the vote went. 5 Republicans versus 4 Democrats.

The Ohio procedure did result in the removal of voters who had previously been registered. It would even remove some voters who although lawfully registered and still otherwise perfectly eligible to vote, were nevertheless removed without their knowledge and without their wanting to be. On the other hand, Ohio does not remove a voter under its procedure unless 1) there is no "voter activity" for 2 years (i.e., two consecutive years of elections or primaries or even signing a petition, whether federal, state of local), and 2) then there is no response to a mailed notice sent by the state, and 3) then four more years of no voter activity.

Whatever the motivation underlying Ohio's voter removal procedure and whatever the consequences, the legal question in the case was seemingly straightforward: whether the Ohio procedure violated federal law (i.e., the 2002 Help America Vote Act) which says that “no registrant may be removed solely by reason of a failure to vote.” The bare majority of 5 Republican Justices voted no violation; the 4 Democratic Justices said yes.

Speaking through Justice Samuel Alito, the Republican majority focused on the requirement that a voter have failed to respond to the mailed notice as being a reason for removal in addition to the mere failure to vote. So, according to that majority, the Ohio procedure did not violate the federal "failure-to-vote" rule.

Speaking through Justice Stephen Breyer, the 4 Democratic dissenters also focused on the mailed notice but, specifically, on its inadequacy--i.e., it was an unreliable way to determine whether a voter has moved or no longer wished to vote. Hence, the dissenters concluded, the failure to vote was for practical purposes the only reliable basis Ohio was using to remove a voter. (Breyer interwove his argument that federal law required a "reasonable effort" in removal procedures and that the mailed notice was not reasonable.)

Justice Sonia Sotomayor, who joined Breyer's dissenting opinion, also authored a lone one of her own. In it she emphasized the "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 federal requirements and the Ohio procedures should, according to Sotomayor, be read in light of that history.

Justice Alito's majority opinion dismissed both Breyer's and Sotomayor's arguments as based purely on the dissenters' policy preferences rather than on the only legal question before the Court: whether Ohio had actually violated the federal "failure-to-vote" law.

As anyone but a blind ideologue would recognize, there are strong considerations on both sides of this case. Consider whether Ohio does in fact have some basis other than "failure-to-vote" to remove voters from the rolls? Consider whether that additional basis, the mailed notice and failure to respond, is actually reliable and otherwise reasonable? Consider the history underlying these voter restriction and removal laws and their consequences when interpreting and applying the federal safeguards?

Well, all 5 Republican Justices voted that only the first consideration had any merit. All 4 Democratic Justices disparaged that consideration and found no merit in the majority's failure to give conclusive weight to one of the other considerations.

Again, none of the Republican Justices found merit in the position of the Democrats on the Court. Really? And none of the Democratic Justices found merit in the position of the Republicans. Really? Hmmmm. A polarized, partisan, poor Court.

To be more blunt, an awful Court in my view. Not all the time of course. There are cases, to be sure, where one or more of the Justices will vote with the other party on a politically controversial issue. But when Justice Anthony Kennedy is excluded from consideration, those cases are quite infrequent. On most of these tough, politically-charged cases, its the Republicans versus the Democrats--and we often simply have to see where Kennedy will land.

So maybe, to be more kind and accurate, a polarized, partisan, awful Court, except for Kennedy. And the Husted decision today is another case that demonstrates just that.