Courts

Purge Case Shows Law Is Just Politics By Other Means

People like to think of law as more 'objective' than petty politics; they're wrong.

By  
on

It should be a simple case of statutory interpretation. The National Voter Registration Act, as amended by the Help America Vote Act, says that states cannot revoke a voter’s registration “solely” for failure to vote. Ohio (and a number of states interested in depressing voter turnout) sends you a notice if you’ve failed to vote in two elections in a row. Unless you return the notice, it removes you from the rolls.

Ohio says it’s doing it to keep their voting rolls updated and clear of people who have died or moved. Anybody with half a brain knows that Ohio is doing it to make it more difficult for poor people to vote, in a move it hopes suppresses turnout for Democratic and third-party candidates.

If you can’t see the basic contours here, please go back to Red State or whatever cave painting you use to stoke your fears of massive voter fraud. The whole class can’t slow down for your dumb ass.

Whether Ohio’s voter purge/suppression scheme is legal will be argued in front of the Supreme Court on Wednesday. Ohio says that it’s not removing people because they didn’t vote; failure to vote merely “triggers” the notice, and it’s the failure to return the notice that results in people being removed from the rolls. Civil rights advocates say that since the removal process only happens when voters fail to vote, they are being removed BECAUSE they failed to vote, in violation of federal law.

I don’t know what the right answer is (I have an opinion, of course), but there should be a “correct” answer. Either “triggering removal” and “removal” are the same thing under the law, or they’re not. We give nine experts a job for life just so they can figure out the answers to these exact questions. In any reasonable world, their opinion would be UNANIMOUS on this kind of question. It’s not like nine expert particle physicists disagree on how many electrons are in a hydrogen atom, even though those kooks would also all agree that they can’t have any clue WHERE the damn electron is at any one time.

Of course, particle physics is an objective science, and the law is a subjective philosophy that people are literally making up as they go along. Stop FOOLING yourselves, lawyers. You are not engaged in the objective search for truth. All you originalists and textualists are selling snake oil. A case like this illustrates that even when the text is plain as day, reasonable people will disagree about what it means. And, what’s more, how they disagree has a lot more to do with their personal politics than their understanding of law as an objective force.

Just look at how the Department of Justice reversed its opinion about ITS OWN INTERPRETATION over the course of the case. When the Ohio scheme was before the Sixth Circuit — where it was ruled in violation of federal law, 2-1 — the Justice Department filed a friend of the court brief on the side of civil rights activists challenging the state. But now that the case is in front of the Supreme Court, the Justice Department has filed papers saying THE OPPOSITE THING. Now Justice wants the Court to side with the state and interpret Ohio’s “trigger” as not being a “removal” in the statutory sense.

Sponsored

I don’t think I have to tell you what changed. It was Barack Obama’s Justice Department that was anti-voter suppression, and Donald Trump’s Justice Department that is all for it. Nothing changed, other than the people in charge wanting a different outcome than the other guys.

You’re, again, fooling yourself if you think the Supreme Court case will be anything more than a vote based on which outcomes the Justices favor.

Alito will write some ridiculous screed touting the importance of states having the right to allow only white male landowners to vote SO LONG AS it doesn’t actually use the words “white,” “male,” and “landowner” when constructing the statute that does the work. Neil Gorsuch will write separately and take us on some English language odyssey he thinks is so clever but is actually droll and pedantic. Sonia Sotomayor will write passionately about the systemic disenfranchisement of black and brown voices, momentarily forgetting that such disenfranchisement was what Congress literally wanted when it passed the Help America Vote Act she’s supposed to be interpreting. Kennedy and Breyer will concur, in part, as to Section II of the majority’s opinion, as informed by footnotes four through six, excepting five.

It will all be so much BS. This is a goddamn “yes or no” question. Does “removal” include “triggering removal”?

I wish the justices would just vote in a Twitter poll and save us the dicta.

Sponsored

Does a statute prohibiting "removal" also prohibit "triggering removal"?

View Results

Loading ... Loading ...

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Topics

, , , , ,