Courts

Supreme Court Votes Along Party Lines, Allows Red States To Purge Voters

If there is one thing conservatives throughout history have hated, it's people voting.

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The Supreme Court gave the thumbs-up to a controversial Ohio program aimed at purging voters from its roles. It’s a huge win for Republicans, generally, and specifically red-state Republicans who are always looking for new and exciting ways to keep people from voting. The decision was 5-4, with all the Republican appointed justices voting in favor of voter purges and all the Democratic appointed justices voting “WTF?” Again, Mitch McConnell and the Republican party didn’t steal a seat on the Supreme Court for nothing. Merrick Garland would have likely upheld, you know, voting rights, while Neil Gorsuch was eager to diminish them. Never forget.

Samuel Alito wrote the majority decision in Husted v. A. Philip Randolph Institute. I know people like to think the Supreme Court is concerned with “law” and not “politics” (as if those two things are mutually exclusive), and conservatives in particular like to believe that there is some deeper knowledge they are applying that liberals just don’t get. But in this case, Alito gives up the whole game in his closing flourish:

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.

It is axiomatic to say that voting is at the very heart of republican government. Hell, there is no such thing as “republican government” without voting. Who gets to vote, and how, is the most crucial Constitutional question OF ANY CONSTITUTION.

Alito shuttles this critical question under the rubric of a “policy disagreement” to separate it from mere statutory interpretation and application. In his view, Congress gets to make “policy,” courts merely interpret it. To agree with Alito, you too have to think voting is a mere policy choice. “Should everybody vote?” Policy. “What if only white people vote?” Policy. “How about everybody votes but the votes of rich white men count twice?” Good policy.

Voting is not mere policy. It’s the wellspring from which the entire government gets its legitimacy. To suggest that the Supreme Court is somehow ill-equipped to settle this disagreement on who should be allowed to vote is to suggest that the government is allowed to choose its people, as opposed to the people being allowed to choose their government. That very well might be the kind of society Alito and the conservatives want, but it’s not the one we are supposed to be living in. Alito here abdicates his Constitutional responsibility to check Congressional power, and instead cedes to the tyranny of the majority. “We have no authority to second-guess Congress”? Bruh, you’re only here to second-guess Congress and hold them accountable to our form of government as expressed in the Constitution.

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And, to my mind, Alito is wrong on his statutory interpretation anyway. Once again, a conservative justice has missed the forest for a fig leaf, and applauds himself for his willful ignorance.

At issue is Ohio’s process for purging voters. Ohio is controlled by Republicans and therefore wants fewer people to vote. If you don’t get that, I can’t slow down the whole class for you, but if everybody voted Republicans would get trounced. Keeping turnout low is a survival strategy for Republicans.

With that in mind, Ohio came up with a devious way to kick people off of their voting rolls. If you failed to vote in two consecutive federal elections, Ohio wanted to take away your registration. You could have moved, or died! And if you didn’t do those things, well, too bad, you should have voted.

The problem is that the National Voter Registration Act, as amended by the Help America Vote Act, said that you couldn’t purge people off the rolls merely for “failure to vote.” You also can’t remove voters simply because of a change of residence, absent written confirmation from the voter or a failure to return a change of residence card.

That “failure to return” aspect gave those clever conservative Ohioans a fig leaf with which to actuate their purge. If you don’t vote in two consecutive federal elections, Ohio sends you a card, in the snail mail, asking if you are still alive and living at the address. If you fail to return it, you’re kicked off the roles. See, you’re not being kicked off for failure to vote, that merely triggers the process to get you kicked off. Savvy? You’re being kicked off because you didn’t send back the card, which is a process specifically authorized by Congress.

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It’s an obvious dodge around the spirit of the law. The Supreme Court is not required to be impotent in the face of such reckless hate for voting rights.

Alito, and the conservative majority, know that Ohio is just trying to pull a fast one around the NVA and the HAVA. They just don’t care. Alito explains that the fig leaf is enough for him:

Ohio’s removal process follows subsection (d) to the letter

I’d ask Sam Alito how he can be so obtuse, but I’m pretty sure that he’d cast me down with the sodomites.

The decision is a big blow to voting rights in this country, but… you know what, if we can’t overcome such hurdles than maybe we don’t really deserve them. As Ben Franklin (apocryphally) said: we have a Republic, IF WE CAN KEEP IT. The forces of conservatism always try to restrict the franchise. Everywhere. Throughout history. Restricting voting rights is WHAT CONSERVATIVES DO.

The harder they make voting, the more organized and passionate the opposition needs to be.

If everybody voted, the GOP would lose. Seems like that should be the goal. That feels like an easier challenge than getting five Republican justices to respect the spirit of universal suffrage.

Husted v. A. Philip Randolph Institute [Supreme Court]

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.

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