SOURCE ALERT: U Miami Law Professor Susses Out Husted v. A. Philip Randolph Institute

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The United States Supreme Court ruled today in the voting rights case, Husted v A. Philip Randolph Institute, that Ohio’s reliance on voter inactivity to purge voter registration lists is consistent with applicable statutes because Ohio relies on other factors as well. The Obama Administration had opposed Ohio’s position at the appellate level, where the Sixth Circuit ruled that Ohio’s procedures were inconsistent with the National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA.) 838 F. #d 699. The Trump Administration has supported Ohio’s claims to purge the voter registration lists based in substantial part on voter inactivity.

Frances R. Hill teaches and writes in the area of election law. She has authored an amicus brief filed with the United States Supreme Court and has joined groups of constitutional law professors in signing two other amicus briefs relating to campaign finance issues as well as testified before Congress and the Federal Election Commission.

What does the ruling mean for the rights of voters?

Voters have lost another claim essential to protecting their right to vote. By reading the applicable statutes narrowly and without reference to the purposes of the statutes, the Court placed new burdens on voters to maintain their right to vote. The Court embraced as rigid, mechanical approach to statutory interpretation consistent with a result that does not appear to have been compelled by the statutory language taken in isolation from the purposes identified by Congress in enacting the legislation. These statutes were enacted to increase voter registration and to remove ineligible persons from voting roles. The Court’s opinion addresses only the goal of removing ineligible persons and takes no meaningful account of the goal of increasing voter registration.

Does the opinion disproportionately burden particular groups of voters such as minorities or the elderly or the poor?

The respondents had not made claims of discrimination. However, NVRA and HAVA both require that the procedures used to remove voters from the voting rolls not be based on discrimination, which should have caused the Court to consider this issue. The poor (who move, willingly or unwillingly, more frequently than do other voters), the elderly (who may be unable to deal with unhelpful bureaucracies), minorities (who may have reason to distrust government agencies), and women (whose names come to reflect their marital history, which creates special burdens in linking their voter registration to a previous name), all present issues that are not addressed by the reasoning in the Court’s opinion.

Did the Court majority opinion follow current approaches or offer new approaches or lines of reasoning? What were the concerns of the dissents and the concurring opinions?

While the case involved only one state, it can be, and in all likelihood will be, read as a green light for efforts to remove more voters from the lists of registered voters without taking account of the goal of increasing voter registration.

The dissent written by Justice Breyer and joined by Justices Ginsburg, Sotomayor, and Kagan disputed the approach to statutory interpretation adopted by the majority. The dissent argues forcefully and with specific reference to the statutory language at issue that the relevant test is not whether failure to vote can be the sole factor, as Justice Alito argued, but whether a decision can be made with reference to a failure to vote. Because the two statutes do not use the same language, reconciling them should not rely solely on narrow technical arguments but should take account of the purposes of the statutes. The dissent makes a case that the majority misconstrued certain elements of the statutes, and bolsters its claims by including as an Appendix to its opinion the relevant statutory provisions at issue.

Justice Sotomayor also wrote a separate dissent that could help plaintiffs in future cases in this area express their claims in ways that would require the Court to consider what is at stake in cases dealing with methods of purging voting roles. Noting that “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,” Justice Sotomayor accused the majority of misconstruing the statutory text and concluded that the majority “appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.”

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