A few short months ago in a blockbuster Supreme Court case dealing with partisan political gerrymanders, Chief Justice John Roberts enraged social scientists the world over when he suggested that using a proposed formula to determine unconstitutional redistricting would be asking courts to engage with “sociological gobbledygook.” The mild-mannered sociologists went mental, and it was widely agreed that dismissing other fields of inquiry as “gobbledygook” is not generally good for lawyers.
Wednesday morning, in oral arguments at the other monster voting rights case of 2018, this actual statement was offered up by a lawyer:
[I]t’s a rule of clarification. So it says you have to construe (b)(2). And I think that with that, combined with the solely clause, makes quite clear that you have to interpret the by reason of language in some way to break the causal link between voting and removal that is required in (d).
So, yes, lawyers should eschew accusing other professionals of “gobbledygook.”
That quote is spoken by Eric E. Murphy, state solicitor for Ohio, who is defending his state’s voter purge system. That apparatus is reported to have to have tossed more than 2 million voters off Ohio’s voter rolls between 2011 and 2016. That’s out of 11 million residents. Of course, most of the voters purged by this Republican policy happen to be overwhelmingly in minority jurisdictions.
How did Ohio determine who should go? Well, the state has developed a system: If you haven’t voted in two years, you will receive an official mail notice at your last listed residence. If—like approximately 70 percent of recipients—you don’t return the mass mailing—because, say, it looks like junk—you don’t hear from the state again. Then, if you do not vote for the next four years, you’re purged from the Ohio rolls. A group of such purged voters sued and the U.S. Court of Appeals for the 6th Circuit ruled in their favor, finding that Ohio had used their failure to vote as an unlawful “trigger” for mailing the initial notices.
This case, Husted v. Philip Randolph Institute, is one of the most consequential of the current term. It is also the kind of hypertechnical linguistic bar fight that allows lawyers to finance years of their kids’ orthodontia. Ultimately at its heart, though, it’s about whether Ohio can end-run federal statutes that prohibit states from throwing voters off the rolls for failure to vote—by claiming the law that says a state cannot strike someone from the rolls for failure to vote allows them to strike voters who have moved. And the way the state shows that you have moved? Failure to vote.
The case requires reading language in both the National Voter Registration Act of 1993 and the Help America Vote Act of 2002 and reconciling them with Ohio’s “supplemental process” for purging its rolls. HAVA amended the NVRA to advise states that “no registrant may be removed solely by reason of a failure to vote.” As Murphy attempts to explain that the best way to reconcile the language is by imagining that the statute says something else, Justice Elena Kagan leads a master class in statutory interpretation. This mostly involves telling Murphy that he can neither import language from other laws, nor ignore language plainly in laws, just to get outcomes he prefers.
Justice Sonia Sotomayor makes explicit what the data overwhelmingly shows:
[Ohio’s policy] results in disenfranchising disproportionately certain cities where large groups of minorities live, where large groups of homeless people live, and across the country they’re the group that votes the least, in—in large measure because many of them work very long hours.
Sotomayor also points out to U.S. Solicitor General Noel Francisco “there’s a 24-year history of solicitor generals of both political parties under both presidents of both political parties who have taken a position contrary to yours.” The Trump administration reversed sides from the Obama administration position on the case in August, you see, joining Ohio’s appeal. Sotomayor emphasizes that the U.S. appears to have reversed its long-standing position “that nonvoting was not a reliable indicator of residence change.”
Francisco says that this is “partly correct.” He does not fully explicate what’s changed since this summer. But, at least partly, things are unchanged, it seems.
While Kagan, Ruth Bader Ginsburg, and Sotomayor are clearly deeply bothered by Ohio’s practices, they seem to stand alone in their outrage. Justice Anthony Kennedy, largely silent, asks Paul Smith, who represents the purged voters, whether Ohio was really doing anything that bad:
The reason they’re purging them is they want to protect the voter roll from people that have not—that have moved and they’re voting in the wrong district.
And Breyer spends a good amount of time worrying about how the state could identify voters who may have
went and died in Hawaii—I don’t know—they went and died in Alaska. They went and died in Tasmania.
Justices Neil Gorsuch and Clarence Thomas ask no questions on Wednesday, leaving Justice Samuel Alito and Chief Justice Roberts to press Smith on why it isn’t actually the failure to return the form—as opposed to the unlawful nonvoting test—that triggers the purge. As Alito posits:
Does it say the failure to vote is a ground for removal, or does it say that moving out of the district is a ground for removal, and failure to vote plays a part in the determination of whether a person has moved out of the district? It’s evidentiary. It’s not the ground for removal in and of itself.
Alito also asks whether someone’s failure to vote for 20 years would be sufficient to draw the inference that they had moved or died.
Smith tries to explain that if only about 3 percent of the population move every year, but exponentially more people are thrown off the rolls because of Alito’s evidentiary standard—as is the case in Ohio—“you end up with a system which looks an awful lot like the old Ohio use-it-or-lose-it system.” In that system, folks were purged for failure to vote, which is expressly prohibited by the more recent federal law in question.
Looming over the morning’s discussion is the recent collapse of the Presidential Advisory Commission on Election Integrity. It’s no secret that voter fraud claims are the Trojan horse arguments used to both explain Trump’s popular vote loss and to justify further vote suppression.
As Justice Alito concluded, he urged:
I mean, this is a very important subject. It’s a sensitive subject. There are—as a policy matter—strong arguments on both sides.
Purging hundreds of thousands of voters for failure to vote, while pretending it’s because they’ve moved, doesn’t seem like a particularly strong argument. Apparently, after Wednesday, it is.