The Supreme Court OK's Voter Suppression

Did Joe Donnelly (D-IN), Heidi Heitkamp (D-ND), Michael Bennet (D-CO) and Joe Manchin (D-WV) all vote to confirm Neil Gorsuch to the Supreme Court in April, 2017 because they thought he would make a good justice? Or was it because they're cowards who knew he would suck but were afraid of the politics? Today Yesterday, Gorsuch voted to give Republican-controled states, in this case Ohio, to kick voters off the rolls for missing-- for whatever reason (like being in the hospital in a coma, for example-- a single election. This is aimed disproportionately at, low-income voters (non-property owners). The only dissenter was Sonia Sotomayor. Very disappointing (that she was the only dissenter). Justice Alito’s opinion for the five-justice conservative majority described the state’s process:

Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed, postage prepaid card to these individuals asking them to verify that they still reside at the same address. Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls.

Justice Alito’s majority opinion and Justice Breyer’s dissenting opinion for the four liberal justices parse the very dense provisions of the Motor Voter law and HAVA to figure out if starting the purge process as Ohio does is illegal. A federal district court said it wasn’t, a divided opinion for the United States Court of Appeals for the 6th Circuit said it was, and the Supreme Court now says it isn’t. (The federal government long held that laws like Ohio’s were illegal, a position the Trump administration reversed when it took Ohio’s side in the Supreme Court.)

Whether Alito or Breyer had the stronger analysis of the interplay of the statutory provisions is unclear to me, but both opinions said little about the key political issue underlying the case, an issue Justice Sotomayor flagged in her separate dissent. After noting that Congress passed the Motor Voter law in light of a history of using restrictive registration and purge rules to suppress the vote, the Justice pointed to evidence showing that the process “has disproportionately affected minority, low-income, disabled, and veteran voters.” She noted evidence that in Hamilton County, Ohio, “African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity” since 2012, as “compared to only 4% of voters in a suburban, majority-white neighborhood.” She also cited amicus briefs explaining “at length how low voter turnout rates, language-access problems, mail delivery issues, inflexible work schedules, and transportation issues, among other obstacles, make it more difficult for many minority, low-income, disabled, homeless, and veteran voters to cast a ballot or return a notice, rendering them particularly vulnerable to unwarranted removal under” Ohio’s process.

Justice Sotomayor pointed out that another provision of the Motor Voter law requires that any removal program “be uniform, nondiscriminatory, and in compliance with the Voting Rights Act,” and this part of the law provides a potential path forward. As more states enact laws like Ohio’s, it will become further apparent that these laws have discriminatory effects.

And aside from lawsuits, worries about voter suppression have energized the left to fight such laws politically. In at least some states, discriminatory laws like Ohio’s can be fought through legislative battles and at the ballot box.

Justice Alito’s response to Justice Sotomayor is quite telling. He rightly noted that the challenge in this case was not about whether Ohio’s law was discriminatory. But he added that Justice Sotomayor did not point “to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent.”

Contrary to Justice Alito’s intimation, plaintiffs alleging a violation of the Voting Rights Act need not prove discriminatory intent; discriminatory impact is enough. Justice Alito may be subtly signaling where the Court’s conservative majority is likely to go in future years. At some point the Court may well consider striking down as unconstitutional that part of the Voting Rights Act that holds it is illegal for states to pass voting laws that have a discriminatory impact. He may require plaintiffs to come up with proof of intentional racial discrimination, which is much harder to do.

Fortunately, as of now this part of the Voting Rights Act still stands, and Justice Sotomayor has laid out a two-part strategy to try to reverse discriminatory laws like Ohio’s. Today voting-rights activists lost the battle, but the war is not yet over.