Sonia Sotomayor’s Dissent in the Big Voter-Purge Case Points to How the Law Might Still Be Struck Down

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The Supreme Court upheld a controversial Ohio voter-purge law which allows the state to remove voters from the rolls based upon failure to vote.

The Supreme Court on Monday upheld a controversial Ohio voter-purge law which allows the state to begin the process of removing voters from the rolls based upon their failure to vote in a single election. No doubt other Republican states will follow suit and adopt Ohio’s procedures, leading to the removal of a disproportionate number of minority, low-income, and veteran voters from the list of eligible voters. It is an unfortunate decision, but Justice Sonia Sotomayor’s lone dissent provides two paths forward to mount new attacks on these voter-suppression laws based on their discriminatory impact.

Unlike most other advanced democracies, our national government does not maintain a list of all eligible voters. Instead, American voting rolls are maintained on the state and county level. Voter rolls include the names of formerly eligible voters who have moved or died, and states need to have some way of removing those voters from the rolls without removing the names of eligible voters.

In 1993, Congress passed the National Voter Registration Act—the so-called Motor Voter law because it required states to offer voter registration in a number of places, including at Department of Motor Vehicles offices. One of the key provisions of the law limits the ability of states to remove voters from the voting rolls “by reason of the person’s failure to vote.” It lists a permissible process for notifying voters who may no longer be eligible before they may be removed from the rolls. The Help America Vote Act of 2002, or HAVA, passed after the voting troubles of the 2000 presidential election, included provisions clarifying the process for removing possibly ineligible voters. It says, among other things, that “no registrant may be removed solely by reason of a failure to vote.”

The Court’s opinion in Husted v. A. Philip Randolph Institute raised a close question of statutory interpretation over whether Ohio’s voter-purge law violated the Motor Voter law and HAVA by removing voters solely based on their failure to vote. Ohio is the only state to start the process for removing a voter based solely on the voter’s failure to vote in a two-year period.

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.