People For the American Way Foundation

Neil Gorsuch Casts the Deciding Vote Upholding Ohio’s Voter Purge

Federal Update
Neil Gorsuch Casts the Deciding Vote Upholding Ohio’s Voter Purge
Donald Trump and Neil Gorsuch

While much of the nation’s attention is on how Donald Trump is sabotaging America abroad, his Supreme Court nominee Neil Gorsuch used his stolen seat to cast the deciding vote in a 5-4 decision damaging our democracy here at home. In Husted v. A. Philip Randolph Institute, the five ultra-conservatives upheld a voter suppression scheme in Ohio of the type that Congress has prohibited.

As discussed in our term preview, Ohio election boards identify registered voters who have not voted in two years (one federal election cycle), then send them confirmation notices to see if they still live at their registered addresses. If the registered voter doesn’t respond or vote within the next four years, their name will be purged. The process is triggered by a failure to vote. However, congressional legislation—the 1993 National Voter Registration Act (NVRA, or “Motor-Voter law”) as modified by the Help America Vote Act—prohibits roll maintenance processes that result in striking people from the voter rolls by reason of their not voting in past elections.

In an opinion authored by Justice Alito, the majority held that these federal laws let Ohio use non-voting as a critical factor in purging voters, as long as it isn’t the only factor.

Justice Breyer wrote the main dissent, which Justices Ginsburg, Sotomayor, and Kagan joined. He began by describing the ill that Congress was seeking to cure: In the late1800s-early 1900s, states had adopted any number of laws and procedures—including selective voter purges—designed to keep certain groups of citizens from voting and to discourage participation. The more obvious methods of disenfranchisement were addressed in the Voting Rights Act of 1965, but Congress in 1993 passed the Motor Voter law to address other methods. Justice Breyer quoted from the legislative history:

[T]he purpose of our election process is not to test the fortitude and determination of the voter, but to discern the will of the majority.

Breyer then went through a painstakingly detailed, step-by-step textual analysis of what steps Congress has said states must take before purging a voter, and under what conditions. He then explained how Ohio’s system—where the purge process is triggered simply by not voting—is not consistent with the statute.

Among other things, Breyer observed that most people receiving confirmation notices from the state don’t send back the “return card” that comes with it, regardless of whether they have moved. In other words, sending out the confirmation notices provides no useful information:

Ohio’s system adds to its non-voting-based identification system a factor that has no tendency to reveal accurately whether the registered voter has changed residences. Nothing plus one is still one. And, if that “one” consists of a failure to vote, then Ohio’s program also fails to make the requisite “reasonable effort” to comply with subsection (a)’s statutory mandate.

Justice Sotomayor, in addition to joining the main dissent, also wrote separately to emphasize how voter purge schemes like Ohio’s have a disproportionate impact on low-income voters and minority voters. This was one of the evils that Congress sought to address:

In concluding that the Supplemental Process does not violate the NVRA, the majority does more than just misconstrue the statutory text. It entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.

Among other things, Sotomayor cites an amicus brief authored by Asians Americans Advancing Justice that PFAW Foundation joined noting the impact of Ohio’s process on Latinos and Asian Americans in particular.

Unfortunately, a narrow majority of the Court weakened the protections that Congress established to protect populations long targeted for disenfranchisement. Although it is impossible to know how a Justice Merrick Garland would have ruled in this or any other particular case, his approach to the law is not focused on the interests of the elite.

So this 5-4 ruling weakening our democracy came about because of the unprecedented obstruction of President Obama’s nominee. That is bad enough. Even worse, that obstruction may have borne fruit only by virtue of the assault on our democracy carried out by a foreign adversary.