Sam vs. Sonia

Alito believes states deserve our sympathy in voting rights disputes. Sotomayor thinks minority voters do. So far, Alito is winning.

Supreme Court Associate Justices Samuel Alito and Sonia Sotomayor.
Supreme Court Associate Justices Samuel Alito and Sonia Sotomayor. Photo illustration by Slate. Photos by Alex Wong/Getty Images.

This month, the Supreme Court has issued two major voting rights decisions that dramatically expanded state lawmakers’ ability to suppress voting rights. Both were 5–4 rulings that pitted the conservative bloc against the more liberal justices. Both were written by Justice Samuel Alito, and both prompted sharp dissents from Justice Sonia Sotomayor, who accused the majority of ignoring clear evidence that the laws in question disproportionately disenfranchised minorities. The faceoff between Alito and Sotomayor over voting rights reveals a deep fissure between the justices—not just about statutory interpretation, but also about who deserves the court’s empathy in a voting rights dispute. To Alito, state lawmakers always deserve the benefit of the doubt. To Sotomayor, it’s minority voters who merit the court’s unflinching protection and solicitude.

The court’s first blow against voting rights came earlier this June in the form of Husted v. A. Philip Randolph Institute. Husted involved a challenge to Ohio’s attempts to purge residents from the voter rolls on the basis of infrequent voting. Under the state’s “supplemental process,” a voter is flagged for removal as soon as she sits out one federal election. She is then sent a postcard (which looks a lot like junk mail) asking her to confirm her address. If she doesn’t respond to the postcard, and does not vote in the next two federal elections, she’s removed from the rolls without further notice. Over the course of just three years, this procedure led to the purge of about 1.2 million people. Voters in minority communities were disproportionately likely to be purged.

Voting rights activists sued, alleging that the Ohio procedure violates the National Voter Registration Act. That law bars any state from removing a registrant from the federal rolls “by reason of the person’s failure to vote.” But Alito found that Ohio had not purged residents because of their “failure to vote”; instead, it had used their infrequent voting as well as their lack of response to a postcard as “evidence” that they had moved. A voter’s decision to sit out three elections, Alito explained, was not “a ground for removal,” but simply confirmation that their registration was outdated. Thus, the state’s purges comply with the NVRA.

Alito began his opinion by noting that “about one in eight” voter registrations “are either invalid or significantly inaccurate,” declaring that Ohio’s purge procedure merely “aims to keep the State’s voting lists up to date.” He then framed the case as an unfair attack by a “pair of advocacy groups” on Ohio officials, who, he claimed, had tried to follow the NVRA “to the letter.” Alito also noted that, “not too long ago,” states frequently “remov[ed] registered voters simply because they failed to vote for some period of time.” By looking to a voter’s inactivity, the justice suggested, Ohio wasn’t breaking the law; it was using common sense.

Sotomayor saw things differently. “Congress enacted the NVRA,” she wrote, to combat state efforts “to disenfranchise low-income and minority voters.” The court’s decision “contradicts the essential purposes of the statute” by opening the door for lawmakers “to prevent minorities from voting and to undermine the efficacy of their votes.” Sotomayor noted that Ohio’s purges inordinately affect “minority, low-income, disabled, and veteran voters,” with the burden falling especially hard on black communities. That’s no surprise, she continued, because

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 the Supplemental Process.

“Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote,” Sotomayor concluded. Unfortunately, the court’s decision in Husted requires minorities “to be even more proactive and vigilant in holding their States accountable.” Underprivileged communities must now work even harder “to dismantle the obstacles they face in exercising the fundamental right to vote.”

Alito and Sotomayor sparred over a similar issue in Abbott v. Perez, which the court handed down on Monday. Perez involves a challenge to Texas’ congressional and state legislative districts, which critics assert were gerrymandered with impermissible racial bias. Alito’s opinion for the court upheld all but one of Texas’ districts, applying a “presumption of legislative good faith” to wave away a mountain of evidence that mapmakers had intended to dilute Latino votes. He began by expressing deep sympathy for the Texas legislature: “Redistricting is never easy,” Alito sighed, “and the task was especially complicated in Texas in 2011.” Why? Because the state had to draw roughly contiguous districts substantially equal in population without sorting voters on the basis of race or diluting minority votes. Poor Texas, Alito wrote, had to navigate “this legal obstacle course” to ward off “expensive and time consuming” litigation. Yet its map was still “attacked” in court. Alito felt the Texas legislature—which rammed through redistricting in a special session with regular rules suspended—deserved to be cut some slack.

Sotomayor was having none of it. She accused the majority of ignoring “undeniable proof of intentional discrimination,” ensuring that minority voters “will continue to be underrepresented.” Texas’ gerrymander dilutes the electoral power of the Latino community by “target[ing] their communities and minimiz[ing] their political will,” subverting their “fundamental right to vote.” By blessing the state’s racist map, Sotomayor asserted, the court “does great damage” to the “right to equal participation in our political processes” and to the “right of equal opportunity”:

The Court … blinds itself to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters to exercise that most precious right that is “preservative of all rights.”

Alito’s worldview won out this term because his four conservative colleagues also seem to sympathize with states over voters. These justices don’t always vote in lockstep: Justice Anthony Kennedy expresses occasional concern about voter suppression, particularly on the basis of political association, while Justice Clarence Thomas may vote against a state that admits it gerrymandered along racial lines. But for the most part, this bloc sticks together, defending the honor of states accused of tipping the electoral scales against minorities.

In the legal battles between state officials and Americans who believe their suffrage is under siege, whose voices matter most? Those of lawmakers complaining about the difficulty of performing their duties, or those of minorities who feel their most fundamental right has been suppressed? Which side deserves the Supreme Court’s empathy? Through Alito, this court has clearly picked a side, elevating the voices of state officials who insist that their purges and gerrymanders do not block equal access to the ballot. Its favoritism will have dire consequences for decades to come.