On Monday, the Supreme Court issued a 5–4 decision allowing states to purge voters from the rolls due to their failure to cast a ballot. The court’s ruling in Husted v. A. Philip Randolph Institute is a catastrophe for voting rights that will lead to the disproportionate disenfranchisement of low-income and minority voters. It is also a huge win for the Trump administration, which jeopardized the Department of Justice’s institutional integrity in order to support Ohio’s efforts to purge infrequent voters.
Husted began during the Obama administration, which strongly favored the expansion of voting rights. Under Attorneys General Eric Holder and Loretta Lynch, the Department of Justice supported numerous lawsuits designed to block Republican efforts to suppress the suffrage. Husted was one such suit. Obama’s DOJ argued that Ohio violated the National Voter Registration Act by purging voters from the rolls because they skipped three consecutive federal elections and failed to return a mailer from the state. This process, the DOJ asserted, plainly ran afoul of the NVRA, which prohibits any state from removing a voter from the rolls “by reason of the person’s failure to vote.” (Congress later amended the NVRA to further clarify that “no registrant may be removed solely by reason of a failure to vote.”)
The Justice Department’s position triumphed in the 6th U.S. Circuit Court of Appeals toward the end of President Barack Obama’s tenure. But after the election—and the confirmation of Justice Neil Gorsuch—the Supreme Court agreed to review the 6th Circuit’s decision. A few months later, the DOJ, now under Attorney General Jeff Sessions, switched its position in the case. The agency urged the Supreme Court to reverse the 6th Circuit and allow Ohio to purge voters on the basis of their failure to vote. Its brief gave no persuasive explanation as to its change of heart, compelling the conclusion that Trump’s new political appointees just didn’t like the DOJ’s prior position.
It used to be extremely rare for the Justice Department to switch positions. The solicitor general, who often argues before the Supreme Court, is sometimes called the “10th justice,” and is expected to put institutional concerns above partisan preferences. Every new solicitor general gets stuck arguing a few stances he or she doesn’t like. But they do it anyway, because the Justice Department is supposed to prize consistency and stability over fleeting political concerns. The DOJ has special duties before the court that other litigants do not. For instance, solicitors general occasionally confess error, even when that confession undermines their argument before the court. And because they represent the United States, solicitors general occupy a unique position: They must defend those federal laws passed the people’s representatives in Congress, even if they dislike them, unless they view them as completely and utterly irreconcilable with the Constitution.
Trump’s political appointees have subverted these traditions at every turn, and Husted is an excellent example of their infidelity to long-standing principles. The Obama administration’s opposition to Ohio’s purges made good sense: A federal law, the NVRA, bars any state from removing a voter from the rolls “by reason of the person’s failure to vote”—yet Ohio did precisely that. By opposing Ohio’s procedure, then, the DOJ was defending the integrity of a vital federal statute.
But Sessions, along with Acting Solicitor General Jeffrey Wall, reversed this position with no clear justification. Suddenly, the DOJ was encouraging the Supreme Court to let Ohio contravene the plain text of the NVRA. Why the flip-flop? It’s nearly impossible to avoid that conclusion that the DOJ simply wanted to help Republicans. Ohio’s purge procedure removed about 2 million people from the rolls between 2011 and 2016, and up to 1.2 million of those voters may have been purged for infrequent voting. Democratic-leaning neighborhoods were twice as likely to be purged as those in Republican-leaning neighborhoods. Low-income and minority voters, key Democratic constituencies, were disproportionately targeted for removal.
In total, Trump’s Justice Department has reversed its position in about a dozen cases in order to oppose immigrants’ rights, prisoners’ rights, consumer protection, and Obamacare. But its about-face in Husted may be its most flagrantly political, because its favored outcome is so obviously designed to favor the GOP. The Supreme Court’s decision on Monday will likely disenfranchise thousands of voters in Ohio—and other states down the road, as more Republicans adopt Ohio’s purge techniques with SCOTUS’s blessing. Donald Trump, Jeff Sessions, and the DOJ’s political appointees have every reason to celebrate. So do supporters of Neil Gorsuch, who cast the crucial fifth vote to clinch a GOP victory. Monday was a terrible day for voting rights. But it was a fantastic day for the Republican Party and its allies on the bench.
