In 2008, Justice John Paul Stevens joined the majority in a 6–3 ruling in Crawford v. Marion County Election Board, holding that Indiana’s requirement that all voters must present a photo ID was constitutional. Bolstered by the decision in Crawford, voter-ID laws have proliferated in the states, as have other efforts to correct for the fake scourge of fraudulent voting. Indiana justified this additional burden on voting by claiming that even though it could produce no evidence that vote fraud had occurred in the state, the need for “integrity” and public confidence in the voting process warranted these safeguards.
Two years ago, reflecting back on his vote in Crawford, Justice Stevens said that while he had painstakingly confined his opinion to the record in the case, he had also “learned a lot of things outside the record that made me very concerned about that statute.” Nevertheless, he added, “I thought in that case I had a duty to confine myself to what the record did prove, and I thought it did not prove the plaintiffs’ case. And as a result, we ended up with a fairly unfortunate decision.” Stevens was sufficiently worried about the record in Crawford that he actually dropped in a footnote saying, “Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication.”
In the years after Crawford, one of the three federal judges on the 7th U.S. Circuit Court of Appeals panel who had also ruled against Indiana’s voter-ID challengers, Judge Richard Posner, also said that he had gotten it wrong and that the photo-ID requirement is now widely regarded as “a means of voter suppression rather than of fraud prevention.” Posner also wrote that he had come to the view that “there is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.”
Husted v. A. Philip Randolph Institute, decided Monday by the Supreme Court, is not a voter-ID case. It relates to a massive Ohio voter purge, ostensibly carried out to protect the integrity of the voting process, by using a voter’s failure to vote in elections as evidence that the voter has moved. Justice Samuel Alito, writing for the five-justice majority, thus finds that Ohio’s decision to purge thousands of voters from the rolls does not violate the directive of the National Voter Registration Act, which bars any state from removing a registrant “by reason of the person’s failure to vote.” Ohio is A-OK, Alito says, because the failure to vote doesn’t trigger the purge—it’s merely used as evidence that the person has moved.
Ohio, which is the purgiest of all the purgey states, first “sends notices to registrants who have ‘not engaged in any voter activity for a period of two consecutive years.’ “ It then “removes registrants from the rolls only if they ‘fail to respond’ and ‘continue to be inactive for an additional period of four consecutive years, including two federal general elections.’ “ In other words, it takes six years to be purged, and you can—if you’re a Jedi master of your junk mail—notice that you’re being purged and correct for it. But the fact remains that many, many voters who did not in fact leave the state and simply chose not to vote were disenfranchised, and many never learned of that fact until they showed up to vote. Unsurprisingly—per Judge Posner’s observation—most of those who were disenfranchised were not Republicans. A 2016 Reuters study found that at least 144,000 people were removed from the rolls in the state’s three biggest counties—Cuyahoga, Hamilton, and Franklin, which include Cleveland, Cincinnati, and Columbus respectively—with those removals happening disproportionately in Democratic-leaning, predominantly black neighborhoods.
Justice Stephen Breyer scorches Alito’s argument in his dissent, explaining that a system that’s ostensibly rooted in one’s presumed change of address kicks into gear only when someone doesn’t vote, a fact that suggests it’s the voting that matters, not the moving. That is of course what the federal statute manifestly didn’t allow: This is a use-it-or-lose-it approach to the franchise that is barred by federal law.
The statutory construction claims advanced in both Alito’s majority opinion and Breyer’s dissent are complicated and in some sense—if you take dictionaries and parsing seriously—both reasonably plausible. The case was always a messy one. But as Richard Hasen notes, Alito’s narrow statutory view of the case requires the majority to deliberately blinker itself to the racial and political history behind the Ohio vote-suppression efforts. It thus falls to Justice Sonia Sotomayor to say (again) that—surprise!—the Ohio supplemental process “has disproportionately affected minority, low-income, disabled, and veteran voters.” She is forced to say out loud what everyone else is thinking: “Concerted state efforts to prevent minorities from voting and to undermine the efficacy of their votes are an unfortunate feature of our country’s history.”
Sotomayor notes that the majority’s reading of the federal statutes “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.” She also takes time to explain the ways in which poor, minority, and elderly voters are disproportionately apt to be purged because of the reality of their lives, including “language-access problems, mail delivery issues, inflexible work schedules, and transportation issues.”
What Justice Stevens was forced to bury in a footnote, and what Judge Posner was brave enough to acknowledge in a later opinion, is that the imaginary notion that tens of thousands of voters cast their ballots fraudulently has justified rampant vote suppression that affects minorities in ways that have nothing to do with voter “confidence” in any proposition beyond the fact that “those other people” shouldn’t be allowed to vote. But to the extent that we live in a world with diminished confidence in the integrity of elections, we can thank Attorney General Jeff Sessions, who reversed a decadeslong policy of protecting the franchise to side with Ohio in this case, and Donald Trump, who continues to bellow (falsely) that his popular vote defeat was the result of massive vote fraud.* The boundless Republican fabrication of a vote-fraud epidemic, in short, is what has decreased public confidence in election integrity. It was a solution in search of a problem that has—over decades—now created the very problem it seeks to cure.
The long and ugly history of suppression of minority voters in this country may have been erased from Justice Alito’s majority opinion. That doesn’t erase it from Supreme Court history. Former Chief Justice William Rehnquist allegedly started his own legal career in a “ballot security” program that resulted in the intimidation of minority voters via literacy and credential challenges at the polls.
Subodh Chandra, a civil rights lawyer in Cleveland who has successfully litigated several voting-rights cases against Ohio, describes the result in Husted as a continuation of the Roberts court’s “pattern of wishing away evidence of red states’ laserlike, targeted discrimination against poorer, minority, Democratic-leaning voters.” Rehnquist denied that pattern existed, Stevens regretted reinforcing it, and Posner openly disavowed it. Alito, we learned on Monday, never even saw it in the first place.
Correction, June 11, 2018: This piece originally misstated that Trump was defeated in the Electoral College. He won the Electoral College but lost the popular vote.