A Few Thoughts about the Husted Case

I just got back to the United States last night from the Netherlands, where I gave a paper at a fascinating international law conference (the topic of the conference was “Contingency in the Course of International Law”) at the University of Amsterdam. I will write about the conference, which I really enjoyed, in more detail later this week.

But in the meantime I have a few observations to make about the U.S. Supreme Court’s controversial ruling in Husted v. A. Philip Randolph Institute, which the Court handed down last week while I was in Europe. In a 5-4 decision, the Court’s conservative majority upheld a key provision in Ohio’s voter registration statute, which the plaintiffs allege has resulted in the purging of thousands of eligible voters from the state’s voting rolls in violation of the National Voter Registration Act of 1993 (as amended by the Help America Vote Act of 2002).

Even from my vantage point 3,000 miles away in Europe, it was clear the Husted decision was extremely unpopular with the mainstream media, the Democratic Party, and many voting rights advocates, who immediately accused the conservative justices of aiding and abetting voter disenfranchisement. For example, in an op-ed for The Hill newspaper, Democratic Congressman Tim Ryan wrote, “With this decision, Ohio Secretary of State John Husted and states across the country were given the all clear to silence American voters.” 

Although I agree with the critics that the Ohio registration statute is not good public policy, Justice Alito’s ruling was nevertheless quite reasonable in light of the NVRA’s statutory language. For better or worse, the controlling federal law gave the Supreme Court no choice but to uphold the Ohio statute. 

A few points strike me as particularly important about the ruling.

The Plain Text of the NVRA

Despite the controversy over the Husted decision, the conservative majority’s ruling is a far more natural and commonsensical reading of the NVRA than either Justice Breyer or Justice Sotomayor offered in their respective dissents. As Justice Alito emphasized in the majority opinion, the Court in Husted had “no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date.” The Court’s job was to apply the language of the NVRA to the Ohio statute, not to rewrite the federal law. 

Although one of the twin purposes of the NVRA is to increase voter registration (hence the NVRA’s nickname, “the Motor Voter law”), the NVRA’s other central goal is to encourage states to remove “ineligible persons from the States’ voter registration rolls.” To that end, the NVRA requires States to “‘conduct a general program that makes a reasonable effort to remove the names’ of voters who are ineligible ‘by reason of’ death or change in residence.”

The key question, therefore, in the Husted case was this: how much evidence do states need before removing inactive voters from their voting rolls? 

The answer is not much, at least according to the plain language of the NVRA. Husted turned on the NVRA’s “Failure to Vote” clause, which bars states from removing inactive voters from registration lists for the sole reason that they failed to vote in recent elections. Under the NVRA (as amended by HAVA), states must send a notice to inactive voters warning them that they need to confirm their address. To that end, 52 U.S.C. § 201507(d)(1) provides that “a state shall not remove the name of a registrant from the official list of eligible voters” on change of residence grounds in federal elections unless the voter:

1) fails to respond to a notice in the form of “a postage prepaid and pre-addressed return card, sent by forwardable mail, on which the registrant may state his or her current address,” and

2) fails to vote “in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice.”

The Ohio procedure certainly appears to meet the NVRA’s bare minimum requirements. The Ohio law only removes voters from the rolls if a voter fails to vote during a 6-year period and also fails to respond to a return card from the Secretary of State’s office.

The postcard warns inactive voters that their failure to vote could lead to their removal from the voting rolls unless they confirm their current address (using a pre-addressed, postage-paid return card provided by the state, as required by the NVRA). If a voter ignores the postcard, and then skips voting for another 4 years (for a total of 6 years of non-voting), the Ohio law removes the voter from the state registration list.

A Policy Dispute, not a Legal Dispute

Make no mistake, the Ohio law is poor public policy. Although it complies with the NVRA, the Ohio procedure fails to provide sufficient notice to inactive voters of the risk of removal. It would not be hard for the state to adopt a more sensible policy for updating voter lists. At a minimum, the secretary of state should send multiple mailings to inactive voters, not just a single return card, and the secretary should be required to cross-check the information with many government databases before concluding that the voter has moved out of the voting jurisdiction.

Indeed, the dissents by Justice Breyer and Justice Sotomayor make good policy arguments as to why states should be very careful before removing inactive, non-responding voters from their voting rolls. It is undoubtedly true that many eligible voters will ignore a single notice, especially at a time when the percentage of junk mail has surged. One can easily imagine how a voter might inadvertently throw in the recycling bin along with junk mail a single mailing from the secretary of state, particularly when it comes in the form of a postcard. As a public policy matter, therefore, the Ohio return card system is clearly inadequate and can and should be improved upon.

But that does not change the fact that the NVRA only imposes modest requirements on states in updating registration lists. In his dissent, Justice Breyer engaged in a very complex textual analysis of the federal statute to try to show that it established a more demanding standard than the majority maintained. Breyer’s textual analysis, however, was strained, difficult to follow, and unpersuasive. Similarly, although Justice Sotomayor made good policy arguments in her dissent, she never identified a clear and compelling textual basis in the NVRA to overturn the Ohio law.     

Justice Alito thus hit the nail on the head in his conclusion:

“The dissents have a policy disagreement, not just with Ohio, but with Congress.  But this case presents a question of statutory interpretation, not a question of policy.  We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date.  The only question before us is whether it violates federal law.  It does not.”

Don’t Blame Trump

Two other points about the case should be noted. First, contrary to popular impression, neither the state nor the federal law is part of some new, Trump-inspired voter disenfranchisement campaign. Both the NVRA and the Ohio law date back to the 1990s, and Ohio’s law has been enforced by both parties for a quarter century. Only in recent years has it become a national flashpoint.

The inconvenient truth is Democrats have no one to blame but themselves for the obvious inadequacies in the NVRA. The NVRA was passed by a Democratic congressional majority and signed into law by President Bill Clinton, a Democrat. Moreover, Democrats had a golden opportunity to improve the law during the first two years of Barack Obama’s presidency, when Democrats had majority control of both houses of Congress.

But the Obama Administration and the Democratic Congress squandered that opportunity in the chaotic rush of the 2009-10 legislative term. Just like they underestimated the significance of the 2010 state elections, a crucial midterm cycle that determined which party controlled the 2011 redistricting process in each state, the Obama White House and Congressional Democrats failed to address low profile but critical nuts-and-bolts election administration issues like amending the NVRA. The mistakes of 2009-10 continue to haunt Democrats almost a decade later.      

A Legitimate State Interest  

In addition, it is a relevant point that the NVRA expressly recognizes that the states have a legitimate interest in updating their voting rolls. The Husted case reflected that. Although Justice Breyer minimized the issue by emphasizing that only 4 percent of Americans move out of their counties every year, that translates to over 12 million people, a number so huge it creates ongoing administrative challenges for the states. 

My own voting history is a case in point. I voted in Massachusetts in 2004, I voted in Wisconsin in 2006 and 2010 (I did not vote in 2008 because during the election I was a U.S. Navy officer stationed in Baghdad, Iraq), and I voted in Iowa in 2012, 2014, and 2016.

Each time I moved, I informed the U.S. Postal Service, which maintains a change of address database that state election authorities can access. But according to the USPS, perhaps as many as 40% of Americans who change addresses fail to notify the postal service. Although the plaintiffs strenuously challenged the USPS statistic, it goes without saying that tracking voters who move out of their voting jurisdictions is a major administrative task. Although it should be done with more care and caution than the Ohio law provides for, removing inactive voters from registration lists is a necessary component of competent election administration.   

Same Day Registration

In any case, there is a reform that every state should adopt to render the Husted decision moot: same day registration. According to the National Conference of State Legislatures, only 17 states plus the District of Columbia offer same day registration. That number should be 50 (or at least 49--North Dakota does not require voter registration at all). If every state adopted same day registration (or its equivalent), then no one would be wrongfully disenfranchised by failing to respond to a single postcard return mailer.

To be sure, my opinion of the Husted ruling is a minority position among election law professors, at least if the early blog posts, op-eds, and other commentaries are any indication. For a perspective different from my own, here is Professor Justin Levitt’s thoughtful and probing critique of the Husted ruling, which is available on the American Constitution Society blog.

Comments

[anon]

The Democrats often characterize Republican voters as lazy, ignorant, angry, unemployed losers who are uneducated and therefore can't fathom the ultimate wisdom of the Democrats. In fact, most Democrats seem to share the opinion prevalent at the senior levels of the Democrats in government: "Trump’s supporters are all poor to middle class, uneducated, lazy POS that think he will magically grant them jobs for doing nothing. They probably didn't watch the debates, aren't fully educated on his policies, and are stupidly wrapped up in his unmerited enthusiasm." In other words, deplorables.

(BTW, check out the vote among college educated in the past few elections. Want to understand identity politics and why the Democrats play it so hard? Trump won whites with a college degree 49% to 45%. In 2012, Romney won college-educated whites by a moderately wider margin in 2012 (56%-42%). John McCain’s margin among these voters in 2008 was the same as Trump's: 51%-47%.

Despite vicious name-calling and bigoted generalizations about republican voters, however, the Democratic Party almost always seeks shamelessly to promote the voting interests of those who: a.) don't have any form of identification (in this society?), b.) haven't voted for years and can't be bothered to respond reasonable efforts to contact them, c.) in many instances, are illegally present and can't vote in any event (yes, voting "rights" in these instances have often been advocated by Democrats, e.g., states have extended noncitizen voting to municipal elections, and Democrats are working hard to push that principle further).

Ok, Democrats think it is good public policy to promote voting by these groups. That's not my point here. Perhaps it would be better if ALL persons voted and half of them weren't falsely demonized by the Democrats.

Democrats: if you advocate voting by the groups described above, stop calling Republicans, e.g., lazy and not fully educated on the policies of the US government.

[Pruitt Foundation and Center for Environmental Justice]

^^^^^^^Anon, it's one of your own from the National Review who said exactly that: "The White American underclass," according to Kevin D. Williamson, "is in thrall to a vicious, selfish culture whose main products are misery and used heroin needles. Donald Trump makes them feel good and so does oxy contin." Its an exciting time, go have me a Chick-Fil-A and some greasy fries.