SCOTUS Upholds Ohio’s Voter Purge Practices

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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47 Responses

  1. Avatar Aaron David says:

    I am going to ask you the same questions I asked of Sam

    So, can they get their voting rights back by registering, or are they lost forever? Can they re-register, in a manner such as they did to vote in the first place? Does this only affect Democrats, or could if effect anyone who didn’t vote for four years? Do you believe in same-day voter registration? What is your stand on the IRS denying people the ability to organize into tax-exempt groups based on politics?

    Also, does this mean that other constitutionally protected rights should not be infringed, such as the second amendment? They are both written into the constitution after all…

    Report

    • Avatar Em Carpenter in reply to Aaron David says:

      Your questions seem to assume I have taken a side here. I have not- I only endeavored to explain the decision, its dissents, and the rationales thereof.
      And yes, of course they can re-register. But you know that.Report

      • Avatar Aaron David in reply to Em Carpenter says:

        Well, yes I guessed it. But from the lamentations (got your $10 word right there!) of the left, it would seem not.

        Sorry to have jumped the gun on you supporting it, I must have gotten carried away between the two posts.Report

  2. Avatar Oscar Gordon says:

    I must admit, I am quite underwhelmed by the dissent here. I find the complaint about the lack of voting being the triggering event to be odd. Seems like a very good metric by which the state can determine if it’s time to verify a given registration, as long as the state isn’t trying to do this 6 weeks before the next election. Honestly, if I was to identify a shortcoming, it would not be the trigger, it would be that the state only makes one rather weak attempt to verify the information.

    But the government and the courts have, AFAIK, never been terribly interested in making substantive efforts to notify people of anything. There is a rather naive trust that the USPS will absolutely deliver the official notice to the correct person in a timely manner, and if it fails to, the cost of that failure is borne 100% by the citizen.Report

    • Avatar pillsy in reply to Oscar Gordon says:

      Honestly, if I was to identify a shortcoming, it would not be the trigger, it would be that the state only makes one rather weak attempt to verify the information.

      The majority dismisses this concern with the following paragraph:

      This argument is based on a dubious empirical conclusion that the NVRA and HAVA do not allow us to indulge. Congress clearly did not think that the failure to send back a return card was of no evidentiary value because Congress made that conduct one of the two requirements removal under subsection (d).

      Since the majority is the same majority [1] that gave us Shelby County, the standard they’re using is obviously that you should absolutely defer to Congress instead of considering any sort of empirical evidence, unless doing so would be inconvenient for Republican efforts to disenfranchise Democrats.

      [1] Well, except for Gorsuch replacing Scalia.Report

      • Avatar Oscar Gordon in reply to pillsy says:

        Obviously, I disagree with the majority in that. While I don’t think the state should pull out all the stops to notify a person, an un-returned card could result in a certified letter being sent.Report

    • Avatar Em Carpenter in reply to Oscar Gordon says:

      Oscar Gordon: Honestly, if I was to identify a shortcoming, it would not be the trigger, it would be that the state only makes one rather weak attempt to verify the information.

      But the government and the courts have, AFAIK, never been terribly interested in making substantive efforts to notify people of anything.There is a rather naive trust that the USPS will absolutely deliver the official notice to the correct person in a timely manner, and if it fails to, the cost of that failure is borne 100% by the citizen.

      I agree with all of this. There is a timeframe of how far from an election this action is to be taken but I don’t remember what it is right off hand.Report

      • Mark Kruger Mark Kruger in reply to Em Carpenter says:

        I think I agree overall with Oscar here, it appears a stronger followup effort could reassure folks disproportionately affected.

        But I also don’t see folks getting quite as worked up over this. It does appear to have a long aging period and some checks to it. The checks could be better I but I still I sense a collective yawn from the public at large. There are other state laws far more draconian than this.

        Note that I am often wrong – it’s the most consistent thing about me. 🙂Report

    • Avatar InMD in reply to Oscar Gordon says:

      But the government and the courts have, AFAIK, never been terribly interested in making substantive efforts to notify people of anything. There is a rather naive trust that the USPS will absolutely deliver the official notice to the correct person in a timely manner, and if it fails to, the cost of that failure is borne 100% by the citizen.

      There are certain fictions the system is required to operate under. The efficacy of notice by mail is one of them. And really until the last decade or so I would say it was a mostly fair assumption and most of the time it does work. There is no perfect system and the people who can’t or tend not to be reachable by mail aren’t going to be easier to reach by some other method.Report

  3. And if you get to the polls, and find you’re not registered, ask to cast a provisional ballot; ignore the helpful poll-watcher who warns you that if your ballot is found to be invalid you can be imprisoned.Report

    • Avatar j r in reply to Mike Schilling says:

      A Tweet by Donald Trump proves that the five justices who found with the majority were not acting out of principle? Not the soundest logic there.

      But I guess that’s the standard: people who agree with me are acting out of principle; people who disagree with me are motivated by political partisanship.Report

      • Avatar Mike Schilling in reply to j r says:

        There’s no question what the Ohio legislature had in mind: preventing votes against them. Even Trump can see that.Report

        • Avatar j r in reply to Mike Schilling says:

          The funny thing about the internet is that people feel very comfortable saying that “there’s no question” about things that they don’t actually have any specific knowledge about. Of course, it’s possible that I am wrong and that you do know something about the history of the specific Ohio law that establishes how the voter rolls should be cleaned. If so, I apologize for being presumptive.Report

      • Avatar pillsy in reply to j r says:

        We know the majority isn’t acting in accordance with principle because given the opportunity to apply the same principle (in a much clearer case) in Shelby County, they chose not to.Report

        • Avatar j r in reply to pillsy says:

          To what principle are you referring?

          In Shelby County, the majority ruled that subjecting jurisdictions to a 40 year old preclearance formula was an undue burden. And in the Ohio case, the majority ruled that Ohio wasn’t violating the NVRA by instigating it’s rolls clearance process based on missing votes, because the actual determination was made following an attempt at outreach. Both of those opinions seem pretty in line with a consistent application of federalism. If you think federalism ought not be an abiding concern when put in conflict with other priorities, that’s a perfectly legitimate point of view. And I’m not even sure that I agree with either of those decisions. But there’s nothing there to say that this is some kind of dishonest, politically motivated, conflicting application of principles. Sometimes people just have honest disagreements with you.

          Now maybe the state of Ohio should make a stronger effort to reach voters who may or may not have moved and maybe Congress should pass a new pre-clearance formula, but both of those are different issues than how SCOTUS rules on the constitutional law questions.Report

          • Avatar pillsy in reply to j r says:

            In Shelby County, the majority ruled that subjecting jurisdictions to a 40 year old preclearance formula was an undue burden. And in the Ohio case, the majority ruled that Ohio wasn’t violating the NVRA by instigating it’s rolls clearance process based on missing votes, because the actual determination was made following an attempt at outreach.

            In Shelby County, the Court said that empirical observations that might possibly be made overrule the clear stated intent of Congress. In Hustead, they made the argument that empirical observations are irrelevant given the (rather less clear) intent of Congress.

            The contradiction is really glaring.

            If you think federalism ought not be an abiding concern when put in conflict with other priorities, that’s a perfectly legitimate point of view.

            In general it can be a difficult question. In the specific instance of Shelby County the Fifteenth Amendment is a thing.

            Sometimes people just have honest disagreements with you.

            Sometimes they do.

            But in the case of the conservative majority of the Roberts Court? Nyah.Report

            • Avatar j r in reply to pillsy says:

              In Shelby County, the Court said that empirical observations that might possibly be made overrule the clear stated intent of Congress. In Hustead, they made the argument that empirical observations are irrelevant given the (rather less clear) intent of Congress.

              You’re making a pretty fundamental error about jurisdiction (that’s probably not the right word, but I’m not a lawyer). The Ohio case was about whether the state laws were in conflict with the relevant federal law. Shelby County was about whether the federal law was in conflict with the Constitution, so the intent of Congress doesn’t so much matter. Also, in Shelby County, everyone except Clarence Thomas punted on the larger question about whether preclearance (Section 5) is constitutional and ruled narrowly on Section 4b, the preclearance formula.

              You don’t seem to have the best grasp of the legal arguments in question, which tells me that you’re not in the best position to judge the intent of justices.Report

              • Avatar pillsy in reply to j r says:

                You’re making a pretty fundamental error about jurisdiction (that’s probably not the right word, but I’m not a lawyer).
                […]
                You don’t seem to have the best grasp of the legal arguments in question, which tells me that you’re not in the best position to judge the intent of justices.

                This is a joke, right?Report

              • Avatar pillsy in reply to j r says:

                That’s a shame. It’s hilarious.Report

              • Avatar j r in reply to pillsy says:

                Maybe. But I made a pretty clear argument why in that bit that you left out. I could put it in bullet points if that makes it easier.Report

              • Avatar pillsy in reply to j r says:

                Clear but unconvincing. The argument that the SCOTUS used for undoing Section V of the VRA in Shelby County was, despite a really pathetic fig-leaf about “equal sovereignty”, one about how Congress had crafted bad policy by using a the old preclearance formula, despite routine insistence by conservatives (not least the conservatives on the Court) that it’s up to Congress to determine whether a policy is good or not.

                This is supposed to be especially true when we’re talking about clearly enumerated powers of Congress, and the VRA clearly fell within the scope of the 15th Amendment. So the reasons for deferring to Congress on whether preclearance is appropriate were stronger than the ones given for ignoring the “empirical argument” in Hustead.

                Now, to be clear, I don’t have a serious problem with how Hustead came down. The majority probably has the better argument, even.

                But I’m not going to pretend that they were applying some general principle in a high-minded way, because if they were there’s no way they would have come to the same conclusion in Shelby County.Report

              • Avatar j r in reply to pillsy says:

                The argument that the SCOTUS used for undoing Section V of the VRA in Shelby County was, despite a really pathetic fig-leaf about “equal sovereignty”, one about how Congress had crafted bad policy by using a the old preclearance formula, despite routine insistence by conservatives (not least the conservatives on the Court) that it’s up to Congress to determine whether a policy is good or not.

                Two reasons why this doesn’t make any sense:

                1. SCOTUS didn’t undo Section 5. It declared 4b, the pre-clearance formula, unconstitutional. If Congress passed new pre-clearance formula, Section 5 would go back into force. Only Clarrence Thomas wrote a concurring opinion claiming that Section 5 was unconstitutional.

                2. Roberts opinion doesn’t say that Congress passed a bad policy. It says that the policy passed in 1965 is clearly not applicable to the present reality. The fact that the VRA violates the principle of equal sovereignty isn’t a fig leaf; it’s a point of fact. The VRA singles out certain states and holds them to higher standards than the other states. It’s by definition unequal. The court has held on numerous occasions that it’s fine for the VRA to violate equal sovereignty, because of extraordinary circumstances and the Shelby County decision doesn’t overturn any of that. It just says that it can’t do this with 40 year old data.

                I understand why the dissenters dissented, because it’s not that clear too me that the 1965 policy is out of date. But there is no conflicting application of principle here. It shouldn’t be that hard to simply admit that some people have different views than you do that and that the application of those views lead to different conclusions.Report

              • Avatar pillsy in reply to j r says:

                1. SCOTUS didn’t undo Section 5. It declared 4b, the pre-clearance formula, unconstitutional.

                My mistake; I mis-remembered which section contained the preclearance formula, and foolishly decided not to check my facts before posting nonsense to the Internet.

                The fact that the VRA violates the principle of equal sovereignty isn’t a fig leaf; it’s a point of fact.

                It’s a point of fact, but one which provides a ludicrous pretext for the Roberts Court’s decision. Nothing in the text of Amendment XV makes any mention of a doctrine of “equal sovereignty”, a property it shares with all the other text in the Constitution. It’s synthesized out of other principles in the Constitutio, all of which date from before that Amendment, and don’t make much sense in this context to begin with.

                The court has held on numerous occasions that it’s fine for the VRA to violate equal sovereignty, because of extraordinary circumstances and the Shelby County decision doesn’t overturn any of that. It just says that it can’t do this with 40 year old data.

                Yes. No matter how Roberts tried to dress it up, it’s a pure judgement on the merits. Congress had the opportunity to change the pre-clearance formula when it reauthorized the VRA, and chose not to. This is exactly the sort of decision that conservatives on the Court have insisted again and again is up to Congress, using exactly the same argument they used in Hustead.

                It shouldn’t be that hard to simply admit that some people have different views than you do that and that the application of those views lead to different conclusions.

                It does happen. I just see no reason to believe that such a process of honest application of principles I happen to disagree with has anything to do with the way the Roberts Court handles voting rights.Report

              • Avatar Dark Matter in reply to pillsy says:

                No matter how Roberts tried to dress it up, it’s a pure judgement on the merits. Congress had the opportunity to change the pre-clearance formula when it reauthorized the VRA, and chose not to. This is exactly the sort of decision that conservatives on the Court have insisted again and again is up to Congress, using exactly the same argument they used in Hustead.

                Making policy is indeed typically left to Congress, that’s normally a great argument. In this case the Supremes didn’t let Congress get away with insisting that the grandson of a racist must be a racist. As a policy or matter of law, that concept seems like a problem which should be disallowed.

                There are multiple ways for Congress to fix this, one is to apply pre-clearance to everyone, another is to apply pre-clearance using a method other than “their grandparents were guilty ergo so are they”.Report

              • Avatar pillsy in reply to Dark Matter says:

                In this case the Supremes didn’t let Congress get away with insisting that the grandson of a racist must be a racist.

                Not at all. The pre-clearance formula applies to governmental entities that have a continuity of existence from now stretching all the way back to 1965, not individuals who live (or even hold official positions) within those governmental entities. This is presumably why the Roberts Courts’ decision (bad as it was) cited “equal sovereignty” as the underlying doctrine, rather than any of the much more compelling Constitutional reasons prohibiting holding grandchildren responsible for the crimes of their grandparents.

                Even so, there were bailout provisions to get out from under pre-clearance, so it wasn’t even permanent.Report

              • Avatar Dark Matter in reply to pillsy says:

                The pre-clearance formula applies to governmental entities that have a continuity of existence from now stretching all the way back to 1965

                And thus their voters, who were the ones forcing the creation of pre-clearance.

                Even so, there were bailout provisions to get out from under pre-clearance, so it wasn’t even permanent.

                During the 50(ish) years it was in force, how often did this happen?Report

              • Avatar j r in reply to pillsy says:

                This is exactly the sort of decision that conservatives on the Court have insisted again and again is up to Congress, using exactly the same argument they used in Hustead.

                I don’t want to keep going back and forth on this. You’re entitled to your opinion, but in this case your opinion is simply out of line with the reality of the written decision. The Shelby County decision finds that imposing extraordinary measures on specific jurisdictions is OK, just not with a 40 year old formula. Its an extremely limited decision that wouldn’t constrain Congress at all, except that Congress has become a dysfunctional institution. Maybe it’s the wrong decision (I don’t have strong feelings), but there’s nothing dishonest or hypocritical about it. And it’s perfectly in line with conservative views on federalism and the sovereignty of the states, which also animarss the Ohio decision.

                The problem with arguments based on claiming someone on the other side is being hypocritical is that this requires a modicum of being able to understand the other side’s point of view. And most of us, just are not very good at this. I am guessing that you could not pass an ideological Turing Test on this issue (i.e. you couldn’t write an anonymous defense of the conservative point of view on federalism that didn’t read like someone trying to criticize the conservative point of view).Report

              • Avatar pillsy in reply to j r says:

                Federalism is important for three major reasons in the context of the United States.[1] Only one of these is really specific to the US, but it’s also arguably the most important, in that the US Constitution, which is the highest law of the land, lays out the government along federalist lines. This is evident in the way that the federal government is granted specific, enumerated powers, and those powers do little to override the states. It’s also evident in the mechanisms designed specifically to ensure the power of individual states at the federal level (the equal representation of each state in the Senate, and to a lesser extent the Electoral College), and the existence of an amendment (the Tenth) that reserves any unmentioned powers to the states.

                Next, federalism is, well, a good idea. It enhances freedom by allowing people ways of determining how they are governed both by increasing the proximity of the most important unit of government (the state) to the individual, and also making it easier for people to select the sort of government they prefer by “voting with their feet” in ways that don’t involve the burdens of finding and emigrating to an additional country.

                Additionally, they allow for experimentation and innovation in governance, by allowing different administrative units to try different things, without committing the country as a whole to them. Policy approaches that work well can be adopted more widely, and if policy approaches don’t work well, they can be abandoned more easily.

                [1] Not necessarily exhaustive, but these are the most important.Report

              • Avatar j r in reply to pillsy says:

                I applaud the effort. But it’s one thing to write an exposition of an abstract concept; it’s another to inhabit that point of view in the defense of some issue on which you have strong feelings in the opposite direction.

                I could write a Wikipedia entry on socialism and imperialism in Latin America that was objective enough to pass muster. But I couldn’t write a realistic defense of Nicolas Maduro’s government, despite the fact that there are lots of people who fully and earnestly support Maduro. I don’t have the insight or the understanding to do that. That doesn’t make me agree with Maduro anymore than I do, but it does give me some small bit of humility when trying to pass judgment on those who have other views.

                This shouldn’t be controversial. You don’t lose anything by admitting that you don’t fully understand Roberts’ point of view. (censored – maribou)Report

              • Avatar Maribou, Moderator in reply to j r says:

                @j-r I realize I’m enforcing a double standard when I say we have one set of requirements for how we talk about public figures, and one set of requirements for how we talk about each other, and those overlap but are not the same. And yet, we do, and as such I removed the last sentence of your comment for being overly personal towards pillsy.Report

              • Avatar pillsy in reply to j r says:

                I applaud the effort. But it’s one thing to write an exposition of an abstract concept; it’s another to inhabit that point of view in the defense of some issue on which you have strong feelings in the opposite direction.

                I’d say you could move those goalposts faster, but relativity places an upper bound on that sort of thing.Report

              • Avatar Maribou in reply to pillsy says:

                @pillsy Looking back at what he said the first time and what he said the second time, it’s pretty clear to me that he was clarifying what he meant, not moving the goalposts. It took me a bit of effort to get there but once I got there it seemed obvious in retrospect.Report

              • Avatar j r in reply to pillsy says:

                Eh. I admit to moving goalposts. What I said in the prior comment was not very well-worded. I think that the intent is there, but the language could have been much clearer.

                And @maribou-moderator, your point is noted.

                By the way, I’m not really trying to win any debate here. I’m just trying to make the point that the more we try to come up with hamfisted characterizations of other people’s points of view, the more we degrade our own ability to understand any particular issue.Report

  4. Avatar j r says:

    Nice post, Em. I read the other post on this first and came away with mostly questions. You answered a bunch of them.Report

  5. Avatar lyle says:

    Note that one is also supposed to update ones driver license or state id when they move. The last time I moved the office asked if I would like to register to vote. If folks are moving and not updating the drivers license (and car registration), or state ID card they are breaking the law. One question might be does the outside of the envolope look like junk mail or does it clearly state what is inside. Of course this is also the situation of folks in college who want to register in their college town but not change the drivers license (which does potentially have insurance implications)Report

    • Mark Kruger Mark Kruger in reply to lyle says:

      The last time I moved the office asked if I would like to register to vote. If folks are moving and not updating the drivers license (and car registration), or state ID card they are breaking the law.

      There is no required state ID card that you must update or be found in violation of the law is there? You are free to not update your driver’s license if you wish. The “law breaking” comes in to play if you use the license (as a form of ID, to operate a vehicle etc). Other ID’s have a similar utility. These “IDs” are not primarily designed for identification per se. They are supposed to serve a specific function (verifying you are able to drive for example).Report

      • I’m of two minds on the topic.

        On the one hand, every time I’ve moved since I was old enough to vote I ran down the checklist: give the Post Office a change-of-address form, change my auto registration, change my drivers license address, change my voter registration. My current state requires that you keep your address current if you’re on any sort of public assistance, or the assistance stops. IIRC from the time when I was working for the state legislature, we’ve done a pretty good job of knocking down the “silo” walls between systems: eg, if you change your address for Medicaid, the change ripples into the voter registration system. Yes, you can be eligible to vote, and capable of meeting the registration requirements, and not be in violation of any law, but be outside of the state’s systems. Arguably you have to work at it.

        OTOH, we settle things by ballot, up to and including serious policy decisions (ballot initiative state), and I’d far rather have some small number of ineligible votes cast than eligible voters turned away.Report

      • Avatar lyle in reply to Mark Kruger says:

        Here is the law in MI “Michigan law requires that you change the address on your driver’s license or state identification (ID) card when you move. The address must match the address on your voter registration card. If you fail to change your address, your driver’s license may be suspendeded” So MI has solved the license vs voter reg issue. Note that not changing the address on the driver license may well make any auto insurance not valid also. In particular with the voter ID issue if the address you are registered to vote does not match that on the ID you show (if it has one) to vote you can be denied the right to vote (This is why a passport card is better than a drivers license for this since it has no address on it)Report

  6. Avatar J_A says:

    I read the Scotusblog digest of the decision and I’m afraid that I have to go with the majority.

    Congress passed a law mandating states to clean and update their voter registries. Perhaps that law itself is unconstitutional, but that was not the question before the court. Actually, there was no constitutional question here, but rather whether or not Ohio’s mechanism complies with the statutory requirements set up by Congress. And, as far as I could see, the answer was yes, Ohio’s law meets Congressional requirements. Perhaps someone will appeal against the Federal law on constitutional grounds and win, but to me, this was a clear case that should have never gone this far, and, for once, I see the liberal four as the ones playing politics.

    The original sin of voter (and other) issues, is the US obsession with not having an ID number and document like most people in the planet do. So we try to replace the ID document with ad-hoc make do like SSI (hey, there, fellow citizens, we do have a national ID number, let’s use it for everything) and drivers licenses, and utility bills.

    For convoluted reasons related to my naturalization my legal name and my day to day name are different. There’s only four documents that carry my legal name: certificate of naturalization, Social Security card, passport, and voter registration. I use my passport as proof of identity when I vote, to the dismay of poll officers, who take for ever to find me, because there’s no common unique number they can correlate with meReport

  7. Avatar j r says:

    All in all, this seems like a pretty good example of the ways in which our politics is broken and we’re stuck fighting the fights of the last fifty or so years. E-government is where we ought to be heading and it would make a lot of these fights moot. Sure, there would be new fights, but the sooner we get on to those the better.

    Public administration is hard. There are any number of ways for the government to provide a particularl service and they all have shortfalls; they are all going to end up disadvantaging someone. Making tradeoffs is part of what it means to live in a democracy.Report

    • Avatar Oscar Gordon in reply to j r says:

      Making tradeoffs is what it means to live in reality.Report

      • Avatar j r in reply to Oscar Gordon says:

        Yeah, that’s the larger point. But the thing about dysfunctional political systems is that they shield us from that larger reality of the world, either by imposing some other reality (as with authoritarian or totalitarian states) or, in democracies, by propagating the illusion that to accept a tradeoff is to accept defeat and that you can have everything that you want; you just have to defeat some enemy (i.e. the other team) to get it.Report

  8. Avatar lyle says:

    Just to provide more items where states did not do clean up. When my father died a few years later he got called for jury duty and both parents were invited to renew their drivers licenses after they had passed. It appears that the county clerks office does not notify itself about deaths, and also does not notify the driver license folks. (Nor do the drivers license folks check the social security death index either) Likley this is yet another example of computer systems not talking to each other. One interesting question is do states purge voter rolls based upon the social security death index? Or do we have the chance for the graveyard vote.Report

  9. Em, thanks for writing these posts about court decisions. They’re quite informative.Report

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