Husted v. A. Philip Randolph Institute on Voting Rights
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The Constitution leaves the regulation of about voting procedures to individual states, but also recognizes that individuals have rights to equal representation without discrimination. The tensions between these two principles have arisen several times in recent constitutional controversies, especially regarding the continued constitutionality of the Voting Rights Act of 1965. Husted addresses the state of Ohio’s decision to purge voter rolls of infrequent voters. Is this a legitimate regulation or a veiled attempt to disenfranchise minority citizens? The 5-4 decision in Husted raises further barriers to citizen claims that voting rights have been violated.
Voting rights are central to a democracy. Indeed, democracy cannot survive without them. Periodically, the news carries images of people voting in their first open, free elections. They are practically giddy. They finally have a voice. They receive an ink mark on their thumbs to show that they voted. They wear the mark like a badge of honor. They do not wash their hands. In the United States, we take the right to vote for granted. In visible presidential elections, over a third of the eligible voters do not cast a ballot. The statistics are worse in the mid-term and off-year elections: less than forty percent of the eligible voters bother to cast a ballot.
In many countries, people show up and if they have valid identification, they can vote. They do not have to register ahead of time. In the United States, that is generally not the case. Voters need to be registered before the election. Some states make it relatively easy to vote; others construct obstacles. And that is why the cases before the U.S. Supreme Court like Husted v. A. Philip Randolph Institute (2018) are critical and have far-reaching implications.
The question in front of the Court in the case was this: when a state institutes a purge of voter registrations, when is that an allowable regulation and when does it constitute unconstitutional voter suppression? The argument in favor of the right to vote has a clear appeal: everyone should vote and it should be easy to exercise the right. But the perception is that the more restrictive the laws, the more they help the Republican Party. The easier it is to register, the better for the Democratic Party. Democrats tend to be less educated as well as younger and more mobile. In recent years, Republican state legislatures have been active in what their opponents label “voter suppression.” Republicans have justified the measures as means of combatting voter fraud. Democrats claim that the incidents of fraud are wildly exaggerated and suggest that the real reason for the laws is to suppress voting among the poor, the young, and minorities.1 Was the Ohio law in Husted a proper regulation or an unconstitutional violation of voting rights?
Voting Rights in America
The United States does not have a proud history of extending suffrage and voting rights. The franchise was originally limited to white male landowners. The Union had to fight (and win) a Civil War to allow African-American men to vote, but in a deal to deliver the presidency to Rutherford B. Hayes in 1876, the U.S. ended Reconstruction and left the Southern states to effectively disenfranchise black voters. And we are close to marking the 100th anniversary of women getting the right to vote in 1920.
While this is not an enviable record, there have been attempts to extend the franchise. Ten of the 17 amendments to the Constitution since the Bill of Rights involve some aspect of voting.2 Half of the ten (the 14th, 15th, 19th, 24th and 26th Amendments) were responsible for enlarging the pool of potential voters. The 15th Amendment put the constitutional stamp on the rights of minorities and authorizes Congress to pass legislation to ensure them.
Voting in some countries is compulsory and those who neglect their responsibilities can be fined. Few democracies place the responsibility of registering to vote primarily on individual citizens, rather than making the government accountable for registering eligible persons. However, the United States is one of those countries that is more restrictive. Historically, elections were seen as the province of state government, under the provisions of Articles I and II on federal elections3 as well as the Tenth Amendment.4 There have frequently been significant legal and practical barriers to participation. Proponents of expanded voting rights have advocated reform, but progress was slow. Reform is viewed as a zero-sum game with definite winners and losers in partisan politics and this is why it has become a major, divisive issue.
The landmark legislation to expand the franchise was the Voting Rights Act of 1965 (VRA). The VRA eliminated the most obvious obstacles to voter registration, such as literacy tests and state poll taxes.5 The Act imposed federal oversight of election procedures in “covered jurisdictions,” like some of the former Confederate states that had historically low turnout because of racially motivated voter suppression.6 Those states would have to “preclear” any changes to their own voting rules with the Department of Justice. The Act was immediately challenged and the Supreme Court upheld the major provisions in Katzenbach v. South Carolina . The impact of the VRA was impressive. In the five years after its enactment, as many African-Americans were registered to vote in the South as had been registered in the previous 100 years. In Mississippi, African-American registration increased from below 10% in 1965 to over 70% just five years later.7
Despite its scope, the VRA did not resolve every issue. Congress debated further corrective measures, but easing voting restrictions was presumed to have an asymmetric impact on partisan vote tallies. The conventional wisdom has been that making it easier to register and vote would help the Democratic Party much more than the Republicans.8 The VRA would have to be periodically renewed and was in 1970, 1975, 1982, 1992, and 2006.
Ultimately, Congress passed the National Voter Registration Act (NVRA) in 1993 to make it easier for prospective voters to register. The NVRA established mail-in registration and compelled states to use existing administrative agencies to help register voters. The NVRA helped to increase voter registration, particularly for traditionally disenfranchised voters. But the implementation of the law was hardly uniform. Federal courts typically upheld the NVRA, ruling that the law was well within the power of Congress under the Fifteenth Amendment.
In the wake of the contested 2000 election, Congress pushed further reforms through the Help America Vote Act (HAVA). The new act approached voting issues from a different angle, trying to improve processes and provide resources to assist in the administration of voting in federal elections. The two acts combined were designed to remove obstacles to registration and make the act of voting easier and more reliable.
While the primary objective of the NVRA was to increase voter registration, the law had provisions for removing ineligible voters from state rolls. The legislation was aimed at leveling voting rights across the nation, but at the same time, states were designing laws that had the opposite effect: restricting voting rights. The NVRA appeared to forbid states from purging voters from registration lists simply because they did not vote in previous elections, but some states nevertheless implemented policies that did so. The stated objective for most states was to limit voter fraud. Opponents claimed that charges of fraud were exaggerated and these laws were thinly veiled attempts to disenfranchise minority and poor voters. Virtually every example of restrictive voting legislation came from Republican-controlled legislatures. Prior to recent decisions, the Supreme Court had been a bulwark for expansive voting rights. The Court supported the monitoring of Southern states that had histories of voter suppression.9 But states continued to press and the Court began to relent.
The new waves of restrictive voting laws did not occur in a vacuum. Politically, there was a confluence of other factors and forces. Partisan polarization has become particularly acute. Republicans were very successful in winning state houses and governorships and used these as platforms to protect their ascendant status. Two strategies became popular: restrictive voting laws and gerrymandering (see Chapter 3). And the retreat of the Court dramatically altered the landscape.
In the 1980s, the Court began to retrench and even reverse some precedents. Eight years of Richard Nixon and Gerald Ford and twelve years of Ronald Reagan and George H. W. Bush bookended four years of Democratic control under Jimmy Carter. Nixon and Reagan had four appointments each. Ford had one and Bush had two. Carter became just the fourth president to not have the opportunity to appoint at least one Justice. So Republicans had 20 years to disassemble the most liberal Court in history. Part of the reversal may also be attributed to the difficulty of the cases.10 Because the VRA of 1965 removed overt boundaries like literacy tests and remaining state poll taxes, it was easy for the Court to strike down those types of restrictions. The second- and third-generation cases were more difficult and painted in shades of gray.
The Court reversed direction and supported restrictions on voting rights in the last decade. In Crawford v. Marion County Election Board (2008), the Court upheld an Indiana law that required voters to have picture identification, against claims that it was a burden on the poor and minorities. Shelby County v. Holder (2013) was a landmark decision that announced a significant departure. The Court struck down the preclearance requirements of the VRA. The Court found that preclearance was an unconstitutional burden on federalism and the sovereignty of states. The Court claimed that the preclearance of states was no longer necessary.
The Husted Case
This was the context when Larry Harmon was turned away from the polls. Court cases involve real people with real stories. Harmon showed up at the polls to vote in 2015 on a state ballot initiative. He had not voted in the 2012 presidential election and skipped the midterm elections before (2010) and after (2014). He was denied the opportunity to vote. He claimed that he had not received notice and wanted to remain on the rolls. With the help of the A. Philip Randolph Institute (APRI) and the American Civil Liberties Union (ACLU), Harmon challenged the purge and the law that allowed it.
The case involved the NVRA (also known as the “Motor Voter Act”) of 1993 and the HAVA of 2002. Those laws were designed to make it to easier to vote and reduce the obstacles to participation. Ironically, this case involved the opposite. Embedded in the NVRA were provisions for states to remove lapsed voters from the rolls. The “Failure to Vote” Clause of the Act consists of two parts. The first part holds that states could not remove individuals from voting lists simply because they failed to vote. But the second provision says that there is nothing to stop a state from using other procedures to clear rolls. States could send postcards to lapsed voters and after a specified time, if there was no response, the individual who had not voted could be removed from the lists.
The state of Ohio (represented by Secretary of State Jon Husted) built a “Supplemental Process” for removing voters who had not been active in the last two years. Under the NVRA, voters could not be removed solely for not voting, but the state claimed that it used the inactivity of the voters as a trigger to generate and send a confirmation notice, consistent with the federal laws. The state used a two-stage method for removing individuals who are no longer eligible to vote. First, the state employed the National Change of Address database to identify people who had moved and were no longer eligible to vote. Then state would contact the individual, who would need to return the confirmation notice to remain registered and then must vote at least once in the next four years. The “Supplemental Process” added an additional triggering device that resulted in contacting registered voters and removing them if they failed to return the notice: a failure to vote in two years.
When Larry Harmon was unable to vote because he was no longer registered, the case was taken up by the APRI. A. Philip Randolph was a civil rights activist and labor leader. The institute that bears his name is an organization for African-American trade unionists that advocates for labor, social, and economic change. The APRI was joined by the Northeast Coalition for the Homeless in challenging the provisions in the Federal District Court in Ohio. They argued that the Ohio provision violated the Motor Voter Act because it eliminated people who were not voting. They argued that the confirmation notices that were sent out were inadequate under federal laws.
The District Court held for the state of Ohio. The court ruled that using voting inactivity as a trigger did not violate the provisions of the National Motor Voter Act. The court did not address the adequacy of the confirmation notice, because Ohio agreed to change the process so it was aligned with the NVRA and HAVA.
The Randolph Institute appealed the decision to the Sixth Circuit Court of Appeals, which reversed the District Court’s decision. The Court of Appeals ruled that the Ohio process amounted to the very thing the laws were trying to prevent: removing voters from eligibility because they had not voted.
The Court of Appeals vote was 2-1. Most Court of Appeals decisions come from three-judge panels and are unanimous. When the judges split 2-1, it sends a clear signal of division to the Supreme Court, enhancing the chances that case will be accepted for review. Most often, the Supreme Court accepts cases to reverse the lower court. This time, the state of Ohio appealed the judgment, and the Supreme Court agreed to hear the case.
The Friends of the Court
Any judicial decision from the lowest trial court to the Supreme Court itself has great meaning for the parties to the case. But often, decisions will have implications for a wide range of other actors. Clearly, the Husted case would have such a footprint. Every state, as well as millions of potential and actual voters, would be affected by the decision. This would be particularly true for those who sit out an election or two but later want to cast their vote. It is important for the Supreme Court to anticipate the implications of its decisions. One of the best ways for the Court to gauge the potential effects of a decision is through the use of the amicus curiae brief.
The amicus curiae (friend of the court) brief is presented by groups that will be affected by the decision but are not parties to the specific case before the Supreme Court. The amicus briefs provide the Supreme Court with an informal tally of public opinion. The state of Georgia filed an amicus curiae brief that was joined by 14 other states in support of Ohio. A group of former directors of the Civil Rights Division from the Department of Justice filed a brief and surprisingly also supported Ohio. On the other side, the Brennan Center (named for former Justice William Brennan, a liberal lion) filed a brief that the League of Women Voters joined. A dozen states (eleven solid blue states and Kentucky) also filed a joint amicus brief, arguing that the Ohio law was an unnecessary violation of voting rights and offered less drastic alternatives. They were joined by a number of other groups including Asian Americans Advocating Justice, the National Disability Rights Network, the Vote Veterans Action Foundation, and the Libertarian National Committee.
The most important voice (besides the Justices) belongs to the Solicitor General (SG) of the United States. The SG is responsible for government litigation heading to the Supreme Court. The SG decides which cases that the government lost should be appealed to the Court. The Office of the Solicitor General (OSG) also argues the cases before the Court. The OSG has unmatched success in getting cases accepted by the Supreme Court and winning on the merits.11 The government is involved in dozens of cases each term, but even when the United States is not a party, it can enter as an amicus curiae . As the most successful litigant, the word of the SG carries tremendous weight. In the Husted case, the SG (under President Obama) entered the case originally on behalf of the Randolph Institute and against the state. But with the election of Donald Trump, the OSG took the rare step of changing positions in the case to support Ohio.
There was good reason to think that the supplementary procedures used by the state of Ohio would survive Supreme Court review. Recent Supreme Court precedents had given states considerable and increasing leeway in writing their own election laws and had removed the preclearance requirements. In addition, the Supreme Court leaned to the right: conservative Justices outnumbered their liberal colleagues.
A number of states had similar laws, but the Ohio version was considered the most aggressive in purging voters. The amicus curiae brief filed by the Brennan Center argued that only Ohio “commences such a process based on the failure to vote in a single federal election cycle,” adding that “literally every other state uses a different, and more voter-protective, practice.”
The challenge to the Ohio Supplemental Procedure was based on the language of Federal laws that expressly prohibit states from removing people from the rolls simply because they failed to vote. But the Court ruled 5-4 that the laws did allow election officials who suspect a voter has moved to send a confirmation notice. And the failure to return the notice or vote in subsequent elections made the non-voter subject to a purge.
In the majority opinion of the Court, Justice Samuel Alito pointed to research that supported congressional and state efforts to clean up voting rolls. Alito quoted a study that showed that an estimated 24 million voter registrations were inaccurate or invalid and that close to three million people were registered to vote in more than one state.
Federal law, Justice Alito wrote, “plainly reflects Congress’s judgment that the failure to send back the card, coupled with the failure to vote during the period covering the next two general federal elections, is significant evidence that the addressee has moved.”12 Justice Alito urged deference to Congress and accused the dissenters of having a policy disagreement with the legislatures. He wrote that the case “presents a question of statutory interpretation, not a question of policy.” Thus, he wrote, the Court had no authority to second-guess Congress or to decide whether the Ohio supplemental procedure was the best method for the state to police its voting rolls. He concluded that “The only question before us is whether it violates federal law. It does not.”13
In dissent, Justice Stephen Breyer quoted a Senate report on the NVRA: “The purpose of our election process is not to test the fortitude and determination of the voter, but to discern the will of the majority.”14 He argued that the worthy goal in having accurate voting lists did not justify imposing obstacles that would prevent eligible voters from participating.
Breyer marshaled evidence to show that Ohio sent out 1.5 million notices (roughly one-fifth of the state’s eligible voters) despite the fact that on average less than five percent of Americans move to another county each year. Less than twenty percent of those receiving notices replied to the state. Of those, four times as many people responded that Ohio had made an error and they had not in fact moved. The vast majority, over one million, never responded. Justice Breyer considered this no more than the “the human tendency not to send back cards received in the mail.”15 The dissent argued that the Ohio Supplemental Process does in fact and effect rely on the failure to vote to purge voter rolls and the additional requirement of responding to a mailed notice does not mitigate violation of the National Voting Registration Act.
In a separate dissent, Justice Sonia Sotomayor focused on the broader consequences. She said that the Ohio law was part of a number of “concerted state efforts to prevent minorities from voting and to undermine the efficacy of their votes.” She lamented that this was a long-standing and “unfortunate feature of our country’s history.”16
The Husted decision is bound to have significant consequences. According to Adam Liptak: “On one level, the decision sought to make sense of tangled statutory language. But it was also a vivid reminder that measures placing obstacles between people seeking to vote and their ability to cast ballots—including cutbacks on early voting, elimination of same-day registration and tough voter ID laws—present dueling visions of democracy.”17
Some decisions of the Supreme Court have a limited effect; others have a lasting impact. Husted is a prime example of the latter and will serve as a “how-to” for other legislatures and an invitation for multiple states to try to construct their own versions or simply adapt the Ohio model.
See Raymond Wolfinger and Steven Rosenstone, Who Votes? (New Haven: Yale University Press, 1980); see also Barry Burden, David Canon, Kenneth Mayer, and Donald Moynihan, “Election Laws, Mobilization, and Turnout: The Unanticipated Consequences of Election Reform,” 58 American Journal of Political Science 95–109 (2014).
These include the 12th (election of the Vice President); 14th (recognition of citizenship allowing for voting); 15th (voting rights of minorities); 17th (direct election of Senators); 19th (voting rights of women); 20th (decreasing the time between the election and inauguration); 22nd (limit to presidential terms); 23rd (representation of Washington, DC); 24th (prohibition of poll taxes); and 26th (voting rights of young people).
Article I, Section 4: “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof”; Article II, Section 1: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors….”
The United States is a “federal” system with power divided between the national government in Washington and subnational governments (states and local governments). Each has its own specific powers and sometimes they share powers (like taxation, see Chapter 8). The 10th Amendment to the Constitution gives the states all powers not granted to the central government or denied to the states.
The 24th Amendment ended poll taxes in federal elections, and the VRA sought to put an end to poll taxes in state elections.
The states covered in 1965 were all of Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and parts of North Carolina; the Act was later extended to cover Alaska, Arizona, Texas, and parts of several other states.
See Paul Joubert and Ben Crouch, “Mississippi Blacks and the Voting Rights Act of 1965,” 46 Journal of Negro Education 157–167 (1977).
For research that shows that it is hard to predict the impact of such laws, see Adam Berinsky, “The Perverse Consequences of Electoral Reform in the United States,” 33 American Politics Research 471–491 (2005). See also Stephen Knack and James White, “Did States’ Motor Voter Programs Help the Democrats?” 26 American Politics Research 344–365 (1988).
See Richard Pacelle, Between Law and Politics: The Solicitor General and the Structuring of Race , Gender , and Reproductive Rights Litigation (College Station: Texas A&M University Press, 2003).
See Richard Pacelle, Brett Curry, and Bryan Marshall, Decision Making by the Modern Supreme Court (New York: Cambridge University Press, 2011).
See Pacelle, Between Law & Politics.
Husted v. A. Philip Randolph Institute decision, page 20.
Ibid., page 21.
Husted Breyer dissent, page 2.
Ibid., page 13.
Husted Sotomayor dissent, page 1.
Adam Liptak, “Supreme Court Upholds Ohio’s Purge of Voting Rolls,” The New York Times, 11 June 2018.