The United States Supreme Court is upholding several rulings which grant nine states, mostly in the Republican South, the ability to install voter purging laws which actively undermine The Voting Rights Act of 1965. This coincides with a study from NYU’s non-partisan Brennan Center for Justice which found these states have rapidly increased the rate of voter purges and restrictive voting laws since these court decisions were made.
According to The New York Times, the court has consistently divided along ideological lines when confronted with states, known for their history of racial discrimination, demanding to institute more government regulations which prevent citizens from casting their ballots. These include state-enforced cutbacks on early voting, elimination of same-day registration, allowing pollsters to reject certain forms of ID, and removal from the rolls in cases the state dictates is necessary.
A key provision within the Voting Rights Act, known as federal preclearance, requires states to have federal approval through the Justice Department before allowing changes to state election laws that block constitutional rights in any party’s favor. This was the case in Alabama, Virginia, South Carolina, any state where the DOJ prevented Jim Crow laws from rearing their ugly head back into American society.
The court, however, disagreed with this provision.
“Our country has changed,” Chief Justice John G. Roberts Jr. wrote for the majority back in 2013. “While any racial discrimination in voting is always too much,” he added, “Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
Shortly after this decision, Texas announced voter identification laws that had been blocked by the lower courts would go into effect “immediately” and that redistricting maps, free from federal approval, would be the norm. The Brennan Center researchers highlighted that Texas has been among the worst offenders when it came to voter purges since the decision was made. The analysis discovered that over 363,000 more voters were removed from Texas’ electoral rolls between 2012 and 2014 compared to decades past. This is rather small compared to Virginia with over 379,000 removed, 750,000 more in the case of Georgia, finding similar results across America’s south.
Vox reports that voter purge rates in preclearance jurisdictions between 2012 to 2016 “far outpaced” those in jurisdictions that were not previously subject to federal preclearance oversight. The study reportedly oversaw 6,600 jurisdictions and calculated the purge rates for 49 states — discovering that states without federal oversight were more likely to allow 2 million more voters to be removed than states working alongside the DOJ on principle.
This June, the Supreme Court continued to uphold these voter purge precedents in their decision on Husted v. A. Philip Randolph Institute, a recent 5–4 victory for the conservative justices, which now allows those same examined states such as Ohio to begin kicking people off the rolls if they skip a few elections and fail to respond to a notice from election officials.
Federal laws prohibit states from removing people from voter rolls “by reason of the person’s failure to vote,” but they skirt past this with the loophole that election officials can remove voters if they fail to send confirmation notices back to the government. Missing even one election essentially places a voter’s registration on the path to jeopardy.
“Ohio is the only state that commences such a process based on the failure to vote in a single federal election cycle,” said a joint statement from both the League of Women Voters and the Brennan Center for Justice. “Literally every other state uses a different, and more voter-protective, practice.”
The Atlantic reports this process, which requires citizens to return government postcards, frequently leaves eligible citizens deregistered when it comes time to vote. They cite Justice Breyer’s dissent which notes that in 2012, Ohio sent roughly 1.5 million postcards — and got back only about 235,000 replies. The population of Ohio is only 11.66 million. If they’re to believe failure to return a postcard means voters are ineligible, that’s about 13 percent of the entire state either dead or gone. “The streets of Ohio’s cities are not filled with moving vans,” he added.
Republicans push for these purges over some notion there’s a wide-spread voter fraud epidemic across the country. It was President Donald Trump who perpetuated this rumor, without evidence, suggesting on Twitter that well over 3 million illegals voted during the 2016 presidential election using fraudulent means, such as identity theft from the dead. It became such a non-issue the president reportedly disbanded his voter fraud commission just two months after they’d been drafted to investigate. And yet the court continues to enable this over-security to the point that it disenfranchises eligible voting citizens — especially in the aforementioned swing-state.
“The dissents have a policy disagreement, not just with Ohio, but with Congress,” Justice Samuel Alito announced this Monday. “But this case presents a question of statutory interpretation, not a question of policy.”
In translation, as put by Garrett Epps, journalist for The Atlantic: “Whenever a court claims to be engaged in policy-free statutory interpretation, check your wallet. Sometimes it’s true; but, more often than not, somebody’s getting robbed.”
Alito, who issued the opinion of the five-justice majority, was joined by Chief Justice John Roberts, Justice Anthony Kennedy, Justice Neil Gorsuch and Justice Clarence Thomas.
“The only question before us is whether it violates federal law,” Justice Alito wrote of the decision. “It does not.”
One could see these opinions as extreme-libertarian notions against civil rights (they easily could be), but the justices have the difficult task of reading through contradictory legislation. These statutes include The National Voter Registration Act of 1993 (NVRA) and The Help America Vote Act of 2002 (HAVA). These laws uphold two conflicting values: the first being that of citizens and their right to vote, free from tyrannical government restrictions, and the second being that of the need for regulated voter rolls, stripping those of the right to vote in certain justified cases.
This, fundamentally, is about policy disagreements. It’s just a question of which policy wields more importance. Based on the court’s opinion, they chose government regulation, shown to improve their party’s chance of success in the long-run, over civil liberties.