Sotomayor's Dissent in the Big Voter-Purge Case Points to How the Law Might Still Be Struck Down

[Gothmog]

I agree with Prof. Hasen on this. https://slate.com/news-and-politics/2018/06/sonia-sotomayors-husted-dissent-points-the-way-forward-on-racist-voter-purge-laws.html

....but both opinions said little about the key political issue underlying the case, an issue Justice Sotomayor flagged in her separate dissent. After noting that Congress passed the Motor Voter law in light of a history of using restrictive registration and purge rules to suppress the vote, the Justice pointed to evidence showing that the process “has disproportionately affected minority, low-income, disabled, and veteran voters.” She noted evidence that in Hamilton County, Ohio, “African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity” since 2012, as “compared to only 4% of voters in a suburban, majority-white neighborhood.” She also cited amicus briefs explaining “at length how low voter turnout rates, language-access problems, mail delivery issues, inflexible work schedules, and transportation issues, among other obstacles, make it more difficult for many minority, low-income, disabled, homeless, and veteran voters to cast a ballot or return a notice, rendering them particularly vulnerable to unwarranted removal under” Ohio’s process.

Justice Sotomayor pointed out that another provision of the Motor Voter law requires that any removal program “be uniform, nondiscriminatory, and in compliance with the Voting Rights Act,” and this part of the law provides a potential path forward. As more states enact laws like Ohio’s, it will become further apparent that these laws have discriminatory effects.

And aside from lawsuits, worries about voter suppression have energized the left to fight such laws politically. In at least some states, discriminatory laws like Ohio’s can be fought through legislative battles and at the ballot box.

In 2008, the SCOTUS rejected a facial challenge to the Indiana voter id law. In 2014 a federal district judge found that the Texas voter id law discriminated against minorities. Here is a chart that shows the effect of the Texas voter id law on Democratic turnout

Greg Abbott got more votes in 2014 compared to Rick Perry while Wendy Davis got far fewer votes even though she spent more.

In 2016 the 5th Circuit affirmed this ruling and the Texas voter id law was largely gutted so that any registered voter can vote if they lack one of the approved ids and sign a Reasonable Impediment Declaration and provide one of the alternative ids which includes utility bills or bank statements. For college students, out of state drivers license are an approved id

This lawsuit is not the end of the issue. There will be further litigation after there evidence is developed to show that this law has an adverse impact on minorities. The roadmap has been set by the Texas voter id litigation.

[Gothmog]

1. Despite Supreme Court Ruling, Voting Is Still Not a 'Use It or Lose It' Right

The ACLU agrees https://www.aclu.org/blog/voting-rights/fighting-voter-suppression/despite-supreme-court-ruling-voting-still-not-use-it

So while today’s decision “ultimately sanction[s] the very purging” of minority and low-income voters that Congress sought to prevent in enacting the NVRA, as noted by Justice Sotomayor, states do not have unfettered discretion to purge voters. States should beware of trying to turn the clock back on voting rights by failing to heed the NVRA’s limits on purge practices.

As Justice Sotomayor wrote in her dissent:

“Communities that are disproportionately affected by unnecessarily harsh registration laws should not tolerate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by. Today’s decision forces these communities and their allies to be even more provocative and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.”

We agree, and we will continue to monitor states to protect our voting rights this fall and beyond. In fact, we, along with a number of other voting rights advocates, recently secured one preliminary victory against an illegal voter purge program.

I hate this decision but we can fight back.

[Gothmog]

2. Sotomayor dissent tackles impact of Ohio ruling on minority voters

There will be further litigation on this issue https://www.cnn.com/2018/06/11/politics/sotomayor-husted-ohio-analysis/index.html?utm_medium=social&utm_source=twCNNp&utm_content=2018-06-11T20%3A39%3A28&CNNPolitics=Tw

But writing alone, Sotomayor focused on the effect of Ohio's system.

She started with the fact that the 1993 law was enacted "against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections."

Sotomayor accused the majority of "ignoring this history" and "distorting" the statute.

And while Ohio has always argued that its goal was to make a "reasonable effort" to remove ineligible voters, she said that such removal programs must be developed in a manner "that prevents poor and illiterate voters from being caught in a purge system which will require them to needlessly re-register and prevents abuse which has a disparate impact on minority communities. "

And she pointed to one of the amicus briefs in the case that revealed that in one county, "African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity since 2012" as compared to "only 4% of voters in a suburban, majority-white neighborhood."

"We have seen state officials across the country using purge programs as a vehicle to remove legitimately registered voters from the rolls," Kristen Clarke, the President of the Lawyers' Committee for Civil Rights Under Law, said after the opinion was released.

[brer cat]

3. Thanks, Gothmog.

K&R