I have a couple of follow-up points about Husted, which Paul talked about earlier.
It is true, as far as it goes, that as a formal matter this case is not as outrageous as Shelby County — what is? — as the NVRA is not very well-drafted and is ambiguous on the crucial point. But, still, Breyer has the better of the argument. The NVRA requires states to remove voters who are no longer eligible to vote where they’re registered because they’ve moved, but expressly forbids purging based on a failure to vote. As Breyer says, it requires willful blindness not to see that Ohio’s draconian procedures effectively purge people for not voting, rather than moving. Indeed, Sonny Black’s reasoning effectively reads the “failure to vote” prohibition out of the statute:
I’m also grateful for Sotomayor’s dissent, which provides valuable context about the purpose of the statute, and the effects of the vote suppression the Supreme Court has now encouraged:
Indeed, this is such a true and important point it’s somewhat odd that this was not part of Breyer’s principal dissent. I’m reminded of Ruth Bader Ginsburg being bullied by Scalia into removing a footnote pointing out the real equal protection violations Florida committed in running its 2000 elections. The “respectable” wing of Trump’s Party doesn’t like the effects and purposes of its actions to be pointed out, and too often liberals are willing to go along. Sotomayor will be one of Obama’s greatest legacies because she’s not.
Since this is a statutory case, in theory it can be remedied by the next Democratic Congress, and a major voting rights bill should be on top of the agenda. But, as this decision illustrates, it’s not easy to write laws that are invulnerable to Supreme Court majorities determined to find any way they can to justify vote suppression. That doesn’t mean it’s not worth trying! But a Republican-dominated judiciary is a major problem, even in statutory cases. Stealing a Supreme Court seat is a gift that will keep on giving to people who want to prevent people of color from voting.