Yesterday’s Supreme Court decision in Husted v. A. Philip Randolph Institute was decided when Neil Gorsuch was confirmed as an Associate Justice of the Supreme Court of the United States. Or, if you prefer, it was decided when Mitch McConnell refused to allow Barack Obama to replace the vacancy on the Supreme Court left by Antonin Scalia’s death. Or it was decided when Jeb Bush’s voter purges played a crucial role in his brother becoming president. (Truly the great neoconfederate circle of life!) Or it was decided when the framers of the Constitution agreed to a mechanism for selecting the president that would overrepresent the slave power.
What did not determine the outcome of Husted was the text of the National Voter Registration Act:
Today’s ruling in Husted v. A. Philip Randolph Institute divides the Court 5-4, with the five Republican-appointed justices voting to sustain, and the four Democratic-appointed justices voting to invalidate Ohio’s procedure for–depending on your priors–updating or purging the voter rolls. There is, to be sure, a genuinely difficult question of statutory interpretation that divides the justices, but one would have to be incredibly naive to think that that is where the real action lies.
Husted was not only political in the sense that virtually any politically salient case of interest reaching the Supreme Court is political, since almost all of these cases will be legally indeterminate. This was a case in which Congress clearly did not provide an answer to the question posed by the case in the statute; it was what George Lovell and I call a legislative default. By definition, there is no principle or technique of statutory interpretation that can uncover an answer Congress failed to provide.
What John Roberts was doing in Husted and in Shelby County, in other words, is what he was doing when he was working in the Reagan administration — trying to push the law in the direction of as much suppression of minority voters as the law permits. The five Republicans on the Supreme Court yesterday made a political choice, which is part of the same political project as Ohio Republicans and Donald Trump and Jeff Sessions and Mitch McConnell and Hans von Spakovsky and Kris Kobach. And let’s be clear what the nature of this choice is:
The statutory construction claims advanced in both Alito’s majority opinion and Breyer’s dissent are complicated and in some sense—if you take dictionaries and parsing seriously—both reasonably plausible. The case was always a messy one. But as Richard Hasen notes, Alito’s narrow statutory view of the case requires the majority to deliberately blinker itself to the racial and political history behind the Ohio vote-suppression efforts. It thus falls to Justice Sonia Sotomayor to say (again) that—surprise!—the Ohio supplemental process “has disproportionately affected minority, low-income, disabled, and veteran voters.” She is forced to say out loud what everyone else is thinking: “Concerted state efforts to prevent minorities from voting and to undermine the efficacy of their votes are an unfortunate feature of our country’s history.”
Sotomayor notes that the majority’s reading of the federal statutes “entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.” She also takes time to explain the ways in which poor, minority, and elderly voters are disproportionately apt to be purged because of the reality of their lives, including “language-access problems, mail delivery issues, inflexible work schedules, and transportation issues.”
In the kindest construction the choice a bare, partisan majority of the Supreme Court made yesterday was between imaginary claims of voter fraud and the very real suppression of minority voters. It made the choice it did because the modern Republican Party is fueled by racial resentment and because it is for good reason terrified of a level political playing field. And specious assertions that this is no big deal because it’s a statutory case that can theoretically be overruled by Congress are fatally undermined by the fact that this will make it more difficult for even an electoral majority to displace incumbent Republicans.
And while sometimes the effects of even morally terrible Supreme Court decisions are limited, that’s not the case here:
What makes the Ohio law especially odious is that it’s a cure for which there is no disease. Some people don’t vote in off-year elections, or in every Presidential-election year. That’s no indication of voter fraud, nor a reason to punish them with disenfranchisement. But that’s what this law does; indeed, that’s the whole point of it. According to Jon Husted, the Republican who is Ohio’s secretary of state, “Today’s decision is a victory for election integrity. This decision is validation of Ohio’s efforts to clean up the voter rolls and now with the blessing nation’s highest court, it can serve as a model for other states to use.” In this, he’s right. Lawmakers in Republican-controlled states will see the Husted decision as an invitation, hydraulic in its force, to launch even more invasive purges of disfavored voters. It’s an invitation that many are likely to accept.
The civics-textbook defense of the Supreme Court views it as the bulwark against suppression of minority rights. Too often it has failed to address violations of such rights or exacerbated them. Yesterday’s policy judgement by the Supreme Court belongs squarely within this deeply ignoble tradition.