//  9/26/17  //  In-Depth Analysis

Vote suppression is shaping up to be a central issue of the Trump era.  From President Trump’s creation of a bogus “voter integrity” commission—whose goal appears to be to give official imprimatur to the fraudulent narrative of widespread voter fraud and to encourage future laws limiting voting rights—to the Sessions Justice Department’s change of sides to back Texas’s current voter ID law, to the indications that DOJ will threaten to sue states to force them to purge voters from their rolls, all signs point to the Trump Administration’s taking the side of those who are attacking the right to vote. 

In a key case that the Supreme Court will hear this Term, Husted v. A. Philip Randolph Institute, the Trump Administration has once again taken the side of the vote suppressors.  The case involves an Ohio rule that initiates a purge process if a registrant fails to vote in a single election.  The purge process goes like this:  The state sends a mailing to the registrant; if she does not respond, and does not vote in the next two federal elections, she will be removed from the rolls.  The Ohio process was particularly harsh, because it meant that people who voted in the historic 2008 election, then failed to come to the polls in the midterm two years later (as was true for many voters), were subject to a purge. Once removed from the rolls, a voter must re-register, which could lead to many otherwise-eligible voters being unable to cast ballots in the next presidential election (especially for those caught by surprise at having been purged).  

For over 20 years—since shortly after the enactment of the National Voter Registration Act (NVRA) in 1993—the Department of Justice had interpreted the statute to prohibit a state from initiating a purge process based on the failure to vote in a particular election.  The Department took the same position in a 2016 filing in the Husted case itself.  The Sixth Circuit agreed with DOJ and held that the Ohio rule violated the NVRA.

Ohio filed a cert. petition, and in May of this year the Supreme Court agreed to hear the case.  Last month, the Department of Justice filed a brief at the Court.  Its brief renounced the Department’s longstanding interpretation of the NVRA—an interpretation that the Department had successfully pressed in the lower courts.  The Department went so far as to scrub that longstanding interpretation from the NVRA guidance that appears on its website.  (The former guidance can still be found on the Internet Archive’s “Wayback Machine.”)

This new brief was not signed by a single career attorney in the Civil Rights Division, the component of the Department that is responsible for enforcing the NVRA provisions at issue in the case.  And the brief explicitly described “the change in Administrations” as having motivated the renunciation of the Department’s prior interpretation.

An amicus brief filed today puts before the Court the Department of Justice’s longstanding interpretation of the NVRA—the interpretation that the Trump Administration has now abandoned.  The amici include former Attorney General Eric Holder and 16 other former DOJ officials who had responsibility for the interpretation and enforcement of the NVRA.  They include individuals who served as career civil servants, as well as those who held politically appointed positions.  The amici have served in both Republican and Democratic administrations.  Notably, they include individuals responsible for NVRA enforcement in the Clinton, George W. Bush, and Obama Administrations—every administration, before the current one, in which the NVRA has been in effect.  (I should disclose that I am counsel on the brief, in addition to being one of the amici.)

The legal argument in the brief is straightforward.  The NVRA sharply limits the circumstances in which states may remove voters from the rolls, and it explicitly bars states from removing registrants based on the failure to vote. Under Ohio’s rule, however, the failure to vote is both the reason the state initiates its voter-purge procedure and the final, most immediate cause of a voter’s removal at the end of that procedure.  The process is not, as the NVRA requires, a “reasonable effort” to identify voters who are “ineligible” by reason of a change in residence.  52 U.S.C. § 20507(a)(4)(B).  To the contrary, it violates the statute by “result[ing] in the removal of” a registrant “by reason of the person’s failure to vote.”  Id. § 20507(b)(2).

When Congress passed the NVRA, it had a goal of ensuring that individuals who were properly registered to vote could stay registered, regardless of their voting behavior.  As Rev. Jesse Jackson testified in the hearings on the bill, “No other rights guaranteed to citizens are bound by the constant exercise of that right.  We do not lose our right to free speech because we do not speak out on every issue.” 

There are many reasons why individuals might not vote in a particular election:  They may not perceive a meaningful difference between the candidates, they may not believe their vote will matter anyway (a particular problem under modern gerrymandering plans that “pack” voters from the minority party into safe districts), or they may experience economic hardship that makes it difficult to get to the polls (a problem that is exacerbated by strict voter ID laws, limits on early voting, and so forth—the sorts of vote-suppressive measures that the Trump Administration is supporting).  And many people will not see or respond to a piece of mail sent to their home.  The failure to vote and then to respond to a single mailing simply is not a reasonable way of identifying voters who have moved.  States have far better ways of making that determination, such as by consulting Postal Service records.

In addition to explaining the legal basis of DOJ’s longstanding interpretation, the amicus brief demonstrates that the Department repeatedly endorsed that interpretation from 1994 until the Trump Administration’s August 7 brief in this case.  Throughout the 1990s, in litigation and correspondence with election officials, the Department repeatedly took the position that the NVRA barred states from initiating voter-purge procedures based on the failure to vote.  During the Bush Administration, the Department negotiated settlement agreements in Arkansas (in 2004), Indiana (in 2006), and New Mexico (in 2007), all of which barred the defendants from initiating purges based on nonvoting.  DOJ reaffirmed that position during the Obama Administration, both in the 2010 guidance the Department has now scrubbed from its website, and in litigation against Georgia as well as Ohio.

By reversing course in the Supreme Court—and doing so explicitly because of the change in administrations—the Sessions Justice Department has abandoned the interpretation of the NVRA that DOJ had previously endorsed in both Democratic and Republican administrations.  The Court should reject the Trump Administration’s new position, which would eviscerate the statute’s prohibitions against removing people from the rolls for exercising their right not to vote.

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