How "Fit" is Our Democracy? Exercising the Right to Vote in Light of Recent U.S. Supreme Court Opinions.

As the opinions detail, voting in the United States is subject to both federal law (law governing all of the states) and state and local laws.   With the retirement of Justice Kennedy, the upcoming off-year elections, and ongoing planning for the census, the Supreme Court’s views concerning gerrymandering, state and local voting requirements and what the “right to vote” means are all the more consequential.

On June 11, 2018, the Court issued its 5-4 ruling in Husted v. Philip Randolph Institute et al., 584 U.S. ____ 2018.  For ease of reference in the context of other “voting” cases this term, Husted is the “Ohio” case about the state’s law that purged voting lists under certain circumstances. The Ohio election law cancelled the voter registration of any voter who failed to vote in two elections and didn’t return a postcard to election officials.

The Ohio practice came into sharp focus when Mr. Larry Harmon, a veteran of the United States Navy, was not able to vote at his local polling place in 2015.  Although Mr. Harmon had lived at the same address for over 16 years, he did not vote in two elections  (2009 and 2010).   Ohio officials claimed that Mr. Harmon failed to return the postcard notices needed to maintain his voter eligibility; Mr. Harmon indicated he did not receive the notices.

The case analyzed whether the Ohio practice and actions were consistent with the National Voter Registration Act (NVRA) (1993) and the Help America Vote Act (HAVA) (2002). These federal statutes, taken together, were intended to (1) make voter registration easier;  (2) keep voter registration lists current and accurate; and (3) direct states to maintain a process to remove ineligible voters from polling lists.

The majority decision, authored by Justice Alito and joined by the conservative members of SCOTUS--- including the now-retiring Justice Kennedy--- upheld the Ohio practice that struck Mr. Harmon off the list of eligible voters.  Their opinion focuses on statutory construction, reconciling the Ohio election laws with the NVRA and HAVA.

A likely outcome of Husted is that other states may adopt the Ohio approach in an effort to reduce the number of eligible voters.  In a likely portent of other voting rights cases and related political debate, there were two dissenting opinions.  Justice Breyer authored a dissent in which he was joined by Justices Sotomayor, Ginsberg and Kagan joined.  Interestingly, Justice Sotomayor filed her own dissenting opinion, as well.  Justice Sotomayor’s dissent sets forth an extensive historical and policy context for the NVRA, emphasizing the anti-purging basis for the federal statute.  The Ohio practice undermines the NVRA because, in Justice Sotomayor’s view, it serves as a purging mechanism that disproportionately impacts the poor, minorities and the elderly.   A key element of the dissent by Justice Sotomayor is the reiteration of case law support for the concept of a “fundamental right to vote.”   As stated in her dissenting opinion, Justice Sotomayor writes:

                        “In concluding that the [Ohio practice] does not violate the NVRA, the majority does more that just misconstrue the statutory text.  It 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.  States, though, need not choose to be so unwise.  Our democracy rests on the ability of all individuals,              regardless of race, income or status, to exercise their right to vote.”

What the “right to vote” means in the United States today was further addressed in other recent voting rights decisions (to be discussed in the near future) and will form part of the political discussion for years to come.  As U.S. Senator Elizabeth Warren recently commented, what other fundamental rights have to be exercised every two years or they are lost?   If a citizen does not assemble or engage in “free speech” or “religion” every two years, their rights in these categories are not lost.  Why then should the right to vote require periodic exercise to exist?