President Trump tweeted triumphantly on Monday, “Just won big Supreme Court decision on Voting! Great News!” The great news in his book is a 5-4 decision allowing Ohio to remove people from the voting rolls who haven’t voted in every election. Specifically, if they haven’t voted in two years, they get a postcard in the mail, and if they don’t respond, they have four more years to vote. Then they are taken off the rolls.
What if they throw away the postcard thinking it is junk mail? Too bad. What if for six years they cannot find someone worth voting for? Too bad. Off they go. You would think the Trump administration and the five conservative justices didn’t want just anyone who wishes to vote to be allowed to do so.
In the majority opinion, Justice Samuel Alito found that the prohibition against removing people from the voting rolls for failure to vote didn’t apply because they could remain on the rolls just by sending back the postcard. And if it got lost in the mail or misdirected or forgotten? Alito thinks it’s fine to take away the fundamental right to vote. In his mind, “What matters for present purposes is not whether the Ohio Legislature overestimated the correlation between nonvoting and moving or whether it reached a wise policy judgment about when return cards should be sent. For us, all that matters is that no provision of the [National Voter Registration Act] prohibits the legislature from implementing that judgment.”
In dissent, Justice Stephen Breyer expressed some amazement at the majority’s cavalier treatment of the right to vote. Breyer argued that Ohio failed to satisfy the statute requiring “administration of voter registration for elections for Federal office” because it had erected “needless hurdles to voting of the kind Congress sought to eliminate.” He explains:
In identifying registered voters who have likely changed residences by looking to see if those registrants failed to vote, Ohio’s program violates subsection (b)’s express prohibition on “[a]ny State program or activity [that] result[s] in the removal” of a registered voter “by reason of the person’s failure to vote.” §20507(b)(2) (emphasis added). In my view, these words are most naturally read to prohibit a State from considering a registrant’s failure to vote as part of any process “that is used to start, or has the effect of starting, a purge of the voter rolls.” H. R. Rep. No. 103–9, at 15. In addition, Congress enacted the Failure-to-Vote Clause to prohibit “the elimination of names of voters from the rolls solely due to [a registrant’s] failure to respond to a mailing.” Ibid. But that is precisely what Ohio’s Supplemental Process does.
Breyer explains just how arbitrary the Ohio law is:
The fact that the State hears nothing from the registrant essentially proves nothing at all. Anyone who doubts this last statement need simply consult figures in the record along with a few generally available statistics. As a general matter, the problem these numbers reveal is as follows: Very few registered voters move outside of their county of registration. But many registered voters fail to vote. Most registered voters who fail to vote also fail to respond to the State’s “last chance” notice. And the number of registered voters who both fail to vote and fail to respond to the “last chance” notice exceeds the number of registered voters who move outside of their county each year.
The American Civil Liberties Union blasted the decision to remove voters, noting “countless voters, including homeless and housing-insecure Ohioans, have already been stripped of their rights as a result of Ohio’s unjust and illogical purge process.” Indeed, the next round of litigation may well follow the model of voter-ID litigation, in which the matter at issue is the discriminatory effect that an otherwise neutral rule might have. The ACLU vowed that “the court’s decision will not hinder our current and future advocacy efforts. Marginalized populations remain extremely vulnerable to state-sanctioned voter suppression and disenfranchisement, and we will continue to fight to uphold the rights of eligible voters in the 2018 midterm elections, and beyond.”
Let’s take a step back from the legal arguments for a moment. As the Republican Party narrows its appeal to white voters and fans the flames of white grievance, it is becoming less attractive to everyone else. Rather than broaden its appeal, the party increasingly seeks to narrow the electorate in ways that, by gosh, just happen to decrease minority participation. The strategy reveals a party’s lack of self-confidence in itself and in democracy itself. When the president celebrates depriving people of the right to vote, something is seriously amiss.
There is a solution (other than a statutory amendment): a full-out, no-holds-barred effort to register every eligible voter. Some states are passing automatic registration. Florida has a ballot measure to restore voting rights to those who have fully served their criminal sentences. I’d add two more suggestions: First, instead of running vanity ads (looking at you, Tom Steyer), wealthy donors should commit to registering millions of voters. Second, the Democratic National Committee, which increasingly seems irrelevant to the national debate, should for the foreseeable future use its resources primarily for voter registration. If there is a better use of the DNC’s money, I’ve yet to find it.
Sadly, I direct these suggestions to Democrats because Republicans have made it perfectly clear that they want a smaller, whiter electorate. It is morally repugnant and violates our democratic principles, but it can no longer be doubted. Hence, the job of expanding democracy for now rests with one party and any independent organizations or individuals committed to the basic principle that the people — not just likely Republican voters — rule.