The Supreme Court on Monday upheld Ohio’s voter purge law that allows the state to drop voters from the rolls if they do not vote in three consecutive federal elections and do not respond to a mailed postcard, creating a precedent for other states to adopt the same kind of voter elimination system. The 5-to-4 decision in Husted v. A. Philip Randolph Institute is the latest in an ongoing effort to restrict voting rights, reversing a 20th-century trend that sought to create a more representative electorate by safeguarding the right to vote for minorities. As Ari Berman, author of a recent history of voting rights, noted in the aftermath of the ruling, Ohio has purged over 2 million voters from the rolls since 2011, with black voters in the largest counties over twice as likely to be purged as white voters.
This decision demonstrates that the justices today have forgotten something that the court once understood: White lawmakers will write laws and create administrative practices that, on their face, are racially neutral but that have the effect of excluding minority voters from exercising their constitutional rights.
In the majority opinion in Husted, Justice Samuel A. Alito Jr. held that because Ohio sent a notice to those people that it suspected had moved rather than purging voters automatically, the state was still in compliance “to the letter” with the National Voter Registration Act, which mandates states to provide opportunities for voter registration and prohibits removing voters from the rolls simply for not voting. In her dissent, Justice Sonia Sotomayor pointed out the issues that such a close reading creates. She lamented that obstacles such as “language-access problems, mail delivery issues, inflexible work issues, among other obstacles, make it more difficult for many minority, low-income, disabled, homeless, and veteran voters to cast a ballot or return a notice, rendering them particularly vulnerable to unwarranted removal.”
This disjuncture between the letter of the law and its consequences for communities of color is not a new debate. Rather, it is the most recent iteration of legal efforts to limit the power of the 1965 Voting Rights Act (commonly known as the VRA) that began just over a decade and a half after its passage. Instead of protecting the right to vote, the court has repeatedly sustained laws that narrow the state’s obligation to protect all voters, while whittling away the VRA’s clear intent: to provide for the equitable representation of voters from marginalized communities, particularly African Americans.
The shift against the VRA was made possible by the election of Richard Nixon. In his six years as president, Nixon appointed four justices to the Supreme Court, which dramatically shifted the Court’s composition from what it had been at the time of the VRA’s passage.
The first major setback to the VRA came in 1980, when the court held that at-large elections were not, on their own, unconstitutional. Civil rights activists opposed at-large districts, in which the entirety of a jurisdiction votes for candidates (for example an entire city electing all of the members of the city council as opposed to individual communities each electing a representative), because they often meant that places with a majority-white population could effectively drown out the influence of newly enfranchised minority voters. The move to single-member districts, where one official was elected by a specific community, had major implications for voters of color, since it meant that they could elect people that were directly accountable and, usually, of the same race. As Berman notes in his book “Give Us the Ballot,” in Texas, the shift to single-member districts raised representation from nine black and eight Hispanic officeholders to 26 blacks and 24 Hispanics in just eight years. By greenlighting at-large elections, the court chipped away at this new wave of representation.
In the years that followed, the court continued to grow more conservative as Presidents Ronald Reagan and George H.W. Bush appointed five justices (Reagan also elevated the conservative William Rehnquist to chief justice). Not surprisingly, it also continued to narrow the scope and authority of the VRA.
In 1995, it began restricting the construction of majority-minority districts, created to address the underrepresentation of minorities in office. The issues involved are complicated, but essentially, majority-minority districts were seen as a way to ensure more minority officeholders were elected, by creating districts in which the majority of voters were members of minority groups. But this often required creating districts so bizarrely drawn that, as the court ruled, they could only be seen as an attempt to segregate voters based on race and were therefore unconstitutional. In the aftermath of the ruling, civil rights activists were left in a bind: The VRA itself mandated that states needed to address their underrepresentation of minority influence, but now the court was saying that using race as a singular factor was unconstitutional.
While the ruling emerged from a desire to address the discriminatory composition of districts that weakened African American voting power, it did nothing to address the underrepresentation that necessitated the districts in the first place.
In recent years, the court has continued to enable voter restriction. In the 2008 case Crawford v. Marion County Election Board, the court decided that a voter ID law in Indiana was constitutional because it did not impose an undue burden on voters. The court held that the requirement to have a photo ID advanced a legitimate state interest — protecting against voter fraud — and was on balance important enough to be upheld. This was despite the fact that the plaintiffs could produce not even one instance of confirmed voter fraud as evidence.
In his dissenting opinion, Justice David Souter argued that “the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.” Again, we see that when state interests are pitted against the material interests of minority communities, the disadvantaged come out on the short end.
The most recent and perhaps most salient example of the turn against voting rights is the 2013 ruling in Shelby County v. Holder. Here, the court held that the formula used in Section 4(b) of the VRA, which laid out which jurisdictions required pre-clearance from the Justice Department before changing their voting laws, was no longer precise in figuring out which parts of the country were disenfranchising people of color. The ruling came in the midst of congressional hearings that revealed that many of these jurisdictions were still attempting to create schemes that made it harder for people of color, young people and the elderly to vote — all scenarios in which the VRA was the last line of defense. While the court was, on the merits, correct that other districts besides those covered under Section 4(b) had disenfranchisement schemes of their own, this decision allowed such voter restriction to continue everywhere without preapproval from the Justice Department.
The Husted ruling continues the trend of ignoring the practical realities of discrimination in favor of the preservation of strict legal interpretations. It also shows how the consequences of this trend are getting progressively worse. In each case, the decision rendered by the court was not simply greeted by conservatives as a victory but used as fodder to help construct broader schemes of minority disenfranchisement. Despite the herculean activism done by organizations like the Poor People’s Campaign and the ACLU since Shelby, the decision Monday not only allows states to purge voters but to create more draconian forms of voter-ID laws — laws that have proven over time to be less about voter protection than voter suppression.
In addressing explicit racial segregation, the court has weakened minority voting power again and again. Moreover, these decisions have made it harder for people of color to consolidate voting power over time, reversing the gains that civil rights activists fought for a century to achieve. The Husted ruling is a window into how the court has aided and abetted the devastation of minority voting rights. More importantly, it shows that this devastation gets more organized and more complex with each decision handed down — making the courts an ally in the effort to silence citizens’ voices rather than protecting their basic rights.