Husted v. A. Philip Randolph Institute is not an easy case. It involves a dizzying web of federal legal provisions governing how states may — and, in some cases, must — maintain their voter registration laws.
Taken as a whole, this welter of provisions could plausibly be read in the way Justice Samuel Alito does on behalf of the Courts’ Republicans — as an instruction manual to carry out the sort of voter purge that Ohio used in this case. Alternatively, it could be read to forbid such purges.
Husted, in other words, is the kind of case where ideology matters most. It involves a politically charged topic — whether a state’s effort to make it harder to vote should be permitted — as well as a not-especially-clear statute. These are the sorts of cases where judges have the most discretion to act according to their policy preferences — when the language of a statute permits either result.
And, sure enough, the Supreme Court split entirely along party lines in Husted. Alito’s opinion is joined by Chief Justice John Roberts, Justices Anthony Kennedy and Samuel Alito, and by Neil Gorusch, who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it. All four of the Court’s Democrats joined a dissenting opinion by Justice Stephen Breyer, and Justice Sonia Sotomayor wrote a separate dissent.
Husted concerns a process Ohio uses to identify voters who may have changed addresses, and to purge them from the voter rolls. The state “sends notices to registrants who have ‘not engage[d] in any voter activity for a period of two consecutive years.’” After such a notice is sent, “Ohio removes registrants from the rolls only if they ‘fai[l] to respond’ and ‘continu[e] to be inactive for an additional period of four consecutive years, including two federal general elections.’”
Thus, the process of removing a voter takes about six years. Although the state notifies the voter that they are in danger of being purged via a postcard, the entire process is triggered by the voter’s failure to participate in the electoral process for “two consecutive years.”
The federal statute at issue in Husted, the National Voter Registration Act (NVRA), specifically contemplates some kind of “notify, wait, and purge” process like the one used in Ohio. Yet is also includes an significant limitation. “Registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters,” according to the NVRA, “except that no registrant may be removed solely by reason of a failure to vote.”
Alito’s opinion focuses on the word “solely.” Ohio’s process, he claims, “does not strike any registrant solely by reason of the failure to vote.” Rather, it “removes registrants only when they have failed to vote and have failed to respond to a change-of-residence notice.” (Emphasis added.)
That is, as stated above, an entirely plausible reading of the statute. Yet it also renders part of the NVRA’s language superfluous. If the statute explicitly articulates that states should purge voters who are caught up in a “notify, wait, and purge” regime, why would the statute also include the words “except that no registrant may be removed solely by reason of a failure to vote” in the very same sentence that calls for such purges unless these words were intended to limit the scope of the purges?
The court of appeals that struck down Ohio’s voter purge process answered this question by looking to how Ohio determined which voters should be eligible for a purge in the first place. In Ohio, the “notify, wait, and purge” process is “triggered” by “a registrant’s failure to engage in any ‘voter activity’ for two years.” Such a trigger mechanism, according to the United States Court of Appeals for the Sixth Circuit, constitutes removal “solely by reason of a failure to vote.”
In other words, a voter doesn’t even get on the list of people subject to a purge unless they fail to vote for two consecutive years.
What ultimately matters in Husted, however, is neither the confusing text of the law nor the opinion of the Sixth Circuit. The Supreme Court is supreme over the Sixth Circuit. And five votes is more than four.
There are many alternative universes where Husted came down the other way. One is the universe where Justice Antonin Scalia died while Democrats still controlled the Senate. Another is the one where President Obama named a different FBI Director who honored the Justice Department’s longstanding policy against making statements that will influence elections.
Here in this universe, however, Senate Republicans successfully held open a Supreme Court seat until Donald Trump could fill it. And Trump filled that seat with a man who makes the conservative icon Justice Antonin Scalia look like the civil rights hero Justice Thurgood Marshall.
And that’s what gave Alito the fifth vote he needed to resolve Husted in favor of voter purges.