DOJ flips on SCOTUS purge case

Justin here (and with a caveat: at DOJ, I worked on amicus briefs on this issue, including in this case).

Today, DOJ filed an amicus brief in Husted v. A. Philip Randolph Institute.  The case, now at SCOTUS, is about whether the NVRA prevents certain types of purges.  The NVRA says that before officials can take someone off the rolls because they’ve moved, either the voter has to tell the official they’ve moved, or the official has to send a forwardable notice and wait two federal elections to see if the voter makes contact.  Most states send that latter notice after getting some affirmative evidence of a move rendering them ineligible — an indication in the USPS change-of-address system, for example, or unforwardable mail that can’t be delivered.  A few states — including Ohio and Georgia, where there’s separate litigation — send the notice after a period in which voters haven’t voted or otherwise made contact with officials, meaning that someone’s subject to purge for inactivity alone.  The fight is about whether the NVRA permits Ohio to do this.

I won’t get into the statutory interpretation arguments here — the statute is complicated, and the competing arguments on either side argue about surplusage, which means you’ve really got to dive into exactly which piece does what.  And I won’t get into the policy arguments here either — truly modernizing voter registration would mean accounting for moves to keep eligible people registered in the right place, rather than worrying about separately purging in one place and adding in another.

But the DOJ filing is notable in and of itself.  Today, DOJ said that Ohio’s purge is fine. But as the brief itself notes, that’s not what DOJ said last year, either in amicus participation in a Georgia federal trial court or in the 6th Circuit version of this very case.  (As mentioned, I was involved.)  It’s quite rare for the DOJ to change course after a filing a brief in the court of appeals: the Solicitor General’s office is often called the “Tenth Justice,” in part because while reversals happen, there’s a thumb on the scale to treat DOJ filings with some internal quasi-precedential weight.

And the brief is also notable for another reason: the signature block shows no participation from career civil rights attorneys.  (The same thing happened with the controversial Title VII filing two weeks ago in the 2d Circuit, when DOJ weighed in on the opposite site of the EEOC.)  In the normal course, you’ll see political and career attorneys from both the appropriate DOJ Division and the SG’s office, like this brief here.  Not so today.

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