Are Justice Breyer or Justice Gorsuch in Play in the Ohio Voter Purge Case, Will the Justices Divide Along Familiar Party Lines, or Is It All Kennedy Again?

Today the voting wars reached the Supreme Court, which heard oral argument in Husted v. A Philip Randolph Institute, a case which concerns an Ohio law which makes it relatively easy to remove voters from the rolls. While there might be some reason to believe that Justices Breyer or Gorsuch could be in play, or that Kennedy could side with the liberals, I ultimately expect this case to come down to our now familiar 5-4 split between the 5 conservative Republican-appointed Justices and the 4 liberal Democratic-appointed Justices.

First a quick word of background: if they fail to vote in one election, fail to respond to a post card asking if they want to remain registered, and then don’t vote in two more consecutive federal elections. The post card is forwardable, so this is not based on mail reported as return to sender because someone moved. At issue are provisions in two laws (the National Voter Registration Act of 1993 and the Help America Vote Act of 2002). Slate’s Dahlia Lithwick had a great interview with an Ohio voter who was in the army and came back to discover he’d been removed from the voting rolls. (There’s also a very helpful interview with the ACLU’s Dale Ho.)

The laws limit the circumstances under which voters may be removed from the rolls. One circumstance is that they can be removed from the rolls if they’ve moved out of the jurisdiction; but they cannot be removed for non-voting. At issue (what I consider to be) a tough and close question of statutory interpretation.

Some the early reporting on today’s oral argument, including Adam Liptak’s NYT report suggests Justice Breyer could side with conservatives in the case because of his concern about the need to keep voting rolls clean:

But Justices Anthony M. Kennedy and Stephen G. Breyer expressed concern about maintaining the integrity of the state’s list of eligible voters.

“The reason they’re purging them,” Justice Kennedy said, “is they want to protect the voter rolls from people that have moved.”

Justice Breyer fleshed out the point. “Every year a certain number of people die, and every year a certain number move to California,” he said. “We don’t want them on the voter roll. That used to be a big problem, voting dead people.”

Far be it for me to second guess Adam, who was in the courtroom, when all I’ve got is the cold transcript, but my read of Breyer was different. It seemed to me that he was not really up to speed on the case, and was struggling with how the regular polling project works.  At one point Breyer said “I am very ignorant in this field.”  My sense is that when Breyer gets up to speed on how states are able to maintain clean voter rolls without resorting to this method that seems to run a serious risk of disenfranchising people for simple non-voting, and when he sees that this has a disparate impact on poor and minority voters, he will side with Justices Sotomayor (who hammered the disenfranchisement point and the government’s change of longstanding position in the case), and Justices Kagan and Ginsburg, who focused more on parsing the statutory language of HAVA and the NVRA.

On the other side, Chief Justice Roberts and Alito pushed their own textualist version of the statute, the one that supported Ohio’s position. Justice Alito also called it a “very important” and “sensitive” subject where Congress struck a compromise.

I had indicated before oral argument that I saw a strong textualist argument in the Bagenstos (former DOJ) brief that could convince Gorsuch. Justice Gorsuch said nothing at oral argument, but it would not be surprising to see him and Justice Thomas agree with the textualist arguments set out especially by the Chief.

So does this really (again!) come down to Justice Kennedy? It is possible to see Justice Kennedy side with the liberals, but he did not seem to express much problem with Ohio’s interpretation of the relevant statutory language, making it more likely he sides with the conservatives leading us to a 5-4 vote.

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