When Neil Gorsuch appeared before the Senate Judiciary Committee in 2017 to make a case for his confirmation to serve a life term on the US Supreme Court, Vermont Senator Patrick Leahy observed that, “unless we were asking about fishing or basketball, Judge Gorsuch stonewalled and avoided any substantive response. He was excruciatingly evasive. His sworn testimony and his approach to complying with this Committee’s historic role in the confirmation process have been patronizing. That is a disservice to the American people. And it is a blight on this confirmation process.”
Leahy said the nominee’s evasiveness was a particular concern on the voting-rights issues that were raised during the hearing. Gorsuch, said the chamber’s senior senator, “provided no answer at all to questions regarding the Supreme Court’s decision in Shelby County to gut the Voting Rights Act.” The same went for questions from Leahy and his fellow senators regarding democracy issues. The questions were asked, but Gorsuch did not answer.
Now Justice Gorsuch has answered. On Monday, the Court released its ruling in the case of Hustad v. A. Philip Randolph Institute, an essential test of the Court’s stance regarding voting rights. With the critical 2018 election just months away, the Court’s activist majority gave Republican secretaries of state a go-ahead to resume the antidemocratic practice of purging fully qualified voters from registration rolls.
It was a 5-4 decision. Had Judge Merrick Garland, who was nominated by President Obama to serve on the Court but was then refused a confirmation hearing as part of the machinations by Senate Republican that eventually landed Gorsuch on the high court, it almost certainly would have been different. There is good reason to believe that a Justice Garland would have refused to send the signal that Lawyers’ Committee for Civil Rights Under Law president Kristen Clarke warns is likely to be interpreted “as a green light to purge the registration rolls of legitimately registered voters.”
But Gorsuch sent that signal, siding with four other conservative judicial activists to say that Ohio and other states may conduct aggressive purges of voter rolls, with an eye toward removing the names of qualified voters who have failed to cast ballots in every election. The Ohio process begins by sending address-confirmation notices to voters who have not voted in the past two years. If the voters do not go through the bureaucratic process of returning the notices or otherwise updating their registration data over the ensuing four years, their registrations are tossed.
Justice Sonia Sotomayor pointed out that ruling was fundamentally flawed, noting that the National Voter Registration Act (the so-called “motor-voter law”) was enacted to prevent such purges. “Congress enacted the NVRA against the backdrop of substantial efforts by states to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections,” explained Sotomayor in a scathing dissent. “The Court errs in ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against.”
Unfortunately, Gorsuch and the Court’s activist majority chose to put partisanship ahead of the law.
What this means is that an Ohio voter who may have missed a few local and state elections and a presidential election can show up for the next presidential election and find that their registration has been canceled. It also raises the prospect that even more aggressive purges could be implemented by Republican officials in battleground states where statewide contests are frequently dicided by narrow margins.
“The Supreme Court has just given a stamp of approval to voter suppression,” says Liz Kennedy, the senior director of Democracy and Government Reform for the Center for American Progress. “Ohio’s system of purging voters that choose not to participate in some elections unfairly silences hundreds of thousands of voters in the state, especially people of color and the homeless.”
Vermont Senator Bernie Sanders ripped the ruling, saying, “It’s a travesty that the Supreme Court upheld Ohio’s voter suppression efforts. Instead of making people jump through hoops to vote, states should pass automatic voter registration and same-day registration. Politicians afraid of large voter turnouts are political cowards.”
Congressional Progressive Caucus co-chair Mark Pocan (D-WI) warned that “The Supreme Court just empowered Republican-led states across the country to kick voters off the voting rolls, stifling democracy and creating an unnecessary burden for voters who find that they have been mistakenly and unfairly removed from the rolls. Today’s decision ensures that more voters—especially those that are young, minority, and low-income—will be turned away from the polls and not have their voices heard.”
Pocan has introduced the Voter Roll Integrity Act, legislation designed to prevent states from purging voter rolls “without the knowledge or consent of active and still-eligible voters.” Pocan’s bill would require the use of comprehensive data and a strict confirmation standards to prevent the unfair canceling of registrations.
Calling for immediate consideration of the Voter Roll Integrity Act, the congressman decried Republican governors such as Wisconsin’s Scott Walker for continuing “to commit various forms of voter suppression, all under the guise of eliminating voter fraud.”
Pocan said that elected officials, instead of making up excuses for purging voters from registration rolls, “have a responsibility to do everything we can to empower voters.”