The recent ruling by the U.S. Supreme Court upholding an Ohio scheme removing voters from eligibility to cast ballots if they do not vote during a two-year period and fail to respond for four more years to inquiries about their address from the secretary of state’s office constitutes an alarm bell for voter suppression around the country — but it’s less alarming here in Minnesota.
The flawed rationale that inactivity to exercise a right, or even a privilege, should result in future ineligibility to do so would imperil vehicle drivers, whose licenses could be taken away if they do not drive for a specified period of time or, more innocuously, allow libraries to revoke cards of patrons who haven’t checked out a book for a while.
The June 11 decision by the Supreme Court in a 5-4 vote in the case entitled Husted v. A. Philip Randolph Institute turned on the view of the narrow majority of jurists that the purging is not attributable to refraining from voting, which is prohibited by federal statutes, but to non-response to inquiries about their address, which disingenuously overlooks that non-voting is the catalyst for the disenfranchisement.
Indifferent or ignorant
The officials who concocted the Ohio purge deserve credit for ingenuity, while the five high court justices who fell for it deserve to be cited for indifference, if not ignorance.
A handful of states use similar devices like Ohio’s purging process to trim voter rolls, and the number is likely to mount as a result of the endorsement of voter suppression in the Ohio decision. The outcome will have a disproportionate effect on poor people, racial and ethnic minorities, and youthful voters, the ones who are most prone to sit out electoral cycles for a span and more likely than others to change addresses, the two features leading to disenfranchisement.
The court did not address the constitutionality of the Ohio scheme, which was not raised by the challengers, although litigation over comparable measures in other states have encountered claims of denial of due process and equal protection under the 14th amendment, and those issues may ultimately percolate to the Supreme Court.
While the deleterious impact will fall most heavily on Democratic-oriented individuals, rather than more residentially stable white, older, and Republican voters, the Supreme Court ruling cannot solely be explained away as unduly partisan or ideologically based, although it was the five Republican appointees who supported it over the dissent of the four liberal Democratic-appointed justices.
The ruling derives from the high court’s upholding in 2010 of the quintessential voter photo ID law in Indiana. The decision in that seminal case, Crawford v. Marion County Election Board, giving a green light to a panoply of voter suppression arrangements like the Ohio one, was written by Justice John Paul Stevens, who generally sided with the liberal wing of the bench, although appointed by a Republican president, Gerald Ford.
Minnesota law overturned
For those who manage to make it to the polls, they can pretty much wear whatever they want. Two days after the Supreme Court upheld the urge to purge voting rolls, it issued a ruling in a matter from Minnesota overturning a state law restricting slogans and other terminology supporting particular candidates or causes on apparel and insignia worn at polling places.
The decision in Voters Alliance of Minnesota v. Mansky, by a more unified 7-2 vote, turned on the vagueness of the statutory restrictions, which the majority opinion authored by Chief Justice John Roberts, and even joined by two of the members of the liberal wing, felt infringed on freedom of expression under the First Amendment.
The ruling was a victory for Tea Party advocates who wore the challenging apparel to the polls in 2010. As a result, Minnesota and states with other similar laws will have to tinker with them to pass constitutional muster.
Those high court decisions came a few days before two other voting rights rulings as the justices neared the end of their 2017-18 term. The pair of rulings rejected challenges to partisan gerrymandering in Wisconsin and Maryland. The Wisconsin case, Gill v. Whitford, held that voters claiming partisan legislative districts drawn to favor Republicans lacked legal standing to pursue the case without further evidence of deleterious impact. In the Maryland matter, Benisek v. Lamone, the court refused to set aside a lower court ruling denying an effort by Republicans challenging a single congressional district they deemed unfairly favorable to Democrats.
Although both rulings turned on technical grounds and did not address the merits of the redistributing issues, the unanimity of both rulings, uniting and conservative and liberal wings of the court, renders it extremely difficult to mount these challenges in the future. This outcome will probably be advantageous to Republicans, who control the redistricting process with majorities in most states, including Minnesota right now.
Interesting and important
These varied rulings are interesting and have importance here in Minnesota.
The control of both houses of the Legislature is at stake in the election this fall, and the composition of those bodies, along with the new incoming governor, could be a major factor in the next round of drawing legislative and congressional boundaries following the 2020 census.
The voter purge ruling in the Ohio case also may have impact here in Minnesota. Although noted for high voter participation due, in part, to relatively lax same-day registration, inklings of voter suppression arise from time to time. The defeat of a referendum on requiring voter photo identification cards in 2012 may make it unlikely that state lawmakers will try to emulate the Ohio voting roll purge.
Further, the exemplary secretary of state, Steve Simon, has stood fast against other attempts at suppressing the electorate, such as his leadership in resisting overtures from the Trump administration’s phony voter fraud squadron before its disbandment earlier this year. A stalwart for protecting the franchise, he has focused on ways of expanding voter participation, not negating it.
So, while the Ohio case has politicians and voters reeling around the nation, its impact may be muted in Minnesota, at least for the time being. But a change in the composition of elected officials in the state, gains for Republicans in the legislative majorities they already hold and taking the constitutional offices that have ensued them for years, including the governor, attorney general, and secretary of state, could lead to an Ohio-like voter suppression system here, too.
Marshall H. Tanick is a Twin Cities constitutional law attorney and historian.
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