Supreme Court Review

Article Title

The Elephant in the Room: Intentional Voter Suppression


No one tried to sell Husted v A. Philip Randolph Institute as a thriller. The case involved the interpretation of a federal statute—the National Voter Registration Act (NVRA)—that regulates how states manage the logistics of voter registration. The Court interpreted the statute to permit a regime in Ohio in which the state presumes that voters have moved, and accordingly purges them from the rolls, if they engage in no voting activity for six years, and if they fail to return a postcard to the state confirming their address. What, you might reasonably ask, is the big deal? The premise of Husted would make an exceedingly dull horror movie. In fact, Husted is significant, and ominous, in a quiet way that Stephen King could appreciate. On a practical level, Husted sanctions the needless and routine purging from voting rolls of a potentially very large number of eligible and registered voters. Ohio and other states already have removed hundreds of thousands of voters from voting lists in recent years, typically without persuasive evidence that the removals actually correlate with voter ineligibility. Husted opens the door to the adoption of similar or even more stringent purge practices in the future. These reforms tend disproportionately to affect minority and low-income voters.Moreover, their effects are amplified by other voting-related restrictions, with states across the country adopting a wide range of measures making it harder to vote. To a degree that is difficult to measure, this trend undermines the practical ability of eligible voters to cast a ballot and have it counted; it also sends a disturbing message about whether these voters are valued as participants in our democracy. On a theoretical level, Husted is equally concerning. The case represents a culmination of two mutually reinforcing trends: the Supreme Court’s deepening ambivalence in matters of voting rights, and a successful propaganda campaign—driven by politically motivated advocates—to persuade legislators and the public that rampant voter fraud demands suppressive voting restrictions. Together these phenomena have cleared the way for jurisdictions to ratchet up bureaucratic barriers to voting.

Full text not available in ChicagoUnbound.