Conservative majority scorches Sotomayor’s “scorching” dissent in Ohio voting rolls case
Sotomayor’s “dissent says nothing about what is relevant in this case—namely, the language of the NVRA
Husted v. A. Philip Randolph Institute presented a fairly boring legal issue of statutory construction.
The legal issue was whether the process used by Ohio to clean up its voter rolls complied with federal statutes.
The problem is significant, as the Supreme Court majority described in the opening paragraph of its Opinion issued today:
It has been estimated that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate. Pew Center on the States, Election Initiatives Issue Brief (Feb. 2012). And about 2.75 million people are said to be registered to vote in more than one State. Ibid.
At issue in today’s case is an Ohio law that aims to keep the State’s voting lists up to date by removing the names of those who have moved out of the district where they are registered. Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed, postage prepaid card to these individuals asking them to verify that they still reside at the same address. Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls. We are asked to decide whether this program complies with federal law.
Justice Alito, joined by Kennedy, Roberts, Gorsuch and Thomas, found that the Ohio process complied with the law. The alleged legal violation, that Ohio relied on mere non-voting to strike someone from the voter rolls, was not consistent with the facts. Ohio used a process, allowed by the statute, of sending a card to people who have not voted for two years asking them to confirm whether they have moved. If the card is not returned, the person would not be removed unless the person did not vote in the subsequent two federal election cycles. So it would take a total of 6 years not voting PLUS failure to return the card to be removed.
Justice Breyer wrote a dissent disagreeing with the statutory construction of the majority.
But it was Justice Sotomayor’s dissent which evoked the particular ire of the majority, who saw it as a policy disagreement with Congress:
JUSTICE SOTOMAYOR’s dissent says nothing about what is relevant in this case—namely, the language of the NVRA—but instead accuses us of “ignor[ing] the history of voter suppression” in this country and of “uphold[ing] a program that appears to further the . . . disenfranchisement of minority and low-income voters.” Post, at 5. Those charges are misconceived.
The NVRA prohibits state programs that are discriminatory, see §20507(b)(1), but respondents did not assert a claim under that provision. And JUSTICE SOTOMAYOR has not pointed to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent.
* * *
The dissents have a policy disagreement, not just with Ohio, but with Congress. But this case presents a question of statutory interpretation, not a question of policy. We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date. The only question before us is whether it violates federal law. It does not.
The judgment of the Sixth Circuit is reversed.
And sure enough, Sotomayor’s dissent (starting at page 54 of the pdf.) read like a political manifesto:
… 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. 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.
Concerted state efforts to prevent minorities from voting and to undermine the efficacy of their votes are an unfortunate feature of our country’s history….
In concluding that the Supplemental Process does not violate the NVRA, the majority does more than just misconstrue the statutory text. It entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate. States, though, need not choose to be so unwise. Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote. The majority of States have found ways to maintain accurate voter rolls without initiating removal processes based solely on an individual’s failure to vote. See App. to Brief for League of Women Voters of the United States et al. as Amici Curiae 1a–9a; Brief for State of New York et al. as Amici Curiae 22–28. Communities that are disproportionately affected by unnecessarily harsh registration laws should not tolerate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by. Today’s decision forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.
Sotomayor’s dissent was described by a legal analyst for TPM as “scorching“.
Personally, I love Sotomayor’s scorching dissents. I wish her a long career in dissent, scorching or otherwise.
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Comments
“And sure enough, Sotomayor’s dissent (starting at page 54 of the pdf.) read like a political manifesto:”
Other than fact, scorching. If it was not consequential…..this would be entertaining. Otheriwise, it is a usurpation of power and must be fought.
As the Professor states, he (and many others, myself included) wishes her a long career of writing opinions dissenting from the decisions of the majority.
This, entirely. Kagan is extremely liberal, but she is also actually qualified and intelligent. Sotomayor is a product of Obama’s pandering to the Latin community and selection of a useful idiot to be on the Supreme Court.
She’s about as qualified to be on the Court as he was to be President. That is, not at all.
I’ve always figured Sotomayor as Ginsburg Lite, with all RBG’s hostility issues but none of her intellectual horsepower.
She’s an imbecile, appointed by another imbecile.
“At oral argument, Ohio suggested that such a disparate impact is not pertinent to this case because respondents did not challenge the Supplemental Process under §20507(b)(1),…”
Which I read as “This case should have been about something different than what it actually was.” Followed by a tangential linkage to a world where she prevails.
Hooboy – in time she is going to out-Ginsburg Ginsburg.
Her colleagues don’t recognize a self-described “wise Latina woman” when they see one–thank God.
This does put a little crimp potentially in Chicago Machine Politics… it requires the dead to vote more often for the Democrat chosen for them…. no respite.
You assume that this very blue state would ever pass such a law. You forget that Illinois is really Madiganistan where good lawmaking goes to die.
They are planning to legalize recreational pot if they can defeat Rauner. I wish Rauner was not in opposition to that. He would have a better chance of re-election.
If you’re going to dissent about a matter of law, it is considered polite to reference said law perhaps once or twice, instead of talking about geraniums and unicorns.
I’m not familiar with the writings of The Wise Latina during her time on the SCOTUS bench, but they probably contain many references to decisions reached by the Ninth Circuit.
“Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote.”
Actually, there is no historical basis for this claim. Our modern conceit is that this is some sort of ideal, but it’s silly to claim that it ever existed, and not all that easy to argue that it should.
What’s funny is that there’s no evidence that anyone is prevented from voting if they can put in minimal effort.
Sotomayor seems to miss the fact that the way to defeat institutionalized disenfranchisement in Ohio (if it indeed exists) is to…vote!
And if they haven’t voted for a couple of years, all they need to do is return a postage-prepaid card in the mail. But somehow in the Wide Latina’s mind, asking even that little of a poor or minority voter is somehow discriminatory. She doesn’t say why (probably with good reason), but the possibilities are that she doesn’t think they can read the card (in which case, how do they manage to read their ballots?), or she thinks they are too lazy and feeble to be able to find a mailbox, or recognize their mail carrier, so that they can return the card.
The irony of this case is that it’s the Wide Latina who is exposed as the real bigot here. She’s the one who assumes that even the tiniest effort is beyond the capabilities of poor and minority voters.
The irony of this case is that it’s the Wide Latina who is exposed as the real bigot here.
She was exposed as a bigot in the Ricco case before her nomination to SC
She confirmed her bogotry in Shutte.
Then they came for the ‘can you fog a mirror?’ test… 🙂
That brings up this question. What burden does a voter have to insure he is registered? In my mind there should be some requirement that a voter has some obligation to keep his registration current.
All they have to do is vote. The whole purge process begins when someone fails to vote for a predetermined number of elections. Even if they vote in every-other general election they do not trigger the process.
People who do not vote are not being denied the right to vote, they are self-disenfranchising. They have no one to blame but themselves.
I was looking at this same commentary language by Justice Sotomayor and thinking that the “Wise Latina” is in desperate need of a civics lesson and a course in Logic. To wit:
We don’t live in a democracy. We live in a Representative Republic. SOMEBODY needs to call her out on the choice of language (because it IS a choice). I can’t IMAGINE that she would be so ignorant to chose to use the word “Democracy” unless she’s trying to move the “Overton window.”
All individuals are NOT allowed to vote. There are several disenfranchised categories, which the SUPREMES have said is perfectly fine (individuals under age 18, felons, those who have been declared mentally unfit, etc…).
By DEFINITION in this case, the circumstances are that the individuals so purged have chosen not “to exercise their right to vote” for whatever reason for SIX YEARS and have failed to respond to an update request.
Good points Mr. Skinner. Overton’s window for sure… and on purpose.
For a poor mail-less citizen, the worst cast is …
By DEFINITION in this case, the circumstances are that the individuals so purged have chosen not “to exercise their right to vote” for whatever reason for SIX YEARS
and have failed to respond to an update request.Two years longer that what they used to do (purge after two federal election cycles).
Obviously, the best defense to losing your voter registration is to vote at least every six years.
What I found interesting about that statement, and is typical of the Left, is claiming that “all individuals” should have the opportunity to vote. Guess requiring citizenship for voting in Federal elections is so passe these days.
You said what I intended to say; Quote “democracy rests on the ability of all individuals”, : at this point someone, anyone
who knows basis civics, should educate ms Soto that the USA
is not and never has been a democracy. She does not know the
difference between a democratic republic and a democracy, and
thus has no place on the highest court in the land.She is 100%
political, and should retire.She reduces respect for the Court.
“Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote.”
Notice she uses the word ‘individuals’ instead of citizens in connection with a ‘right’ to vote. That’s been the far-left slogan for decades, very useful in bulking up unqualified votes, but poisonous to every legal voter whose vote is cancelled thereby.
It must be a terrible schism on SCOTUS. The conservatives ruling based on law, and the extreme liberals based on emotion. [I say “extreme” advisedly; I don’t think Kagan is so intellectually dishonest that she doesn’t have at least some legal bases for her decisions.]
I wish they would rule based on emotion, at least then they might occasionally rule correctly by accident. They rule based on what will advance the liberal agenda.
I see a scorching descent in her near future.
Sweet!!
We should all send Sotomayor boxes of Chocolates.
The heck with her! Send me the chocolates.
Dear lady, while you may be deserving of chocolates, I believe the reason to give priority to sending them to Sotomayor is that she is reported to be a poorly controlled diabetic. An appropriate alternative gift would be baklava ;-).
Judge Sotomayor is a 63 yr. old latino woman with long term Stage 1 Diabetes. Though managed, is incurable. The effects of stress contributes significantly to the immune system counteracting current available medical protocols, ones she still continues to have emergency services to treat. Medical statistics (2016) for this profile is a life expectancy of 69 yrs. As the current sitting bench is beginning to take up deferred cases now that they have a full quorum, I believe the addition of much more of a stress factor (in her case) will increase 2 fold. Not a soothsayer, but perhaps it will not be Judge Kennedy’s chair becoming vacant first.
Not a chance. She may have a long-term diagnosis, but nothing in the public profile or current public knowledge indicates that Justice Sotomayor is going anywhere anytime soon.
Kennedy will be the next vacancy on the Bench, likely at the end of this Summer (unless Notorious RBG keels over first).
There are things she could do to lessen the stress, like resign.
Soto’s rant shows the great divide in SCOTUS. One side deals with the law and its interpretation and the other side deals in hyperbole and insults. Imagine being a sitting justice and having this woman tell you the “Real” history of our country! What an insult to the founding fathers who set this perishable system up and it is jackbooted idiots like her that can crush it.
What an insult to the founding fathers who set this perishable system
They wouldn’t have let her vote.
Forget about “wise Latinas”—those Dead White Guys were no fools.
‘Congress enacted the NVRA against the backdrop of substantial efforts by States to disenfranchise ‘ dead voters. I think that’s what she REALLY meant.
What would the Dems do without their dead voters?
How did this woman make it through law school? Did she get that many affirmative action “gimme” passing grades?!?
Sotomayor is a disgrace. She simply is unaware of her task or the law. She adopts talking points from MSNBC and CNN, ignoring the premises upon the case before her. She is not qualified.
She’s a progressive… on a mission. And she’s been checked, and now ( since 2016 ) doomed to writing dissenting opinions… and it’s only gonna get more lonely for her on that court.. Thankfully.
Linsey Graham voted to confirm her. Predictable performance by her.
This is where I think you are wrong – she is perfectly aware, she just doesn’t care.
I can respect Kagan and Ginsburg because while I disagree strongly with their positions they at least present legal arguments and try to make a legal case. Sotomayor was known even in her pre-SCOTUS days for her poor legal skills and lack of knowledge of the law. And she has not improved.
Not-so-wise Latina woman.
-Person does NOT vote for years
-Person is sent a reminder
-Person still does not vote for years
Liberals (Sotomayor et. al.) : “Voter suppression! “
I see what you did there. Oh, yeah. Long, long, long career….of dissent.
I personally hope she gets frustrated and resigns, while Trump is president and the Republicans control the Senate. That would take care of one of the weather vanes (Kennedy or Roberts). Kennedy’s retirement would take care of the other.
accidental downvote, sorry!
I doubt there is any chance she’ll resign, but maybe she’ll do a Mama Cass with a big ham sandwich some day.
TY for pointing that out.. Flew right over my head…
It’s not clear to me how purging a voter with a proven record of not voting suppresses their vote.
best comment!!2nd is wishing for long history of dissent.
It does the next time they (or someone pretending to be them) try to vote.
this calls for a quote from Shakespeare “Out, out, brief candle! Life’s but a walking shadow, a poor player that struts and frets his hour upon the stage and is heard no more. It is a tale told by an idiot, full of sound and fury, signifying nothing.”
isn’t that what this entire case is about, even if you have not registered to vote don’t they give a ‘provisional ballot’ to case while they verify who you are?
Sotomayer is terrible. She has no intellectual originality. She’s basically a leftist parrot. Parroting every one of their talking points.
When can voters be purged from the rolls, if 6 years of being out of contact is discriminatory. Would 10 years be enough? Not in her world.
For Sotomajor, I don’t think proof of death would be a reason to be removed from voter rolls either…
She likely, in the spirit of motor voter, wants to include a Democratic Party registration form with the death certificate.
Or with the Adobe Illustrator-created birth certificate.
Well, she has a point; In Florida, 2000, democrats
working in polling sites, could discover voter
intent, from a blank ballot, by holding the ballot
up to the light, and squinting for a few seconds.They
also bent the law allowing a damaged ballot to be
replaced by one that was filled out by the poll workers
who discerned what the “intent” was. Been there, folks,
(77 yrs old), and it was ugly.
The NVRA requires procedures must “be uniform, nondiscriminatory, and in compliance with the Voting Rights Act.” Hence, disparate impact is encompassed by the NVRA.
Impact, “the effect of denying or abridging the right to vote on account of race or color”, not intent, is the standard under the Voting Rights Act.
By definition, “on account of” means intent, not impact. If I allow only those with an odd number of letters in their surname to vote, or only those who roll an odd number on a d6, and it turns out by pure chance that hardly any of them are white, I have not denied anyone on account of their race.
How does getting purged abridge your right to vote, since you can always reregister? Or is registering to vote now an abridgment of the right to vote?
Unless the state has same-day registration (which is a really stupid thing to have), being purged means that when you show up to vote (for the first time in years) and find out you’ve been purged, you don’t get to vote in that election. Even if you cast a provisional vote it won’t be counted, since your case will be resolved as having been legitimately removed from the roll, and therefore not eligible to vote.
But the thing most people miss is that voting is not a constitutional right. It’s up to the state who gets the franchise, and it can deny it on any grounds except those prohibited in the constitution. I think Thomas is probably right that Congress may not add to that list of prohibited grounds for denial of the franchise.
“Unless the state has same-day registration (which is a really stupid thing to have), being purged means that when you show up to vote (for the first time in years) and find out you’ve been purged, you don’t get to vote in that election.”
To show up and not know you’d already been purged you’d have to have ignored the postcard saying they were going to purge you unless you vote or re-register within a few years, and you’ve have to be ignorant of your state’s law regarding election rolls. I’m shedding no tears for that lazy voter.
I’ve got no problem with the law either, but if you’re having a problem with your mail, or if you moved to a different address within the same district (which means you’re still eligible to vote there), you will not have received these notices, and the first you’ll hear of the purge is when you show up to vote. Which might come as a shock, but so what?
you’d have to have ignored the postcard
The abused voter can only ignore it if he receives it. And how will the government demonstrate that it even mailed it?
The situation is annoying. I’ve been dropped from registration several times. I’ve learned to go to Town Hall a month before every election to check that I’m still registered. That works. It’s annoying, but not difficult.
Milhouse: By definition, “on account of” means intent, not impact.
By definition “effect” means impact, not intent.
Courts have generally upheld disparate impact, such as in redistricting cases. However, the application to voting rights is relatively new, a result of the Shelby decision.
The sooner the affirmative action appointees are gone…the better.
I hope you aren’t planning on seeing that happening anytime in the next half century or longer.
“The only question before us is whether it violates federal law.”
Would that all decisions were based on this or maybe the Constitution.
As did ObamaCare. Where was this notion when THAT came up?
I am afraid Ms S will end up being the “Maxine Waters” of the Supreme Court. I hope reality hits her in the face some day.
Ouch – that’s harsh!
Under Sotomayor’s interpretation of the NVRA, there is nothing that states are allowed to do to purge voter rolls, as any State action will have a disparate impact on “the poor, minorities and the disenfranchised.” This position is insane. Why didn’t she just come out and opine that the NVRA is unconstitutional?
“…namely, the language of the NVRA—but instead accuses us of “ignor[ing] the history of voter suppression” in this country and of “uphold[ing] a program that appears to further the . . . disenfranchisement of minority and low-income voters.”
Has there ever been actual proof of disenfranchisement? Beyond the accusations by the media and the left, I mean. It seems that they could be conflating disenfranchisement with lack of interest in voting.
“Proof” to Sotomayer means that if Anyone, Anywhere in this country FEELS disenfranchised, then we don’ need no steenkin’ Facts, that is all the PROOF we need!!!
There’s a long and undisputed such history — in the South up to the ’60s. That’s why the ill-advised reforms of the ’60s were made. Something clearly had to be done. But instead of ending the abuses of the barriers to vote, they ended the barriers themselves, which were mostly sensible and just if taken at face value.
A synonym for “lack of interest” is lazy or apathetic (and no that doesn’t just apply to one race, but the poor of all races tend to be of such qualities with regards to voting)
The link below is audio of LBJ talking on the phone to someone. He’s talking about how there’s no evidence that poll taxes and literacy tests discriminate against blacks, because with them in place a higher percentage of black folks vote than white folks.
https://www.youtube.com/watch?v=r1rIDmDWSms
It is an undisputed fact that throughout the South literacy tests were applied in a brazenly racist manner. White people were either not tested at all, or given something easy to read, while black people were tested, often not in English but in obscure languages such as Gaelic.
Similarly, white people who had not paid their poll or other taxes were allowed to vote anyway because their father or grandfather had voted, while black people were only allowed to vote if they were fully paid up.
In both cases the proper remedy would have been to send federal officers to ensure that the tests were reasonable and were administered impartially, and to arrest those who did not do so; not to get rid of the tests and let just anyone vote.
By the way, there seems to be a common myth that poll taxes are now unconstitutional. Nothing could be further from the truth; not only are poll taxes constitutional, the constitution specifically contemplates a federal poll tax. The 24th amendment merely says the right to vote in federal elections can’t be denied merely because someone is behind on their taxes; this applies equally to a poll tax or to any other tax.
I don’t understand why anyone would object to this. People who consistently vote Democrat after they die are not affected by this law!
It is only those who do not start voting Democrat after they die who would be removed 6 years after they die.
Keep in mind that with NVRA in place, during some of the most recent elections, large chunks of voters were mysteriously dropped from the rolls.
During Tuesday’s California gubernatorial primary, more than 100K voters in the Los Angeles area were not on the voter rolls when they showed up to vote.
I wonder how that happened ?
Yeah. Those “evil” vote suppressors in LA.
That would be 118,000 names omitted to be more precise, according to news reports. The story is that it was a printing error and hit portions of some 1500 precincts (out of 4300). All precincts were instructed to issue the provisional ballots in these cases, and it appears those wishing to vote were allowed to cast a ballot.
It sounds like the back-up system worked, although there appear to be some who came away with hurt feelings even though they got to vote.
What else would one expect of the wise latino Marxist.
I still can’t believe this turd world yap has been seated on the Supreme Court.
re: “Personally, I love Sotomayor’s scorching dissents. I wish her a long career in dissent, scorching or otherwise.”
Well Professor, the only long career I wish for the ‘wise latina’ is a serious case of rectal cancer – in a part of her body she cannot visually see. Perhaps some wise white man will have to inspect her cancerous buttocks for her, on a frequent basis – give her cause to be indigent with the world. AND, if cancer is to drastic, then a case of hemorrhoids that are so long she needs to braid them to wear panties – and they itch enough to send her howling into the night!
Justice Soto displays a fine example of what Orwell described as “duckspeak”— the automatic guttural yelp that occurs when a party member hears words deemed by Big Brother to be thoughtcrime. In this case, the thoughtcrime words are “eligible voters”. Hearing these forbidden words causes the party member to immediately shout—with no intervening brain activity required— “voter suppression”, disparate impact”, history of racism”, “Brown and black voters”. The genius of Newspeak, which has now been adopted in toto by the American left, is that automatic verbal responses to different ideas occur without any thought at all. Sotomayor, at the pinnacle of the American legal system, is a loyal member of the Inner Party, which shows how far the intellectual rot has spread in the US.
Sotomayor’s dissent really lays bare the Left’s view that the Supreme Court is a super-legislative branch.
LT Kaffee: Oh, I forgot. You were sick the day they taught law at law school. (From A Few Good Men). He could have been talking to the wise latina. Where else but in law can someone be so completely wrong, so many times, but keep their job? I understand the concept of “lifetime appointment,” but come on. We need a fail-rate/overturn impeachment trigger. Make it a high bar for all I care, because even an 80% overturn rate would eliminate many 9th circuit clowns. The reality of being booted for incompetence might motivate judges to look at the law and honestly interpret, rather than rule on their feels.
it still takes 6 years to get them off the rolls. Try not paying your property taxes for six years and watch what happens.
Real wise Latinas should sue.