Justice Samuel Alito Almost Blows Ohio Voter Purge Case For Republicans, But Nobody Notices


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Voter purging rules are currently awaiting a decision by the Supreme Court which just heard oral arguments in an Ohio case. The Court looked at many words and issues regarding vote purging. In a momentary flash, a crucial aspect of the federal law that controls voter purging was mentioned but quickly blew by as other issues took center stage.

Update June 11, 2018: The Supreme Court decided 5-4 that the Ohio voter purge system may continue. Samuel Alito wrote the decision. He apparently forgot his own line of questioning as described below.

It’s all in that little word “and” — the conjunction — defined as “along or together with; as well as; in addition to; besides; also; moreover; added to; plus.” The word “and” appears at a critical point in the federal law which governs the rules states must follow for voter purging. The State of Ohio purges voters every year by complying with one part of the federal law without respect to another — in other words, by viewing the “and” as an “or.”

Specifically, the State of Ohio sends out hundreds of thousands of warning notice cards per year to people who skip elections. Cards are more likely to be sent to Democratic areas than Republican areas. Some 70 percent of recipients do not return the cards, even though only about three percent of people move in a given year. The majority of voters in Ohio skip elections. As a result, many eligible voters are purged from the system with no further notice. When people finally show up to vote, they find their registrations invalid.

During oral argument, Samuel Alito accidentally grasps onto the critical “and,” emphasizes it, and even questions for a second whether the word in the law is “and” or “or.”

THE VOTE PURGE LAW and SUBSECTIONS A, B, C, and D

Section 20507 of Title 52, codifying the National Voter Registration Act (NVRA), the central law in question in the Ohio case, is divided into four subsections, A, B, C, and D. To understand how important the little word “and” becomes, take a quick look at all four sections:

  • Subsection A says that states must make a “reasonable effort” to purge “ineligible voters” from registration lists “in accordance with subsections (b), (c), and (d).”
  • Subsection B says that states cannot remove voters for “failure to vote, except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d).”
  • Subsection C says that states “may” satisfy the requirement to purge ineligible voters using “change of address information provided by the Postal Service,” and then follow specific “failure to vote” notice procedures based upon that information.
  • Subsection D provides the specific “failure to vote” notice requierments and procedures for the notice itself.

Background including extended excerpts from the law and history of the case: Appeals Court to Ohio Secretary of State Jon Husted: Stop Purging Voters Just for Skipping Elections

The State of Ohio purges voters by following only the procedures in Subsection D. Ohio sends “failure to vote” cards to everyone who skips elections, and purges voter registrations with no further notice after four years.

Despite the fact that Subsection A says the state must follow “(b), (c), and (d),” and despite the fact that Subsection B says the state must follow “subsections (c) and (d),” the State of Ohio ignores all of that and jumps right to Subsection D as if it were all by itself.

Subsection D is not all by itself. All of the sections require compliance. Subsection B does not allow voter purging without both Subsections C and D. Subsection C requires some outside source of information before the state may send the “failure to vote” card, for example, a Postal Service national change of address (NCOA) record. Once information comes from an outside source, then and only then can the state actually send the Subsection D notice. It’s that simple.

During an oral argument exchange with attorney Paul M. Smith who represents the voters, Justice Samuel Alito inadvertently hits upon the word “and”:

JUSTICE ALITO: It says — it says that — that it’s all right if you followed either (c) or (d).

MR. SMITH: (c) and (d), Your Honor, with respect.

JUSTICE ALITO: Well, it says — you think you have to follow (c) and (d)?

MR. SMITH: Well, I think you need to follow -­

JUSTICE ALITO: That’s not what it says.

MR. SMITH: You need to follow something like (c) because clearly Congress anticipated that there would be something that would tell you that they have moved before you go into the confirmation process, because the confirmation process consists, if they don’t get the notice back, of no evidence at all about whether they’ve moved from the notice. And four more years of non-voting, precisely the thing Congress said should not be the reason that you purge somebody. So the whole system only makes sense if you assume there’s something like the NCOA process or some other indication that they have moved before you put them into the process, and if you don’t have that, you’re going to vastly over-purge people…

By “some other indication” the attorney means that Subsection C gives the Postal Service as an example. Any external source will do — like DMV records or death indexes. Something has to suggest that a person is no longer eligible to vote before the state may send the Subsection D “failure to vote” card.

Justice Samuel Alito appears to believe that the two sections are alternate requirements, not conjoined requirements. Even after being presented with the correction, Samuel Alito exclaims, “That’s not what it says.” Actually, the attorney for the voters is correct. The State of Ohio must satisfy both sections. But the subject quickly changes. It is not brought up again — not by any other Justice or attorney.

Many other issues are discussed during the oral argument, but none appear so clearly dispositive as the plain meaning of the simple word “and.”