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Sunday, January 14, 2018

Judging balls and strikes in Husted

I am a few days late on this from the oral argument in Husted v. A Philip Randolph Institute, on whether an Ohio process of removing voters from voting rolls based, in part, on failure to vote violated federal law. (I listened to the audio rather than reading the transcript, but could not to so until this weekend).

On a substantive point, it is interesting to hear Paul Smith, the respondent's attorney, the Chief, and Justice Alito repeatedly talk past one another. Ohio's program goes as follows--if a voter fails to vote in a two-year period, a notice is sent to the voter's listed address; if the voter fails to return the notice card and does not vote in the next four-year period, she is removed from the rolls. The Chief and Alito repeatedly pushed Smith as to whether failure to vote could be used to confirm other evidence that a person had moved or died, in this case, the non-return of the card; Smith argued that the program relied on failure to vote (in violation of federal law), because the non-return of the card was not reliable evidence of moving and the state had no other evidence of the voter having moved other than the failure to vote. The Justices never seemed to catch that argument or how it differed from what they were saying.

On a fun point, Smith and Justice Kagan showed that judging really is about balls and strikes with the following exchange, on proximate cause:

MR. SMITH: * * * And calling the non-return of the notice the proximate cause is like saying when you strike out, the only proximate cause is strike two. It just doesn't -- it doesn't really make sense.

* * *

JUSTICE KAGAN: I don't understand why it's just -- it is proximate cause, but both -­ strike one, strike two, strike three. They're all proximate causes of the strikeout.

MR. SMITH: Well, I agree with that, Your Honor, as well.

Posted by Howard Wasserman on January 14, 2018 at 03:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Lois: On the flip side, couldn't the voter return the card as requested by the state? Isn't continued registration to vote sufficient reason to be bothered to do it? And less costly to the state than tracking down property tax records, water bills, and income tax records which do not exist for some eligible voters?

Posted by: HokieEngineer | Jan 15, 2018 11:54:18 PM

Lois: That is kind of the point the respondent was making. I did not read the briefs, but based on the argument, the position is as follows: The state chose to rely on non-return of the card followed by failure to vote. The respondent's argument is that since the former tells nothing, the state really is relying solely on the latter. And the state could use other means to determine whether someone has moved, including some of the ways you mentioned.

Posted by: Howard Wasserman | Jan 15, 2018 3:48:41 PM

Couldn't the state check to see if the person had paid their mortgage/property-tax or rent to see if they'd moved? Surely the state keeps tabs on people's addresses based on if their paying their electric and water bills, property taxes, etc., right? Or does the state really not know anything about anyone, despite the Patriot Act?

Posted by: Lois L | Jan 15, 2018 2:11:07 PM

If the state contacted the IRS and was informed that the person's address on their last tax return was the same as it was the year before (and the last several years before that)---wouldn't that be all the evidence they need that the person hadn't moved?

Posted by: Lois L | Jan 15, 2018 2:06:41 PM

In fairness to Roberts and ALito, I think they grasped the argument perfectly well, but think that the non-return of the card *is* some evidence of moving (evidence that the statute seems to privilege, in fact, though that can certainly be spun a different way) and ultimately, by this line of questioning, exposed a weakness in Smith's argument (which was the point of their questions, particularly Roberts', that you think just talked past Smith). Smith was willing to concede that you can trigger the process with non-voting so long as you send non-forwardable notices instead of forwardable ones, because those provide really good evidence of moving. so rather than offer the Court a bright-line rule that you can't use non-voting as a trigger for a process that culminates in removing a voter from the rolls, which is what his argument seemed to be about, what he's instead doing is asking the Court to decide what is good evidence of having moved and what isn't; if the state starts with non-voting but then gets good evidence of having moved, he'll grant a voter hasn't been removed by reason of not voting, but if the evidence isn't good enough for him, he'll claim that non-voting is the reason. One might doubt that the Court or federal courts generally should decide if evidence is good enough or that the statute actually requires really good evidence of having moved, so long as the state actually relies on evidence of some strength of having moved, i.e., that evidence is the immediate "reason" for the removal, and follows the confirmation procedures.

Posted by: Asher Steinberg | Jan 15, 2018 1:47:18 AM

Let's say you didn't drive for two years so they revoked your driver's license. Or better yet, let's say you didn't perform an abortion for two years so they revoked your abortion license. Or you didn't carry a gun for two years, so they revoked your concealed carry permit. Would any of this be rational under the due process clause?

Posted by: Union Strike | Jan 14, 2018 3:59:42 PM

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