Larry Harmon hadn’t voted in a while. He sat out the 2012 presidential election, supposedly because he was unimpressed by the choices of Barack Obama and Mitt Romney. The software engineer and Navy veteran also skipped the last two-midterm elections. That was his right, right? But when something in our politics inspired him to go to his polling place – a 2015 Ohio ballot initiative to legalize marijuana – he couldn’t cast a ballot. Like millions of Ohioans in the last several years, Harmon was suddenly informed that he was no longer registered to vote.
Any hope for Harmon’s case, Husted v. A. Philip Randolph Institute, ended on Monday when the Supreme Court issued a 5-4 ruling striking down his victory in a lower federal court, and enabling Ohio to continue its practice of purging voters who do not vote in consecutive federal elections and fail to respond to a mailer. This is worse than voter ID laws – those that mandate the presentation of state identification at polling places in order to vote – in that someone can have an Ohio license and still be treated as if they are no longer a living, tax-paying citizen. Such is the justification offered for the ridiculous “use it or lose it” standard for voting rights.
The Republicans who are currently in charge of the state claim that this “supplemental process” is needed to rid their rolls of dead Ohioans and others who have moved elsewhere. Even if you believe that the people carrying out voter purges have nothing but noble intent, this Supreme Court ruling will have a definite and discriminatory effect: It will ensure that fewer poor, minority, veteran and disabled Ohioans will be able to vote in Ohio.
We must be explicit, as bigotry often hides in semantics. This voter purge is being done deliberately. As with any other form of discrimination, it doesn’t happen by accident. It is alarming to see men like Justice Samuel Alito act like it does.
Near the conclusion of the majority Supreme Court opinion, Alito chose to call out his colleague Justice Sonia Sotomayor. In her dissent, Sotomayor rebuked the ruling, citing statistics of disproportionate purging in black and urban Ohio neighborhoods. “It entirely ignores the history of voter suppression against which the NVRA was enacted,” she wrote of the Court’s decision, “and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.” Alito wrote that Sotomayor’s dissent “says nothing about what is relevant in this case – namely, the language of the [National Voter Registration Act].” He also complained about Sotomayor even recognizing the discriminatory consequences of the voter purge, soon to go national. “Those charges are misconceived,” he countered, unable to offer any evidence to counter that which Sotomayor supplied.
By making this ruling, Alito and his fellow justices are nationalizing this tool of voter disenfranchisement – and misinterpreting the law. The NVRA that he mentioned was passed in 1993 because even the Voting Rights Act of 1965 wasn’t enough to ensure African Americans had fair and equal access to the ballot. It allowed a person to register to vote when he or she got their driver’s license, for instance, increasing participation in democracy by the tens of millions. But Alito and his fellow justices ignored a key provision: the NVRA clearly forbids any state from “removing the name of any person from the official list of voters … by reason of the person’s failure to vote.” Alito ignored the fact that Ohio’s process violates the law because he apparently trusted the intent of Republican officials. If Harmon, who is white, cannot do that, how can voters of color be expected to do so?
As writer and attorney Mark Joseph Stern tells me, “Obviously, this case involved the interpretation of a federal statute, not the Constitution.” He continued: “The Court’s wrongheaded interpretation of the NVRA paves the way for targeted voter purges that disproportionately burden minority voters. The majority does not seem to care that it has blessed a practice that election officials will use to disenfranchise communities of color. It has shockingly little solicitude for their constitutional right to vote.”
My hometown of Cleveland has been the focus of Ohio’s voter purge, as noted in scholar Carol Anderson’s forthcoming book One Person, No Vote: How Voter Suppression is Destroying Our Democracy. Cuyahoga County – home to Cleveland and many of its surrounding suburbs – represented a quarter of all Ohio voters removed from registration in 2015. More than 40,000 of my neighbors were dropped from voter rolls that year alone.
The fifth vote in this decision, Neil Gorsuch, is a living testament to how hard Republicans work to undermine democracy. Let America Vote founder and former Missouri secretary of state Jason Kander tells me, “The number one strategy of the Trump reelection campaign is to eliminate from democracy people who are less likely to vote for Donald Trump – and that’s what this is.” With this decision, those five justices who voted to reverse Husted became, in essence, campaign donors.
Alito, having voted with the majority in Shelby County v. Holder in 2013, clearly wants to blame the disenfranchised for the disenfranchisement. This is consistent with the previously stated opinion of Ohio’s top elections official, and the namesake of Harmon’s lawsuit. “If this is a really important thing to you in your life, voting, you probably would have done so within a six-year period,” said Secretary of State Jon Husted in 2016. He used the invented crisis of voter fraud to power the purge, and other actions that alleged moderate Republican Gov. John Kasich endorsed.
Voter apathy is certainly a problem, particularly in communities of color. I’ll never forget the Milwaukee barbershop captured in a New York Times report weeks after Trump’s election in which African American residents expressed why they didn’t vote. For many, it was because they were being asked to participate in a process they felt had left them and their communities behind. Like many others, I was raised to honor the sacrifices of those beaten and killed so that I could have the right to vote. But is it really all that difficult to understand why so many in our urban centers have checked out of the political process? I’m in favor of automatic voter registration, but compulsory voting? No. For some, the choice is not to choose. As much as I disagree with that decision, it should be an individual’s to make, not the state’s.
Let us not get so lost in the forest that we cannot see the trees: The true emergency is voter suppression. If Democrats hope to maintain the fealty of African Americans and other people of color, it would be best for them to adopt Kander’s urgency. “This is not a partisan policy difference, like health care or taxes. This is not an ideological difference,” Kander says. “This is just about two ways of seeing the world. This is a political strategy by the Republican Party to eliminate from democracy Americans who are less likely to vote Republican.” That is why more Democrats need to speak with urgency about the danger of voter purges – like Kathleen Clyde, the Democratic candidate to replace Husted this fall, who has promised that if elected, she will “stop the purging of hundreds of thousands of infrequent Ohio voters on day one.”
Ohio’s voter purge resembles a modern-day poll tax; its mailers and absurd requirements direct descendants of Jim Crow literacy tests. Alito and other defenders of this abhorrent practice would have us believe that the choice to dilute access to the ballot is some kind of natural byproduct of the American experiment. It is natural only in the sense that one anticipates blood to leak from a wound after a bullet penetrates the flesh. The stakes are no less dire for this republic. If we continue to busy ourselves debating whether those perforating American freedoms with voter suppression truly intend to kill the public voice, we’ll sit and watch while it happens. Democracy dies in
broad daylight, too.