On Monday, the Supreme Court handed down one of the most important judicial decisions of the year.
The Court decided Husted v. A Philip Randolph Institute, et al., holding that Ohio did not violate the National Voter Registration Act (NVRA) when it used voters’ failure to vote for two years as a trigger to contact them to see if they has moved out of the state. It was a 5-4 decision written by Justice Sam Alito. Justice Kennedy joined the four conservative justices in the majority.
It was a significant victory for Ohio and other states that are trying to keep their voter rolls clean and up to date. It was also a beautiful defeat of judicial activism.
Since more than ten percent of Americans move every year, it is common for millions of old voter registrations to remain on the voter rolls of the states that they leave. If the stale records are not removed, this becomes an opportunity for fraud. Someone may attempt to impersonate the voter who has moved (if the state doesn’t have a photo ID law), or the voter himself may attempt to vote in two different states. Indeed, a 2017 study looking at just 21 states found that approximately 8,400 people had double-voted in the 2016 election. As Secretary of State of Kansas, I have prosecuted numerous people for double voting in recent years.
It is imperative that states take steps to identify voters who have moved. Indeed the NVRA requires that states do so. Ohio had adopted the reasonable practice of using a registrant’s non-voting as a trigger to send him a letter asking him if he has moved. The NVRA spells out how voters may then be removed from the voter rolls. If the voter sends back the enclosed return card and confirms that he has moved away, the state may remove his name from the rolls. Or if the voter does not respond and thereafter fails to vote in two consecutive federal elections, the state may at that point remove his name from the rolls. The process also serves to identify voters who have died.
Such election integrity measures do not sit well with the ACLU and other left wing organizations. The ACLU represented the plaintiffs in the Husted case and sued the State of Ohio to stop this common-sense approach to keeping voter rolls clean. Fortunately, the majority of the Supreme Court rejected their arguments. Ohio’s victory will pave the way for other states to adopt the same approach in keeping voter rolls clean.
The decision was also a firm rejection of the sort of judicial activism that has infected all too many federal courts. The lower court of appeals, the Sixth Circuit, had embraced the ACLU’s argument that even though the text of the NVRA doesn’t expressly prohibit States like Ohio from using nonvoting to trigger the sending of a return card to the voter, such a prohibition should be seen as implicit. The ACLU argued that Ohio’s law is a bad policy. Therefore, the ACLU urged, courts should read between the lines and interpret the NVRA to prohibit it.
Writing for the Supreme Court majority, Justice Alito slapped down this invitation to judicial activism:
What matters for present purposes is not whether the Ohio Legislature overestimated the correlation between nonvoting and moving or whether it reached a wise policy judgment about when return cards should be sent. For us, all that matters is that no provision of the NVRA prohibits the legislature from implementing that judgment. Neither subsection (d) nor any other provision of the NVRA demands that a State have some particular quantum of evidence of a change of residence before sending a registrant a return card. So long as the trigger for sending such notices is “uniform, nondiscriminatory, and in compliance with the Voting Rights Act,” §20507(b)(1), States can use whatever plan they think best.
Not surprisingly, the four liberal justices were quite willing to use policy arguments to add this prohibition to the NVRA. Their approach was quintessential judicial activism – where the judge steps into the role of policy maker and changes the meaning of the law that he is supposed to be interpreting. Justice Alito pointed out what the dissenting justices were up to:
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.
This decision will have far reaching consequences – beyond the specific issue of sending return cards to voters. The ACLU has repeatedly urged federal courts to insert unwritten prohibitions into the NVRA. Whenever the ACLU wants to stop a state’s election integrity law, they attempt to twist the meaning of the NVRA to support their argument.
Indeed that is exactly what the ACLU is doing in its current suit against the State of Kansas.
As Kansas Secretary of State, I authored a 2011 Kansas law requiring proof of citizenship at the time of registration. The ACLU doesn’t like our law, so they sued, claiming that the NVRA doesn’t allow a state to require proof of citizenship – even though the text of the NVRA contains no such prohibition. In support of their claim that the courts should insert such a prohibition against proof of citizenship, the ACLU offered all sorts of policy arguments. The case, Fish v. Kobach, is currently awaiting a decision in federal district court.
Fortunately, the Husted decision of the Supreme Court makes clear that the lower federal courts are forbidden from taking such an activist approach in interpreting the NVRA. It’s a big setback for the ACLU and a boost for States like mine that are trying to stop voter fraud.
Kris W. Kobach is the elected Secretary of State of Kansas. Prior to becoming Secretary of State, he was a professor of constitutional law at the University of Missouri – Kansas City. Also an expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the ten ICE agents who sued to stop Obama’s 2012 DACA executive amnesty. He is currently a candidate for governor in Kansas. His website is kriskobach.com