Editor’s Note: Kristen Clarke is president and executive director of the national Lawyers’ Committee for Civil Rights Under Law, which leads the Election Protection Coalition, the nation’s largest nonpartisan voter protection program, anchored by the 866-OUR-VOTE hotline. Follow her at @KristenClarkeJD. The views expressed here are solely hers.
This week’s Supreme Court decision backing the purging of inactive Ohio voters from the rolls was devastating for those who care about ensuring access to democracy, but Justice Sonia Sotomayor’s powerful dissent provided a silver lining. She shined a spotlight on the historical use of purge programs as a voter suppression tactic, charted a path forward, and sounded a call to action for groups concerned about protecting minority voting rights.
This dissent is the latest in a series where she confronts the reality of discrimination and reveals the hypocrisy of ostensibly race-neutral government actions. Though the Ohio decision was a huge setback in the short term, generations from now, historians may look back on Sotomayor’s writings for their honest discussion of the political context for today’s most critical civil rights battles – realities too often ignored by a majority of the justices.
In an era of hotly contested races and razor thin margins, voter suppression tactics remain a primary tool used to disenfranchise minority voters, hobble vulnerable communities and obstruct fair election results. Voter purge programs are chief among the suppression tactics we see today. This week, the Supreme Court issued a ruling that stands as a monumental setback for those who are concerned about reigning in jurisdictions that too often undertake efforts to strip legitimately registered voters from the rolls. A 5-4 majority of the court upheld Ohio’s voter purge program in a ruling in Husted v. A. Philip Randolph Institute that some will interpret as a go-ahead to other states to suppress minority votes through purging of the registration rolls.
Sotomayor’s dissents consistently reflect deep comprehension of the grave threats to democracy that we see today and an awareness of the injustices still faced by minority communities.
As she has observed in prior cases, such as Schuette v. Coalition to Defend Affirmative Action, concerning Michigan’s ballot initiative on race-conscious admissions policies in higher education, it is simply not fair if the majority wins by “stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals.” The Constitution, she continued, does not “give the majority free rein to erect selective barriers against racial minorities.”
Two years ago, she vividly demonstrated the perils faced by black and Hispanic youth in her dissent to the court’s ruling, in Utah v. Strieff, that it was lawful for police to stop and search a car, even without reason, so long as they can later discover an outstanding warrant. Sotomayor recognized that allowing for post hoc justification for warrantless searches would most harm persons of color. “For generations,” she wrote, “black and brown parents have given their children ‘the talk,’ instructing them to never run down the street; always keep your hands where they can be seen; do not even think of taking back to a stranger – all out of fear of how an officer with a gun will react.” But it is not simply that people of color were “disproportionate victims” of police stops that impelled the justice. She stated a simple, but over-arching truth: These actions “corrode all our civil liberties and threaten our lives.”
Similarly, in Husted, Sotomayor helped the public understand the gravity of the majority decision by underscoring that 10% of African-American voters in Cincinnati had been removed from the rolls under Ohio’s scheme. As Sotomayor explained, Ohio’s purge process had a disproportionate impact on people of color, low-income people, disabled people, the homeless and veterans. Sotomayor also emphasized that more vulnerable groups are less likely to vote and less likely to receive and return mail notices because of language-access problems, inflexible work schedules and lack of transportation.
While a majority of the court turned a blind eye to these undisputed facts, Sotomayor insisted that these facts matter, especially in a case arising under the National Voter Registration Act. In fact, the Senate report that accompanied the NVRA’s passage explained that the law was meant to protect “poor and illiterate voters from being caught in a purge system which will require them to needlessly re-register” and from purge systems that have a “disparate impact on minority communities.” Unfortunately, as Sotomayor concluded, these are precisely the effects Ohio’s law has.
Sotomayor understands that the pretext of voter fraud has been used for generations to justify voter suppression efforts. She aptly observed Ohio’s process as part of this long history of “[c]oncerted state efforts to prevent minorities from voting.” This is not an over-statement. One need not look back to the days of poll taxes and literacy tests and all-white primaries to find this history. We see voting discrimination today in the form of restrictive voter identification requirements, discriminatory redistricting plans, cuts to early voting opportunities, burdensome documentary requirements for people seeking to register to vote, and purge programs put in place under the guise of efforts intended to “clean up the rolls.” Sotomayor understands reality. Voter suppression is real, it is happening today, and it undermines our democracy.
Which brings us full circle to the concluding paragraph of Sotomayor’s dissent in Husted, both a jeremiad and a call to action. The communities impacted by laws like Ohio’s, she declared, “should not tolerate efforts to marginalize their influences in the political process,” and their allies should not “stand idly by.” We at the Lawyers’ Committee for Civil Rights Under Law, along with our sister organizations, will pick up the gauntlet Sotomayor has laid down.
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We have fought voter purge programs before and will continue using every tool at our disposal in the courts and legislatures to ensure that the myopic Ohio decision does not become the top of a slippery slope toward broader and even more suppressive laws. We will work with states to safeguard and confirm a voter’s right to remain on the rolls. We will empower communities to identify and report unlawful voter purge efforts or voter suppression schemes in their communities. We will help educate our communities as to the steps they can and must take to register and stay on the rolls.
Sotomayor’s words will echo in our ears as we move forward: Americans must 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.”