Courthouse Steps: Husted v. A. Philip Randolph Institute Decided

Free Speech & Election Law Practice Group Teleforum

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With more than 10 percent of Americans moving each year, how can states ensure that their voting lists are kept up to date and that ineligible persons are removed? In Husted v. A. Philip Randolph Institute, the Court held that states can look at failure to vote as evidence to identify people who may have moved, but that it can’t be the sole factor used to remove a voter from the rolls. By a 5-4 vote, the decision upheld an Ohio law that removes from the voter rolls voters who don’t vote in any election for two years, fail to respond to a return card mailed to their registered address, and then don’t vote in any election for another four years. That scheme, according to the advocacy groups that challenged it, violated a section of the National Voter Registration Act that provides that failure to vote “shall not result in the removal of the name of any person” from the rolls. But, as Justice Alito’s majority opinion explained, another section provides that states may mail a “return card” to registered voters and, if they don’t respond, remove them if they fail to vote in the next two federal elections. And nothing in the statute says that states can’t rely on failure to vote as a basis to send out return cards. What states can’t do, the Court concluded, is rely on nonvoting as the sole criterion for removing a voter from the rolls. The majority’s decision preserves the tools that states have used for years to remove ineligible persons from voter-registration rolls and may spur more states to adopt approaches like Ohio’s. It also has important things to say about the courts’ respect for the policy judgments made by Congress and the states.

Featuring:

Mr. Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Free Speech & Election Law Practice Group, was recorded on Wednesday, June 13, 2018, during a live Courthouse Steps teleforum conference call held exclusively for Federalist Society members.  

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon, we have the Courthouse Steps decision discussion on Husted v. A. Philip Randolph Institute. My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

            Today, we are very fortunate to have with us Mr. Andrew Grossman who is a Partner at Baker & Hostetler and an Adjunct Scholar at the Cato Institute. After our speaker gives his remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for the case or for our speaker. Thank you for speaking with us today, Andrew. The floor is yours.

 

Andrew Grossman:  Thank you so much, Wes. It's my pleasure. Husted is one of those cases where there's an enormous divide between how a case is argued in court and how it's decided by the justices versus how it gets reported in the news media and discussed in popular culture. For the advocates in the court, this was a complicated question of statutory interpretation concerning a practice the states had used for decades to keep their voter rolls up to date.

 

            And for the media and for politicians? Well, let me just read to you a couple headlines. "Supreme Court Rules Voters Who Skip Elections Can Be Purged from the Rolls." "In 5-4 Decision, Supreme Court Upholds Ohio's Aggressive Efforts to Purge Its Voter Rolls." "The Deletion of Democracy Before Our Eyes: Ohio's Voter Purge May Be Legal, but It's Also Voter Suppression." "Supreme Court Rules in Favor of Voter Suppression… Again." And, "The Supreme Court Takes a Nakedly Political Turn."

     

            So what explains the discrepancy here? Well, sensationalism sells, of course, but I think that a large part of it is the collision of lack of knowledge and narrative. Very few people understand the background and the issues at play in a case like Husted, and there's a ready-made narrative supplied by one side of the case that the Ohio law at issue is all about voter suppression. So it's no surprise that the narrative takes the place of understanding. But this is one of those cases where the history and background really do matter, and they really do frame how one understands the result. Without that background, it's very easy to misunderstand the decision as well as its implications.

 

            So what I plan to do on this call is to discuss the background of the case, and then we'll move on to the majority decision by Justice Alito, Justice Breyer's dissent for himself and the liberal justices, and then Justice Sotomayor's solo dissent. And then we'll talk briefly about the impact of the decision, and we'll take your questions.

            So how can a state keep its voter rolls up to date? Every year, something like 10 percent of Americans move. Now, when a person moves out of a voting district, or when a person dies, that person becomes ineligible to vote in that district. So how can a state figure out what names need to be removed from the list? Well, until the Civil War or so, it was pretty easy. There was no list. Most people lived in smaller communities. Everyone knew everyone else. They knew who was allowed to vote.

 

            The initial voter registration laws appeared in cities, and they weren't permanent ones. Voters had to reregister every year or two to be allowed to vote. Permanent registration, where you register once and then can vote in every election after that without reregistering, that didn't arise until much later. And when it did, that presented states with the problem in Husted: how to maintain accurate voter lists?

 

            Now, the obvious answer used by most states and recommended by national associations like the National Municipal League was to prune the names of voters who had not voted over a certain period of time. They would have to reregister in order to vote in the next election. Some states used non-voting alone to prune their lists. In other words, if you don't vote in a certain number of elections, you're off the list. Most states, however, coupled non-voting with notification to the voter, typically a postcard sent to the voter's last known address.

 

            That's how things worked until Congress entered the field in 1993 with the National Voter Registration Act, popularly known as the Motor Voter Act, or as we'll call it here, the NVRA. The NVRA requires that states offer registration when people apply for or renew their driver's licenses. That's why it's known as Motor Voter. And Congress specified two main purposes when in enacted the NVRA. The first is to increase the number of eligible citizens who register to vote in elections for federal office. And the second, somewhat opposed to the first, or at least balanced with it, is to protect the integrity of the electoral process and ensure that accurate and current voter registration rolls are maintained.

 

            Three sections of the NVRA were at issue in Husted. One requires states to conduct a general program that makes a reasonable effort to remove the names of voters who are ineligible by reason of death or change of residence. The other two provisions regulate how it is that states are allowed to do that. What the Court calls Subsection D, and that's what we'll call it as well, provides that a state may remove a voter from the list who fails to return a pre-addressed, postage pre-paid return card and then fails to vote in the next two federal elections.

 

            And then there's what the Court calls the Failure to Vote Clause. It states that state list maintenance programs shall not result in the removal of the name of any person by reason of the person's failure to vote. That by reason language that I emphasized is very important, so keep that in mind. The Section also states, after it was amended in 2003, that it is not to be construed as preventing a state from using Subsection D—that's the return card section—to remove individuals from the list, so long as an individual has not responded to a return card and then not voted in two or more federal elections in a row. So those two provisions work in tandem.

 

            So there's one last piece of the puzzle here in terms of the background, and that's Ohio's law for keeping voter lists up to date. It has two pieces. The first, which was not challenged here, is that it sends return cards to registered voters who have informed the Postal Service that they have moved. If they confirm as much, in other words, if they send back the return card and say, "Yes, I've moved," or if they fail to reply to the return card and then don't vote in the next two elections, they're removed from the list. So that's perfectly straightforward with Subsection D of the NVRA.

 

            Now, the other piece, the one that was under review in Husted, is known as the Supplemental Process, and it's aimed at reaching the 60 percent or so of people who don't tell the Postal Service when they've moved. And it works exactly the same way, following that Subsection D procedure, but instead of using Postal Service data to send out the return cards, it sends return cards to registrants who have not voted, who haven't signed a voter petition, who haven't filed or updated a registration form, who haven't updated their address at various state agencies, for two years.

 

            So in other words, there are all these different activities that people can do that effectively update their voter registration, and if they don't do that for two years, and if they don't vote for two years, then they get the return card. And registrants are removed from the list if they don't return the return card, and if they don't to any of those other things then for an additional four years. So in effect, it takes six years of inactivity across as many as six separate elections because Ohio regularly holds elections each year, and it also requires ignoring a return card explaining all of this before Ohio will conclude that a person may have moved and, on that basis, remove them from the voter rolls.

 

            The question for the court in Husted was whether that supplemental process violates the Failure to Vote Clause because it is removal by reason of the person's failure to vote. In other words, does the Failure to Vote Clause prohibit a state from using the Subsection D return card process when a person fails to vote? Or to put it a third way, does the Failure to Vote Clause prohibit any use of non-voting to prune lists, or is it limited to when a state removes a person solely for failure to vote?    I know this is all a little bit complicated, but we'll work through it.

 

            Now, this could be a difficult statutory question, except when Congress enacted the Help America Vote Act in 2003, it also provided some useful clarification. It said in a separate provision that references the NVRA, that consistent with the NVRA, no registrant may be removed solely by reason of a failure to vote. And that, Justice Alito explained in his opinion for the Court, is key to interpreting the Failure to Vote Clause because it makes clear that a state violates that clause only if it removes registrants for no reason other than their failure to vote. So the two provisions in Justice Alito's reasoning and the reasoning of the Court have to be read in harmony, and they both prescribe the same thing, that the Failure to Vote Clause applies only to removal from the voter rolls of registrants on the basis that they have not voted without any other procedures or process involved.

 

            Now, that's not the only clue to the NVRA's meaning as Justice Alito's majority opinion describes. Another is that Subsection D also takes into account failure to vote because it allows a state to remove registrants if they, in addition to failing to send back the reply card, also fail to vote in the next two federal elections. Now, the two sections have to be read in harmony, what lawyers call in pari materia, so that the Failure to Vote Clause does not nullify Subsection D. And that suggests the Failure to Vote Clause does not prohibit any use of the Failure to Vote. It only prohibits programs that turn solely on the Failure to Vote. And that, of course, is not what Ohio's supplemental process does. Failure to Vote merely triggers the return card process that the NVRA expressly allows states to follow in Subsection D. So that's the majority's statutory analysis.

 

            But, of course, the dissent disagrees. Justice Breyer, writing for himself, as well as Justices Ginsburg, Sotomayor, and Kagan, wrote the principal dissent. In the dissent's view, the Failure to Vote Clause cuts far more broadly, prohibiting any use of non-voting that is used to start the process of removing persons from the voter rolls. It reads Subsection D as a mere confirmation procedure that can apply only after the Postal Service has identified a person of having moved and has the sole circumstance, that is, the sole exception, when failure to vote may be considered at all. But the language that identifies as pointing to that result was added in 2003 to clarify that the Failure to Vote Clause should not be construed to prohibit the use of non-voting in Subsection D. In other words, by the own terms of that language, it sets out a rule of construction, not a limited exception. And so it can't be read to broaden the scope of the prohibition. The prohibition is what it was, and the additional language added in 2003 merely clarifies that it does not apply to Subsection D.

 

            Reading it that way, in other words, in that broader reading, would mean that prior to the 2003 amendment, the Failure to Vote Clause actually did ban the use of Subsection D. And that's obviously not a permissible way to interpret a statute. In other words, you can't read one provision to entirely nullify another. And the dissent really has no good response to the point that the Help America Vote Act clarify that the NVRA's effect is that no registrant may be removed solely by reason of a failure to vote as opposed to considering failure to vote in tandem with other indicia.

 

            As the majority explains, the dissent's reading of that language, and here I quote, "would be like a law that contains one provision making it illegal to drive with a blood alcohol level of 0.08 or higher, and another provision making it illegal to drive with a blood alcohol level of 0.10 or higher. The second provision would not only be redundant, it would be confusing and downright silly." Instead, that language and the NVRA have to be read consistently.

 

            Finally, the dissent contends the majority's reading of the Failure to Vote Clause renders it superfluous. But I really don't understand this, and it doesn't make any sense because it's simply wrong. The Failure to Vote Clause prohibits what some number of states did for years, removing voters from the rolls solely for failure to vote. And again, the dissent really doesn't seem to have much of a response to this. The dissent, however, does have a separate argument. The dissent places great weight on the NVRA's requirement that states must make a reasonable effort to remove the names of voters who have moved.

 

            According to Justice Breyer, there is, quote, "a human tendency not to send back cards received in the mail, even ones sent by the government." And so he considers it fair to assume that, quote, "the fact that the state hears nothing from the registrant essentially proves nothing at all." For that reason, in his view, it is not reasonable to take failure to send in a response card as any evidence that the voter may have moved, and therefore, it's not an appropriate and reasonable measure under the NVRA.

 

            The majority's response to this argument is fairly brisk. For one thing, it's not apparent that the statute's direction for states to undertake a reasonable effort to remove ineligible voters places any ceiling on what it is they might do or how they might carry that out, such that a court could second-guess their decisions on that basis. But in any instance, both Congress and the Ohio legislature identify failure to send in a return card as at least some evidence when combined with other indicia, like failure to vote in consecutive elections, that a voter may have moved. And indeed, nobody challenges the use of return cards when used in conjunction with Postal Service data. It's common ground across the majority of the dissent, as well as the petitioners and respondents in the case that that's perfectly lawful and permissible under the act. It would be hard to argue otherwise.

 

            Moreover, it's states, of course, that have the constitutional authority to regulate voter qualifications and, at least in the first instance, the times, places, and manners of conducting elections. And Congress certainly viewed it as a relevant consideration, these return cards, in Subsection D. As the majority observes, the dissent rests on little more than a guess about human nature and as an input to an open-ended and standardless reasonableness analysis that provides little guidance to courts as to how they're supposed to assess states' efforts to update their lists.

 

            And then there is Justice Sotomayor's dissent, which has attracted a fair amount of coverage for its fiery rhetoric about how the decision acts to disenfranchise low income and minority voters. She asserts that Ohio's Supplemental Process, quote, "has disproportionately affected minority, low income, disabled, and veteran voters." But the only example she cites, the only evidence, is based on a newspaper report comparing voters in an inner city neighborhood against a small town with a population of just a couple thousand. In any instance, there was no disproportionate impact claim in this case. There was no claim that the state Supplemental Process was provided in any non-uniform fashion. And, of course, building a disproportionate impact case requires a lot more than a newspaper report.

 

            In that sense, her arguments and fiery tone appear to be misplaced, at least in the context of this decision. The NVRA does require the state voter registration programs must be uniform, nondiscriminatory, and in compliance with the Voting Rights Act. And her dissent is perhaps best read as an encouragement for activists to bring those kinds of cases in the future. But to be clear, that isn't this case.

 

            Finally, there is an interesting dialogue between Justice Thomas and Justice Breyer on the constitutionality of the states as well as the limits that imposes on Federal authority to regulate elections. Justice Thomas has long maintained that under the Voter Qualifications Clause, states have the exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied. In his view, they retain the authority to decide the qualifications to vote in federal elections limited only by the requirement that they not establish special requirements for congressional elections that don't also apply in state elections.

 

            In other words, states can't define two separate bodies of voters. Prohibiting states from taking into account non-voting in setting qualifications for voters would therefore, in Justice Thomas' view, raise serious constitutional questions. And the majority decision by Justice Alito also nods to this point and its analysis of why Ohio is due at least some deference in choosing to consider non-voting as well as choosing to rely on a failure to respond to a response card.

 

            Justice Breyer vehemently disagrees with this point, arguing that the Elections Clause instead controls because it permits Congress to set the times and manner of holding federal elections, thereby giving Congress the authority to preempt contrary state laws. The use of non-voting, he argues, goes to the manner of holding such elections because it concerns the manner of registering voters. Justice Thomas responds to this point, arguing that the Elections Clause addresses only questions of when, where, and how, not who. It does not give Congress authority to displace state voter qualifications or to dictate what evidence a state may consider in deciding whether those qualifications have been met.

 

            Now, I bring up this disappointment because it's interesting as a matter of constitutional law and federalism, but also because it may be relevant in the future. No doubt, in response to today's decision, there will be a movement, if not immediately, then at some point, to amend the NVRA to perhaps alter the scope of the Failure to Vote Clause. And in the debate over any such proposal, as well as any future litigation, the constitutional issue, of course, will loom large, and at that point it may be further developed.

 

            On that note, let's briefly discuss the decision's impact. For one, obviously, it upholds Ohio's Supplemental Process. But that's not going to have any effect in this election because another provision of Ohio law holds that it's simply too late in the year to apply that process in this election cycle. So no, despite all of the over-the-top headlines, no one is going to be purged for the current election cycle. As for other states, the Husted decision may make a marginal difference in terms of how they maintain their voter lists. The Court's decision -- the difference that it makes to the other states is not likely to be a very large one, at least not immediately.

 

            The Court's decision essentially reaffirms what had been the position of the Department of Justice when it enforced the NVRA. For example, in 2007, DOJ sued Philadelphia for failure to perform maintenance on its voter list. And the party settlement required Philadelphia to do exactly the same thing as Ohio's Supplemental Process. DOJ reached similar settlements over the years with Indiana and with other jurisdictions. Now, DOJ has been inconsistent in its guidance on this point over the years, but Ohio's process is not really outside the mainstream in terms of how states deal with voter list maintenance. Legal certainty may encourage more states to adopt procedures like Ohio's, but that will be a gradual process that happens over a period of years and election cycles. And again, if you consider the amount of time that's required for Ohio's Supplemental Process to play out—six years in total—it's unlikely that there will be any impact in any elections for a number of years to come, at a minimum.

 

            More than anything, the decision simply confirms that states get to experiment with different approaches within the framework of the NVRA. But is has to be remembered that, in effect, it was the plaintiffs here who were attempting to change the status quo and to effectively bar a state process that had been in effect and had been used successfully for many, many years. So the decision generally maintains the status quo, and so any changes that are likely to happen in other states as they reconsider their laws are going to be marginal and probably will not be very great.

 

            Now, there are some benefits, however, to states and localities of the Husted decision. One that's mentioned is flexibility. States can take different approaches and see how they work, and the decision reaffirms that that's something that they are allowed to do within the limits of the NVRA. Another is that it will make it, at least on the margins, easier and potentially a little less costly to maintain accurate voter rolls. Now, that matters, not just for voting integrity and to prevent voter fraud, but also to advance our democratic processes. It's common for candidates and political parties to use voter rolls to canvas for votes and to petition for signatures, and accurate lists are essential to those tasks.

 

            Conversely, there may be a burden on some voters who may be required to reregister before they can vote, but the magnitude of that effect is unclear, and it can certainly be overblown. Under Ohio's procedure—we're talking about registrants who didn't vote in up to six elections, who didn't sign a petition such as to nominate a candidate, didn't do any of the many things that can extend a registration, like renewing a driver's license, then when they were mailed a simple postage pre-paid response card, tossed it in the garbage or otherwise failed to use it—and only then, only at that point, after six years, decided that they did want to vote in the next election but without doing anything like checking their registration, or confirming that they were registered, or filing a new registration card, which can frequently be done online.

 

            Now, the need to maintain accurate lists is one that is generally recognized, and it's something that for years was not really a controversial proposition. The NVRA, after all, which requires states to maintain their voter lists and to remove ineligible voters, it originated in a House of Representatives that was then controlled by the Democratic Party, and it was signed into law by President Clinton. Likewise, Ohio's House of Representatives, when that state enacted the Supplemental Process that was challenged here, was controlled by Democrats. I've seen some reporting suggesting that the Ohio's law is some type of partisan attack on Democratic party voters. But again, to understand the history and the background of it, there's simply no evidence in support of that.

 

            Finally, as a final impact of the decision, as always, there will be more litigation. You can expect there will be cases along the lines advocated by Justice Sotomayor, in other words, disparate impact lawsuits, and they'll work their way through the courts over a period of years. But nobody should forget that disparate impact cases are difficult to bring. They require a lot of statistical evidence, and they really do place a very serious burden on plaintiffs. And in this instance, there are some legal questions at the threshold as to how these different types of theories will work under the NVRA. So these are things that will be litigated, likely over the next 5 to 10 years, but probably will not have any immediate impact, at least certainly not on this electoral cycle and perhaps not even on the next one.

 

            So that concludes my remarks for this afternoon. I hope it provided some useful background on the case and on the decision. And I think with that, we can go to questions.

 

Wesley Hodges:  Thank you very much, Andrew. Let's go ahead and move to audience questions. When we get to your request, you will hear a prompt, and then you may ask a question. We'll answer all questions in the order in which they are received.

 

            It looks like we do have one question out of the gates. If anyone else would like to join the queue, remember, just enter the star key and then the pound key on your phone. Let's go ahead and move to our first caller.

 

Devin Watkins:  Hi, this is Devin Watkins from CEI. So I was wondering if you could walk me through the constitutional argument on why Congress has the power in this area. It doesn't seem to be a time or a place, so I assume it's got to be a manner of somehow, but it would seem to be like -- that the requirement that you must be registered to vote -- is that the qualifications of being a voter or is it something else?

 

Andrew Grossman:  Well, so Devin, thank you for the question. That really is the disagreement between Justice Thomas and Justice Breyer, and you have this tension between the Qualifications Clause and Time, Place, and Manner Clause. And the language of these two clauses does run together in some sense. States, of course, have the authority to regulate the qualifications of voters. The Federal Government can, to a certain extent, rely on its authority to regulate time, place, and manner and thereby preempt contrary state laws. And so the question is where those two run together, and that's really the heart of the disagreement. Justice Thomas' argument is, in effect, that what you're looking at here when you're talking about who can vote, that's something that really involves voter qualifications, and that's something where states have authority. And there are some limits on that authority, but that's where, really, states get to set the rules of the road and enforce them as they see fit.

 

      Conversely, the Federal Government is limited to time, place, and manner, and Justice Breyer does really put a lot of weight on this capacious word manner, but potentially a broad reading of the word manner could encompass anything that has to do with voting whatsoever. And so it would seem as an originalist matter that to read those two clauses together, there can't be such a capacious reading of manner employed because if it were, it would simply swallow the other clause because, of course, voter qualifications do concern in some manner -- there you go -- the manner in which elections are conducted.

 

            You know, there's a long history of court cases that try -- that attempt to work out the division between a state and federal authority in these areas, and it's a very complicated question. And I think that's why this argument is one that wasn't really addressed in any length by the majority that simply nods at it and points out that if it didn't view the statute as being sufficiently clear, that might be something that would cause it to go in -- weigh in the same direction. But that wasn't really the case to resolve it, and it doesn't seem like that type of issue is going to be resolved in the context of this type of NVRA dispute.

 

Wesley Hodges:  Thank you very much for your question. While we wait for any more audience questions, I do want to ask, and I guess make the observation, Andrew, that there's been so much political coverage for this case that seems fairly obscure, at least on face value, not that controversial. Would you mind commenting on why you think this is the case?

 

Andrew Grossman:  Well, of course, over the past decade or 15 years, there really has been what some have called the Voting Wars, the real dispute between, in some sense the political parties, and in some sense activists on different political sides about how we vote in this nation, how voters are registered, how voting requirements are enforced. Voting ID falls into that and, of course, is one of the more controversial areas, but I think collateral -- one of the collateral effects of that war, of that battle, has been to pull into that rubric a lot of cases that in the past probably would not have been as controversial. Everybody's ready to go with their weapons of rhetoric, with their cries of disenfranchisement, as well as with, in some instances, overblown claims of voter fraud.

 

            And this really isn't the case, I think, that fits into that particular dynamic because when you have an understanding of how it is that states have maintained their voter rolls over the years, historically how they've done that and the processes they've used, Ohio is well -- Ohio's Supplemental Process is well in the mainstream. It's not unusual. It's not -- it doesn't appear to be targeted at any group. It's not targeted at any political party. But these are the terms that -- those battle-like terms -- those are the terms of debate that we have nowadays for cases like that.

 

            And so you have this case that is a fairly complicated statutory dispute over a statute that Congress enacted to balance these competing objectives of making it easier to register to vote while at the same time maintaining accuracy of voter rolls as well as integrity of the electoral process. This is a really technical case, and it's not the kind of thing that, I think, 10 years ago, 15 years ago, people would have gotten all that excited about.

 

            The legal theory brought by the challengers here was a little bit novel and a little bit aggressive. And I think, at the end of the day, it's not surprising that it didn't work. What's a little bit more surprising to me is that there were four votes on the other side for this other reading of the statute. I'm not sure that would have been the case in the past, either. So in a certain sense, this decision was at least, perhaps, arguably on the same side of view a little bit politicized, but I still take Justice Breyer in good faith as to his statutory reading and his understanding of how this all works. But you can't, I guess, ignore the backdrop as to how controversial voting issues have become, even in instances where it doesn't seem like there ought to be a lot of controversy, regardless of which way one feels the statute ought to be interpreted.

 

Wesley Hodges:  Wonderful. Thank you, Andrew. The queue is still ope000n, so if anyone has any questions for our speaker or for the subject today, just remember, all you need to do is enter the star key and the pound key to ask your question. So you have couple more moments in case they would like to present a question.

 

            Andrew, is there anything that you'd like to, I guess further, that you'd like to address or add more emphasis to on this case?

 

Andrew Grossman:  Well, based on the questions, perhaps Husted was not quite so controversial a decision as I had thought, or at least as it seemed by the media coverage, or perhaps I've been particularly convincing in the respect that at the end of the day, it's not really a case that ought to be particularly controversial. But I think that's the only point I would emphasize.

 

            For all the political invective that we hear about Supreme Court decisions, at the end of the day, the Court is deciding individual cases. They're looking at the statutes. They're seriously grappling with the terms of those statutes, with the language, how they work, and I think that Husted, both on the majority side as well as the dissent, is a really great example of that. Anybody who thinks there's a larger political agenda here, I would just say, read the decision and you will be disabused of that notion because this is what courts do. They interpret statutes, they work with what Congress has given them, and that's exactly what the Court did here.

 

Wesley Hodges:  Thank you, Andrew. It looks like someone has presented a question. Let's go ahead and turn to them.

 

Gary Wheaton:  Hi, this is Gary Wheaton in New Hampshire, normally, but I'm in Boston now as you can see from my phone number. But anyways, I missed your section -- you said time, place, manner, and what was the other clause that you mentioned?

 

Andrew Grossman:  The Qualifications Clause.

 

Gary Wheaton:  Oh, okay. All right. Well, two things, I guess, to that. One, I'm -- I can easily see how, like, for example, people using the names of dead people to vote and that kind of thing was one of the areas that a lot of these people are trying to get around. I can see that, if you remember ACORN and some of these other organizations that really formalized the voting process, if you will—and that's putting it nicely—they can very easily get around these types of statutes by just making sure that the address associated with the name and that kind of thing is responded to somehow, I suppose.

 

            Definitely not seeing time, place, manner as an argument, personally, but how, do you, and again, I missed this part, but how are you positioning the qualifications clauses -- in other words, trying not to eliminate people from the voting rolls because they're not qualified, I guess is their argument, right? Or am I missing something there?

 

Andrew Grossman:  Well, as I said, this is a dispute that is really not aired so much in the majority opinion, but really in a conversation between Justice Thomas in his concurrence and Justice Breyer in the principle dissent. Justice Thomas' view is that under the Voter Qualifications Clause, states have the excusive authority to set voter qualifications and to determine whether those qualifications have been satisfied. That clause provides that the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. And it effectively says two things. One is that states can't define some separate body of voters for federal elections that's different that what they use for state elections. And second, by implication, is that states are the ones who get to decide and enforce what those qualifications are.

 

            As I said in response to Mr. Watkins' question, potentially, those two clauses, the Qualifications Clause as well as the Time, Place, and Manner Clause, can in some circumstances run into one another. And the way Justice Thomas would resolve that is by saying that certain questions like how, when, where, etc., those are subject to the Time, Place, and Manner Clause. But when you're talking about who, who is voting, that's a Voter Qualifications Clause issue, and it's something that is left to the states. Obviously, Justice Breyer disagrees. He would read the Time, Place, and Manner Clause much more broadly, and it's something that has been developed in many cases and it's a dispute that will continue probably for many years into the future.

 

Gary Wheaton:  Gotcha. Appreciate it. Thank you very much.

 

Wesley Hodges:  Thank you, caller, for your question. Seeing that there are no immediate questions, Andrew, real fast, do you have any closing remarks for us or anything else you'd like to expound on?

 

Andrew Grossman:  Nope. Thank you for allowing me to do this. I always find these to be useful calls when other people do them, and I hope it's been useful and interesting to others.

 

Wesley Hodges:  Absolutely. Well, on behalf of The Federalist Society, I'd like to thank you for the benefit of your valuable time and expertise today. We'll welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining us today. This call is now adjourned.