Sotomayor dissent tackles impact of Ohio ruling on minority voters

All four liberals on the Supreme Court dissented in Monday's 5-4 case ...

Posted: Jun 12, 2018 7:26 AM
Updated: Jun 12, 2018 7:26 AM

All four liberals on the Supreme Court dissented in Monday's 5-4 case upholding Ohio's method of removing voters from its rolls.

Justice Stephen Breyer led the charge, interpreting the National Voter Registration Act, also known as the motor voter law, as barring Ohio's process. Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor joined the dissent in full.

But then, on her own, Sotomayor went further and focused on something else: the impact the ruling will have on minority voters.

"Our democracy rests on the ability of all individuals, regardless of race, income or status, to exercise their right to vote," she wrote in a separate five-page dissent.

Her opinion earned a rebuke from conservative Justice Samuel Alito, who wrote the majority opinion. It also prompted some to question if laws like Ohio's could be challenged down the road as discriminatory. But more than anything else, it reflected a common theme that Sotomayor weaves into her opinions and speaking engagements: a law's effect on society.

Just last week, Sotomayor appeared before the liberal American Constitution Society and spoke about her style.

She was asked if she felt the "weight of being the only woman of color on the court."

"Yes," she responded. "To the extent that I speak frankly in my decisions, and directly, it's because I want people to understand what I am saying, not in legal terms, but in legal terms that touch the heart. I want people to understand the consequences of law and how it affects them."

Back in 2014, professor David Fontana, writing for the Yale Law Journal, dubbed Sotomayor the "people's justice" in part because of what he called her "extrajudicial communications" that he said differed from those of other recent liberal justices.

To be sure on Monday, she joined Breyer's dense and technical opinion that explored where he felt the majority went wrong in its statutory interpretation. Breyer actually included the full text of the law to make his point.

But writing alone, Sotomayor focused on the effect of Ohio's system.

She started with the fact that the 1993 law was enacted "against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections."

Sotomayor accused the majority of "ignoring this history" and "distorting" the statute.

And while Ohio has always argued that its goal was to make a "reasonable effort" to remove ineligible voters, she said that such removal programs must be developed in a manner "that prevents poor and illiterate voters from being caught in a purge system which will require them to needlessly re-register and prevents abuse which has a disparate impact on minority communities. "

And she pointed to one of the amicus briefs in the case that revealed that in one county, "African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity since 2012" as compared to "only 4% of voters in a suburban, majority-white neighborhood."

"We have seen state officials across the country using purge programs as a vehicle to remove legitimately registered voters from the rolls," Kristen Clarke, the President of the Lawyers' Committee for Civil Rights Under Law, said after the opinion was released.

But Alito, who wrote the majority opinion and was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch, singled out Sotomayor.

"Justice Sotomayor's dissent says nothing about what is relevant in this case," he said. Instead of focusing on the reach of the federal law, Sotomayor "accuses us of ignoring the history of voter suppression."

He called such charges "misconceived" and said that she had not pointed to "any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent."

And Ohio Secretary of State Jon Husted praised Alito's opinion and disregarded Sotomayor's dissent.

He called the ruling a "validation of Ohio's efforts" to clean up voter rolls. And he said the majority has now given its "blessing" for other states to follow suit.

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