The new year brings the Supreme Court’s nine justices back to the courtroom and back to an issue that continues to roil national politics: voting rights.
President Donald Trump recently disbanded his special commission to investigate voting fraud — a commission that voting rights advocates believed was intended to suppress voting rather than to root out fraud. Those advocates see the same threat in an Ohio case the justices will hear on Jan. 10: Husted v. A. Philip Randolph Institute.
Jon Husted is Ohio’s secretary of state. He appealed to the Supreme Court after a lower federal appeals court ruled that Ohio’s process for maintaining accurate voter registration lists violated the National Voter Registration Act of 1993.
Ohio’s so-called “supplemental process” flags registrants who fail to vote during a two-year period, triggering eventual removal from the state’s voter registration rolls. The American Civil Liberties Union and the organization Demos, which challenged the Ohio process, contend that the federal voter registration law explicitly states that voters can only be removed if and when they are ineligible to vote — not for failure to vote or for voting infrequently.
The challengers say that in 2015, more than 40,600 registered voters were purged from Ohio’s voter rolls under this supplemental process. The process, they argue, hits hardest hourly and wage workers, people of color and low income individuals who frequently have difficulties getting to the polls.
But the state of Ohio argues that its process does not violate the federal law. Failure to vote is not the trigger for removal from the rolls, it says. Instead, the law allows an individual to be removed if he or she fails to vote in two federal elections and also fails to respond to a notice asking the voter to confirm his or her eligibility to vote.
We see the usual voting case battle lines drawn here — conservative organizations and local governments are supporting Ohio, while civil rights groups and voting rights advocates, such as the League of Women Voters and others, support those challenging the state.
This case is also one of several in the current term in which the Trump administration has taken a different position from its predecessor, the Obama administration. The Trump administration’s Justice Department is now supporting Ohio, whereas the department, under former President Barack Obama, supported those challenging the state in lower courts.
Besides the obvious effect on a significant number of Ohio voters, there are important political stakes in the case. Ohio continues to be a major battleground state in presidential elections and both political parties will be watching what the justices decide.
The Ohio case, of course, is not the only case in the justices’ two-week January argument session. The day before the voting arguments could be called “Fourth Amendment Day” at the high court.
Justice Elena Kagan once said in a public forum that Fourth Amendment cases, which protects us from unreasonable search and seizures, were a “growth industry” at the court. Indeed, hardly a term goes by without at least two cases on the argument calendar. There seem to be endless variations of questions involving law enforcements use or failure to use warrants in searches and seizures.
For instance: The Supreme Court has recognized that we have a reasonable expectation of privacy in the cars we own and operate. But what if you are driving a rental car and are not an authorized driver on the rental agreement?
A federal appeals court held that Terence Byrd lacked any expectation of privacy in the rental vehicle he was driving because he was not an authorized driver. Police made a traffic stop of his car, searched the car and trunk, and discovered heroin and body armor, evidence a judge used to convict Byrd on federal drug charges and sentence him to 10 years in prison. The Supreme Court has agreed to decide whether the lower court was right.
A second case, Collins v. Virginia, tests the interplay between two Fourth Amendment rules. The so-called curtilage rule requires police to get a warrant before searching a house or the area immediately surrounding the house. A totally separate Fourth Amendment warrant exception that allows police to search a vehicle without a warrant if they have probable cause to believe the vehicle was used in a crime.
In this case, police were searching for a motorcycle involved in violations of state traffic laws. Their research, which included Facebook photos of a motorcycle, led them to an open-roofed carport at the top of a house’s driveway to search a covered motorcycle. It was the motorcycle that they were seeking.
There is much more to the story, but basically Ryan Collins argues that the vehicle exception to the Fourth Amendment does not excuse the warrant requirement for searches of a house’s curtilage. Virginia argues that the vehicle warrant exception applies and is not limited by particular locations.
The challengers in these Fourth Amendment cases are rarely as pure as the driven snow. But — and it’s a very big “but” — sometimes they are, which is why the Fourth Amendment’s guarantees, rules and exceptions are so important, and why they often create interesting and unusual voting alliances among the justices.
By the way, mid-January is usually the time when the justices stop adding cases to the current term’s calendar. They don’t stop taking cases, but cases granted review after this term’s calendar is filled will be heard next term.
And stay tuned — the justices should also pick up the pace of issuing decisions this month.