DOJ Reverses Position In Big Voting Case Before Supreme Court

The Obama DOJ supported a challenge to one of the ways Ohio purged voters from its rolls. The Trump DOJ now says the process is fine.

The Department of Justice reversed its position Monday on an important case before the Supreme Court that deals with state procedures for removing people from the voter rolls. The move signals another break with Obama administration policy on voting issues and, according to critics, shows how hostile the Trump Justice Department will be to voting rights.

Under the Obama administration, the Justice Department supported a challenge to one of the ways Ohio purges voters from its rolls. If someone hasn’t voted in two years, the state sends them a confirmation notice and then removes them from the rolls if they don’t respond and fail to vote for an additional four years.

Challengers argue that this process violates federal law, which prohibits removing people from the voter rolls simply for not voting. The U.S. Court of Appeals for the 6th Circuit agreed.

Now, the Supreme Court has agreed to hear the case next term, and in a filing on Monday, the Department of Justice said the Ohio process was legal and didn’t violate the 1993 National Voter Registration Act or the 2002 Help America Vote Act.

Lawyers for the department acknowledged that their position was inconsistent with their previous position in the case.

“The Department argued that the NVRA forbids that practice in a guidance document first issued in 2010 and in two recent amicus filings, including a brief filed in the court of appeals in this case,” they wrote in the Monday brief. “After this Court’s grant of review and the change in Administrations, the Department reconsidered the question. It has now concluded that the NVRA does not prohibit a State from using nonvoting as the basis for sending a [confirmation] notice.”

The reversal is unusual, said Justin Levitt, a former deputy assistant attorney general in the Justice Department’s civil rights division who worked on the Ohio case during the Obama administration.

“It’s quite rare for the DOJ to change course after ... filing a brief in the court of appeals: the Solicitor General’s office is often called the ′Tenth Justice,′ in part because while reversals happen, there’s a thumb on the scale to treat DOJ filings with some internal quasi-precedential weight,” he wrote in a blog post.

Levitt also noted that career civil rights attorneys had not signed the department’s brief, a signal that they may disagree with its content.

The Trump Justice Department is undermining the ability of people to vote, said Brenda Wright, the vice president of policy and legal strategies at Dēmos, which is representing the plaintiffs in the Ohio case.

“Yesterday, the Department of Justice abandoned this principled position that it has held for decades through three presidencies,” Wright said in a statement. “By reversing course and choosing to stand with Ohio Secretary of State Jon Husted and his practice of purging countless eligible Ohioans from the rosters, the DOJ has confirmed many peoples’ worst fears that it will no longer work to protect and expand the right to vote, but instead undermine it.”

“DOJ has confirmed many peoples' worst fears that it will no longer work to protect and expand the right to vote, but instead undermine it.”

- Brenda Wright, vice president of policy and legal strategies at Dēmos

The Justice Department’s reversal marks the second time the Trump administration has broken with the Obama administration on a major voting rights case. In February, the department changed its yearslong position that Texas’ 2011 voter ID law was discriminatory.

The Ohio brief also signals the department’s continued interest in voter purging procedures. In June, the department sent out a letter to all 44 states covered by NVRA asking election officials to describe their compliance with voter purging procedures.

Voting rights advocates said it was unusual for the Justice Department to send such a broad letter to so many states and worried that the department was preparing to force states to kick people off the rolls.

“Since taking office, this Administration has been hellbent on stripping eligible voters of their access to the ballot box. In keeping with their reversal in our Texas voter ID case, Veasey v. Perry, the Justice Department has once again discarded years of legal guidance and shirked its responsibility to defend the right to vote,” Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, said in a statement.

“The DOJ’s interpretation of federal law would leave Americans vulnerable to getting purged from the voter rolls, dispossessing millions of a fundamental right simply because they did not exercise it,” Ifill added. “Just as we have fought this Administration’s illegal voter suppression task force, we will continue to vigorously resist any attempt to undermine the franchise.”

The Justice Department is interested in making it acceptable to conduct widespread voter purges, said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law.

“The Department of Justice’s latest reversal of its position in a critical voting rights case represents just the latest example of an agency whose leadership has lost its moral compass,” Clarke said in a statement. “The law hasn’t changed since the Department accurately told the Court that Ohio’s voter purge was unlawful. The facts haven’t changed. Only the leadership of the Department has changed.”

“The Justice Department’s latest action opens the door for wide-scale unlawful purging of the voter registration rolls across our country,” Clarke added. “We fully condemn the Justice Department’s latest move to obstruct voting rights in the U.S.”

Stuart Naifeh, a Dēmos lawyer representing the plaintiffs in the case, said the Justice Department was reversing a position it had held for over two decades.

“The Justice Department has undermined its own credibility by changing positions in the same case,” he said. “The Justice Department has taken a position consistent with our position since the NVRA was passed. They tried to downplay that in their brief.”

Vanita Gupta, the former head of the Justice Department’s civil rights division under the Obama administration, said in a statement the shift in DOJ’s position “raises real concerns about the politicization of the Justice Department’s historic role in protecting voting rights.”

This story has been updated with a statement from Stuart Naifeh and Vanita Gupta.

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