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Saturday, February 27, 2021

NJ Employment Discrimination Attorney Historical Racism Part XII, Voting Rights in Aftermath of Shelby County v. Holder, Justice Sotomayor

Since the Supreme Court’s 2013 decision in Shelby County v. Holder, the Court has taken on additional voter rights cases and continued the distancing of the federal judiciary as pro-active monitor for the Fourteenth Amendment.

In 2018, in Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018), the Court approved Ohio's system of voter purges, in which the state uses a failure to vote as a trigger to begin the multi-step process of taking people off voter rolls. In this 5-4 Decision with 1 concurrence and 2 dissents, it held that Ohio's procedure of sending voters who had not voted for two years a pre-addressed, postage prepaid card which asked them to verify that they resided at address on the card and removing them from rolls of voters if they failed to return the card and failed to vote in any election for four more years did not violate federal law.

In this decision, Justice Alito delivered the opinion of the Court in which Chief Justice Roberts, and Justices Kennedy, Thomas, and Gorsuch, joined. Justice Thomas  filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan, joined.

Justice Sotomayor filed her own detailed dissenting opinion arguing that the Court was ignoring the history and distorting the statutory text of the NVRA to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against.

The bulk of her reasoning in her dissent is repeated as follows:

“ I join the principal dissent in full because I agree that the statutory text plainly supports respondents' interpretation. I write separately to emphasize how that reading is bolstered by the essential purposes stated explicitly in the National Voter Registration Act of 1993 (NVRA) to increase  the registration and enhance the participation of eligible voters in federal elections. ....Congress enacted the NVRA 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. The Court errs in ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against.

Concerted state efforts to prevent minorities from voting and to undermine the efficacy of their votes are an unfortunate feature of our country's history. ...... As the principal dissent explains, in the late 19th and early 20th centuries, a number of [r]estrictive registration laws and administrative procedures came to use across the United States......States enforced "poll tax[es], literacy tests, residency requirements, selective purges, . . . and annual registration requirements," which were developed "to keep certain groups of citizens from voting." ....... Particularly relevant here, some States erected procedures requiring voters to renew registrations "whenever [they] moved or failed  to vote in an election," which "sharply depressed turnout, particularly among blacks and immigrants." Even after the passage of the Voting Rights Act in 1965, many obstacles remained. See ante, at 2, 201 L. Ed. 2d, at 162 (opinion of Breyer, J.).

Congress was well aware of the "long history of such list cleaning mechanisms which have been used to violate the basic rights of citizens" when it enacted the NVRA......Congress thus made clear in the statutory findings that "the right of citizens of the United States to vote is a fundamental right," that "it is the duty of the Federal, State, and local governments to promote the exercise of that right," and that "discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation . . . and disproportionately harm voter participation by various groups, including racial minorities." In light of those findings, Congress enacted the NVRA with the express purposes of "increas[ing] the number of eligible citizens who register to vote" and "enhanc[ing] the participation of eligible citizens  as voters."***73]  of voter suppression, as evidenced by §20507(b)(2), which forbids "the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person's failure to vote." ...

Of course, Congress also expressed other objectives, "to protect the integrity of the electoral process" and "to ensure that accurate and current voter registration rolls are maintained." The statute contemplates, however, that States can, and indeed must, further all four stated objectives. As relevant here, Congress crafted the NVRA with the understanding that, while States are required to make a "reasonable effort" to remove ineligible voters from the registration lists, ....such removal programs must be developed in a manner that "prevent[s] poor and illiterate voters from being caught in a purge system which will require them to needlessly re-register" and "prevent[s] abuse which has a disparate impact on minority communities,"

Justice Sotomayor continued that when the majority of the Court concluded that Ohio's new process for purging voters does not violate the NVRA, the majority does more than just misconstrue the statutory text. “It entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate."

What You Can Do

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were subjected to racial harassment and retaliation in the workplace and/or were fired. If you have experienced racism at work, or if you reported it and no action was taken, if you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in discrimination.

If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in southern, central, western and northern NJ to meet with clients.

 



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