Legal Docket: Purging outdated voter registrations

NICK EICHER, HOST: From member-supported WORLD Radio, this is The World and Everything in It for Monday, February 19th. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

The Supreme Court resumes oral arguments tomorrow after a break from them. Today you’ll be all caught up on every single oral argument so far. But you’ll need to buckle up, because we have three remaining cases to cover.

EICHER: Alright, here we go.

Case one arises from Ohio.

Larry Harmon showed up to cast his vote in Kent, Ohio’s local election in 2015. But election officials there wouldn’t let him. They told him he was no longer registered.

The reason?

Well, because Harmon hadn’t voted since the 2008 presidential election seven years earlier, the state thought he might have moved.

That prompted election officials to mail him a confirmation of address notice, and Harmon never responded.

The non-response was evidence Harmon had moved, so they removed him from the registered voter list.

REICHARD: Harmon and two interest groups sued.

They cited the National Voter Registration Act. You’ll hear it referred to by the initialism NVRA.

It’s also known as the national Motor Voter Act and it requires that voting status must have nothing to do with maintaining voter registration rolls.  

At the Supreme Court, Harmon’s lawyer Paul Smith argued that Ohio breaks the law with its method of purging the voter list.

SMITH: ….the way it is designed, it assures that many, indeed probably most of the people who are purged, have not moved, let alone moved to a different county or state, which is the only moves that can justify a purge under the plain terms of the NVRA. It simply doesn’t provide adequate evidence to come to the conclusion that the person has moved at all.

Smith argues failure to vote cannot even be the trigger to alert the state someone may have moved.

Justice Stephen Breyer wondered how effective those mailed address confirmation requests really are.

BREYER: But there might be surveys about how many people throw everything in the wastebasket.  I confess to doing that sometimes. And — and –

SMITH: Most people do.

BREYER: I know that’s what your opinion is.  And all I’m asking is, is there any hard evidence of that one way or the other?

SMITH: The evidence we have in the record is that most people throw it in the wastebasket, 70 percent.  

It’s worth noting that early on in this country, voters didn’t need to register.

Everybody knew everybody and could vouch for one another.

But as fraud became more commonplace, registration became the norm.

Advocates attacked that, too, as unconstitutional infringements on voting.

Justice Breyer also recognized the state’s dilemma.

BREYER: What are — what are they supposed to do?  That is, every year a certain number of people die and every year a certain number move to California. All right. We don’t want them on the voter roll. That used to be a big problem, voting dead people, okay? What should the state do?

Smith replied the departed aren’t the problem; they are identified by authoritative lists kept at both the state and federal levels.

It’s people who have moved who are the problem.

And the way to identify them—without using failure to vote as a trigger—is via tax records or the database kept by the Department of Motor Vehicles, just two examples.

Defending Ohio’s way of maintaining accurate voter registration rolls was state Solicitor General Eric Murphy.

The Motor Voter law requires states to take reasonable efforts to maintain accuracy and thwart voter fraud.

Removal from the list comes only after a person fails to respond to the address-confirmation notice.

That’s what triggers removal. Several states use the same basic method.

But Justice Sonia Sotomayor saw what she called the “essence of this case” much differently. Listen to this lengthier exchange with Ohio’s Murphy.

SOTOMAYOR: But is that a reasonable …conclusion when you do results in disenfranchising disproportionately certain cities where large groups of minorities live, where large groups of homeless people live, and across the country they’re the group that votes the least, in — in large measure because many of them work very long hours….. So if the word “reasonable effort” has any meaning with a Congress who said that the failure to vote is a constitutional right, how can we read this statute to permit you to begin a process of disenfranchising solely on the basis of that with no independent evidence whatsoever that the person has moved? …There are dozens of other ways that you could verify a change of address, yet you’re suggesting that using a failure to appear at an election or elections as evidence of moving when people have a right not to vote if they choose…..

MURPHY: We don’t say…

SOTOMAYOR: It’s not a reasonable inference, so how could it be a reasonable effort?

MURPHY: So the failure to vote clause says that failure to vote cannot be the sole basis for removal, not sending a notice, it says nothing about sending a notice.

Chief Justice John Roberts corrected that “no independent evidence whatsoever” notion of Justice Sotomayor’s. Not responding to an address confirmation request is at least some evidence a person has moved.

Justice Samuel Alito sounded incredulous as well in this exchange with Smith:

ALITO: You think that if somebody hasn’t voted for 20 years, that doesn’t raise an inference that the person has moved or died?

SMITH: Your Honor, in the legislative history, they rejected amendments precisely like that.  They even rejected a 100-year rule.

Seventeen states back Ohio’s position in the case.

So does the Trump administration, in a change from the last 24 years.

The partisan rancor over tightening up the voter rolls to thwart fraud versus expanding voter rolls to make it easier to vote was palpable in some questions, particularly from Justice Sotomayor.

The justices appear split on this matter, although with liberal-leaning Justice Breyer sympathetic to Ohio’s stated intention of keeping accurate voter lists, Ohio just may prevail with a majority.

My second case today is quite technical.

In consolidated litigation, when can a party appeal part of a decision that resolves some, but not all, the claims?

I won’t delve into the details, but this case involves multiple litigation in courts in Florida and the U.S. Virgin Islands.

A deceased’s woman two children are suing each other over their mother’s estate.

The circuits don’t handle this technical matter in a uniform way, so legal clarity is needed.

In this final case, we learn who the Chief Justice might see for car repairs.

ROBERTS: …. if you over several years dropped your car off whenever you’re supposed to or whenever it’s broken and — and you talk to Fred about getting it fixed, and – and somebody comes to you later and says something — I’ve got a problem with my car, you would say my service guy is Fred, go see him.

Fred the car service guy is a stand-in for the legal question in this case: Is a “service advisor” at a car dealership entitled to overtime pay?

The Fair Labor Standards Act delineates who is entitled to overtime pay. Some employees—those classified as executive, administrative, or professional—are exempt from the law. They’re not entitled to overtime pay.

But car dealerships are a special category within that law.

It singles out “any salesperson, mechanic, or partsman who is primarily engaged in selling or serving a vehicle.” Those in that category do not receive time and half pay even if they work more than 40 hours per week.

That doesn’t sit well with the Freds of the world: those people who greet you at the service shop with clipboard and pen … you know, Fred, who writes down your concerns before sending your car back to the mechanics to fix your car.

James Feldman is lawyer for the service advisors:

FELDMAN: The exemption in this case is for any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles. The most obvious reason why …service advisors don’t come within that exemption is they don’t service automobiles.

In our brief, we cite five — I think the five most authoritative dictionaries of the English language, and they define service” as to maintain or repair. You don’t maintain or repair a car, in the way people would ordinarily speak, with a pad or a clipboard and a pencil or a telephone, which are the primary tools that service advisors use. You do it back in the back of the shop when you’re actually working on the car.

Here’s the problem. The Fair Labor Standards Act doesn’t mention service advisors by name, so the court has to figure out what the law means in order to classify that particular job. Whether overtime pay is due depends upon that.

Lawyer for the car dealership who doesn’t want to pay overtime was Paul Clement. He hearkened to English grammar rules to parse the law:

CLEMENT: …the nation’s 100,000 service advisors come within the literal disjunctive text of the FLSA exemption for any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.

Justice Breyer continued the pattern of using language rules to divine the meaning of text:

BREYER: You have two words over here that are verbs, two words over here that are nouns.  The first seems to go with the first, the second with the second. …And so what we’re doing is we’re trying to parse the difference between “engaged in” and “involved in” in a fairly technical statute involving one of 40,000 different kinds of workers as part of a very general statute.

Last but not least, a correction I need to make from last week’s Legal Docket.  

In the military case of Dalmazzi v United States, I’d equated the Court of Criminal Appeal in the military court system to the civil-court system’s trial level. That’s incorrect.

In the military, the first level is the courts-martial, and that’s analogous to civil trial courts. So in ascending order, the military courts system goes like this: Courts-martial, Court of Criminal Appeal, then Court of Appeals for the Armed Forces, and finally the US Supreme Court.

Sorry about that.

Well, now you’re all caught up on oral arguments. We’ll start next Monday with the fresh round of oral arguments, which are scheduled to be argued this week.

And that’s this week’s Legal Docket.

(AP Photo/Jessica Gresko)

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