June 12, 2018

Justice Breyer "apparently" took "judicial notice" of "'the human tendency not to send back cards received in the mail'"...

... so that the failure of a voter to send back a card to keep their registration active in fact "'has no tendency to reveal accurately whether the registered voter has changed residences'; it is an 'irrelevant factor' that 'shows nothing at all that is statutorily significant.'"

Wrote Justice Alito for the majority in Husted v. A. Philip Randolph Institute, released by the Supreme Court yesterday. The internal quotes are from the Breyer dissent. For more detail into this statutory interpretation case, here's Amy Howe at SCOTUSblog. I just wanted to call attention to that freewheeling belief about human nature that made it into Breyer's opinion. Ohio was sending cards to people who hadn't voted in 2 years and then purging them fro, the list of registered voters if they did not return the card or vote in the next 4 years. So 6 years of not voting would cause your registration to lapse unless you returned the card. Federal law prohibited removing voters for mere failure to vote, so that card was really important in the analysis.

Justice Breyer noted that of the 1.5 million cards sent out, 60,000 were sent back to say they have moved and 235,000 were sent back to say I'm still here. So more than 1,000,000 were not sent back. That's 13% of Ohio’s voting population. People just can't be moving at that rate, he says (without mentioning death).
[T]he streets of Ohio’s cities are not filled with moving vans; nor has Cleveland become the Nation’s residential moving companies’ headquarters. Thus, I think it fair to assume (because of the human tendency not to send back cards received in the mail, confirmed strongly by the actual numbers in this record) the following: In respect to change of residence, the failure of more than 1 million Ohio voters to respond to forwardable notices (the vast majority of those sent) shows nothing at all that is statutorily significant.

86 comments:

Jupiter said...

"People just can't be moving at that rate, he says (without mentioning death)."

Interesting point, but it seems to me to be a point of fact, not of judicial interpretation. Isn't he supposed to have a jury to handle that kind of thing?

Earnest Prole said...

Like most Supreme Court justices, Justice Breyer reasons backward from personal policy preferences, but unlike most justices he doesn't bother much to disguise or deny it.

brylun said...

Whatever it takes for Breyer and the leftists to keep open opportunities for voter fraud.

What is the difference between voter id and id to fly on an airplane?

Unknown said...

Is this natural tendency a justification for not paying the bills I receive in the mail?

The Godfather said...

So perhaps the law results in deregistering some people who haven't moved, but who weren't going to vote anyway. I seem to recall "de minimus non curat lex".

Gahrie said...

What Breyer apparently fails to take into account is how long it has been since the state of Ohio has done an effective purge of its voting rolls.

Browndog said...

I'm convinced democrats do not believe people should have the right not to vote.

AustinRoth said...

As Alito said, the lack of a high percentage of the cards coming back is a policy issue, not a matter of law. If that needs to change, it is up to Congress.

The Left wing of SCOTUS is always perturbed when they are reminded they are only the Judicial wing of our government, and are not also a Super-Congress and Super-Executive Branch with full powers of lawmaking and policy creation.

rehajm said...

I'll leave it to the brilliant legal minds to decide statutorily significant. This dullard quantitative mind knows a nearly 20% response rate to anything is statistically significant.

eric said...

There are lots of factors he doesn't consider.

What about people who decide they don't care enough to vote? They didn't move but they also didn't return the card.

What about people who don't move a bunch of stuff, just pack up their car, like a child all grown up who voted once or twice from Mom and Dad's, but is now gone?

What about immigrants legal and illegal who were scared to send in the card?

Seeing Red said...

With rights, as with power, comes great responsibility. Send the card back.

Khesanh 0802 said...

Breyer deserves the BS tag for this. Talk about assuming facts not in evidence!

Seeing Red said...

if you can’t vote because you can’t be bothered, call you local dem office. They’ll sign you up and give you a ride to the polls, or fill out a ballot in your name.

damikesc said...

How would Breyer argue this could be done? If mail is not enough...what is? What method wouldnt run afoul?

Seeing Red said...

If you can’t vote because your name was removed from the rolls... sorry. Help is a phone call away.

rehajm said...

Pull out those Business Reply Mail cards that clutter the magazine and stick them in the mail without filling them out. The fuckers still have to pay the postage.

Mike Sylwester said...

Expecting people to respond to their mail is racist.

john said...

Yet we only have about, say less than 20% voting in primaries, 40% +- in non-presidential election years, and many states only scraping 50% during presidential election years. Scrubbing voter roles will certainly raise the percentages but will not increase voter turnout. Shouldn't the alternative of using whatever means to increasing voter turnout be our aim? Maybe allowing ex-cons the vote, maybe a national holiday first Tuesday of November. Remember when they couldn't open the bars till after 7PM election day?

Michael K said...

The left continues on the path to disaster.

Even John Kerry is smart enough to tell them to stop talking about impeachment.

If someone does not return the card, they probably won't vote, but Democrats are very interested in the votes of those too stupid to follow rules.

Browndog said...

Republicans are trying to suppress the votes of non-voters.

Craig said...

rehajm said...
I'll leave it to the brilliant legal minds to decide statutorily significant. This dullard quantitative mind knows a nearly 20% response rate to anything is statistically significant.

---

I don't think you know what statistical significance means.

readering said...

Interesting to compare with the contract case decided the same day. Majority presumes one wishes to change the beneficiary on one's life insurance policy if one divorces even if one takes no action. I'm with Gorsuch's dissent on that.

Michael K said...

Shouldn't the alternative of using whatever means to increasing voter turnout be our aim?

Yes, we really need that stupid lazy vote.

Do you know that is why Democrats need a 5% margin in generic vote polls to be even with Republicans ?

Bay Area Guy said...

Great Scotus opinion -- shows how intellectually bankrupt Breyer, Sotomayor, Kagan and Ginsberg are. They are just politicians in robes.

Politically, they don't LIKE what Ohio is doing to clean up its voter rolls. In general, Dems don't want clean voter rolls, with actual citizens who are actually registered at ONE location.

Legally though, in 1993, Clinton signed into law the amended National Voting Rights Act which clearly gave states the authority to clean out the dead voters and moved out voters from the registration rolls, which is what Ohio did. Certainly, no constitutional violation.

paminwi said...

These people are nothing but lazy people. They can't even be bothered to READ the card and follow instructions. I have zero sympathy for them. Who cares if they bitch about having to register again! Tune them out.

Trumpit said...

I don't have time today to leave a thought-out response, so I'll leave a gut response instead. If Justices Scalito and Thomas voted for it, and no liberal justices agreed, then a perversion of justice was done. Thomas is a certified moron, and Scalito is a clone of the late intolerant and arrogant Justice Adolf Scalia. He was found dead in a hunters' lodge, so he deserve to die, and none to soon.

WisRich said...

The bottom line is how many of those 1,000,000 unreturned cards where denied the ability to vote.

Interestingly, this is never brought up in the descent.

Seeing Red said...

Trumpit’s spitting so MORE WINNING!

Seeing Red said...

It wouldn’t surprise me if there’s a flood of mail-in ballots going forward.

AustinRoth said...

Trumpit - well, THAT was truth in advertising. It is obvious you put no thought at all into that ridiculous screed.

Seeing Red said...

Did anyone explain to the USSC’s who live in a bubble how many things we need ID’s for?

Mike Sylwester said...

Historically, the Democratic Party is the party of voting fraud.

Matthew Sablan said...

"Ohio was sending cards to people who hadn't voted in 2 years and then purging them fro, the list of registered voters if they did not return the card or vote in the next 4 years."

-- This is the first place I've heard about the "and not vote in the next 4 years," most places just talk about the card. That's... not nearly as bad of a system as I thought it was before.

Ignorance is Bliss said...

People just can't be moving at that rate, he says...

A rate requires not just a change in amount, but the time period over which that change occurred. This ( legally required ) cleanup of the voter rolls had not been happening, so once you start it up, you are going to find many years worth of no-longer valid registrations.

Larry J said...

Browndog said...

Republicans are trying to suppress the votes of non-voters.


No, they're trying to disenfranchise dead voters and non-citizens (both Democrat power blocs) . The bastards!

'TreHammer said...

A person has a right to vote but a person does not have a right to fly

Original Mike said...

Not only are oppressed peoples unable to get themselves to a DMV to get ID, they apparently can’t get to a mailbox.

Amadeus 48 said...

As we know in Chicago, non-voters are potential voters, especially if they are dead.

David Bakin said...
This comment has been removed by the author.
Mike said...

Republicans are trying to suppress the votes of non-voters.

Yes and I endorse it wholeheartedly. Democrats and cheaters hardest hurt.

richlb said...

Althouse,
This sort of dovetails with the your followup post about people not being able to follow "simple directions" to keep things moving smoothly.

Original Mike said...

Blogger Trumpit said...”I don't have time today to leave a thought-out response,...”

We won’t be able to tell the difference.

Ignorance is Bliss said...

From Breyer's dissent:

We begin with subsection (a)’s “Reasonable Program”
requirement. That provision says that “each State shall”:
“conduct a general program that makes a reasonable
effort to remove the names of ineligible voters from
the official lists of eligible voters by reason of . . . a
change in the residence of the registrant, in accordance
with subsections (b), (c), and (d).” §20507(a)(4).
This provision tells each State that it must try to remove
ineligible voters from the rolls, that it must act reasonably
in doing so, and that, when it does so, it must follow the
rules contained in the next three subsections of §8—
namely, subsections (b), (c), and (d).


Now, is it just me, or is this a complete misreading of the phrase reasonable effort? Has anyone, in the history of ever, used the phrase reasonable effort to mean that you are not allowed to make too much effort? Isn't it always used to mean at least some minimum amount of effort?

PackerBronco said...

The fact that obituary notices are not updated in the voting rolls in statutorily insignificant to cases of dead people voting ...

Marty said...

Why don't I have the right to fly, exactly?

PackerBronco said...

the Democrat party: "We can't count on people to vote, so we do it for them as a public service!"

Browndog said...

Mike Sylwester said...

Expecting people to respond to their mail is racist.


So, you've read Sotomayor's dissent.

Hammond X. Gritzkofe said...

"Federal law prohibited removing voters for mere failure to vote...."

Perhaps a re-write is in order. What is the principle at work here? Register to vote once, and it is the State's job to track if the person has died/moved/gone insane/become felon? If so, the State must needs track all your financial and medical activities, your location, etc.

Char Char Binks said...

The law has a disparate impact on those who don't care enough to send the card back, stupid people, illegal aliens, criminals, and the dead, IOW, Democrat voters.

Sebastian said...

Perhaps our hostess can refer us to a study of all the times justices just assumed facts not in evidence, pulled empirical assumptions out of their a**, or used bad studies in bad faith. Kenneth Clark and his dolls, anyone?

Owen said...

My driver's license, car registration, passport, credit cards, all have expiration dates. Why should my voter registration be different, especially if I haven't exercised the franchise for multiple election cycles?

Another approach would be to reward people for voting. Present proof of having voted (the blue thumb?) and receive a voucher good for a Chick-Fil-A meal, or a box of .223.

David Begley said...

Does Breyer not know the rules of evidence or is he just making it up?

Birkel said...

Justice requires making shit up on the fly to achieve policy preferences. Everybody knows that (on the Left).

Jim at said...

I don't have time today to leave a thought-out response, so I'll leave a gut response instead. - Trumpit

Best laugh I'll have all day.
Thanks.

Mark Jones said...

"A person has a right to vote but a person does not have a right to fly"

No, a LEGAL CITIZEN of age 18 or more has a right to vote. Non-citizens do not. Minors. Do not. Illegal aliens do not. Until we've established that you are, in fact, a legal citizen you have NO right to vote.

JAORE said...

I don't have time today to leave a thought-out response...

Time is taking undeserved blame here.

Hammond X. Gritzkofe said...

Suppose a dead or departed-the-state person is voted in a federal election in Ohio. That impacts the effectiveness of my vote in Texas. What are the responsibilities for the State of Ohio in preventing this? Do I have cause for legal action against the State of Ohio?

Jupiter said...

Marty said...
"Why don't I have the right to fly, exactly?"

Because the Government has not created that right and given it to you.

Birkel said...

Since nobody has said it:

How many out-of-state students got licenses in Ohio and then moved after graduation? Or transferred? I would imagine quite a great number of moving vans in Columbus every May.

gilbar said...
This comment has been removed by the author.
Lucien said...

Did the case arise after an election in which voting rolls had been purged? If so, how many people showed up to vote & were turned away? How many of those purged re-registered immediately after the election because they had been surprised to learn they were no longer registered?

Not in the record on appeal -- well then.

This is the all too common problem when judges decide to use their "common sense" or their understanding of how the world works outside of the judicial bubble they live in. The question should always be: If one of the litigants had asked the court to take judicial notice of fact X, would the rules make it mandatory to do so? If not, then no judge should take account of fact X in their decision. (Were judicial notice merely discretionary, then due process would require that the opponent be allowed to argue against it.)

gilbar said...

Ohio has "golden week" in which early voting begins 35 days before an election. This overlaps with Ohio's 30-day residency requirement for registering to vote and allows a voter to register and cast an early ballot on the same day.

So, the problem is WHAT, exactly?

MadisonMan said...

Why don't I have the right to fly, exactly?

Constitutionally?

I would also add that you weren't endowed of this right by the Creator. If God had meant man to fly...

rehajm said...

I don't think you know what statistical significance means.

Nobody asked you Craig!!!

Birkel said...

RE: flying

We do have a constitutional right to travel within the 50 U.S. states although the costs of the mode of that transportation might be balanced against the benefits of same.

Some of you don't even Constitution.

n.n said...

Rights and responsibilities are not separable.

Kelly said...

Indiana did this several years ago. I got cards for previous occupants at my address, two of which we bought the house from and had moved out of state. The other was the first owner, I have no idea where they’re at, but they aren’t on our voter rolls any longer since I sent the card back checking the appropriate box.

Ignorance is Bliss said...

So more than 1,000,000 were not sent back. That's 13% of Ohio’s voting population.

Multiple mistakes. 1,000,000 is ~13% of the voter registrations, of which there are ~7,900,000. Ohio has never have more than 5,775,000 voters in any election. 1,000,000 would be ~17% of the actual voter population. But...

...we have no knowledge that that 1,000,000 is any % of Ohio's voting population, because there are ~2,131,000 more people registered than actually vote. So it is possible that the million people who did not respond are not, in fact, in Ohio's voting population.

Achilles said...

Jupiter said...
Marty said...
"Why don't I have the right to fly, exactly?"

Because the Government has not created that right and given it to you.

8/10 troll score.

Good work.

HoodlumDoodlum said...

So wait...is service by mail no longer a thing? What about service by notice? I bet rich people and/or white people are more likely to read those parts of the newspaper with public notices. Unconstitutional! Racist!

Trumpit said...

How does one get the judge to "take judicial notice" of some important fact. From my experience, it isn't easy. Most judges are inherently lazy, and possible not too bright. It is even more unusual when a judge like Justice Breyer takes judicial notice of his own accord. Clarence Thomas takes notice of porno, so all pornography cases should be sent his way for careful perusal. "Thomas knows it when he sees it," to paraphrase Justice Potter Stewart.

Michael K said...

" From my experience, it isn't easy."

Do they have judges in lunatic asylums ?

Asking for a friend.

Left Bank of the Charles said...

Here's how it works in Massachusetts. Your town or city sends out a census form every year. If you fail to return the census form, your name goes on the inactive voter list, which means you have to produce ID to vote and get reinstated as an active voter for future elections. If you are inactive for 2 two consecutive biennial state elections, you lose your registration. That's not that different from the Ohio system.

Ignorance is Bliss said...

Trumpit said...

How does one get the judge to "take judicial notice" of some important fact.

In general, they should not be taking notice of any facts not presented in court. Court is where opposing sides present their cases, and have a chance to argue the relevance/meaning/accuracy of any information. If Breyer is taking notice of facts that he pulled out of his google, then nobody has a chance to point out his mis-interpretaions (as several in this thread have done) before he makes a fool of himself ( as he did in his opinion ).

James Pawlak said...

The streets of California are filled with moving vans for those leaving "The Peoples Republic Of Califonia". The mobility of Americans is also a fact as is the voter fraud in those jurisdictions ruled by Democrats.

wildswan said...

In the group of people who are poor and renters there are many who move multiple times within a five years period. So the million "voters" might include the same person multiple times. That doesn't mean the individual was voting multiple times but only that unpurged voting lists had the individual listed in several precincts. On two occasions, I myself was registered in a precinct where I no longer live but was purged and notified of it within six months based on library registration. By purging lists we can be assured that these names aren't being used by sinister unknown people with unknown goals, such as possibly bulking up Dem party totals. Not that this happens as you can see by reading the MSM.

hawkeyedjb said...

"What is the difference between voter id and id to fly on an airplane?" Democrats don't need ghost passengers on airplanes.

MountainJohn said...

"Why don't I have the right to fly, exactly?"

You have the right, but not the ability.

This issue is just like the illegal immigration question. If the dead and moved starting voting R, both parties would turn on a dime.

deepelemblues said...

how about if you're too lazy to do the barest of minimums to maintain your voting eligibility, then too bad so sad if you get purged from the rolls?

what a joke breyer and his 3 buddies are. rights without responsibilities* is the mantra, look at how great that's worked out. it will continue to work out just fine.

*and we arent talking about difficult or time consuming or otherwise onerous responsibilities here, we're talking about responsibilities that should take you about 30 seconds to complete. i don't care if you can't take 30 seconds to do something and then complain afterwards when you don't like the result. 30 seconds!

Greg P said...

AustinRoth said...

+1 hit the nail on the head: This isn't a Constitutionality case, this is a "are they following the law" case.

And the law SPECIFIED the use of the return card, followed by 4 year wait, followed by "goodbye".

It must hurt to be so stupid that you can't remember what you're arguing, while you're writing a judicial opinion.


john said...
\Shouldn't the alternative of using whatever means to increasing voter turnout be our aim?

No, no, a thousand times no.

If you don't care enough to put some mild effort into voting, then your vote is worthless, and we're all better off if you don't vote.

If I were dictator of the US, i would outlaw "Voter Registration drives" and "get out the vote" programs.

Either you, personally, on your own, think it's worth registering to vote, and worth voting, or you shouldn't be voting

cubanbob said...

I don't know Ohio's law on this so if I'm wrong please correct me. I suspect that a number of people who aren't particularly in politics simply don't return the cards just to get purged off the voter rolls to avoid being called for jury duty. Most likely the amount of cards not being returned is simply people who have moved and have not changed their registration coupled with being not particularly motivated to vote and wanting to not be called for jury duty.

William said...

My guess, based on purely anecdotal evidence, is that a lot of people are happy to be off the voter registration list because they think that will keep them from being called for jury duty.

Critter said...

Numbers and related logic do not appear to be Breyer's strength.

Breyer assumes that the 1.5 million of registrations for which no vote was cast represent people who registered to vote in recent years and then moved. More likely they represent an accumulation over many years of people who died, moved, lost their franchise as a convicted felon, etc. It's also not unreasonable, given the convictions obtained for voter fraud in Ohio, that some were fraudulent registrations. But the main point is that the numbers were accumulated over many years. I'd expect the 60,000 of post cards sent back indicating the registrant moved were for those who moved recently (doesn't the Post Office keep track of movers and forward mail for only 6 months or so?). The 235,000 who sent back post cards further reduces the "unknowns" to about 1.2 million. If those registrants represent and average of 60,000 per year over the past 20 years, is it so hard to imagine that many Ohio registered voters died or moved each year?

Breyer would be making a valid point if he was dealing with numbers from the second round of cleanups. But his logic just doesn't compute for the accumulated totals.

Fresca said...

Americans Moving at Historically Low Rates, Census Bureau Reports. NOV. 16, 2016 —The percentage of Americans moving over a one-year period fell to an all time low in the United States to 11.2 percent in 2016, according to tables released today by the U.S. Census Bureau.Nov 16, 2016
Americans Moving at Historically Low Rates, Census Bureau Reports
https://www.census.gov/newsroom/press-releases/2016/cb16-189.html

cyrus83 said...

New York's election law, here as elsewhere, is harsher than what Ohio is trying, and yet nobody ever goes after this state because the right people are winning the elections.

New York boards of elections will at times send out postcards to verify information is correct if they are notified of a change of address by USPS's national system or they otherwise get mail returned (usually a voting card will come each cycle to remind people where to vote and their party registration).

New York law automatically marks as inactive any voter sent a confirmation notice and removes them from the poll ledgers and will only restore them to active status if they respond to the notice or show up to vote. If an inactive voter shows up to vote, they are to be challenged by the poll workers and swear oaths before being allowed to vote. After 2 federal elections pass, if the voter is not heard from, the registration is cancelled with no notice required prior to cancellation (presumably this can happen in a bit less than 3 years depending on when the notice went out).

New York law also considers a registration cancelled if a person moves residence outside of the city/county of registration. It also allows for the somewhat insane provision of allowing a voter to self-cancel registration in writing, for which no confirmation notice is sent.

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