Justice Sam Alito used deceptive DOJ data to gut voting rights: report

The U.S. Supreme Court's landmark decision that gutted racial protections for voting rights under section 2 of the Voting Rights Act rests on misleading claims about voter turnout, according to a new analysis.

Justice Samuel Alito claimed in his majority opinion that Black voter turnout had exceeded white voter turnout in two of the previous presidential elections, both nationally and in Louisiana, and The Guardian reported the conservative jurist's assertion was copied almost word-for-word from a friend-of-the-court brief filed by the Department of Justice.

“Vast social change has occurred throughout the country and particularly in the South, where many Section 2 suits arise,” Alito wrote in the majority opinion. “Black voters now participate in elections at similar rates as the rest of the electorate, even turning out at higher rates than white voters in two of the five most recent Presidential elections nationwide and in Louisiana.”

However, a review of turnout and racial data in Louisiana reveals the DOJ relied on unusual methodology to calculate racial voter turnout as a proportion of the total population of each racial group over the age of 18, because experts prefer to calculate statewide turnout because the general over-18 population may include non-citizens, people with felony convictions and others who are not legally permitted to vote.

The Guardian's analysis using the widely accepted approach found that Black voter turnout in Louisiana only exceeded white voter turnout in the 2012 presidential election, when Barack Obama was re-elected to a second term.

“[The DOJ approach] is misleading because they’re including ineligible voters in the denominator,” said Michael McDonald, a political science professor at the University of Florida. “If I wanted to manipulate the numbers in a way that was favorable to the government’s interest, I would be using voting age population.”

McDonald, who's one of the leading experts on voter turnout, said census bureau’s current population survey, on which the DOJ based its analysis, is known to produce misleading turnout statistics, and he said that appeared to be an intentional gambit.

“They had to fudge how they’re calculating the turnout rate to get there, and they’re not even taking into account margin of error, and all these other methodology issues about the current population survey to arrive at that number,” McDonald said. “Someone knew what they were doing.”

The Guardian also reviewed data from the Louisiana secretary of state’s office, which calculates voter as a percentage of registered voters, and that methodology found Black turnout has not exceeded white turnout in any of the last five presidential elections in the state.

“In zero out of the last three presidential elections, did Black turnout come anywhere close to parity,” said Kevin Morris, a researcher at the Brennan Center for Justice.

The overall national turnout gap has "exploded" over the past 15 years, Morris said, and other experts agree the DOJ filed misleading evidence that Alito relied on to justify the conservative majority's decision.

“They’re both cherry picking a particular year, they’re cherry picking a particular method and they’re ignoring this long term more concerning trend in the data,” said Christopher Warshaw, a professor at Georgetown University who studies elections.