UPDATE: The U.S. Supreme Court on October 27 removed Husted v. A Philip Randolph Institute from the November 8 argument calendar because Brenda Wright, who was planning to argue for the institute, has taken an unexpected medical leave. The argument is likely to be rescheduled for January, 2018.
Noel Francisco will make his U.S. Supreme Court debut as solicitor general November 8, defending Ohio’s controversial process for purging its voter rolls.
Francisco, who was confirmed by the Senate on September 19, was poised to argue in the court’s first sitting of the term. But the “travel ban” case he was going to argue was removed from the argument docket in late September when the Trump administration announced a revised policy. He has argued three high-profile cases in private practice at Jones Day.
Francisco’s choice of the Ohio case Husted v. A Philip Randolph Institute follows the usual tradition of solicitors general arguing in the most important case of each cycle. Given that the court is hearing only seven cases in the November sitting—instead of the usual 12—it was not a difficult choice. The solicitor general’s office is participating in only three of the seven cases, also an unusually low number.
Earlier this week, Francisco asked for argument time in Masterpiece Cakeshop v. Colorado Commission on Civil Rights, which will be argued in December. The government is backing a Colorado baker who refused on religious grounds to bake a wedding cake for a same-sex couple.
One challenge Francisco may face in Husted: It’s one of several pending cases in which the Trump administration has switched sides from the position taken by Obama administration at earlier stages. The high court sometimes—though not always—frowns on such shifts.
In a written response to a question after his confirmation hearing, Francisco wrote, “Although there are times when it is appropriate for the United States to change litigating positions, I believe that if the United States changes positions too often and without a sound basis for doing so, then there is a risk of undermining credibility with the courts.”
The Husted case is a challenge to Ohio’s method for maintaining voter rolls. Voters who do not cast ballots for a two-year period are send a notification in the mail. If it is not sent back and they don’t vote in the next four years, they are purged from the voter list.
Opponents say the procedure violates the National Voter Registration Act of 1993 and the Help America Vote Act of 2002, which prohibit removing voters from the rolls for not voting. But Ohio Solicitor General Eric Murphy, who will argue alongside of Francisco, argues in his brief that it is the failure of a voter to respond to the notification—not the failure to vote—that triggers the removal.
Brenda Wright, vice president of the public interest group Demos, will argue against the Ohio procedure. She has argued twice previously before the high court.
A brief filed on behalf of Obama attorney general Eric Holder Jr. and other former Justice Department officials highlights the solicitor general’s reversal of positions, and notes that “Unusually, the Solicitor General’s [amicus curiae] brief was not signed by a single career attorney in the Civil Rights Division, the component of the Department that is responsible for enforcing the NVRA provisions at issue here.”
The only name on the government’s brief filed August 7, aside from the solicitor general’s office, is that of acting assistant attorney general John Gore, the interim head of the civil rights division pending confirmation of controversial nominee Eric Dreiband to the position.