Monday January 8, 2018

A Supreme Decision

A look at the case involving two University of Dayton School of Law professors that’s made it all the way to the nation’s highest court.

For years they taught students about cases like this one.

But now that they’re in the middle of it all, the process has been anything but textbook.

“To say we were shocked the Supreme Court took the case is an overstatement, but we were surprised,” says Richard Saphire, a Professor Emeritus at the University of Dayton School of Law.

Saphire and Paul Moke, an Adjunct Professor at UDSL, co-taught litigation courses for years at the law school and always included voting rights cases.

Now the two are part of a team of lawyers on a case, Ohio A. Phillip Randolph, et al v. Husted, on which the Supreme Court heard oral arguments on January 10.

In addition to Saphire and Moke the team includes; Professor Dan Tokaji of the Ohio State University's Moritz College of Law; Freda Levenson and Elizabeth Bonham of the American Civil Liberties Union (ACLU) of Ohio; and Stuart Naifeh, Naila Awan and Cameron Bell of public policy organization Demos.

Several lawyers and law professors from the University of Cincinnati helped prepare the team for hearings with a pre-oral argument moot court.

Paul M. Smith, Vice President for Litigation and Strategy at the Campaign Legal Center and Distinguished Visitor from Practice at Georgetown Law will argue the case before the Supreme Court.

The case has to do with Ohio’s process of removing registered voters from the rolls if they haven’t voted in the last four years.

“We found all these folks were going to the polls, thought they were registered, hadn’t moved, had no reason to believe they weren’t qualified to vote and were told they were not qualified to vote,” Saphire says.

Saphire says a provision in the National Voting Rights Act, enacted in 1993, prevents states from removing registered voters simply for not voting.

The team lost the case in federal district court but won in the Sixth Circuit Court of Appeals.

Saphire, who along with Moke and a team of lawyers with the ACLU of Ohio has litigated nearly 10 cases involving voting rights, believed that would be the end of it.

“We thought it was really unlikely in a world where the Supreme Court takes so few cases that it would take this case,” Saphire says.

But enough justices did decide to take the case, so now the team is preparing for one final oral argument.

“All of these lawyers are really good lawyers,” Saphire says. “It’s a lot of fun to work with people on an issue you think is important, particularly when you know they’re really smart.”

With so many lawyers involved, much of the work is done virtually. They’ve even had the moot court sessions used to prepare for the case turned into podcasts, so the rest of the team can review them afterward.

“We’ve had a number of podcasts,” Saphire says. “We’ve spent a lot of time on the phone, exchanged drafts of documents, have email exchanges.”

Saphire had to hear about the arguments before the Supreme Court virtually as well. With only a few tickets issued, Saphire decided not to attend the proceedings. Instead, he listened to them when they were posted online later in the week.

“It’s been an interesting experience,” Saphire says of his time working on the kind of case he used to share with students, not Justices. “We’re especially concerned about and are sensitive to efforts to eliminate or restrict voting rights.”

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