Does Ohio’s voter list-maintenance process violate the National Voter Registration Act of 1993 and the Help America Vote Act of 2002?
This case will help decide the bounds of the voter list-maintenance processes allowed under 52 U.S.C. § 20507. Petitioner Ohio Secretary of State Jon Husted argues that Ohio’s “Supplemental Process” for removing voters from its lists, which addresses voters who have not been active in the last two years, is authorized under § 20507 because it does not use the failure to vote as the only basis for removal. In contrast, Respondents A. Philip Randolph Institute, the Northeast Ohio Coalition for the Homeless, and Larry Harmon (collectively “Randolph”) argue that Ohio’s Supplemental Process violates §20507 because it uses the failure to vote to initiate the removal process. The decision in this case has far-reaching implications for voter engagement and participation. Husted contends that the Supplemental Process is an important tool in fighting voter fraud, whereas Randolph maintains that the Process may disenfranchise minority voters and eligible voters who decide not to vote, harming the perceived integrity of the democratic process.
Questions as Framed for the Court by the Parties
Does 52 U.S.C. § 20507 permit Ohio’s list-maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter under the NVRA and HAVA?
Ohio uses two methods for removing individuals who are no longer eligible to vote. Husted v. A. Philip Randolph Institute, 838 F.3d 699, 702 (2016). The first method is the National Change of Address (“NCOA”) database, which Ohio’s Secretary of State uses to keep track of address changes. Id. at 702. Upon receiving the list of address changes, each county’s Board of Elections (“BOE”) sends confirmation notices to the identified individuals. Id. In order to stay on the list of registered voters, individuals must then either respond to their confirmation notice or update their registration information, and must vote at least once during a four-year period containing two general federal elections. Id. at 703; see also Ohio Rev. Code § 3503.21(A)(7), (B).
The second method—dubbed the “Supplemental Process” —is like the NCOA process, except for the way that the confirmation notice is triggered. Husted, 838 F.3d at 703. Instead of using the change of address database, the BOE compiles a list of voters who have not been “active” for two years, which includes not voting, not filing a change of address form, and not filing any voter registration card. Id. The BOE sends a confirmation notice to each of these voters. Then, like the NCOA process, in order to remain registered to vote, the voter must either respond to the confirmation notice or update their registration information, and must participate in an election at least once during a four-year period that contain two general federal elections. Id. Further, under the Supplemental Process, a voter may be removed from the voter rolls after being inactive for 6 years, even if they remain eligible to vote otherwise. Id.
Respondents A. Philip Randolph Institute, the Northeast Ohio Coalition for the Homeless, and Larry Harmon (collectively “Randolph”) filed suit to enjoin Petitioner Ohio Secretary of State Jon Husted (“Husted”) from removing voters from the voter rolls through the Supplemental Process. Id. at 702. First, Randolph claimed that Ohio’s Supplemental Process unlawfully removes registered voters from the rolls due to a failure to vote, a violation of Section 8 of the National Voter Registration Act of 1993 (“NVRA”). Id.; 52 U.S.C. § 20507(b)(2). Second, Randolph claimed that the confirmation notices are inadequate according to the standards under Section 8 of the NVRA. 52 U.S.C. § 20507(d)(2); Husted, 838 F.3d at 704.
On June 29, 2016, the district court denied Randolph’s motion for summary judgment. Id. at 705. The court held that 1) using voter inactivity as a “trigger” for sending confirmation notices did not violate the NVRA, and 2) the issue concerning the confirmation notices was moot because the Secretary had already promised to use new forms that better accorded with the NVRA’s form standards. Id. Randolph appealed the next day. Id.
On appeal, the Sixth Circuit reversed and remanded the case. Id. at 715. The court ruled that the “trigger” for sending confirmation notices under Ohio’s Supplemental Process amounted to removing voters from the eligibility list simply for not voting. Id. at 712. It held that this practice violated Section 8 of the NVRA. Id. Additionally, the Sixth Circuit disagreed with the district court on the mootness of the confirmation notices issue. Id. at 713–714. The Sixth Circuit ruled that, despite assurances to change the form of the confirmation notice, the Secretary had failed to clarify that the new form would remedy the shortcomings of the former one. Id. For this reason, the issue was not moot. Id. at 714. Following this decision, the Supreme Court granted certiorari to hear this case.
AUTHORIZATION UNDER NVRA OR VIOLATION OF NVRA
Husted contends that Ohio’s Supplemental Process is permitted under the NVRA. Brief for Petitioner, Jon Husted at 19. Husted points to § 20507(b)(2)’s text and previous Supreme Court interpretations of the words “by reason of” to argue that the statute merely prohibits using non-voting as the proximate-cause of removing voters from voter-registration lists. Id. at 19–22. Husted asserts that, while § 20507(d)(1) makes nonvoting an actual cause of removal, it should not be interpreted as violating § 20507(b)(2) because the Court is required to interpret all provisions of a law as being compatible when possible. Id. at 23–24. Instead, Husted maintains that § 20507(d)(1)’s notice requirement reconciles these provisions. A voter’s failure to respond to the confirmation notice, not his earlier failure to vote, should be considered the only proximate cause of removal. Id. at 25.
Husted argues that the practice of using nonvoting to issue warnings to voters about potential removal not only complies with the NVRA, but was a common practice among the States when the NVRA was enacted and its use is supported by legislative history. Absent explicit prohibition of this practice, Husted contends that the Court should not interpret the NVRA as implicitly prohibiting a practice that was widespread at the time of its enactment. Id. at 26–29. Husted asserts that the Sixth Circuit erred by interpreting § 20507(b)(2) as requiring an actual-cause connection, applying § 20507(b)(2) to the notice sent to nonvoters, and misinterpreting the connection between § 20507(b)(2) and § 20507(d)(1). Id. at 30–35.
Randolph counters that Ohio’s Supplemental Process violates the NVRA. Brief for Respondents, A. Philip Randolph Institute et al. (“Randolph”) at 24–25. Randolph argues that removal of voters under the NVRA is limited to five specified instances. Id. at 25. Because Ohio’s Supplemental Process does not remove voters based on any of these circumstances, Randolph maintains that it violates the NVRA. Id. at 25–26. Randolph contends that the NVRA should be interpreted broadly as prohibiting list-maintenance programs that directly or indirectly base removal on nonvoting. Id. at 27. Randolph asserts that, because Ohio’s Supplemental Process identifies voters to send notices to by their failure to vote, it results in removal based on nonvoting. Id. at 27–28.
Randolph argues that the failure to vote does not have to be the proximate cause of removal in order for the NVRA to be violated—the cases cited by Husted involved tort statutes or explicitly included tort or criminal law principles that are inapplicable here. Id. at 31–33. Randolph contends that the failure to vote under Ohio’s Supplemental Process meets this requirement anyway because notices are sent based on nonvoting, and it is foreseeable that people may not respond to a notice when their circumstances have not changed. Id. at 34–35.
Randolph maintains that Ohio’s Supplemental Process uses nonvoting in ways not authorized by the NVRA. Randolph asserts that the NVRA allows nonvoting to be used to confirm a change of address after first receiving evidence from the Postal Service of an address change and sending the voter a confirmation notice. Id. at 36–40. Randolph contends that Ohio’s Supplemental Procedure uses § 20507(d)(1) as a removal program in violation of the NVRA. Id. at 40–43.
HELP AMERICA VOTE ACT AMENDMENTS
Husted argues that the Help America Vote Act (“HAVA”) clarifies any ambiguity about whether § 20507(b)(2) barred sending notices to nonvoters. Brief for Petitioner at 35. Husted asserts that Congress amended § 20507(b)(2) to settle a dispute between the Department of Justice (“DOJ”) and the States regarding whether § 20507(b)(2) regulates who notices can be sent to when voters are removed under § 20507(d)(1). Husted maintains that Congress sided with the States by adding a provision stating that § 20507(b)(2) could not be viewed as restricting a State from using § 20507(d)(1) to remove voters from voter-registration lists. Id. at 36–37. Husted claims that using a voters’ failure to respond to a notice as the basis for removal from the list eliminates any causal connection between their failure to vote and subsequent removal. Id. at 37. Husted contends that holding otherwise would allow § 20507(b)(2) to restrict a State’s ability to remove individuals under § 20507(d)(1) in certain circumstances in direct contradiction to HAVA. Id. at 37–38.
Husted asserts that another HAVA section supports his position—this section requires that States maintain statewide registration lists, removing voters who do not respond to a notice after not voting in two consecutive general election cycles. Id. at 38. But voters cannot be removed only for failing to vote, which, according to Husted, limits the reach of § 20507(b)(2). Id. at 38–39. Husted argues that under Ohio’s Supplemental Process, voters are removed only after both failing to vote and failing to respond to a notice—in accordance with the NVRA and its requirements. Id. at 39. Husted maintains that the Sixth Circuit erred by incorrectly interpreting HAVA’s text and purpose, misconstruing HAVA’s clarification as an exception, and finding that sending notices based on nonvoting violated the NVRA. Id. at 40–45.
Randolph counters that HAVA confirms that Ohio’s Supplemental Process violates the NVRA. Brief for Respondents at 44. Randolph asserts that HAVA clarified that nonvoting after a notice was sent should be considered but that HAVA did not otherwise alter the NVRA’s prohibition against removing voters because of nonvoting because there is no evidence of Congressional intent to significantly change the NVRA. Id. at 44–45. Randolph further argues that HAVA § 303 confirms that § 20507(d)(1) cannot be invoked by if a voter has changed addresses based on their failure to vote because § 303 uses the same language as § 20507(b)(2). Id. at 46. Randolph contends that Husted’s interpretation creates several problems with other provisions in the NVRA. Id. at 46. The more cohesive interpretation is that a failure to vote cannot trigger § 20507(d)(1)’s notice procedure used to remove voters. Id. at 46–49.
Randolph maintains that Husted’s interpretation is not supported by HAVA’s legislative history, citing a Federal Election Commission report on NVRA. Id. at 49. Randolph contends that this report indicated that voter-registration lists should be verified by checking the list against the Postal Service’s records or mailing non-forwardable notices to everyone on the list and using returned mail as an indication of a change of address. Id. at 49–50. Randolph argues that the DOJ has regularly interpreted processes like the Supplemental Process as violating the NVRA until recently when it changed its position. Id. at 50. Randolph claims that there is no evidence that Congress changed the DOJ’s consistent interpretation in favor of allowing the States to use § 20507(d)(1) based on nonvoting. Id. at 50–51.
CONSTITUTIONAL CANONS OF CONSTRUCTION
Husted asserts that two canons of interpretation support the validity of Ohio’s Supplemental Process. Brief of Petitioner at 46. First, Husted argues that the canon of constitutional avoidance applies because interpreting the NVRA as striking down Ohio’s Supplemental Process creates constitutional concerns with the NVRA. Id. Congress has the power under the Federal Constitution to regulate the time, place, and manner of Congressional elections, while the States have the power to determine the voting qualifications for federal elections. Id. at 46–49. Husted contends that Ohio’s Supplemental Process involves the States’ power because it enforces Ohio’s powers under the Constitution to create voting qualifications—in this case, the requirement to have registered voters respond to a notice to verify their eligibility. Id. at 49. If Ohio’s Supplemental Process was struck down under the NVRA, it would create constitutional questions as to how far Congressional power extends in this area and the meaning of “qualification,” questions previously avoided by the Court. Id. at 51–52. This would also raise a constitutional question as to what extent Congress can regulate presidential elections when it has no constitutional power to do so. Id. at 49–53.
Second, Husted maintains that the clear-statement rule requires that the Court decide any ambiguity in the NVRA in favor of Ohio’s Supplemental Process. Id. at 54. Husted argues that while the Court has previously stated that the clear-statement rule does not apply to federal laws passed under the Elections Clause, the Court should adopt a narrower view that aligns with federalism and the Court’s broader principles of interpreting Congressional actions under the Elections Clause as not unnecessarily infringing on State actions. Id. at 54–57.
Randolph counters that the canons of construction cited by Husted do not allow the Court to defer to Ohio’s interpretation of the NVRA. Brief for Respondents at 51. Randolph argues that the canon of constitutional avoidance does not apply here because no serious constitutional problems are created by holding that Ohio’s Supplemental Process violates the NVRA. Id. at 51. Randolph maintains that Congress has the power to regulate voter registration under the Elections Clause and that this power has been previously upheld by the Court, contrary to Husted’s assertion that the Court avoided this question. Id. at 52. Randolph further asserts that rejecting Ohio’s Supplemental Process would not prevent Ohio from exercising its Constitutional authority to enforce its voter qualifications or require voters to verify their eligibility. Id. at 53. Randolph also contends that no questions arise surrounding whether “qualification” includes registration because the voters who were improperly removed here were qualified and registered to vote in Ohio. Id. at 54. Finally, Randolph argues that no question arises related to Congressional power to regulate presidential elections because this case focuses on Ohio’s Supplemental Process in the context of congressional elections. Id. at 53–55.
Randolph argues that the clear-statement rule does not apply here because Congress, under the Elections Clause, has more power than the States to regulate federal elections. Id. at 55. Thus, Randolph maintains that there is no preemption of State authority to protect against when federal legislation is created under the Elections Clause. Id. Randolph asserts that there are no federalism concerns because the NVRA gives States the flexibility to determine how they will maintain accurate voting lists within certain parameters. Id. at 56–57.
The Americans for Civil Rights Union (“ACRU”), in support of Husted, argues that Ohio’s process for maintaining its voter rolls should be upheld because there are millions of voter registrations in the United States that are either invalid or inaccurate and thus strong voter roll maintenance is an important priority. Brief of Amicus Curiae the American Civil Rights Union, in Support of Petitioner at 11. The ACRU points to a study conducted by the Public Interest Foundation that found that in 141 counties in 21 states, there are more registered voters than there are voting-age residents. Id. The ACRU maintains that tools, like Ohio’s Supplemental Process, are appropriate to serve the important goal of keeping voters lists updated. Id. at 13. Echoing these sentiments, the Former Attorneys of the Civil Rights Division of the United States Department of Justice (“Former Attorneys”) argue that the goal of combatting voter fraud justifies allowing Ohio to continue utilizing its Supplemental Process. Brief of Amicus Curiae the Former Attorneys of the Civil Rights Division of the United States Department of Justice, in Support of Petitioner at 16–19. The Former Attorneys cite a study by the Heritage Foundation that documents 938 recent convictions for voter fraud in the United States, and argue that accurate voter rolls are highly instrumental in preventing voter fraud. Id. at 19–21.
American History Professors (“Professors”), in support of Randolph, aver that, notwithstanding the intent to combat voter fraud, Ohio’s system of updating voter rolls disproportionately disenfranchises minority voters. Brief of Amicus Curiae American History Professors, in Support of Respondents at 13. The Professors argue that minority voters are less likely to participate in elections and, since Ohio’s system identifies those who have not voted recently for removal from the voter rolls, minorities are disproportionately affected. Id. The National Association for the Advancement of Colored People maintains that under Ohio’s system, African Americans are disproportionately placed on the inactive voter list. Brief of Amici Curiae National Association for the Advancement of Colored People and the Ohio State Conference of the NAACP, in Support of Respondents at 19–23. The Asian Americans Advancing Justice and the VoteVets Action Fund argue that Asian Americans, Latinos, and service members already have low turnouts at polls, and Ohio’s Supplemental Process will further decrease turnouts. Brief of Amici Curiae Asian Americans Advancing Justice et al., in Support of Respondents at 14; Brief of Amicus Curiae VoteVets Action Fund, in Support of Respondents at 11.
VOTER PERCEPTIONS AND INTEGRITY OF OUR DEMOCRACY
The Former Attorneys, arguing in support of Husted, assert that systems for updating voter rolls and combating voter fraud are fundamental to maintaining the integrity of federal elections. Brief of Former Attorneys, at 15. The Former Attorneys insist that honest citizens will be excluded from the democratic process if they believe that the democratic system is corrupted or untrustworthy. Id. To combat the perception of a corrupt system, the Former Attorneys maintain that states need options like Ohio’s Supplemental Process to maintain their voter registration rolls. Id. Judicial Watch, Inc. claim that low voter turnouts may be a result of Americans having little faith in the integrity of the democratic process. Brief of Amicus Curiae Judicial Watch, Inc., in Support of Petitioner at 20. Judicial Watch, Inc. argues that restoring public confidence in the integrity of elections is an important interest and, to prevent disillusionment with the electoral process, states must use tools like Ohio’s Supplemental Process. Id. at 19–21.
The Libertarian Party of Ohio, arguing in support of Randolph, maintains that Ohio’s system for purging voters from the active list is more damaging to the integrity of the democratic process than helpful. Brief of Amicus Curiae the Libertarian Party of Ohio and the Center for Competitive Democracy, in Support of Respondents at 4–8. According to the Libertarian Party of Ohio, the main groups who are affected by Ohio’s Supplemental Process are those that do not vote, and many of those who do not vote are disaffected third-party voters who are dissatisfied with the two-party system that characterizes most elections. Id. at 10. By stripping the right to vote from voters who are already disillusioned with the electoral process, Ohio’s system does nothing to assuage these voters’ feelings of disillusionment with the current democratic process. Id. at 10–11. The Professors point out that many eligible voters choose not to vote. Brief of Professors, at 19. The Professors argue that it is undemocratic to take away someone’s right to vote because they exercised their right not to vote in a recent election Id. at 20. The Libertarian National Committee also argues that “principled non-voting” is an important way for citizens to express their discontent with the candidates, the electoral process, and the rules governing elections, and that a system that burdens this right cannot stand. Brief of Amicus Curiae the Libertarian National Committee, in Support of Respondents at 13, 21.
- Robert Barnes, High Court to Review Ohio’s Method for Removing Voters from Registration Rolls, The Washington Post (May 30, 2017).
- Matt Ford, Use It or Lose It?, The Atlantic (May 30, 2017).