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Husted v. Randolph Institute Popper amicus 16-980

Husted v. Randolph Institute Popper amicus 16-980

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No. 16-980 the
Supreme Court the United States
JON HUSTED, OHIO SECRETARY STATE,
Petitioner, PHILIP RANDOLPH INSTITUTE, NORTHEAST
OHIO COALITION FOR THE HOMELESS,
AND LARRY HARMON,
Respondents. Petition for Writ Certiorari the United
States Court ppeals for the Sixth Circuit
BRIEF FORMER ATTORNEYS THE CIVIL
RIGHTS DIVISION THE UNITED STATES
DEPARTMENT JUSTICE AMICI CURIAE SUPPORT PETITIONER
William Consovoy
Counsel Record Michael Connolly
Cameron Norris*
Consovoy McCarthy Park PLLC ntonin Scalia Law School
Supreme Court Clinic
3033 Wilson Boulevard, Suite 700
Arlington, 22201
(703) 243-9423
will@consovoymccarthy.com
*Licensed Tennessee, but not
Virginia. Practice supervised
members the firm.
Counsel for Amici Curiae
March 2017
271810
TABLE CONTENTS
TABLE CONTENTS
TABLE CITED AUTHORITIES
IDENTITY INTEREST AMICI CURIAE
SUMMARY ARGUMENT
ARGUMENT The Sixth Circuit interpretation
the NVRA incorrect and contradicts
the Justice Department longstanding
enforce ment policy The Sixth Circuit interpretation
the NVRA conflicts with the law
text, structure, and history The Sixth Circuit decision contradicts
the Justice Department longstanding
interpretation the NVRA
II. The Sixth Circuit decision will undermine the
states efforts maintain accurate voter rolls
and promote the integrity elections
CONCLUSION
TABLE CITED AUTHORITIES
CASES
Alden Maine,
527 U.S. 706 (1999)
Arizona Inter Tribal Council Ariz., Inc.,
133 Ct. 2247 (2013)
BFP Resolution Trust Corp.,
511 U.S. 531 (1994)
Crawford Marion Cty. Election Bd.,
553 U.S. 181 (2008)
CTS Corp. Waldburger,
134 Ct. 2175 (2014)
Encino Motorcars, LLC Navarro,
136 Ct. 2117 (2016)
Purcell Gonzalez,
549 U.S. (2006)
Quality King Distribs., Inc. anza Research Int Inc.,
523 U.S. 135 (1998)
Rodriguez United States,
480 U.S. 522 (1987)
iii
Cited Authorities
United States Atl. Research Corp.,
551 U.S. 128 (2007)
STATUTES AND OTHER AUTHORITIES U.S.C. 20501(b) U.S.C. 20501(b)(3) U.S.C. 20501(b)(4) U.S.C. 20507(a)(3) U.S.C. 20507(a)(4) U.S.C. 20507(a)(4)(B) U.S.C. 20507(b)(2) passim U.S.C. 20507(d)(1) U.S.C. 20507(d)(1)(B) U.S.C. 21083 U.S.C. 21083(a)(4)(A)
Am. Compl., United States City Philadelphia, 147
(E.D. Pa. Apr. 26, 2007)
Cited Authorities
Reading Law (2012) Ele ion for
Building Confidence U.S. Elections
(Sept. 2005) 15,
Consent Decree and Order, United States Indiana,
No. 1:06-cv-1000 (S.D. Ind., June 27, 2006)
Consent Order, United States Pulaski County,
No. 4:04-cv-389 (E.D. Ark. Apr. 19, 2004)
H.R. Rep. No. 103-9 (1993)
Her itage Found., Sampling Election
Fraud Cases from Across the Countr
(last updated Mar. 2017) 18,
Kan. Sec State, Grid Potential Duplicate
Registration Within States DOB (2016)
Kris Kobach, Presentation Interstate
Voter Registration Crosscheck Program Nat Ass State Election Directors
(Jan. 26, 2013) .18
Pew Ctr. the States, Inaccurate, Costly,
and Inefficient: Evidence that America
Vot Sys
Upgrade (2012)
Cited Authorities Rep. No. 103-6 (1993) 11, No.
(E.D. Pa. Apr. 26, 2007)
U.S. Comm Civil Rights, Department
Justice Voting Rights Enforcement for the
2008 U.S. Presidential Election (2009) 16,
IDENTITY INTEREST AMICI CURIAE1
Amici are six former attorneys the Civil Rights
Division the United States Department Justice: Colonel Karl Butch Bowers the State Staff
Judge Advocate for the Joint Force Headquarters, South
Carolina Air National Guard, and lawyer private
practice, focusing governmental and legislative affairs,
campaign finance and election law, and regulatory matters. 2007-08, Col. Bowers was appointed President
George Bush Special Counsel for Voting Matters
the U.S. Department Justice. also has served the
Staff Judge Advocate for the 169th Fighter Wing, the
Chairman the South Carolina Election Commission, and JAG officer. Col. Bowers received J.D. from Tulane
Law School, M.P.A. from the College Charleston, and B.A. from the University South Carolina. Christopher Coates General Counsel for the
American Civil Rights Union. worked the Voting
Section the Justice Department from 1996-2010.
During ten those years, worked supervisory management position, and during two those years was the Chief the Voting Section. earned the
Walter Barnett Memorial Award 2007, the Civil
Rights Division second highest award for excellence
advocacy. From 1985-96, Mr. Coates was attorney with Counsel record for all parties received timely notice amici intent file this brief, and the parties have provided
written consent its filing. counsel for any party authored
this brief whole part; and person entity, other than
amici and their counsel, made monetary contribution intended fund the preparation submission this brief.
the Voting Rights Project the American Civil Liberties
Union. 1991, was awarded the Thurgood Marshall
Decade Award the Georgia NAACP for his work
voting rights and civil rights law. graduate
the University North Carolina Chapel Hill and the
University North Carolina School Law. Christy McCormick has worked voting and
elections for over twenty-five years, starting out
assistant voter registrar Connecticut 1988. She
currently Commissioner and former Chair the U.S.
Election Assistance Commission (EAC). Prior the EAC,
she was Senior Trial Attorney the Voting Section
the Department Justice Civil Rights Division for eight
years. During 2009-10, she was detailed the Deputy
Attorney General the U.S. Embassy Baghdad
work the Iraqi national elections and rule-of-law
matters. Previously, she clerked for Justice Elizabeth
McClanahan the Court Appeals Virginia. She also
served Assistant Solicitor and Assistant Attorney
General Virginia. Commissioner McCormick received
B.A. from the University Buffalo and J.D. with honors
from the George Mason University (now Antonin Scalia)
Law School. She also has attended the William Mary
School Law. Robert Popper has been practicing law for
twenty-six years. has special knowledge and expertise the area voting law. Along with Professor Daniel Polsby, the co-creator the Polsby-Popper
compactness standard, used measure racial and
partisan gerrymandering. 1995, represented
plaintiffs successful constitutional challenge alleging
racial segregation the design New York 12th
Congressional District. 2005, Mr. Popper joined the
Voting Section the Civil Rights Division the U.S.
Department Justice, and 2008, was promoted
Deputy Chief. 2013, joined Judicial Watch Director the Election Integrity Project, which capacity
litigates voting rights cases. Mr. Popper graduate
the University Pennsylvania and Northwestern Law
School. Bradley Schlozman served Deputy Assistant
Attorney General (and Acting Assistant Attorney General) the Civil Rights Division from 2003-06, where his
responsibilities included supervision the Voting Section. also later served U.S. Attorney for the Western
District Missouri from 2006-07. Mr. Schlozman now
practices law the Hinkle Law Firm and frequently
represents states and municipalities variety voting
rights matters. Hans von Spakovsky Senior Legal Fellow
and Manager the Election Law Reform Initiative
the Center for Legal and Judicial Studies the Heritage
Foundation, where concentrates voting, elections,
campaign finance, civil rights, immigration enforcement,
and government reform. 2006-07, served
Commissioner the Federal Election Commission. From
2002-05, served Counsel the Assistant Attorney
General for Civil Rights, providing expertise and advice voting and election issues. The Commission Federal
Election Reform organized President Jimmy Carter
and Secretary James Baker also sought his expertise.
Mr. von Spakovsky has served member the first
Board Advisers the EAC, Vice Chairman the
Fairfax County Electoral Board Virginia, member the Fulton County Registration and Election Board
Georgia, and member the Virginia Advisory Board the U.S. Commission Civil Rights. graduate
Vanderbilt University Law School and the Massachusetts
Institute Technology.
During their tenures, amici were charged with
enforcing the nation election laws, including the National
Voter Registration Act 1993 (NVRA) and the Help
America Vote Act 2002 (HAVA). Amici have continued
interest the proper interpretation and enforcement
these laws. The Sixth Circuit adopted interpretation the NVRA that contradicts how amici enforced that
statute. fact, during amici tenures, the Justice
Department negotiated settlement agreements that
required localities exactly what the Sixth Circuit held
was illegal here. The Sixth Circuit interpretation the
NVRA squarely contradicts this history enforcement
and threatens undermine the core purposes the
NVRA ensuring the accuracy state voter rolls and
protecting the integrity federal elections.
SUMMARY ARGUMENT
Amici were once tasked with enforcing the NVRA,
part the complex superstructure federal regulation
that Congress has erected atop state voter-registration
systems. Arizona Inter Tribal Council Ariz., Inc.,
133 Ct. 2247, 2251 (2013). The NVRA requires the states keep their voter rolls date. Each state must adopt program that removes voters from the rolls when they
move different jurisdiction. Although voter cannot removed solely because failed vote, voter can removed the state sends him notice and neither
responds nor votes two consecutive federal elections.
There are limits when the states can send these
notices whom they can send them; the NVRA says
nothing about that. least that how amici interpreted and enforced
the NVRA when they served the Civil Rights Division the Justice Department. But the Sixth Circuit, 2-1 decision, rejected this settled interpretation.
struck down Ohio Supplemental Process, which sends
individuals NVRA-compliant notice they have not
engaged voter activity for two years. The Supplemental
Process violates the NVRA, according the Sixth
Circuit, because the trigger for the notice person
failure vote.
The Sixth Circuit erred, and its error warrants this
Court intervention. The text, structure, and history
the NVRA all point the same direction: the NVRA
requires the states send notices before removing
voters for changing residences. But does not regulate
the triggers for those notices. fact, amici helped
the Justice Department negotiate settlements with
localities Pennsylvania, Indiana, and Arkansas that
required notice procedure indistinguishable from
Ohio Supplemental Process. The decision below directly
contradicts this history federal enforcement. And
deprives the states important tool combatting
bloated voter rolls. [A]ccurate and current voter
registration lists, turn, are essential the integrity the election process and for the protection the
individual. H.R. Rep. No. 103-9, (1993); Rep. No.
103-6, (1993).
ARGUMENT
This Court should grant certiorari for two main
reasons. First, the Sixth Circuit interpretation the
NVRA conflicts with its text, structure, and history.
Amici have long interpreted the statute oppositely, and
they helped the Justice Department negotiate settlements
that would illegal under the Sixth Circuit view.
Second, the Sixth Circuit decision deprives Ohio and
other jurisdictions important means combat
bloated voter rolls, real and pressing threat the
integrity federal elections. The Sixth Circuit interpretation the NVRA
incorrect and contradicts the Justice Department
longstanding enforce ent policy. The Sixth Circuit interpretation the NVRA
conflicts with the law text, structure, and
history.
The NVRA has two main goals: maximizing the
number eligible citizens the voter rolls and
minimizing the number ineligible citizens the voter
rolls. See U.S.C. 20501(b). minimize the number ineligible voters, the NVRA requires states adopt program that removes registered voters who become
ineligible reason change the[ir] residence.
Id. 20507(a)(4)(B).
The NVRA limits how states can remove these nowineligible voters two those limits are relevant here.
First, under subsection (b)(2), states cannot adopt
program that result[s] the removal the name any
person reason the person failure vote. Id.
20507(b)(2). Second, under subsection (d), states cannot
remove voters without confirming that they actually
have changed residences. See id. 20507(d). state can
conclude that voter changed residences, however,
fail[s] respond notice sent the state and has
not voted appeared vote two consecutive federal
elections. Id. 20507(d)(1)(B). first blush, these limits may seem contradictory.
Subsection (b)(2) prohibits states from removing voters reason [their] failure vote. Id. 20507(b)(2). Yet
subsection (d) notice procedure allows states remove
voters precisely because they failed vote consecutive
federal elections. But the NVRA resolves this tension clarifying that subsection (d) notice procedure does
not result the removal the name any person reason the person failure vote for purposes
subsection (b)(2): state program] shall not result the removal the name any person from the official list voters registered vote election for
Federal office reason the person failure vote, except that nothing this paragraph
may construed prohibit State from using
[subsection (d) notice procedure] remove
individual from the official list eligible voters the individual
(A) has not either not ied the
applicable registrar (in person writing) responded during the
period described subparagraph (B) the notice sent the applicable
registrar; and then
(B) has not voted appeared
vote more consecutive general
elections for Federal office.
Id. 20507(b)(2) (emphases added).
The except clause subsection (b)(2) was added the HAVA 2002. using the word construed, the
except clause does not change the meaning subsection
(b)(2); clarifies what subsection (b)(2) has always meant.
See Alden Maine, 527 U.S. 706, 722-23 (1999) (explaining
that the use the word construed the Eleventh
Amendment means was enacted not change but
address[] the proper interpretation the original
The notice procedure subsection (d) never result[ed] the removal the name any person reason
the person failure vote. Although the failure vote
(in two consecutive elections) one requirement under
the notice procedure, the voter failure respond
the notice not his failure vote that ultimately leads his removal from the voting rolls.
Another provision the HAVA makes the same point.
Section 21083 expressly incorporates the notice procedure the NVRA. explains the notice procedure this way:
[R]egistrants who have not responded notice and
who have not voted consecutive general elections for
Federal office shall removed from the official list
eligible voters, except that registrant may removed
solely reason failure vote. U.S.C. 21083(a)
(4)(A) (emphasis added). The use the word solely
telling. confirms that, under the NVRA, person
failure vote can factor removing him from the
voter rolls. just cannot the sole factor.
This distinction precisely the one that Congress
meant draw. Both the House and the Senate reports
surveyed the state voter-registration policies existing
the time and explained how the NVRA would affect them:
Almost all states now employ some procedure
for updating lists least once every two years,
though practices may vary somewhat from
county county. About one-fifth the states
canvass all voters the list. The rest the
states not contact all voters, but instead
target only those who did not vote the most
recent election (using not voting indication
that individual might have moved).
these, only handful states simply drop the
non-voters from the list without notice. These
states could not continue this practice under
[the NVRA].
H.R. Rep. No. 103-9, 30; Rep. No. 103-6, 46. The
handful state programs that remov[e] registrants
from the list simply for not voting were the ones the
NVRA prohibited not the majority state programs
that first send notice assess whether the person has
moved. H.R. Rep. No. 103-9, 30; Rep. No. 103-6,
46.
Ohio Supplemental Process not among the
handful programs the NVRA prohibited. Ohio sends
notice anyone who fails engage any voter activity
for two years. the voter does not respond the notice
and does not vote (or appear) two consecutive federal
elections the two requirements subsection (d) the
NVRA Ohio cancels his registration. Judge Siler
recognized, voter removed solely reason
failure vote under Ohio Supplemental Process. Pet.
App. 35a (Siler, J., dissenting). voter removed only fails respond the notice. And voter can stay
registered engaging any kind voter activity during
this four-year period. See Pet. 10.
The Sixth Circuit nevertheless held that Ohio
Supplemental Process violates subsection (b)(2) the
NVRA. The Sixth Circuit gave three reasons for reaching
this conclusion. None persuasive.
First, the Sixth Circuit noted that the trigger for
the notices sent out under the Supplemental Process
ultimately based solely person failure vote.
Pet. App. 22a (majority opinion). But, the district court
explained, the word trigger nowhere found
the NVRA. Id. 56a (district court opinion). The NVRA
explains that subsection (d) notice procedure complies
with subsection (b)(2), and does not limit the events
that need need not happen before state may initiate
that notice procedure. Id. 58a. matter what trigger state chooses, the removal voter under subsection
(d) notice procedure premised the voter failure
respond the notice not his failure vote.
Second, the Sixth Circuit reasoned that, state
use subsection (d) notice procedure automatically
satisfies subsection (b)(2), then subsection (b)(2) would reduced mere surplusage. Id. 17a (majority
opinion). After all, states are required use subsection
(d) notice procedure before they can remove voter for
changing his residence. See id. But this argument fails multiple levels. For one, subsection (b)(2) prohibition removing voter solely for his failure vote retains
some independent meaning under Ohio interpretation.
Quality King Distribs., Inc. anza Research Int
Inc., 523 U.S. 135, 148-49 (1998). Unlike subsection (d),
subsection (b)(2) not confined removal the ground
that the registrant has changed residence. U.S.C.
20507(d)(1). matter the meaning subsection (d),
then, subsection (b)(2) applies fully the NVRA other
grounds for removal, including criminal conviction, mental
incapacity, and death. See id. 20507(a)(3)-(4).
Even the context changed residences, moreover,
subsection (b)(2) not superf luous. the context change-of-residence removals, subsection (d) and
subsection (b)(2) are not two rules but one: together, they
prohibit the practice presuming that non-voter has
changed residences (and dropping him from the voter
rolls) without first giving him notice. See H.R. Rep. No.
103-9, 30; Rep. No. 103-6, 46. That Congress
explained how this rule works more than one provision not surplusage; helpful attempt clarify how the
statute operates. See United States Atl. Research Corp.,
551 U.S. 128, 137 (2007). Clarification was important
because, explained, not immediately obvious how
subsection (b)(2) and subsection (d) coexist the NVRA.
See BFP Resolution Trust Corp., 511 U.S. 531, 543 n.7
(1994) superfluity for Congress clarify what
had been best unclear
Third, the Sixth Circuit invoked the traditional rule
that statute exceptions should construed narrowly.
Pet. App. 16a. But this made-up canon illegitimate.
Encino Motorcars, LLC Navarro, 136 Ct. 2117,
2131 (2016) (Thomas, J., dissenting). The Court has not
invoked consistently, see Antonin Scalia Bryan
Garner, Reading Law 359-63 (2012), and contradicts
important principles statutory construction, such legislation pursues its purposes all costs and
[c]ongressional intent discerned primarily from the
statutory text, CTS Corp. Waldburger, 134 Ct. 2175,
2185 (2014) (quoting Rodriguez United States, 480 U.S.
522, 525-26 (1987) (per curiam)). any event, this canon cannot apply the NVRA.
The law serves dual purposes: increasing the registration eligible voters and decreasing the registration
ineligible voters. See U.S.C. 20501(b). impossible tell which purpose the general rule and which
purpose the exception. For example, the principle that voter can removed for failing respond notice
framed rule, see id. 20507(a)(4)(B); 21083(a)(4)(A),
and exception, see id. 20507(d)(1)(B). subsection
(b)(2), framed neither rule nor exception,
but clarification. Id. 20507(b)(2). Put simply, even canon that construes exceptions narrowly could ever applied sensibly, could not applied sensibly here. sum, the Sixth Circuit interpretation the
NVRA contradicts the law text, structure, and history.
The NVRA requires the states remove individuals who
change their residence from the voter rolls. so, the
NVRA allows the states remove any individual who does
not respond notice and does not vote two consecutive
federal elections; and does not limit when the states can
send those notices. Ohio Supplemental Process follows
this procedure. complies with the NVRA. The Sixth Circuit decision contradicts
the Justice Depar tment longstanding
interpretation the NVRA.
There little support for the Sixth Circuit
interpretation the NVRA. Indeed, amici have long
taken the opposite view. When they were serving the
Civil Rights Division, the Justice Department required
states adopt procedures that are indistinguishable
from Ohio Supplemental Process. The Sixth Circuit
interpretation flouts this well-established history
enforcement.
For example, 2007, the Justice Department sued
the City Philadelphia for violations the NVRA, the
HAVA, and the Voting Rights Act. See Am. Compl., United
States City Philadelphia, No. 2:06-cv-4592, 2007
1476781 (E.D. Pa. Apr. 26, 2007) [Dkt. No. 35]. With respect the NVRA, the United States alleged that Philadelphia
fail[ed] conduct meaningful general program voter
registration list maintenance and d[id] not conduct
program that makes reasonable effort remove the
names ineligible voters. Id. 55-56. The parties
ultimately settled. part that settlement, Philadelphia
agreed send forwardable confirmation notice any
registered elector who has not voted appeared vote
during any election and remove inactive voters who
fail appear vote during the period beginning with
the date the confirmation notice and ending after the
second federal general election following the date the
confirmation notice. Settlement Agreement 16, United
States Philadelphia, No. 2:06-cv-4592 (E.D. Pa. Apr. 26,
2007), available at, https://www.justice.gov/sites/default/
files/crt/legacy/2010/12/15/phila_settlement.pdf.
The settlement ith Philadelphia was not
isolated agreement. During amici tenures, the Justice
Department also negotiated similar agreements with
the State Indiana and Pulaski County, Arkansas. See
Consent Decree and Order United States Indiana,
No. 1:06-cv-1000 (S.D. Ind., June 27, 2006) [Dkt. No. 4],
available at, https://www.justice.gov/crt/consent-decreeand-order; Consent Order 4-8, United States Pulaski
County, No. 4:04-cv-389 (E.D. Ark. Apr. 19, 2004) [Dkt.
No. 9], available at, https:// pic. rg/ rivacy/ oting/ egis
ter/ ulaski_cd. tml.
All these agreements required the defendants
adopt program like Ohio Supplemental Process. The
defendants had identify list nonvoters, send those
nonvoters notice asking them confirm their address,
and cancel the registration voters who did not respond the notice and did not vote two consecutive federal
elections. According the Sixth Circuit, however, these
agreements forced the defendants violate federal law.
Amici respectfully disagree. Because the Sixth Circuit
interpretation the NVRA undermines these agreements
and impugns this history federal enforcement,
warrants this Court review.
II. The Sixth Circuit decision will undermine the
states efforts maintain accurate voter rolls and promote the integrity elections.
Congress enacted the NVRA ensure that accurate
and current voter registration rolls are maintained and protect the integrity the electoral process. U.S.C.
20501(b)(3)-(4). These objectives are complementary.
The maintenance accurate and up-to-date voter
registration lists the hallmark national system
seeking prevent voter fraud. Rep. No. 103-6,
18. this Court has recognized, [t]he electoral system
cannot inspire public confidence safeguards exist
deter detect fraud, and [a] good registration list will
ensure that citizens are only registered one place.
Crawford Marion Cty. Election Bd., 553 U.S. 181,
193-94 (2008) (opinion Stevens, J.) (quoting Comm Fed. Election Reform, Building Confidence U.S.
Elections 2.5 (Sept. 2005), goo.gl/6kCxRw). [P]ublic
confidence the integrity the electoral process,
turn, has independent significance, because encourages
citizen participation the democratic process. Id. 197.
Confidence the integrity our electoral processes essential the functioning our participatory
democracy. Voter fraud drives honest citizens out the
democratic process and breeds distrust our government.
Voters who fear their legitimate votes will outweighed fraudulent ones will feel disenfranchised. Purcell
Gonzalez, 549 U.S. (2006) (per curiam).
Programs like Ohio Supplemental Process are
important tool achieving these goals. Individuals who
move new jurisdiction are longer eligible vote their old jurisdiction and should not remain registered
there. Although states can track some these voters
through the Postal Service change-of-address database,
that data underinclusive. Many people who change
residences not use this service. See Pet. 33-34.
maintain accurate voter rolls, states need able
use other reliable indicia ineligibility including lack voter activity.
Recent voter registration data justify Ohio efforts.
2012 Pew Study found major problems with the accuracy voter rolls the United States. According the study, million voter registrations (one out every eight) are
invalid inaccurate. For example, 1.8 million deceased
persons are listed voters, and 2.75 million people
are registered vote more than one state. See Pew
Ctr. the States, Inaccurate, Costly, and Inefficient:
Evidence that America Voter Registration System
Needs Upgrade (2012), goo.gl/mQV8Ul. Inflated voter
lists are also caused phony registrations and efforts register individuals who are ineligible. Comm
Fed. Election Reform, supra. After the 2008 election,
the Justice Department sent letters dozen states
inquiring about their list maintenance practices because
there appeared significant imbalances between
their numbers registered voters and their citizen
populations. U.S. Comm Civil Rights, Department Justice Voting Rights Enforcement for the 2008 U.S.
Presidential Election (2009), goo.gl/xp7nhc (testimony Christopher Coates, Acting Chief the Voting Section). 2016, thirty states participate the Interstate
Voter Registration Crosscheck Program (administered the State Kansas). This program analyzes the voter
rolls the participating states and identifies individuals
who are registered more than one state. February
2016, the Crosscheck Program revealed hundreds
thousands voters who were potentially registered
multiple states. the twenty-five participating states
analyzed 2016, the following states had potential voter
registration duplications with other participating states:
Alabama 220,247
Arizona 240,277
Arkansas 110,200
Colorado 257,413
Georgia 540,245
Idaho 20,834
Illinois 454,325
Indiana 452,577
Iowa 129,925
Kansas 123,502
Kentucky 311,126
Louisiana 119,207
Massachusetts 144,587
Michigan 406,268
Mississippi 162,288
Missouri 244,710
Nebraska 60,766
Nevada 85,968
New York 392,365
North Carolina 455,891
Ohio 386,092
Oklahoma 89,788
South Dakota 34,367
Tennessee 218,641
Virginia 284,618
Kan. Sec State, Grid Potential Duplicate
Registration Within States DOB (2016) (on file with
counsel).
These efforts have led numerous prosecutions. Using
the Crosscheck data, 2008 and 2010, Kansas referred
fourteen instances double voting for prosecution, and
Colorado indicted referred the FBI ten instances double voting. See Kris Kobach, Presentation
Interstate Voter Registration Crosscheck Program
Nat Ass State Election Directors (Jan. 26, 2013),
goo.gl/FQwRvQ.
Similarly, the Heritage Foundation has identified 755
recent criminal convictions for voter fraud the United
States many involving false registrations and double
voting. See Heritage Found., Sampling Election
Fraud Cases from Across the Country (last updated
Mar. 2017), goo.gl/lIwvcM. Numerous convictions
involve individuals who voted more than one state. For
example, Regina Beaupre pleaded guilty 2015 voting the same election both Arizona and Michigan. Id. 12. James and Karen Marshall voted both Arizona
and Kansas 2008. Id. 18. Michael Hannum pleaded
guilty voting Nebraska and Kansas 2012. Id.
78. Ron Weems pleaded guilty voting both Colorado
and Kansas the 2012 and 2014 elections. Id. 79.
Steven Gaedtke was convicted voting both Arkansas
and Kansas 2010. Id. Wendy Rosen candidate for
Congress Maryland) pleaded guilty voting both
Florida and Maryland 2010. Id. 92. Pasco Parker
admitted voting Florida, North Carolina, and
Tennessee the 2012 general election. Id. 183.
Other individuals were convicted voting twice different parts the same state. Arizona, eight
individuals David Culberson, Adam Hallin, John
Hamrick, Gerald Sack, Steven Streeter, Jay Thompson,
Franklin Turner, and Jeffery Hitchcock pleaded guilty attempted double voting the 2012 general election.
Id. 8-12. New Hampshire, Derek Castonguay
pleaded guilty voting Salem and Windham the
2014 election. Id. 169. Wisconsin, Todd Murray was
convicted voting both New Berlin and West Allis
the 2012 election. Id. 229.
Still other individuals cast ballots behalf deceased
relatives who were not removed from state voter rolls.
California, Mark Evans cast ballot the name his
deceased father-in-law. Id. 21. Oregon, Lafayette
Keaton pleaded guilty casting multiple ballots using
his deceased son and brother identities. Id. 195.
Accurate voter rolls are vital the effort combat
voter fraud. Bloated rolls create[] potential for people fraudulently vote under the names these illegally
registered individuals. U.S. Comm Civil Rights,
supra, (executive summary Coates testimony).
Efforts like Ohio Supplemental Process not only comply
with the NVRA; they are essential achieving its
purposes.
CONCLUSION
For all these reasons, this Court should grant the
petition for writ certiorari and reverse the decision the Sixth Circuit.
Respectfully submitted,
William Consovoy
Counsel Record Michael Connolly
Cameron Norris*
Consovoy McCarthy Park PLLC ntonin Scalia Law School
Supreme Court Clinic
3033 Wilson Boulevard, Suite 700
Arlington, 22201
(703) 243-9423
will@consovoymccarthy.com
*Licensed Tennessee, but not
Virginia. Practice supervised
members the firm.
Counsel for Amici Curiae
March 2017