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Husted v. Randolph Institute SCOTUS 980

Husted v. Randolph Institute SCOTUS 980

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No. 16-___ 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 APPEALS
FOR THE SIXTH CIRCUIT
______________________________
PETITION FOR WRIT CERTIORARI
__________________________________________
MICHAEL DEWINE
Attorney General Ohio
ERIC MURPHY*
State Solicitor
*Counsel Record
MICHAEL HENDERSHOT
Chief Deputy Solicitor
STEVEN VOIGT
Principal Assistant Attorney General East Broad Street, 17th Fl.
Columbus, Ohio 43215
614-466-8980
eric.murphy@
ohioattorneygeneral.gov
Counsel for Petitioner
Jon Husted, Ohio Secretary State
QUESTION PRESENTED
This case considers the steps that States may
take maintain accurate voter-registration lists under the National Voter Registration Act 1993
(NVRA) and the Help America Vote Act 2002
(HAVA). These laws bar States from removing the
name any person from the official list voters registered vote election for Federal office
reason the person failure vote, but clarify that State must remove voter the voter does not respond confirmation notice sent the State and
does not vote the next two general federal elections. U.S.C. 20507(b)(2), 21083(a)(4)(A).
Since 1994, part its general list-maintenance
program, Ohio has sent voters who lack voter activity
over two-year period the confirmation notice that
the NVRA and HAVA both reference. these voters not respond that notice and not engage
any additional voter activity over the next four years
(including two more federal elections), Ohio removes
them from the list registered voters and requires
them reregister they otherwise remain eligible vote. The Sixth Circuit held that this decades-old
process violates 20507(b)(2) because Ohio uses
voter failure vote the trigger for sending
confirmation notice that voter.
The question presented is:
Does U.S.C. 20507 permit Ohio listmaintenance process, which uses registered voter
voter inactivity reason send confirmation
notice that voter under the NVRA and HAVA?
PARTIES THE PROCEEDINGS
Plaintiffs-Appellants below (and Respondents
here) are Ohio Philip Randolph Institute, Northeast Ohio Coalition for the Homeless, and Larry
Harmon.
Defendant-Appellee below (and Petitioner here)
Ohio Secretary State Jon Husted.
iii
TABLE CONTENTS
QUESTION PRESENTED ..........................................
PARTIES THE PROCEEDINGS .........................ii
TABLE CONTENTS ........................................... iii
TABLE AUTHORITIES .......................................
OPINIONS BELOW ...................................................
JURISDICTION..........................................................
STATUTORY PROVISIONS INVOLVED .................
STATEMENT THE CASE .................................... Historically, Most States Relied Voter
Inactivity Help Maintain Accurate
Voter-Registration Lists .................................. Congress Passed The NVRA And HAVA Increase Total Registration But
Decrease Inaccuracies The Rolls................. Since 1994, Ohio Has Conducted Two
General List-Maintenance Processes .............. District Court Dismissed Plaintiffs Suit
Against The Supplemental Process, But
The Sixth Circuit Reversed ...........................
REASONS FOR GRANTING THE PETITION ....... THE QUESTION PRESENTED RAISES
IMPORTANT ISSUE THAT REQUIRES THE
COURT IMMEDIATE ATTENTION .......................... The Question Presented Addresses
Important Election-Integrity Matter ............ The Question Presented Affects Many
States .............................................................. The Question Presented Requires The
Court Attention Now, And This Case
Offers Good Vehicle Answer It..............
II. THE SIXTH CIRCUIT DECISION CONFLICTS
WITH THIS COURT CASES ................................... The Sixth Circuit Textual Analysis
Violated Two Interpretive Principles ............ The Sixth Circuit Wrongly Favored
Oft-Criticized Canon Over The Canon
Constitutional Avoidance............................... The Sixth Circuit Reading Conflicts With
The Presumption That Congress Does Not
Hide Elephants Mouseholes ...................
CONCLUSION..........................................................
APPENDIX:
Appendix Opinion and Judgment, Sixth
Circuit Court Appeals, Sept. 23, 2016 ............
Appendix Order, United States District
Court, Southern District Ohio, Eastern
Division, June 29, 2016 ..................................... 39a
Appendix Opinion and Order, United States
District Court, Southern District Ohio,
Eastern Division, Oct. 19, 2016 ........................ 71a
Appendix U.S.C.A. 20507 ........................ 101a
Appendix U.S.C.A. 21083 ........................ 111a
TABLE AUTHORITIES
Cases
Alexander Sandoval,
532 U.S. 275 (2001) .............................................
Arcia Fla. Sec State,
772 F.3d 1335 (11th Cir. 2014) ...........................
Ariz. State Legislature Ariz. Indep.
Redistricting Comm
135 Ct. 2652 (2015) ............................. 29, 30,
Arizona Inter Tribal Council Ariz., Inc.,
133 Ct. 2247 (2013) ......................... 29, 30,
Arnold Ben Kanowsky, Inc.,
361 U.S. 388 (1960) .............................................
Ass Cmty. Orgs. for Reform Now
Edgar,
880 Supp. 1215 (N.D. Ill. 1995) ......................
Associated Gen. Contractors Cal., Inc.
Cal. State Council Carpenters,
459 U.S. 519 (1983) .............................................
Bond United States,
134 Ct. 2077 (2014) ................................... 28,
Clark Martinez,
543 U.S. 371 (2005) ....................................... 28,
Crawford Marion Cnty. Election Bd.,
553 U.S. 181 (2008) ....................................... 16,
Daggett Hudson, N.E. 538 (Ohio 1885) ..........................................
Duprey Anderson,
518 P.2d 807 (Colo. 1974) ................................
Encino Motorcars, LLC Navarro,
136 Ct. 2117 (2016) .........................................
Gonzalez Oregon,
546 U.S. 243 (2006) .............................................
Gregory Ashcroft,
501 U.S. 452 (1991) .............................................
Hemi Grp., LLC City New York,
559 U.S. (2010) .................................................
Hoffman Maryland,
928 F.2d 646 (4th Cir. 1991) ...............................
Holmes Sec. Investor Prot. Corp.,
503 U.S. 258 (1992) .............................................
Husky Int Elecs., Inc. Ritz,
136 Ct. 1581 (2016) .........................................
J.I. Case Co. Borak,
377 U.S. 426 (1964) .............................................
Maracich Spears,
133 Ct. 2191 (2013) .........................................
Marston Lewis,
410 U.S. 679 (1973) .............................................
Md. Green Party Md. Bd. Elections,
832 A.2d 214 (Md. 2003) .................................
Mich. State UAW Cmty. Action Program
Council Austin,
198 N.W.2d 385 (Mich. 1972) ................................
Milner Dep Navy,
562 U.S. 562 (2011) .............................................
Morris Powell, N.E. 221 (Ind. 1890) ...................................
vii
NLRB Catholic Bishops Chicago,
440 U.S. 490 (1979) .............................................
Ortiz City Phila. Office the City
Comm Voter Registration Div., F.3d 306 (3d Cir. 1994) ...................................
Pac. Operators Offshore, LLP Valladolid,
565 U.S. 207 (2012) .............................................
Paroline United States,
134 Ct. 1710 (2014) ................................... 22,
Purcell Gonzalez,
549 U.S. (2006) ........................................... 16,
Rumsfeld Forum for Academic Inst
Rights, Inc.,
547 U.S. (2006) ...............................................
Shelby Cnty. Holder,
133 Ct. 2612 (2013) .......................................
Sheriff Gillie,
136 Ct. 1594 (2016) .........................................
Simms Cnty. Ct. Kanawha Cty., S.E.2d 849 (W. Va. 1950) ..................................
State Butts, 618 (Kan. 1884) ..............................................
United States Gradwell,
243 U.S. 476 (1917) ...............................................
United States Lopez,
514 U.S. 549 (1995) .............................................
United States Missouri,
535 F.3d 844 (8th Cir. 2008) ...............................
Util. Air Regulatory Grp. EPA,
134 Ct. 2427 (2014) .........................................
viii
Whitman Am. Trucking Ass ns,
531 U.S. 457 (2001) .............................................
Williams Osser,
350 Supp. 646 (E.D. Pa. 1972) ........................
Young Fordice,
520 U.S. 273 (1997) ...............................................
Federal Law
U.S. Const. art. cl. 1.......................................... U.S.C. 1254(1) ..................................................... U.S.C. 1331 ........................................................ U.S.C. 10301(a) ................................................... U.S.C. 20501(b) ................................................. U.S.C. 20501(b)(1) ............................................... U.S.C. 20501(b)(3)-(4) ......................................... U.S.C. 20504 ........................................................ U.S.C. 20505 ........................................................ U.S.C. 20506 ........................................................ U.S.C. 20507 ........................................................ U.S.C. 20507(a)(1) ............................................... U.S.C. 20507(a)(3) ............................................... U.S.C. 20507(a)(4) ............................................... U.S.C. 20507(b)(1) ............................................... U.S.C. 20507(b)(2) ............................... 25, U.S.C. 20507(c)(1) ............................................... U.S.C. 20507(d)(1) ..................................... U.S.C. 20507(d)(1)(B)(ii) ................................... U.S.C. 20507(d)(2)(B) ........................................ U.S.C. 20510(b)-(c) ............................................ U.S.C. 21083 ........................................................ U.S.C. 21083(a)(1)(A) .......................................... U.S.C. 21083(a)(4)(A) ....................................
Help America Vote Act 2002, Pub. 107252, 116 Stat. 1666, originally codified U.S.C. 15301-15545, now codified U.S.C. 20901-21145 ........................ passim
National Voter Registration Act 1993,
Pub. 103-31, 107 Stat. 77, originally
codified U.S.C. 1973gg
1973gg-10, now codified U.S.C.
20501-20511 .................................................. passim
State Law
Ala. Code 17-4-30(a) ...............................................
Alaska Stat. Ann. 15.07.130(a)-(b) ........................
Alaska Stat. 15.07.130 (1993) ..................................
Ark. Const. amend. 51, 10(d)-(e)............................
Ark. Const. amend. 11(a)(1) (1991) ..............
Cal. Elec. Code 2224-2226....................................
Colo. Rev. Stat. Ann. 1-2-224 (Westlaw
through 1993 First Regular Sess.) ........................
Colo. Rev. Stat. 1-2-605 (1997) ................................
Del. Code Ann. tit. 15, 1704 (1990) .........................
Fla. Stat. Ann. 98.065(2)(c) ....................................
Fla. Stat. Ann. 98.081 (Westlaw through
1992 Special Sess.) ................................
Ga. Code Ann. 21-2-231 (1993) ................................
Ga. Code Ann. 21-2-234 .........................................
Ga. Code Ann. 21-2-235 .........................................
Haw. Rev. Stat. 11-17 (1993) .............................
Idaho Code Ann. 34-435 (1993) ............................... Ill. Comp. Stat. Ann. 5/4-17, 5/5-24, 5/658 (Westlaw through 1993 Regular
Sess.) ................................................................
Ind. Code Ann. 3-7-9-1, 3-7-9-2, 3-7-9-3,
3-7-9-5 (Westlaw through 1993 First
Regular and First Special Sess.) ...........................
Iowa Code Ann. 48.31 (Westlaw through
1992 Regular Sess. and First and Second
Special Sess.) .........................................................
Iowa Code 48A.28(2)(b) ..........................................
Kan. Stat. Ann. 25-2354(a) ....................................
Ky. Stat. 116.112(3) ...............................................
La. Rev. Stat. 18:193(A)............................................
Md. Code Ann., Elec. 3-20 (1993) ............................
Mich. Comp. Laws Ann. 168.509 (Westlaw
through 1992 Regular Sess.) .................................
Mich. Comp. Laws Ann. 168.513 (Westlaw
through 1992 Regular Sess.) .................................
Minn. Stat. Ann. 201.171 (Westlaw
through 1992 Regular Sess.) .................................
Miss. Code Ann. 23-15-153(1) ................................
Miss. Code Ann. 23-15-159 (Westlaw
through 1993 Regular Sess.) .................................
Mo. Stat. 115.181(2) ...............................................
Mo. Stat. 115.193 ...................................................
Mont. Code Ann. 13-2-220(1)(c)(iii) .......................
Mont. Code Ann. 13-2-401 (Westlaw
through 1993 Regular Sess.) .................................
Mont. Code Ann. 13-2-402(7) .................................
N.C. Gen. Stat. Ann. 163-82.14(a) .........................
N.C. Gen. Stat. 163-69 (1993) ..................................
N.J. Stat. Ann. 19:31-5 (Westlaw through
1992 First Annual Sess.) ...................................
N.J. Stat. Ann. 19:31-15(b) ....................................
N.M. Stat. Ann. 1-4-28 (1993) .................................
N.Y. Elec. Law 5-406 (Westlaw through
1992 ch. 848) ..........................................................
Nev. Rev. Stat. Ann. 293.530(1) ............................
Nev. Rev. Stat. Ann. 293.540 (Westlaw
through 1993 Regular Sess.) .................................
Ohio Const. art. ............................................
Ohio Gen. Code 4871 (1926) ....................................
Ohio Gen. Code 4872 (1926) .................................... Ohio Laws 232 (1885) ............................................ Ohio Laws 209 (1886) ............................................
113 Ohio Laws 307 (1929) ..........................................
137 Ohio Laws 305 (1977) ..........................................
144 Ohio Laws 5517 (1992) ........................................
145 Ohio Laws 2516 (1994) ........................................
xii
Ohio Rev. Code Ann. 3503.21 (Westlaw
through Jan. 1993) ............................................
Ohio Rev. Code 3501.05(Q) ................................
Ohio Rev. Code 3503.20 .........................................
Ohio Rev. Code 3503.21(D) ....................................
Okla. Stat. Ann. tit. 26, 4-120.2 (Westlaw
through 1992 Second Regular Sess.) ....................
Okla. Stat. Ann. tit. 26, 4-120.2(A)(6), (B) ............ Pa. Cons. Stat. Ann. 1901(b)(3), (d) .................. Pa. Stat. Ann. 623-40 (Westlaw
through 1993 Regular Sess.) ................................. Pa. Stat. Ann. 951-38 (Westlaw
through 1993 Regular Sess.) ................................. R.I. Gen. Laws Ann. 17-9.1-27(b) .....................
R.I. Gen. Laws 17-10-1 (1993) .................................
S.C. Code Ann. 7-3-20 (Westlaw through
1993 Regular Sess.) ...............................................
S.C. Code Ann. 7-5-330(F)(1) .................................
S.D. Codified Laws 12-4-19 (1993) ....................
Tenn. Code Ann. 2-2-106 (1993) ..............................
Tenn. Code Ann. 2-2-106(c) ...................................
Tex. Elec. Code Ann. 15.051(a) ..............................
Utah Code Ann. 20-2-24 (1987) ...............................
Va. Code Ann. 24.1-59 (1990) ..................................
Vt. Stat. Ann. tit. 17, 2150 (Westlaw
through 1993 Sess.) ............................................... Va. Code Ann. 3-2-25(j) ....................................
xiii Va. Code 3-2-3 (1989) .........................................
Wash. Rev. Code Ann. 29.10.080 (Westlaw
through 1992 Sess.) ...............................................
Wis. Stat. Ann. 6.50 (Westlaw through
1993 Wis. Act 15) ...................................................
Wyo. Stat. Ann. 22-3-115 (1991)..............................
Other Authorities
Antonin Scalia and Bryan Garner,
Reading Law: The Interpretation
Legal Texts (2012)................................................
Comm Fed. Election Reform, Building
Confidence U.S. Elections (Sept.
2005)............................................................... 15,
138 Cong. Rec. 11,689 (1992)....................................
148 Cong. Rec. 20,834 (2002).............................. 16,
H.R. Rep. No. 107-730, pt. (2002) ..........................
Joseph Harris, Nat Mun. League,
Model Registration System (2d ed.
1931).............................................................
Joseph Harris, Registration Voters
the United States 4-5 (1929) ......................... passim
Nat Comm Fed. Election Reform,
Assure Pride and Confidence the
Electoral Process (Aug. 2001) .....................
xiv
The Need for Further Federal Action the
Area Criminal Vote Fraud: Hearing
Before the Subcomm. the Constitution the Comm. the Judiciary, 98th
Cong. (1983) (Statement Daniel
Webb, U.S. Attorney for the Northern
District Illinois) ...............................................
Nev. Sec State, Election Frequently
Asked Questions ..................................................
Office Election Admin., FEC,
Implementing the National Voter
Registration Act: Report State and
Local Election Officials Problems and
Solutions Discovered 1995-1996 (Mar.
1998).................................................................
Ohio Sec State, Provisional
Supplemental Report for Nov. 2016
Election ................................................................
The Pew Center the States, Inaccurate,
Costly, and Inefficient: Evidence That
America Voter Registration System
Needs Upgrade (Feb. 2012) ............................
S.C. State Elections Comm SEC Sends
Notice Inactive Voters (May 2009) .............. Rep. No. 103-6 (1993) ........................... 15, 16,
Voter Registration: Hearing Before the
Subcomm. Elections the Comm. Admin., 103d Cong. 173 (Jan. 26,
1993) (Statement Jim Smith, Fla.
Sec State).......................................................
OPINIONS BELOW
The Sixth Circuit decision, Pet. App. 1a-37a,
reported 838 F.3d 699. The district court decision, Pet. App. 39a-70a, unreported, but available 2016 3542450. Its decision remand, Pet.
App. 71a-100a, also unreported, but available
2016 6093371.
JURISDICTION September 23, 2016, the Sixth Circuit issued
its decision. Justice Kagan granted 45-day extension file this petition until February 2017. The
petition timely invokes the Court jurisdiction under U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The National Voter Registration Act 1993
(NVRA) was codified U.S.C. 1973gg
1973gg-10, but now codified U.S.C. 2050120511. The Help America Vote Act 2002 (HAVA)
was codified U.S.C. 15301-15545, but now
codified U.S.C. 20901-21145. This petition
appendix includes U.S.C. 20507 and 21083.
STATEMENT THE CASE Historically, Most States Relied Voter
Inactivity Help Maintain Accurate
Voter-Registration Lists the founding, States did not require voters register. the early days, when the bulk the
population lived rural communities, when almost
every voter was personally known his neighbors,
and when there was comparatively little movement population from one locality another, the problem determining those who were entitled vote given election district was comparatively simple.
Joseph Harris, Registration Voters the United
States 4-5 (1929) Harris Registration was
more modern innovation, adopted most states
good government reform, especially for the growing
cities, the years after the Civil War. Nat
Comm Fed. Election Reform, Assure Pride
and Confidence the Electoral Process (Aug.
2001), available goo.gl/CjONlS.
Early registration laws shared common traits.
They often did not apply throughout the State, instead centering populated cities. Joseph Harris, Nat Mun. League, Model Registration System (2d ed. 1931) Nat Mun. League They often
did not create permanent lists, instead requiring voters reregister regularly. Nat Comm Fed.
Election Reform, supra, 28. And they often were
challenged improperly adding registration
qualification the exclusive list voting qualifications state constitutions. Courts split over that
constitutional question. Compare Morris Powell, N.E. 221 (Ind. 1890), with State Butts, 618
(Kan. 1884). But many States ultimately passed
amendments allowing registration, Harris, supra,
305, and this constitutional debate largely closed the 1930s, Nat Mun. League, supra,
About that time, [t]he next wave reform
voter registration concentrated replacing periodic
registration with permanent registration, reduce
costs and the opportunity for fraud. Nat Comm Fed. Election Reform, supra, 28. When switching permanent registration, States simultaneously
passed laws requiring the removal voters who had
not voted over certain time order help main-
tain accurate voter lists. Harris, supra, 224-27.
The National Municipal League also recommended
using nonvoting part its model system. Nat
Mun. League, supra, 38-39. the time Congress passed the NVRA, most
States required permitted officials remove voters they had not voted over certain time. Rep.
No. 103-6, (1993).1 few removed voters for Alaska Stat. 15.07.130 (1993); Ark. Const. amend.
11(a)(1) (1991); Colo. Rev. Stat. Ann. 1-2-224 (Westlaw
through 1993 First Regular Sess.); Del. Code Ann. tit. 15,
1704 (1990); Fla. Stat. Ann. 98.081 (Westlaw through 1992
Special Sess.); Ga. Code Ann. 21-2-231 (1993); Haw. Rev.
Stat. 11-17 (1993); Idaho Code Ann. 34-435 (1993); Ill.
Comp. Stat. Ann. 5/4-17, 5/5-24, 5/6-58 (Westlaw through 1993
Regular Sess.); Ind. Code Ann. 3-7-9-1, 3-7-9-2, 3-7-9-3, 3-7-95 (Westlaw through 1993 First Regular and First Special Sess.);
Iowa Code Ann. 48.31 (Westlaw through 1992 Regular Sess.
and First and Second Special Sess.); Md. Code Ann., Elec. 320 (1993); Mich. Comp. Laws Ann. 168.509, 168.513
(Westlaw through 1992 Regular Sess.); Minn. Stat. Ann.
201.171 (Westlaw through 1992 Regular Sess.); Miss. Code
Ann. 23-15-159 (Westlaw through 1993 Regular Sess.); Mont.
Code Ann. 13-2-401 (Westlaw through 1993 Regular Sess.);
Nev. Rev. Stat. Ann. 293.540 (Westlaw through 1993 Regular
Sess.); N.J. Stat. Ann. 19:31-5 (Westlaw through 1992 First
Annual Sess.); N.M. Stat. Ann. 1-4-28 (1993); N.Y. Elec. Law
5-406 (Westlaw through 1992 ch. 848); N.C. Gen. Stat. 16369 (1993); Ohio Rev. Code Ann. 3503.21 (Westlaw through
Jan. 1993); Okla. Stat. Ann. tit. 26, 4-120.2 (Westlaw
through 1992 Second Regular Sess.); Pa. Stat. Ann. 62340, 951-38 (Westlaw through 1993 Regular Sess.); R.I. Gen.
Laws 17-10-1 (1993); S.C. Code Ann. 7-3-20 (Westlaw
through 1993 Regular Sess.); S.D. Codified Laws 12-4-19
(1993); Tenn. Code Ann. 2-2-106 (1993); Utah Code Ann. 202-24 (1987); Vt. Stat. Ann. tit. 17, 2150 (Westlaw through
1993 Sess.); Va. Code Ann. 24.1-59 (1990); Wash. Rev. Code
Ann. 29.10.080 (Westlaw through 1992 Sess.); Va. Code
nonvoting alone. E.g., N.J. Stat. Ann. 19:31-5
(Westlaw through 1992 First Annual Sess.). Most
required officials notify voters and give them
chance remain registered. E.g., Fla. Stat. Ann.
98.081 (Westlaw through 1992 Special Sess.).
These failure-to-vote laws, too, were challenged
adding voting qualification the list constitutional qualifications. Courts divided that question well. Compare Duprey Anderson, 518 P.2d 807
(Colo. 1974); Simms Cnty. Ct. Kanawha Cty.,
S.E.2d 849 (W. Va. 1950), with Md. Green Party
Md. Bd. Elections, 832 A.2d 214 (Md. 2003); Mich.
State UAW Cmty. Action Program Council Austin,
198 N.W.2d 385 (Mich. 1972). Ohio history followed these trends. 1885
law required all voters certain cities register before every election, with registration open seven days. Ohio Laws 232, 232-34 (1885). Challengers attacked the law violating Article Section the
Ohio Constitution, which sets voting qualifications.
Daggett Hudson, N.E. 538, 539 (Ohio 1885). The
Ohio Supreme Court upheld the legislature power pass registration laws, recognizing registration
efficacious prevent fraud. Id. 540-41. But the
court concluded that the narrow registration window
violated Article Section Id. 545-46. After expanding registration options, Ohio Laws 209, 216
(1886), Ohio later required voters large cities
register annually, and voters small cities register every four years, Ohio Gen. Code 4871-72
(1926).
3-2-3 (1989); Wis. Stat. Ann. 6.50 (Westlaw through 1993
Wis. Act 15); Wyo. Stat. Ann. 22-3-115 (1991). 1929, Ohio adopted its first permanent registration system for cities. 113 Ohio Laws 307, 322
(1929). This law cancelled the registration voters
who did not vote during any two-year period. Id.
332. Boards elections would send voters printed
postcard notice that fact, instructing them that
they must reregister. Id. 1977, Ohio mandated
this permanent system statewide. 137 Ohio Laws
305, 314 (1977).
That year, Ohio legislature eliminated the rule
removing voters for nonvoting. Id. 305. response, Ohio citizens amended their constitution
require that [a]ny elector who fails vote least
one election during any period four consecutive
years shall cease elector unless again registers vote. Ohio Const. art. Before the
NVRA, therefore, boards would cancel the registration voters who had neither voted least once
the four prior years nor updated their registration
during that time. 144 Ohio Laws 5517, 5526 (1992).
Thirty days before, they sent notices voters about
the impending cancellation. Id. Congress Passed The NVRA And HAVA Increase Total Registration But Decrease Inaccuracies The Rolls recent decades, Congress has regulated elections under two constitutional provisions the first
applicable all elections, the second federal ones.
The first provision, the Fifteenth Amendment,
permits Congress enforce its command against racial voting discrimination. Shelby Cnty. Holder,
133 Ct. 2612, 2619 (2013). tragic fact history that, before 1965, some States enacted registra-
tion rules deny registration African Americans
rather than ensure fair elections. Harris, supra,
157. Congress passed the Voting Rights Act remedy this extraordinary problem. Shelby Cnty., 133 Ct. 2618. Section bars States from using any
practice any election that results denial
abridgement the right any citizen the United
States vote account race color. U.S.C.
10301(a).
The second provision, the Elections Clause, directs state Legislature[s] set the Times, Places
and Manner holding federal congressional elections, but allows Congress make alter such
Regulations. U.S. Const. art. cl. Historically, Congress left these regulations States. United
States Gradwell, 243 U.S. 476, 485 (1917). With
the NVRA and HAVA, however, erected complex
superstructure federal regulation atop state voterregistration systems. Arizona Inter Tribal Council Ariz., Inc., 133 Ct. 2247, 2251 (2013). NVRA. The NVRA served competing goals.
sought increase the number eligible citizens
who register vote federal elections. U.S.C.
20501(b)(1). But also sought protect the integrity the electoral process ensuring accurate registration lists. Id. 20501(b)(3)-(4). advance its first purpose, the NVRA required
States provide simplified systems for registering federal elections. Young Fordice, 520 U.S. 273,
275 (1997). compelled States allow registration
through motor-vehicle departments, the mail, and
various public offices. U.S.C. 20504-20506.
also required States leave registration open days before federal elections, id. 20507(a)(1),
and limited their ability remove names from the
registration lists for those elections, id. 20507(a)(3). advance its second purpose, the NVRA required States keep accurate voter lists. Four provisions are especially relevant. First, 20507(a)(4)
the Maintenance Duty directed States conduct general program that makes reasonable effort
remove the names ineligible voters from the official lists eligible voters reason voter
death change residence.
Second, 20507(b) imposed two limits maintenance efforts. Section 20507(b)(1) required program uniform, nondiscriminatory, and compliance with the Voting Rights Act.
Section
20507(b)(2) the Failure-To-Vote Clause limited
the removal individuals for nonvoting. originally indicated that program could not result the
removal the name any person from the official
list voters registered vote election for Federal office reason the person failure vote.
National Voter Registration Act 1993, Pub. 10331, 107 Stat. 77, 83.
Third, 20507(d) the Confirmation Procedure outlined process which States could cancel registration because voter may have moved. provided: State shall not remove the name
registrant from registration list the ground
that the registrant has changed residence unless the
registrant both (1) has failed respond notice
sent the State, and (2) has not thereafter voted
appeared vote two general federal elections.
U.S.C. 20507(d)(1). The notice must postage
prepaid and pre-addressed return card, sent forwardable mail, which the registrant may state his her current address. Id. 20507(d)(2). also
must include certain information. Id.
Fourth, the NVRA neither expressly required nor
expressly barred States from sending these notices
particular voters.
Yet 20507(c)(1) the SafeHarbor Provision identified group whom
States could send the notices meet their Maintenance Duty. This provision noted that State may
meet its Maintenance Duty using change-ofaddress information supplied the Postal Service identify voters who have moved.
Id.
20507(c)(1)(A). The State should send notices
these voters and remove them through the Confirmation Procedure. Id. 20507(c)(1)(B)(ii). HAVA. After the NVRA, some States sent notices, under the Confirmation Procedure, those
lacking voter activity. E.g., Colo. Rev. Stat. 1-2-605
(1997). the 1990s, the United States asserted that
this process violated the Failure-To-Vote Clause, but
conceded that [t]he issue whether not election
officials may target the forwardable confirmation notices solely for failure vote remains question the legal interpretation NVRA provisions. Office Election Admin., FEC, Implementing the National Voter Registration Act: Report State and
Local Election Officials Problems and Solutions
Discovered 1995-1996, 5-22 (Mar. 1998). HAVA
made two changes affecting that legal question.
Change One: HAVA required States keep
single, uniform, official, centralized, interactive
computerized statewide voter registration list.
U.S.C. 21083(a)(1)(A). mandated that voters
who have not responded notice and who have
not voted consecutive general elections for Fed-
eral office removed from this list.
Id.
21083(a)(4)(A) (emphasis added). But clarified
that registrant may removed solely reason failure vote. Id. (emphasis added).
Change Two: HAVA included section entitled
clarification ability election officials remove
registrations from official list voters grounds
change residence. Help America Vote Act 2002,
Pub. 107-252, 116 Stat. 1666, 1728 (capitalizations
omitted). This provision added disclaimer the
Failure-To-Vote Clause, U.S.C. 20507(b)(2):
except that nothing this paragraph may construed prohibit State from using the
procedures described subsections (c) and (d) remove individual from the official list
eligible voters the individual
(A) has not either notified 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.
116 Stat. 1728. Since 1994, Ohio Has Conducted Two
General List-Maintenance Processes 1994, Ohio legislature directed the Secretary State prescribe general program remove
ineligible voters. 145 Ohio Laws 2516, 2521 (1994)
(amending Ohio Rev. Code 3501.05(Q)). The Secretary adopted two processes that have been place
ever since, spanning Secretaries from both political
parties. Damschroder Decl., R.38-2, PageID#294;
Taft Directive 94-36, R.38-1, PageID#286.
The first process, contemplated the SafeHarbor Provision, uses the postal service change-ofaddress data. The postal service database contains
the names and addresses individuals who have
filed changes address with the United States Postal Service. Damschroder Decl., 38-2, PageID#294. The Secretary compares that database with
Ohio registration database identify individuals
who may have moved. sends matches boards
elections that they may mail confirmation notices these voters. Id. voter does not respond
this notice engage voter activity for four years
from the date the board mails it, the board cancels
the registration. Yet this process misses voters who
move without telling the postal service. Id.
Ohio thus uses Supplemental Process. Id.
seeks identify electors whose lack voter activity
indicates they may have moved, even though their
names did not appear the change-of-address database. Brunner Directive 2009-05, R.38-7, PageID#401. Boards send confirmation notices voters
who have not engaged voter activity for two years.
Damschroder Decl., R.38-2, PageID#295. voter
returns the notice through prepaid mail responds
through the internet, board updates the voter information. Id., PageID#295-96. voter ignores
the notice and then fails vote update registration over the next four years, the board cancels the
registration. Id. All told, this process removes individuals who both fail respond notice and fail engage voter activity for six years.
Until 2014, Ohio conducted these processes biennially. now conducts them annually after legislative change and lawsuit challenging Ohio
maintenance efforts. Ohio Rev. Code 3503.21(D);
Settlement Agreement Judicial Watch Husted,
No. 2:12-cv-792 (S.D. Ohio), R.38-4, PageID#370. District Court Dismissed Plaintiffs Suit
Against The Supplemental Process, But
The Sixth Circuit Reversed 2016, Ohio Philip Randolph Institute, the
Northeast Ohio Coalition for the Homeless, and Larry Harmon Plaintiffs sued the Secretary under
U.S.C. 1331. They asserted that: (1) Ohio Supplemental Process violated the NVRA, and (2) Ohio
confirmation notices lacked required information.
Am. Compl., R.37, PageID#236-38. effort
compromise, the Secretary updated the contents
the notices and the website allowing registrants
confirm addresses. Confirmation Notice, R.56-2,
The district court thereafter entered final judgment for the Secretary. Pet. App. 39-40a n.1.
Count held that the Failure-To-Vote Clause
unambiguous text (when read with HAVA
amendment) specifically permits the Supplemental
Process. Pet. App. 59a. The district court also rebuffed Plaintiffs other arguments why the process
violated the NVRA. Pet. App. 59a-64a. Count the court ruled that Plaintiffs claim
was largely mooted the Secretary changes the
notice. Pet. App. 66a-67a. Plaintiffs sole contention that was not moot that notice must contain information about how register other
States the court held that the NVRA did not include such mandate. Pet. App. 68a. divided Sixth Circuit reversed.
Supplemental Process. The majority held that
Ohio Supplemental Process violated the Failure-ToVote Clause. Pet. App. 10a-24a. divided its analysis into two questions: Did HAVA amendment
that clause expressly permit that process? not, did
the clause otherwise prohibit it? Pet. App. 14a. the first question, the court ruled that HAVA
did not insulate the Supplemental Process. Pet. App.
14a-20a. While HAVA authorized Ohio remove
voters who neither responded notice nor voted
two elections, the court reasoned, the Supplemental
Process tied the initial sending that notice failure vote. Pet. App. 15a. Nothing HAVA, the
court suggested, permitted Ohio use nonvoting
such trigger. Pet. App. 15a-20a. The court also
read HAVA strictly based the principle that exceptions statute general rules construed
narrowly. Pet. App. 16a. the second question, the court held that using
voter inactivity trigger send notices violated
the Failure-To-Vote Clause because result[ed]
removal reason failure vote. Pet. App. 21a24a. Under the ordinary meaning result, the
court stated, the Supplemental Process would violate [this] clause because removal voter proceed[s] arise[s] consequence his her failure vote. Pet. App. 21a (citation omitted). And
while HAVA clarified that States were barred only
from removing voters solely for nonvoting, the court
held that the Supplemental Process did so. Pet. App.
22a.
Notice. The majority next held that the Secretary
failed prove that the challenge Ohio old notice
was moot. Pet. App. 25a-28a. And held that
Ohio new notice violated provision requiring notices include information concerning how the registrant can continue eligible vote. U.S.C.
20507(d)(2)(B). The majority read this provision
requiring notice contain some information about
out-of-state registration. Pet. App. 29a-31a.
Dissent. Judge Siler determined that Ohio ha[d]
developed lawful procedure. Pet. App. 32a. But wrote condensed dissent, which did not reflect
the extent which [he] disagree[d] with the majority, give this Court time before the 2016 election
consider this case. Id. concluded that the Supplemental Process comported with the Failure-ToVote Clause because Ohio did not remove voters solely for nonvoting. Pet. App. 32a-35a. Despite Judge Siler invitation seek emergency relief, the Secretary believed that, this case,
setting the rules about the administration the
impending election [was] more important than further emergency litigation. Response Br., 6th Cir.
R.41, (Sept. 30, 2016). The Secretary thus opted
not seek banc review, id., and agreed preliminary injunction for 2016 requiring boards generally count the provisional ballots voters whose
registrations were cancelled under the Supplemental
Process 2011, 2013, 2015. Pet. App. 95a.
Before the 2016 election, Plaintiff suggested
that hundreds thousands voters had been re-
moved under the Supplemental Process 2015 and
that 1.2 million may have been removed since 2011.
Amicus Br. Ohio Philip Randolph Inst. Ne.
Ohio Coal. for the Homeless Husted, 137 Ct.
(2016) (No. 16A405). Yet about 7,515 ballots were
cast during this election under the district court
provisional remedy (out more than 150,000 provisional ballots cast statewide). Ohio Sec State,
Provisional Supplemental Report for Nov. 2016 Election, available https://goo.gl/KSZnCS.
REASONS FOR GRANTING THE PETITION THE QUESTION PRESENTED RAISES IMPORTANT ISSUE THAT REQUIRES THE COURT
IMMEDIATE ATTENTION
The Court should grant certiorari because the
question presented raises important electionintegrity issue that could affect many States. This
petition also gives the Court good vehicle answer
the question outside the context emergency litigation before election. The Question Presented Addresses
Important Election-Integrity Matter
The Sixth Circuit decision makes harder for
States conduct what all can agree critical activity removing ineligible voters from registration
lists eliminating one method for doing so. States have important interest[s] accurate
voter lists. Marston Lewis, 410 U.S. 679, 681
(1973). For over century, [t]he requirement that
all voters shall registered prior the day the
election has been seen one the most important
safeguards the purity the ballot box. Harris,
supra, Before Philadelphia required registra-
tion 1906, for example, was common saying
that all the signers the Declaration Independence still regularly voted that city. Id.
Today, the maintenance accurate and up-to-date
voter registration lists remains the hallmark
national system seeking prevent voter fraud. Rep. No. 103-6, 18; Comm Fed. Election
Reform, Building Confidence U.S. Elections
(Sept. 2005) Building Confidence available
https://goo.gl/KFsw1N. commission co-chaired Presidents Ford and
Carter explained the concerns with inaccurate rolls.
[I]naccurate voter lists invite schemes that use
empty names voter lists for ballot box stuffing,
ghost voting, solicit repeaters use such
available names. Nat Comm Fed. Election Reform, supra, 27. For generations these practices
have been among the oldest and most frequently
practiced forms vote fraud. Id. When rejecting
challenges laws permitting the removal voters
for nonvoting, courts have likewise found well established that the laws are legitimate means
which the State can attempt prevent voter fraud.
Ortiz City Phila. Office the City Comm Voter Registration Div., F.3d 306, 314 (3d Cir. 1994).
Without removing names, there exists the very real
danger that impostors will claim someone
the list and vote their places. Hoffman Maryland, 928 F.2d 646, 649 (4th Cir. 1991); Williams
Osser, 350 Supp. 646, 652-53 (E.D. Pa. 1972).
Relatedly, bloated rolls filled with ineligible voters undermine public faith the outcome elections. [P]ublic confidence the integrity the
electoral process has independent significance, be-
cause encourages citizen participation the democratic process. Crawford Marion Cnty. Election
Bd., 553 U.S. 181, 197 (2008) (Stevens, J., op.). Yet
inaccurate lists could breed perception fraud, and
[v]oters who fear their legitimate votes will outweighed fraudulent ones will feel disenfranchised. Purcell Gonzalez, 549 U.S. (2006).
Thus, State concerns with voter perception and
confidence justify list-maintenance efforts even
fraud rare. Despite the importance maintaining accurate lists, States have long struggled so. When
permanent lists became common the 1900s, the
National Municipal League recognized that maintenance efforts were the weakest part existing systems, recommended using nonvoting one
component for removing so-called dead wood. Nat
Mun. League, supra, 18, 37-38. the early
1990s, Congress likewise imposed the Maintenance
Duty cure the ongoing problem outdated registrations accumulat[ing] the rolls. Rep. 103-6, 46; cf. The Need for Further Federal Action the
Area Criminal Vote Fraud: Hearing Before the
Subcomm. the Constitution the Comm. the
Judiciary, 98th Cong. (1983) (Statement Daniel
Webb, U.S. Attorney for the Northern District Illinois) (estimating, after investigation Chicago
election, that voter fraud amounted about percent 100,000 [fraudulent] votes anything, however, the NVRA strict removal
limits exacerbated the difficulties maintaining the
rolls. 2002, HAVA authors found that voter
rolls across the country [were] inaccurate very
poor order. 148 Cong. Rec. 20,834 (2002). [T]he
condition many jurisdictions, particularly the
large jurisdictions, [was] state crisis. Voter
lists [were] swollen with the names people who
[were] longer eligible vote that jurisdiction,
[were] deceased [were] disqualified from voting for
another reason. Id. Even after HAVA, the number registered voters [continued be] greater than
the number voting-aged citizens many places.
Building Confidence, supra, 22.
This remains issue. 2012, one study estimated that about million registrations were
longer valid significantly inaccurate. The Pew
Center the States, Inaccurate, Costly, and Inefficient: Evidence That America Voter Registration
System Needs Upgrade (Feb. 2012), R.38-10,
million deceased voters were registered, and about
2.76 million people had registrations more than
one State. Id. Similarly, the United States has sued
over inaccurate lists. sued Missouri, for example,
because the registered voters numerous Missouri
counties exceeded the number eligible voters.
United States Missouri, 535 F.3d 844, 847 (8th Cir.
2008); see also Crawford, 553 U.S. 196 (Stevens,
J., op.) (describing suit against Indiana). The Question Presented Affects Many
States the district court found, Ohio not alone
using voter inactivity part its maintenance program. Pet. App. 58a n.5. Many state laws expressly
permit require officials send notices voters
who have not voted over certain time. Ga. Code
Ann. 21-2-234, 21-2-235; Ill. Comp. Stat. 5/417, 5/5-24, 5/6-58; Iowa Code 48A.28(2)(b); Mont.
Code Ann. 13-2-220(1)(c)(iii), 13-2-402(7); Okla.
Stat. Ann. tit. 26, 4-120.2(A)(6), (B); Pa. Cons.
Stat. Ann. 1901(b)(3), (d); Tenn. Code Ann. 2-2106(c); Va. Code Ann. 3-2-25(j); cf. Cal. Elec.
Code 2224-2226; Haw. Rev. Stat. Ann. 11-17. addition, the Sixth Circuit logic which prohibits voter failure vote from being but-for
cause the voter removal implicates States that
use voter inactivity related ways. Under some
state laws, officials are allowed required send
voters who have not voted nonforwardable mailing,
and follow with confirmation notice for those
voters whose nonforwardable mailing returned
undeliverable. Alaska Stat. Ann. 15.07.130(a)-(b);
Fla. Stat. Ann. 98.065(2)(c); Mo. Stat. 115.181(2),
115.193; R.I. Gen. Laws Ann. 17-9.1-27(b); S.D.
Codified Laws 12-4-19; cf. Kan. Stat. Ann. 252354(a) (permitting targeted mailings). voter removed through this process would not have received mailing but for the failure vote, the voter
removal could viewed proceed[ing] [arising] consequence nonvoting under the Sixth Circuit reasoning. Pet. App. 21a (citation omitted).
Finally, like Ohio Rev. Code 3501.05(Q), other
state laws delegate officials the task determining who should receive notices. Some direct officials determine the list-maintenance methods. E.g.,
N.C. Gen. Stat. Ann. 163-82.14(a); Nev. Rev. Stat.
Ann. 293.530(1). Others allow officials send notices those that they have reason believe have
moved. E.g., Ark. Const. amend. 51, 10(d)-(e),
11(a)(1); Ky. Stat. 116.112(3); La. Rev. Stat.
18:193(A); Tex. Elec. Code Ann. 15.051(a). Still
others merely direct officials follow the Confirma-
tion Procedure without listing any triggers for sending confirmation notices. E.g., Miss. Code Ann. 2315-153(1); S.C. Code Ann. 7-5-330(F)(1). some
these States, officials may have previously relied
nonvoting send notices. E.g., S.C. State Elections
Comm SEC Sends Notice Inactive Voters (May
2009), https://www.scvotes.org/node/181; Nev. Sec State, Election Frequently Asked Questions,
http://nvsos.gov/sos/elections/electionresources/faqs#453. this Court upholds Ohio process, these States could the future.
All told, the Sixth Circuit logic either directly affects has the potential affect many States. The Question Presented Requires The
Court Attention Now, And This Case Offers Good Vehicle Answer The Court should grant certiorari now because
conflicting litigation has left the States with little
margin for error. The NVRA permits private parties sue (and seek attorney fees) for alleged violations. U.S.C. 20510(b)-(c). Yet the NVRA dueling purposes have generated contradictory suits tugging the States both ends. This Court answer
the question presented would offer important guidance the steps that States may take avoid the
competing legal pitfalls (and their associated costs). one hand, States (or local governments) have
been sued parties claiming that they have violated
their Maintenance Duty insufficiently maintaining registration lists. Another Ohio suit illustrates
this point. 2012, parties challenged Ohio
maintenance efforts identifying, among other
things, three counties which the number regis-
tered voters exceeded the voting-age population.
Ohio settled that suit agreeing conduct its nowchallenged Supplemental Process annually. Settlement Agreement Judicial Watch Husted, No.
2:12-cv-792 (S.D. Ohio), R.38-4, PageID#370.
Ohio not alone this regard. noted, the
United States has sued governments that have insufficiently maintained registration lists. Most relevant
here, 2007, the United States entered into settlement with Philadelphia that required that city what the United States claimed below illegal:
send forwardable confirmation notice any registered elector who has not voted nor appeared vote
during any election, contacted the Board any
manner Settlement Agreement 10, United States City Philadelphia, No. 2:06-cv-4592
(E.D. Pa.) (available U.S. Br., 6th Cir. R.29, Attach. 11). Counties Texas and Mississippi, too,
have entered into consent decrees with private parties that required them send notices based voter inactivity. One such decree required county
send notices [t]o any voter who may currently
classified inactive virtue not voting two
consecutive federal election cycles. Consent Decree ACLU McDonald, No. 2:14-cv-12 (W.D.
Tex.) (available Ex. Amicus Br. Public Interest Legal Foundation, R.50-5, PageID#22596). the other hand, States have been sued
those arguing that these efforts themselves violate
the NVRA. This suit Exhibit claims that the
settlement that Ohio entered into meet its
Maintenance Duty itself violates the Failure-To-Vote
Clause. Other States have also been sued regarding
their use nonvoting. E.g., Common Cause
Kemp, No. 1:16-cv-452 (N.D. Ga.); Ass Cmty.
Orgs. for Reform Now Edgar, 880 Supp. 1215,
1223-24 (N.D. Ill. 1995); Office Election Admin.,
supra, 5-22 5-23. And similar suits may only
increase the Court allows the decision below
stand. E.g., Letter from Stuart Naifeh, Senior
Counsel, Demos, Hon. Tre Hargett, Tenn. Sec
State
(Oct.
20,
2016),
available
http://www.demos.org/publication/tn-notice-lettercompliance-nvra-section-8. short, suits brought against States (including
suit the United States) have required what the
Sixth Circuit (and the United States) said below was
prohibited. The Court should not leave the States
with this diametrically conflicting guidance. This case provides good vehicle resolve the
question. All too many elections cases arise
emergency posture that requires quick decisionmaking ill-suited for general guidance. Purcell, 549 U.S. 4-5. Here, however, Ohio purposely declined
seek emergency relief before the 2016 election.
result, the Court may decide this important question
outside the shadow election. That timing
ideal. election eve, contrast, orders affecting elections, especially conflicting orders, can
themselves result voter confusion and consequent
incentive remain away from the polls. Id. anything, timing more important for this
question than for others given the complicated
remedy. The district court order remand illustrates much. Finding itself difficult position, the court recognized the conundrum crafting remedy that registers many individuals possible without placing undue burden election
officials, fundamentally changing the State voting
processes, making room for abuse those same
processes. Pet. App. 75a. All are better off with
answer now, other States not find themselves the same predicament near election.
II. THE SIXTH CIRCUIT DECISION CONFLICTS WITH
THIS COURT CASES
The Court should grant certiorari because the decision below conflicts with this Court cases. The Sixth Circuit Textual Analysis Violated Two Interpretive Principles
The Sixth Circuit reasoned that the word result the Failure-To-Vote Clause means proceed
arise consequence, effect, conclusion. Pet.
App. 21a (citation omitted). Under that definition,
continued, the Supplemental Process would violate
[this] clause because removal voter proceed[s]
arise[s] consequence his her failure
vote. Id. (citation omitted). This reading conflicts
with the Court cases two ways: (1) interprets
the clause adopting boundless causation test,
and (2) renders HAVA amendments meaningless. The Court has held that reason similar statutory phrases delineating causal relationship create two requirements. They initially require
but-for factual causation ordinary, matter-offact inquiry into the existence causal relation laypeople would view it. Paroline United
States, 134 Ct. 1710, 1719 (2014) (citation omitted). Yet [l]ife too short pursue every event
its most remote, but-for, consequences. Pac. Operators Offshore, LLP Valladolid, 565 U.S. 207, 223
(2012) (Scalia, J., concurring judgment). these
statutes incorporate proximate causation well.
Paroline, 134 Ct. 1719-21; Hemi Grp., LLC
City New York, 559 U.S. (2010); Associated
Gen. Contractors Cal., Inc. Cal. State Council
Carpenters, 459 U.S. 519, 529-35 (1983). And proximate causation includes generically the judicial
tools used limit person responsibility for the
consequences that person own acts. Holmes
Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992).
Holmes offers good example. The Racketeer Influenced and Corrupt Organizations Act (RICO) allows parties sue for injuries arising reason
RICO violations. Id. 265. The year before the
NVRA was enacted, this Court read reason
incorporate proximate causation. Id. 266-67. The
Court added that direct relation must exist between the injury asserted and the conduct alleged. Id. 268. link that too remote, purely
contingent, indirec[t] does not suffice. Hemi,
559 U.S. (citation omitted).
The Sixth Circuit disregarded these principles.
asked only whether failure vote was factual
cause removal. Pet. App. 21a. The court nowhere
placed other limits the connection between failure vote and removal. Yet should have incorporated
proximate-causation principles. Congress used the
same words, and can only assume intended
them have the same meaning that courts had already given them. Holmes, 503 U.S. 268.
Under the Supplemental Process, moreover,
direct relation exists between nonvoting and removal because intermediate step voter
own failure respond notice. That makes any
link between failure vote and removal indirect, purely contingent the voter inaction.
Put another way, the Supplemental Process does not
remove voters reason their failure vote;
removes voters reason their failure respond notice.
The Confirmation Procedure compels this reading. requires States use failure vote. voter does not respond notice, the State may remove
the voter only the voter does not vote the next
two elections. U.S.C. 20507(d)(1)(B)(ii). Thus,
voter removal will definition always proceed[] arise[] consequence his her failure vote. Pet. App. 21a (citation omitted). the
Sixth Circuit correctly interpreted the Failure-ToVote Clause, that clause bars what the Confirmation
Procedure allows. When Congress acts amend statute, this
Court also presume[s] intends its amendment
have real and substantial effect. Husky Int Elecs.,
Inc. Ritz, 136 Ct. 1581, 1586 (2016) (citation
omitted). That is, the Court will not read amendments way that renders them largely meaningless exercise. Rumsfeld Forum for Academic
Inst Rights, Inc., 547 U.S. 47, 57-58 (2006).
The Sixth Circuit disregarded these principles
rendering HAVA amendments meaningless. the
1990s, the United States claimed that the FailureTo-Vote Clause barred States from sending notices
for nonvoting, but conceded that the issue remain[ed] question the legal interpretation
NVRA provisions. Office Election Admin., supra, 5-22. 2002, HAVA clarified the NVRA siding
with the States that then-existing legal debate. begin with, HAVA amended the Failure-ToVote Clause inserting rule construction:
nothing this paragraph may construed prohibit State from using the Confirmation Procedure remove individuals. U.S.C. 20507(b)(2). This
change clarif[ied] the ability election officials
remove from the voter registration list the name individual who has not responded notice from
the registrar voters and who has not voted two more consecutive general elections for Federal office. H.R. Rep. No. 107-730, pt. (2002). But
the Sixth Circuit interpreted this amendment
serve purpose whatsoever. addition, HAVA commanded States remove
registrants who have not responded notice and
who have not voted consecutive general elections. U.S.C. 21083(a)(4)(A) (emphasis added).
But HAVA added that States could not remove voters
solely reason failure vote. Id. (emphasis
added).
The Sixth Circuit holding cannot
squared with this solely text. When State removes voter both because the voter has failed respond notice and because the voter has failed
vote, that State has not removed the voter solely because the voter has failed vote. response that point, the Sixth Circuit suggested that the Supplemental Process illegal because makes nonvoting the sole trigger for sending notices. Pet. App. 22a. This rewrites the Failure-To-Vote Clause. bars removing voters for nonvoting; says nothing about sending notices voters
for nonvoting. The Sixth Circuit also asserted that
the Failure-To-Vote Clause must require States
more than follow the Confirmation Procedure be-
cause otherwise the clause would serve purpose.
Pet. App. 17a. That so, according the Sixth Circuit, because 20507(d)(1) also requires States follow the Confirmation Procedure remove voters.
Id. Yet 20507(d)(1) requires States follow the
Confirmation Procedure only they are removing
voters for moving. Without the Failure-To-Vote
Clause, States could use nonvoting alone conclude
that voters had become ineligible for other reasons
(e.g., because they have died). The Sixth Circuit Wrongly Favored
Oft-Criticized Canon Over The Canon
Constitutional Avoidance
The Sixth Circuit read the Failure-To-Vote
Clause bar Ohio Supplemental Process expanding rarely invoked canon the expense
commonly invoked one. Pet. App. 16a. This, too,
warrants review. Narrow Reading Exemptions. The Sixth
Circuit strictly interpreted HAVA amendment
the Failure-To-Vote Clause based the canon that
courts construe exceptions statute general
rules narrowly. Id. This canon does not apply here,
and dubious validity any event.
The canon does not apply for two reasons. For
one, HAVA did not add exception the FailureTo-Vote Clause; added explanation it. The
amendment clarifies that nothing this paragraph
may construed prohibit State from removing
voters through the Confirmation Procedure.
U.S.C. 20507(b)(2) (emphasis added). The Court
has never applied this canon such clarification;
the canon applies when statute sets general rule
(such ban disclosing personal information)
and then lists exceptions that rule (such circumstances when disclosure allowed). Maracich
Spears, 133 Ct. 2191, 2200 (2013).
For another, the Court has never applied this
canon statutes that expressly serve competing
purposes. Instead, the canon applies when statute general rule (like the Freedom Information
Act disclosure requirement) furthers central purpose, and exception cuts against that purpose.
Milner Dep Navy, 562 U.S. 562, 571-72 (2011).
The NVRA, however, serves dueling purposes
increase the rolls and remove ineligible voters.
U.S.C. 20501(b). put judicial thumb the
scale favor provision serving one purpose
the expense provision serving the other upends
the compromise that Congress reached.
Even the canon did apply, the Court should
consider this case reassess it. The canon all too
often stems from inappropriate judicial antagonism limitations favored legislation. Antonin Scalia
and Bryan Garner, Reading Law: The Interpretation Legal Texts 363 (2012). Without some textual indication, there reason give statutory exceptions anything other than fair (rather than
narrow interpretation. Id. Perhaps for that reason, the Court has declined apply [the] canon
two recent occasions. Encino Motorcars, LLC Navarro, 136 Ct. 2117, 2131 (2016) (Thomas, J., dissenting).
Indeed, this canon rose into prominence with, and
shares all the defects of, the Court now-entombed
practice implying private rights action. Compare Arnold Ben Kanowsky, Inc., 361 U.S. 388, 392
(1960), with J.I. Case Co. Borak, 377 U.S. 426, 433
(1964). Raising causes action where statute
has not created them may proper function for
common-law courts, but not for federal tribunals.
Alexander Sandoval, 532 U.S. 275, 287 (2001) (citation omitted). The same can said for reading
exceptions narrowly further what courts believe good policy. Courts should not liberally construe
remedies strictly construe exceptions matter
how desirable that might policy matter. Id.
And having sworn off the habit venturing beyond
Congress intent the former context, the Court
should reject the Sixth Circuit attempt have one
last drink the latter one. Id. Canon Constitutional Avoidance. The Sixth
Circuit also ignored venerable canon the canon
constitutional avoidance. [I]t well-established
principle governing the prudent exercise this
Court jurisdiction that normally the Court will not
decide constitutional question there some other
ground upon which dispose the case. Bond
United States, 134 Ct. 2077, 2087 (2014) (citation
omitted). The canon constitutional avoidance thus
instructs that, when deciding which two plausible
statutory constructions adopt, court must consider the necessary consequences its choice.
Clark Martinez, 543 U.S. 371, 380 (2005). one
reading give[s] rise serious constitutional questions, the Court chooses the other. NLRB Catholic Bishops Chicago, 440 U.S. 490, 501 (1979).
The Sixth Circuit failed heed this warning,
even though its reading raised serious constitutional
questions under the Elections Clause. That clause,
while authorizing Congress regulate the manner
holding federal elections, leaves the States with the
exclusive authority determine voting qualifications. Prescribing voting qualifications forms
part the power conferred upon the national
government the Elections Clause, which expressly restricted the regulation the times, the
places, and the manner elections. Inter Tribal,
133 Ct. 2258 (quoting The Federalist No. 60,
371 (A. Hamilton)). the same time, murky line often divides
constitutional manner regulation from unconstitutional qualification regulation. Take registration. State courts initially debated whether imposed unlawful qualification that was conflict
with what could seen state constitution exclusive list qualifications. Morris, N.E. 22324 [S]ome courts hold[] registration mere
regulation the mode exercising the right
suffrage, while other courts, and think the better
reasoned opinions, hold adding qualification. Inter Tribal, 133 Ct. 2259 n.9 (reserving
question). State courts likewise split over whether
failure-to-vote laws established additional qualifications. Compare Duprey, 518 P.2d 808-09, with
Md. Green Party, 832 A.2d 222-23.
Heightening the seriousness this constitutional
question, the Court guidance suggests that will
resolve ambiguities the Elections Clause favor the States. See Ariz. State Legislature Ariz. Indep. Redistricting Comm 135 Ct. 2652, 2673-74
(2015). characteristic our federal system that
States retain autonomy establish their own governmental processes. Id. 2673. Thus, the Court
interpreted the word Legislature the Elections
Clause expansively allowing election regulations passed not just State legislative body but
also its citizens acting through initiative. Id. 2673-74. Just the word Legislature can
broadly read protect state processes, id., too the
word Manner can narrowly read the same.
Indeed, the founders adopted the clause for narrow
purpose that States could not destroy the federal
government refusing hold elections. Inter Tribal, 133 Ct. 2267 (Thomas, J., dissenting).
The Sixth Circuit interpretation, however,
charges headlong into this thorny constitutional issue. registration and failure-to-vote provisions are
qualification regulations (rather than manner regulations), the NVRA exceeds Congress power under
the Elections Clause. Cf. id. 2263-69 (Thomas, J.,
dissenting). Thankfully, the canon allows the Court avoid [a] decision [on this] constitutional question[]. Clark, 543 U.S. 381. The Court need only
read the Failure-To-Vote Clause permitting Ohio
Supplemental Process. Cf. Arcia Fla. Sec
State, 772 F.3d 1335, 1346 (11th Cir. 2014). the
least, unlike the Sixth Circuit, the Court should not
ignore this canon. The Sixth Circuit Reading Conflicts
With The Presumption That Congress
Does Not Hide Elephants Mouseholes
The Sixth Circuit interpreted the Failure-To-Vote
Clause with blinders the background against
which Congress passed the NVRA. This oversight,
too, conflicts with this Court cases. [R]easonable statutory interpretation must
account for the broader context the statute whole. Util. Air Regulatory Grp. EPA, 134 Ct. 2427, 2442 (2014) (citation omitted). that
respect, this Court presumes that Congress does not
conceal far-reaching changes vague phrases. Gonzalez Oregon, 546 U.S. 243, 267-68 (2006). Congress, that is, does not hide elephants mouseholes. Whitman Am. Trucking Ass ns, 531 U.S.
457, 468 (2001).
The Sixth Circuit decision conflicts with this
presumption because interpreted the Failure-ToVote Clause enacting sweeping national reform. 1993, most States used voter inactivity some
way when deciding whether remove individuals
from the rolls. Supra, 3-4 n.1. that large
group, only handful removed voters solely for failing vote. Rep. No. 103-6, 46. the
other States, officials also sent voters notice that
provided them with way update prevent removal from the registration list. 138 Cong. Rec.
11,689 (1992) (Congressional Budget Office report
earlier bill). Under the Sixth Circuit view, Congress meant drastically depart from common
state practice, rather than narrowly bring few
States into line with their neighbors. Yet Congress
intended such broad change, would have expressly indicated that States could not send notices
based voter inactivity. Gonzalez, 546 U.S. 267.
The NVRA did not so. Instead, its Failure-ToVote Clause and Confirmation Procedure struck
compromise. The Failure-To-Vote Clause meant that
the handful States that removed voters solely for
inactivity could not continue this practice. Rep.
No. 103-6, 46; 138 Cong. Rec. 11,689. Most other States needed only adjust their existing notice
practices meet the Confirmation Procedure. Indeed, some States suggested this very compromise.
When criticizing States that automatically removed
nonvoters, Florida Secretary State praised Florida procedures: sending notice voters who had
not voted for two years, and removing them only
they failed respond vote for several more years.
Voter Registration: Hearing Before the Subcomm.
Elections the Comm. Admin., 103d Cong.
173 (Jan. 26, 1993) (Statement Jim Smith, Fla.
Sec State); Fla. Stat. Ann. 98.081 (Westlaw
through 1992 Special Sess.). This presumption has even more force here,
given the context which arises. every
schoolchild learns, our Constitution establishes
system dual sovereignty between the States and
the Federal Government. Gregory Ashcroft, 501
U.S. 452, 457 (1991). The Sixth Circuit logic undercuts two aspects that system.
Government Structure. Among [its] background
principles interpretation, the Court has recognized many that are grounded the relationship
between the Federal Government and the States under our Constitution. Bond, 134 Ct. 2088. The
Court, for example, has established rule against
the abrogation State sovereign immunity, requirement that conditions imposed States under
the federal spending power clear, and presumption against preemption. Id. 2088-89. Closely related these principles clear-statement rule
requiring the Court resolve ambiguities favor
the States when legislation affects the federal-state
balance. Id. 2089; see, e.g., Sheriff Gillie, 136 Ct. 1594, 1602 (2016). The Sixth Circuit reading the Failure-To-Vote Clause ignored this rule. sure, this Court has stated that presumption against pre-emption exists for federal laws
passed under the Elections Clause. Inter Tribal, 133 Ct. 2256. result, the Court will not protect
state interests choosing plausible reading
those laws the expense the fairest reading. Id.
(emphasis added). The Sixth Circuit decision, however, significantly expands these statements
leaving room for federalism whatsoever. Yet
when reading favor state authority just
plausible reading against it, the clear-statement
rule points the former interpretation. the clearstatement rule broad enough reach the Court
interpretation the Elections Clause itself, Ariz.
State Legislature, 135 Ct. 2673-74, broad
enough reach the Court interpretation federal
legislation passed under that clause.
Laboratories Democracy. This Court has long
recognized the role the States laboratories for
devising solutions difficult legal problems. Ariz.
State Legislature, 135 Ct. 2673 (citation omitted). Election regulations provide case point, because far from clear which the combinations programs for maintaining the rolls best balances
accuracy against cost. United States Lopez, 514
U.S. 549, 581 (1995) (Kennedy, J., concurring). Infinite tradeoffs exist. save money, States might rely solely the Safe-Harbor Provision and change-ofaddress data. Cf. N.J. Stat. Ann. 19:31-15(b). But
that could miss many ineligible voters. 2006,
study found that percent undeliverable
addressed mail was caused customers [who did]
not notify the Postal Service address changes.
U.S. Postal Serv., Office the Inspector Gen., Strategies for Reducing Undeliverable Addressed Mail
(2015), R.38-6, PageID#381. remedy that problem, States might send mass
mailings all voters, and follow with notices for
voters whose mailings are returned undeliverable.
E.g., Ala. Code 17-4-30(a). But that might entail
significant costs, costs that States might believe are
better spent elsewhere. 2016, for example, Ohio
spent roughly $1.25 million mail absentee-ballot
applications most registered voters. Damschroder
Decl., R.38-2, PageID#296. also paid join the
Electronic Registration Information Center ERIC non-profit corporation that requires members
send unregistered individuals information about registering. Electronic Registration Information Center,
Inc., ERIC: Summary Membership Guidelines and
Procedures, R.49-11, PageID#22546. Ohio sent those
notices over 1.5-million eligible, yet unregistered,
Ohioans before the 2016 registration deadline.
Further, the best maintenance programs for
particular State might turn the ease with which
individuals can register that State. that respect, registration has only gotten easier since the
NVRA. Ohio, for instance, recently approved online
registration. Ohio Rev. Code 3503.20. Laws making easier register enhance the need for maintaining accurate lists (as the NVRA itself did). short, the Sixth Circuit view that Congress
hid far-reaching, one-size-fits-all reform what is, the least, ambiguous clause ignored basic federalism principles.
CONCLUSION
The petition for writ certiorari should
granted.
Respectfully submitted,
MICHAEL DEWINE
Attorney General Ohio
ERIC MURPHY*
State Solicitor
*Counsel Record
MICHAEL HENDERSHOT
Chief Deputy Solicitor
STEVEN VOIGT
Principal Assistant
Attorney General East Broad St., 17th Floor
Columbus, Ohio 43215
614-466-8980
eric.murphy@
ohioattorneygeneral.gov
Counsel for Petitioner
Jon Husted, Ohio Secretary State
FEBRUARY 2017