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Husted v. Randolph Institute SCOTUS amicus

Husted v. Randolph Institute SCOTUS amicus

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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.
_________ Writ Certiorari the United States
Court Appeals for the Sixth Circuit
_________
BRIEF AMICUS CURIAE JUDICIAL
WATCH, INC. SUPPORT PETITIONERS
_________
Robert Popper
Counsel Record
Chris Fedeli
Lauren Burke
Eric Lee
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amicus Curiae
Dated: August 2017
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
TABLE CONTENTS
TABLE AUTHORITIES ......................................
INTERESTS THE AMICUS CURIAE .................1
SUMMARY ARGUMENT.....................................4
ARGUMENT ...............................................................6
The Sixth Circuit Interpretation the
NVRA Counter-Textual ................................6 The Plain Language the NVRA Allows
States Decide How Conduct List
Maintenance and When Send
Registrant Confirmation Notice ..............6 The Sixth Circuit Ruling Disregards
the Plain Meaning Section the
NVRA ...........................................................9 Legislative History, the Federal
Government Record Enforcement,
and States Interpretations the
NVRA All Confirm That Ohio Process Valid. .....................................................14
II. Important that the Sixth Circuit
Decision Reversed .....................................18
CONCLUSION ..........................................................21
TABLE AUTHORITIES
Cases
Common Cause and the Georgia State
Conference the NAACP Kemp,
1:16-cv-452-TCB (N.D. Ga. 2016),
appeal docketed, No. 17-11315
(11th Cir. Mar. 23, 2017) .............................. 17-18
Crawford Marion Cnty. El. Bd.,
553 U.S. 181 (2008).......................................19,
Doe Reed, 561 U.S. 186 (2010) ..............................20
Ebert Poston,
266 U.S. 548 (1925)...............................................8
Ill. Pub. Telcoms. Ass FCC,
752 F.3d 1018 (D.C. Cir. 2014) .............................8
Iselin United States,
270 U.S. 245 (1926)...............................................8
Judicial Watch King,
993 Supp. 919 (S.D. Ind. 2013) ...................3
Judicial Watch, Inc. and True the Vote Husted,
Civil Action No. 2:12-cv-792 (S.D. Oh.) ................1 Mart Corp. Cartier,
486 U.S. 281 (1988)...............................................9
iii
Pac. Operators Offshore, LLP Valladolid,
565 U.S. 207 (2012).............................................13
Purcell Gonzalez, 549 U.S. (2006)......................20
Rubin United States, 449 U.S. 424 (1981) ...........14
Sebelius Cloer,
133 Ct. 1886 (2013).........................................12
United States Atlantic Research Corp.,
551 U.S. 128 (2007).......................................11,
United States Missouri,
2007 U.S. Dist. LEXIS 27640,
2007 1115204 (W.D. Mo. 2007) .....................6
United States Ron Pair Enterprises, Inc.,
489 U.S. 235 (1989)...............................................8
Federal Statutes U.S.C. 20501(b)(3) ...............................................6 U.S.C. 20501(b)(4) ...............................................6 U.S.C. 20507 ................................................1, U.S.C. 20507(a)(4) ...........................................6, U.S.C. 20507(b)(1) ...............................................7 U.S.C. 20507(b)(2) ............................... 10, U.S.C. 20507(c)(1)(A) ...........................................7 U.S.C. 20507(d)(1) ...............................................7 U.S.C. 20507(d)(1)(B)(ii)................................8, U.S.C. 20507(d)(2) ...............................................7
State Statutes
ALA. CODE 17-4-9 ....................................................16
ALASKA STAT. ANN. 15.07.130(a)(3) ........................16
FLA. STAT. ANN. 98.065(2)(c) ..................................16
GA. CODE ANN. 21-2-234(a)(2) ................................16
HAW. REV. STAT. 11-17(a) .......................................16 ILL. COMP. STAT. ANN. 5/4-17 ...............................16
IOWA CODE 48A.28(2)(b) .........................................16
MASS. GEN. LAWS ANN. ch. 51, 37A ........................17
MICH. COMP. LAWS ANN. 168.509r(6) .....................17
MO. REV. STAT. 115.181(2) .....................................17
MONT. CODE ANN. 13-2-220(1)(c) ...........................17
OKLA. STAT. ANN. TIT. 26, 4-120.2(A)(6).................17 PA. CONS. STAT. ANN. 1901(b)(3) .......................17
R.I. GEN. LAWS 17-9.1-27(b) ...................................17
TENN. CODE ANN. 2-2-106(c)...................................17
UTAH CODE ANN. 20A-2-304.5(3)(a) .......................17
VT. STAT. ANN. tit. 17, 2150(d)(2)-(3) .....................17 VA. CODE ANN. 3-2-25(j) ....................................17
Other Authorities
ANTONIN SCALIA BRYAN GARNER,
READING LAW: THE INTERPRETATION LEGAL TEXTS (2012) .........................................8
H.R. REP. NO. 103-9 (1993) .......................................15
Pippa Norris, Holly Ann Garnett and Max mping,
Why Don More Americans Vote? Maybe
Because They Don Trust U.S. Elections,
Wash. Post, December 26, 2016,
goo.gl/zAXsiW .....................................................20 REP. NO. 103-6 (1993) ........................................6,
Settlement Agreement, United States
Philadelphia, No. 2:06-cv-4592
(E.D. Pa. Apr. 26, 2007),
https://goo.gl/LzjqtC ..................................... 15-16
Settlement Agreement, January 10, 2014,
Amicus Curiae Brief Judicial Watch, Inc. Support Defendant-Appellant and
Affirmance, Ex. 39, Ohio Phillip
Randolph Institute Husted, No. 16-3746
(6th Cir. July 27, 2016), Dkt. No. 37,
https://goo.gl/cVuxmi, .................................2,
INTERESTS THE AMICUS CURIAE1
Judicial Watch, Inc. Judicial Watch nonpartisan, public interest organization headquartered Washington, D.C. Founded 1994, Judicial
Watch seeks promote accountability, transparency
and integrity government, and fidelity the rule law. furtherance these goals, Judicial Watch
regularly files amicus curiae briefs and prosecutes
lawsuits matters believes are public
importance. Judicial Watch has appeared amicus
curiae multiple federal courts numerous
occasions.
Judicial Watch has major and particular interest the issues stake this litigation, deriving from
its own prior NVRA litigation against Ohio. Judicial
Watch filed federal lawsuit under Section the
National Voter Registration Act NVRA U.S.C.
20507, 2012 against Ohio Secretary State Jon
Husted.2 that complaint, Judicial Watch alleged
that Ohio had been failing make reasonable effort maintain the accuracy and currency its voter
rolls violation the NVRA. Id. 25. Judicial
Watch argued that its members were injured due
Ohio alleged failure maintain accurate voter rolls.
Judicial Watch states that counsel for party this case
authored this brief whole part; and person entity,
other than amicus and its counsel, made monetary
contribution intended fund the preparation and submission
this brief. The parties have consented the filing amicus
briefs this case.
Judicial Watch, Inc. and True the Vote Husted, Civil
Action No. 2:12-cv-792 (S.D. Oh.).
Specifically, Judicial Watch alleged that Ohio
violations undermined Judicial Watch members
confidence the legitimacy Ohio elections, causing
them doubt whether their votes would cancelled
out votes cast the name outdated
registrations, thereby discouraging them from voting.
Id. 32-33.
Judicial Watch litigated its case against Ohio for
over sixteen months. Judicial Watch attorneys spent
over 400 hours trying the case, incurring significant
unrecovered legal fees addition out-of-pocket
litigation expenses, including expert fees, local
counsel fees, court costs, deposition costs, and travel
costs. January 2014 the parties settled the
lawsuit, agreeing terms for Ohio perform certain
NVRA Section list maintenance practices through
November 2018.3 key provision this Settlement
Agreement was Ohio promise perform annual
list maintenance Supplemental Mailing voters
who had contact with Ohio election offices for two
years.4 The Settlement Agreement required Ohio
send the Supplemental Mailing every year, whereas
Ohio had previously been sending the mailing every
two years. The Supplemental Mailing portion the
Settlement Agreement was important the
parties that they subsequently negotiated
Settlement Agreement, January 10, 2014, available
https://goo.gl/cVuxmi; see Amicus Curiae Brief Judicial Watch,
Inc. Support Defendant-Appellant and Affirmance, Ex.
39, Ohio Phillip Randolph Institute Husted, No. 16-3746
(6th Cir. July 27, 2016), Dkt. No. (Settlement Agreement;
First Amendment Settlement Agreement).
Id. 41.
amendment solely give Ohio greater flexibility over
which month the year initiate the Supplemental
Mailing. Id. 44.
Judicial Watch never would have agreed the
Settlement Agreement with Ohio and dismissed its
lawsuit believed that the Supplemental Mailing
was legally impermissible. the Sixth Circuit
ruling this case allowed stand, this key
provision Judicial Watch Settlement Agreement
could voided. This would undermine Judicial
Watch extensive efforts protect the integrity
elections for its Ohio members. Judicial Watch
therefore has significant interest the subject
matter this litigation, along with genuine
organizational interest protecting its members
voting rights and ensuring that its past efforts have
not been wasted.
Judicial Watch also has institutional interest the cause election integrity. This interest
shared with the people all states whose electoral
laws have been put question the Sixth Circuit
flawed decision. this case particular, Ohio
voter rolls are not maintained current and
accurate condition consistent with the NVRA, Ohio
citizens could have their votes diluted cancelled out unlawful ballots cast the names outdated
duplicate registrations. Public confidence the
integrity the electoral process important
interest, shared this case the State and people Ohio well Judicial Watch. See Judicial
Watch King, 993 Supp. 919, 924 (S.D. Ind.
2012) the state has legitimate interest
preventing that harm from occurring, surely voter
who alleges that such harm has befallen him her
has standing redress the cause that harm.
SUMMARY ARGUMENT
The structure Section the National Voter
Registration Act 1993 (NVRA) makes clear that
states are assigned the primary responsibility for
ensuring that their voter rolls contain only eligible
voters. U.S.C. 20507. The statute gives states
considerable discretion determine what measures
will constitute the reasonable efforts necessary
comply with Section particular, the NVRA says
nothing about what sorts events would warrant the
sending statutorily prescribed notice voter
who believed have moved elsewhere. 2002
amendment Section moreover, clarified that the
statute restriction removing voter for failing
vote did not apply removals under the subsection
dealing with that statutory notice. enjoining Ohio Supplemental Process, the
Sixth Circuit 2-1 ruling misapplied principles
statutory construction way that inverted the
plain meaning Section The Sixth Circuit
contended that reading the 2002 amendment
create exception for state procedures like Ohio
Supplemental Process would render the language
that amendment superfluous. fact, the 2002
amendment merely clarifies what had been
apparent conflict the NVRA, whereby Sections 8(b)
and 8(d) seemed say different things about whether voter could removed for failing vote. The Sixth
Circuit argument also ignored the meaning supplied the structure the entire statute, which indicates
that states are free send confirmation notices
any nondiscriminatory and uniform basis. exists, Ohio Supplemental Process allows
the sending statutory confirmation notice any
registrant who has not had any voting-related activity
for two years. After that, the registrant may
removed from the rolls there response
further activity for two general federal elections. The
Sixth Circuit further erred holding that this
sequence events amounts removing voter for
failing vote. the contrary, the failure vote only
leads the sending notice. Subsequent removal due the failure respond that notice for
period time that may extend four years. The
Sixth Circuit attempt argue otherwise relies
misuse the plain language the NVRA.
Congress, the Justice Department, and nineteen
states all have concluded that using the failure vote basis for sending confirmation notices taking
other actions remove voters fully consistent with
the NVRA. The Sixth Circuit decision affects the
interests the voters and government the State
Ohio; Judicial Watch, which has NVRA-related
Settlement Agreement with the State; other states
whose electoral laws are now peril; and the people the United States, who grow ever more jaded about
the integrity their electoral system. The Sixth
Circuit error should rectified the Court.
ARGUMENT
The Sixth Circuit Interpretation the
NVRA Counter-Textual. The Plain Language the NVRA Allows
States Decide How Conduct List
Maintenance and When Send
Registrant Confirmation Notice.
Section the integrity provision the NVRA,
requires states maintain accurate voter rolls.
U.S.C. 20507; see U.S.C. 20501(b)(3) and (4)
(NVRA stated purposes include protect[ing] the
integrity the electoral process and ensur[ing] that
accurate and current voter rolls are maintained.
REP. NO. 103-6, 17-18 (1993) (extolling accurate
and up-to-date voter registration lists
The core requirement Section the mandate
that each State shall conduct general program
that makes reasonable effort remove the names ineligible voters from the official lists eligible
voters. Id., 20507(a)(4). This provision does not list
any particular steps that general program must
incorporate, specify exactly how state should
about complying. Rather, its plain language,
only requires that states make reasonable effort.
The precise meaning this clause subject
interpretation state legislatures and, ultimately, federal courts. See United States Missouri, 2007
U.S. Dist. LEXIS 27640 *19, 2007 1115204
(W.D. Mo. 2007), aff part, rev part other
grds., 535 F.3d 844 (8th Cir. 2008) The NVRA does
not define reasonable effort and the Court has found authority that describes the parameter the
terms.
The rest Section makes sense the context the fact that the statute does not describe what
state must comply. Accordingly, Section 8(b)
provides that, whatever else such effort might
entail, must meet certain baseline requirements.
First, state effort must uniform,
nondiscriminatory, and compliance with the Voting
Rights Act. U.S.C. 20507(b)(1). And second,
must not remove person from the voter rolls
reason the person failure vote.
Id.,
20507(b)(2). 2002, that provision was modified
add that nothing this paragraph may construed prohibit State from using the procedures
described subsections [8](c) and [8](d) remove
ineligible voters from the rolls.
Section 8(c), again implicitly recognizing the
indeterminate nature NVRA compliance, provides
that states may meet their list maintenance
obligations using change-of-address information
supplied the Postal Service. U.S.C.
20507(c)(1)(A). Finally, Section 8(d) provides that,
unless they confirm writing that they have moved,
registrants may not removed from the rolls for
changing addresses unless they fail respond
statutory notice (the confirmation notice and fail
vote during the time period defined the next two
general federal elections. Id., 20507(d)(1), (d)(2).
Subject the foregoing restraints, the NVRA
allows states wide latitude designing general
program that makes reasonable effort remove
ineligible registrants from the rolls. U.S.C.
20507(a)(4). particular relevance here the fact
that the NVRA says nothing about the kinds events
that states may rely grounds for sending
confirmation notices those who are believed have
moved. All that the NVRA requires that
confirmation notice must sent prior the
commencement the statutory waiting period two
general federal elections. Id., 20507(d)(1)(B)(ii).
There simply basis for reading any other
requirements into the statute. See Ill. Pub. Telcoms.
Ass FCC, 752 F.3d 1018, 1023 (D.C. Cir. 2014) will not read into the statute mandatory
provision that Congress declined supply citing
ANTONIN SCALIA BRYAN GARNER, READING LAW:
THE INTERPRETATION LEGAL TEXTS (2012)
(omitted-case canon); Ebert Poston, 266 U.S. 548,
554 (1925) casus omissus does not justify judicial
legislation. (citation omitted); Iselin United
States, 270 U.S. 245, 251 (1926) supply omissions
transcends the judicial function. (citations omitted);
United States Ron Pair Enterprises, Inc., 489 U.S.
235, 241 (1989) where, here, the statute
language plain, the sole function the courts
enforce according its terms. (citations omitted).
Accordingly, the NVRA would not prevent Ohio
from sending confirmation notices every year every
registrant the State, although this undoubtedly
would quite expensive. equally clear that the
NVRA would not prohibit Ohio from sending
confirmation
notices
uniform
and
nondiscriminatory basis any meaningful subset
the foregoing, for example, residents who have
ceased filing state tax returns, which may suggest
that they have moved. the same vein, nothing
the NVRA prohibits Ohio from sending confirmation
notice all registered voters who have not engaged any voter activity the preceding two years, per
the State Supplemental Process. The State
leeway fully consistent with the design
the NVRA, which generally accords states great
deal freedom crafting their list maintenance
programs. See Mart Corp. Cartier, 486 U.S. 281,
291 (1988) the plain meaning [a] statute depends the particular statutory language issue, well the language and design the statute whole.
(citations omitted).
Finally, the conclusion that Ohio may use any
reasonable basis trigger the sending
confirmation notices only made more compelling
the 2002 amendment the NVRA. That amendment
made clear that the bar contained Section 8(b)
any removal from the rolls reason [a] person
failure vote did not apply removal for failing respond confirmation notice. Id., 20507(b)(2). The Sixth Circuit Ruling Disregards
the Plain Meaning Section the
NVRA. holding that the NVRA proscribes Ohio
Supplemental process, the Sixth Circuit misapplied
canons statutory construction and ultimately
mandated outcome that disregards, and even
contrary to, the plain meaning Section
The Sixth Circuit was first compelled explain
the 2002 amendment the NVRA. This amendment
qualified Section proviso that one could
removed from the voter rolls reason [their]
failure vote, adding that nothing this
paragraph may construed prohibit State from
using the procedures described in, inter alia, Section
8(d), remove voter from the rolls. U.S.C.
20507(b)(2). other words, Section 8(b)(2) was
amended precisely order make clear that state
procedures like Ohio Supplemental Process that
involved sending Section 8(d) confirmation notices
were not proscribed that paragraph other
restriction removals for failure vote. This
amendment seems bar the very arguments made Respondents below and accepted the Sixth
Circuit. response this point, the Sixth Circuit
contended that reading Section 8(b)(2) exception mere reiteration Section 8(d)(1) would make the
exception superfluous, contrary accepted canons
statutory construction. App. 18a. Accordingly, the
Sixth Circuit concluded that the amendment must
have been intended apply the prohibition
contained all statutes.
App. 20a. this
reasoning, the 2002 amendment was seen specially
refer rather than specially except statutes
like Ohio Supplemental Process. the course its reasoning, the Sixth Circuit
misapplied the statutory canon regarding superfluous
language. Prior its amendment, the NVRA merely
provided that person may removed from the
rolls reason the person failure vote.
U.S.C. 20507(b)(2). However, two subsections down
from that clause, the NVRA provided that person
who has changed residence and who has failed
respond confirmation notice may removed she has not voted appeared vote
election during the period beginning the date the
notice and ending after the date the second general
Federal election. Id., 20507(d)(1)(B)(ii).
These provisions appear openly conflict.
Perhaps reviewing court would have found the
proper way reconcile these provisions using
appropriate canons statutory construction. any
event, the 2002 amendment removed all doubt,
resolving the conflict clarifying that Section 8(b)
did not bar the use Section 8(d) remove ineligible
registrants. Statutory language that clarifies
provision not superfluous. United States Atlantic
Research Corp., 551 U.S. 128, 137 (2007) The phrase
any other person performs significant function
simply clarifying that subparagraph (B) excludes
the persons enumerated subparagraph (A). The
Court Atlantic Research Corp. also issued
pertinent warning, when observed that our
hesitancy construe statutes render language
superfluous does not require avoid surplusage
all costs. appropriate tolerate degree
surplusage rather than adopt textually dubious
construction that threatens render the entire
provision nullity. Id. The Sixth Circuit has
adopted just such dubious construction, insisting
that language plainly intended exempt the use
confirmation notices was actually meant include
and refer them.
The Sixth Circuit next innovation even more
misguided. After determining that Section 8(b)(2) did
not contain exception for procedures like the
Supplemental Process, the Court asked whether that
process result[s] the removal voters for failing vote. App. 21a (internal citation and quotation
omitted). finding that does, the Sixth Circuit
defined result strict, but-for causation, however
attenuated. Id.
That interpretation not consistent, however,
with the ordinary meaning the words the
statute. Sebelius Cloer, 133 Ct. 1886, 1893 (2013)
(citations and internal quotations omitted).
ordinary language, when said that one event
the result another, the initiating event usually
the one closest time the caused event. put
more concretely, ordinarily would said that the
Supplemental Process resulted confirmation
notice being sent. turn, the failure respond
that confirmation notice, along with the passage
time until the second general federal election,
resulted registrant being removed from the
rolls. one ordinary speech uses the terms
result cause consequence refer back
indiscriminately and equally all prior causes,
however remote, causal chain. Ordinary speech
limits the reference sense nearness.
Lawyers have word for this.
The term
proximate cause shorthand for concept: Injuries
have countless causes, and not all should give rise
legal liability. Pac. Operators Offshore, LLP
Valladolid, 565 U.S. 207, 223 (2012) (Scalia, J.,
concurring judgment) (citation omitted). Life
too short pursue every event its most remote,
but-for, consequences, and the doctrine proximate
cause provides rough guide for courts cutting off
otherwise endless chains cause-and-effect. Id.
(citation omitted). Applying this principle here, the
proximate cause the removal voters under the
Supplemental Process their failure respond
confirmation notice, along with the passage
statutory period time. Registrants are not removed
for failing vote. reach the conclusions that did, the Sixth
Circuit majority engaged needlessly convoluted
analysis the language Section Circuit Judge
Siler, who dissented from the majority approach
the NVRA, had right when observed that [t]his
seems much simpler process than outlined the majority opinion. App. 33a.
The State cannot remove the registrant
name from the rolls for failure vote only,
and Ohio does not so. removes
registrants only (1) they have not voted
updated their registration for the last two
years, (2) also failed respond the addressconfirmation notice, and (3) then failed
engage any voter activity four
consecutive years, including two consecutive
Federal elections following that notice.
App. 34a. Legislative
History,
the
Federal
Government Record Enforcement,
and States Interpretations the NVRA
All Confirm That Ohio Process Valid.
Because the plain language the NVRA resolves
the issue this case, not necessary review the
legislative history. Rubin United States, 449 U.S.
424, 430 (1981) When find the terms statute
unambiguous, judicial inquiry complete, except
rare and exceptional circumstances. (citation and
internal quotations omitted). However, even the
statute were determined ambiguous, the
legislative history the NVRA shows that failing
vote permissible basis for sending confirmation
notice. surveying the then-current state voter
registration practices, the Senate and House reports
accompanying the Act observed:
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]. REP. NO. 103-6, 46; H.R. REP. NO. 103-9,
(emphasis added). The meaning this passage
evident. was only the handful states that drop
non-voters from the list without notice that would
have change their practices comply with the new
law. The states referred the immediately
preceding sentence, who target only those who did
not vote the most recent election, were not
identified among the states who would have
change their procedures. This means that the
authors these reports did not believe that using the
failure vote reason contact voters was
proscribed the NVRA.
The way the Department Justice has enforced
the NVRA shows that shares this understanding. 2007, the Department settled lawsuit had filed
against the City Philadelphia under the NVRA and
other statutes. the agreement resolving that case,
the Department required Philadelphia send
forwardable confirmation notice any registered
elector who has not voted nor appeared vote during
any election, contacted the Board any manner and that place voters who not respond the
confirmation notice inactive status. Settlement
Agreement 10, 16(5) (6), United States
Philadelphia, No. 2:06-cv-4592 (E.D. Pa. Apr. 26,
2007).5 those voters failed vote the subsequent
two federal general elections, Philadelphia was
remove them from the registration list. Id. other
words, the Department commanded Philadelphia what Appellants now say Ohio forbidden do. fact, the Department trigger for confirmation
notice Philadelphia was failure vote any
election, which stricter standard than Ohio twoyear period.
States interpreting the NVRA have viewed the
statute the same way those who wrote and those
who enforce it. addition Ohio, eighteen other
states use the failure vote either basis for
sending notices targeted mailings grounds for
placing voters inactive status.6
This agreement available the Department website
https://goo.gl/LzjqtC.
ALA. CODE 17-4-9 Any voter who fails vote for four
years his her county shall have his her name placed inactive voter list ALASKA STAT. ANN. 15.07.130(a)(3)
(confirmation notice sent each voter who has not voted
appeared vote the two general elections immediately
preceding FLA. STAT. ANN. 98.065(2)(c) (confirmation
requests may mailed all registered voters who have not
voted the last years GA. CODE ANN. 21-2-234(a)(2)
(confirmation notice sent every other year registered voters
whose names appear the list electors with whom there has
been contact during the preceding three calendar years.
HAW. REV. STAT. 11-17(a) (sixty days after every general
election, clerks shall remove the name any registered voter
who did not vote the last two general and primary elections); ILL. COMP. STAT. ANN. 5/4-17 (clerk shall send every voter
who has not voted during the preceding four years notice [of
suspension] through the mails IOWA CODE 48A.28(2)(b)
(notice sent each registered voter whose name was not
reported the national change address program and who has
not voted two more consecutive general elections and has
not registered again MASS. GEN. LAWS ANN. ch. 51, 37A
(voter not entered the annual register for consecutive
years and who during that time fails vote any election shall maintained inactive voters list MICH. COMP. LAWS
ANN. 168.509r(6) voter does not vote for consecutive
years, the secretary state shall place the registration record
that voter the inactive voter file MO. REV. STAT. 115.181(2)
(election officials may choose canvass only those voters who
did not vote the last general election MONT. CODE ANN.
13-2-220(1)(c) (election administrator shall mail targeted
mailing electors who failed vote the preceding federal
general election OKLA. STAT. ANN. TIT. 26, 4-120.2(A)(6)
(address confirmation card sent any active registered voter
who did not vote the second previous general election any
election conducted county election board since the second
previous general election and who has initiated voter
registration change PA. CONS. STAT. ANN. 1901(b)(3)
(notice sent any registered elector who has not voted nor
appeared vote during the period beginning five years before
the date the notice and ending the date the notice R.I.
GEN. LAWS 17-9.1-27(b) (notice sent annually every active
registered voter who has not voted the past five (5) calendar
years TENN. CODE ANN. 2-2-106(c) (county shall mail
confirmation notice indications exist that the voter may
longer reside the address which the voter registered, such the voters failure vote UTAH CODE ANN. 20A-2304.5(3)(a) (clerk sends preaddressed return form voter who
does not vote any election during the period beginning the
date any regular general election and ending the day after
the date the next regular general election VT. STAT. ANN. tit.
17, 2150(d)(2)-(3) (board civil authority may consider and
rely upon any checklist checklists showing persons who
voted any election within the last four years basis for
sending notice); VA. CODE ANN. 3-2-25(j) (confirmation
notice mailed those who have not voted any election during
the preceding four calendar years The Georgia statute
currently the subject litigation grounds similar those
presented here.
Common Cause and the Georgia State sum, the congressional authors the NVRA,
federal officials charged with enforcing it, and state
legislatures charged with drawing implementing
legislation, all have concluded that the failure vote
can used basis for sending notices voters
asking that they confirm their addresses. court
authority, other than divided panel the Sixth
Circuit, has ever found otherwise.
II. Important that the Sixth Circuit
Decision Reversed.
Reversing the Sixth Circuit decision will restore
the meaning and efficacy the NVRA. The correct
interpretation Section that statute has
significant consequences for the State and people
Ohio, for the states whose current contemplated
statutes are placed risk the Sixth Circuit
decision, for Judicial Watch, and for the people the
United States, who share common interest
electoral integrity.
Ohio, along with every other state, has
legitimate interest fostering election integrity
removing ineligible voters from the rolls. the
Court has observed:
There question about the legitimacy
importance the State interest counting
only the votes eligible voters. Moreover, the
interest orderly administration and
accurate recordkeeping provides sufficient
Conference the NAACP Kemp, 1:16-cv-452-TCB (N.D. Ga.
2016), appeal docketed, No. 17-11315 (11th Cir. Mar. 23, 2017).
justification for carefully identifying all voters
participating the election process. While
the most effective method preventing
election fraud may well debatable, the
propriety doing perfectly clear.
Crawford Marion County Election Board, 553 U.S.
181, 196 (2008). The Sixth Circuit flawed decision
impairs states ability address their legitimate
interest ensuring election integrity. also impairs Judicial Watch institutional
mission further the cause election integrity. This
mission was view when Judicial Watch sued the
State Ohio 2012 under Section the NVRA for alleged failure conduct proper list maintenance. January 2014, the parties executed Settlement
Agreement resolving the matter, which expires
November 10, 2018. Settlement Agreement, supra
note The centerpiece that Settlement Agreement provision requiring the sending confirmation
notices annual basis voters who have not
engaged voting-related activity for two-year
period. Id. 41, 44. The legal status this provision
obviously becomes doubtful given the Sixth Circuit
ruling. The fact that this crucial term may invalid
renders the status the entire Settlement
Agreement questionable, not clear that
Judicial Watch has received its bargained-for
consideration. The value the agreement Judicial
Watch considerably diminished, and this
development raises the real prospect further
litigation. reversal the Sixth Circuit decision also
the interest the people the United States.
easy find polls and surveys showing that
Americans have little faith the integrity their
elections and postulating that this partly explains low
voter turnout.7 Restoring public confidence the
integrity elections the national interest.
Crawford, aside from states interest preventing
fraud, the Court identified this second important
interest, namely, public confidence the integrity
the electoral process, which has independent
significance,
because
encourages
citizen
participation the democratic process. 553 U.S.
197; see Purcell Gonzalez, 549 U.S. (2006) 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. see also Doe Reed, 561 U.S. 186, 197
(2010) (the State interest preserving the
integrity the electoral process was particularly
strong with respect efforts root out fraud, citing
Crawford and Purcell).
See, e.g., Pippa Norris, Holly Ann Garnett and Max mping, Why Don More Americans Vote? Maybe Because
They Don Trust U.S. Elections, Wash. Post, December 26, 2016,
goo.gl/zAXsiW.
CONCLUSION
For the foregoing reasons, amicus Judicial Watch
respectfully requests that the Court reverse the Sixth
Circuit decision.
Respectfully submitted,
Robert Popper
Counsel Record
Chris Fedeli
Lauren Burke
Eric Lee
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amicus Curiae
August 2017