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Judicial Watch • Jon Husted, Ohio Secretary of State v. Philip Randolph Institute, et al. decision 16-980

Jon Husted, Ohio Secretary of State v. Philip Randolph Institute, et al. decision 16-980

Jon Husted, Ohio Secretary of State v. Philip Randolph Institute, et al. decision 16-980

Page 1: Jon Husted, Ohio Secretary of State v. Philip Randolph Institute, et al. decision 16-980

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Date Created:June 8, 2018

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Slip Opinion)
OCTOBER TERM, 2017
Syllabus
NOTE: Where feasible, syllabus (headnote) will released,
being done connection with this case, the time the opinion issued.
The syllabus constitutes part the opinion the Court but has been
prepared the Reporter Decisions for the convenience the reader.
See United States Detroit Timber Lumber Co., 200 321, 337.
SUPREME COURT THE UNITED STATES
Syllabus
HUSTED, OHIO SECRETARY STATE PHILIP
RANDOLPH INSTITUTE AL.
CERTIORARI THE UNITED STATES COURT APPEALS FOR
THE SIXTH CIRCUIT
No. 980.
Argued January 10, 2018 Decided June 11, 2018
The National Voter Registration Act (NVRA) addresses the removal
ineligible voters from state voting rolls, 20501(b), including those who are ineligible reason change residence,
20507(a)(4). The Act prescribes requirements that State must
meet order remove name change-of-residence grounds,
20507(b), (c), (d). The most relevant these are found subsection (d), which provides that State may not remove name
change-of-residence grounds unless the registrant either (A) confirms writing that she has moved (B) fails return preaddressed, postage prepaid return card containing statutorily prescribed content and then fails vote any election during the period covering the next two general federal elections. addition these specific change-of-residence requirements, the
NVRA also contains general Failure-to-Vote Clause, 20507(b)(2),
consisting two parts. first provides that state removal program shall not result the removal the name any person reason the person failure vote. Second, added
the Help America Vote Act 2002 (HAVA), specifies that nothing [this prohibition] may construed prohibit State from using
the procedures described above sending return card and removing registrants who fail return the card and fail vote for the requisite time. Since one the requirements for removal under subsection (d) the failure vote, the explanation added HAVA makes
clear that the Failure-to-Vote Clause prohibition removal
reason the person failure vote does not categorically preclude
using nonvoting part test for removal. Another provision
makes this point even more clearly providing that registrant
HUSTED PHILIP RANDOLPH INSTITUTE
Syllabus
may removed solely reason failure vote. 21083(a)(4)(A)
(emphasis added).
Respondents contend that Ohio process for removing voters
change-of-residence grounds violates this federal law. The Ohio process issue relies the failure vote for two years rough way identifying voters who may have moved. sends these nonvoters preaddressed, postage prepaid return card, asking them verify
that they still reside the same address. Voters who not return
the card and fail vote any election for four more years are presumed have moved and are removed from the rolls.
Held: The process that Ohio uses remove voters change-ofresidence grounds does not violate the Failure-to-Vote Clause any
other part the NVRA. Pp. 21.
(a) Ohio law does not violate the Failure-to-Vote Clause. Pp.
16.
(1) Ohio removal process follows subsection (d) the letter:
does not remove registrant change-of-residence grounds unless
the registrant sent and fails mail back return card and then
fails vote for additional four years. See 20507(d)(1)(B). Pp.
(2) Nonetheless, respondents argue that Ohio process violates
subsection (b) Failure-to-Vote Clause using person failure
vote twice over: once the trigger for sending return cards and
again one the two requirements for removal. But Congress
could not have meant for the Failure-to-Vote Clause cannibalize
subsection (d) that way. Instead, the Failure-to-Vote Clause, both originally enacted the NVRA and amended HAVA, simply
forbids the use nonvoting the sole criterion for removing registrant, and Ohio does not use that way. The phrase reason the Failure-to-Vote Clause denotes some form causation, see
Gross FBL Financial Services, Inc., 557 167, 176, and context sole causation the only type causation that harmonizes the
Failure-to-Vote Clause and subsection (d). Any other reading would
mean that State that follows subsection (d) nevertheless can violate
the Failure-to-Vote Clause. When Congress enacted HAVA, made
this point explicit adding the Failure-to-Vote Clause explanation how the clause read, i.e., way that does not contradict subsection (d). Pp. 12.
(3) Respondents and the dissent alternative reading inconsistent with both the text the Failure-to-Vote Clause and the clarification its meaning 21083(a)(4). Among other things, their
reading would make HAVA new language worse than redundant,
since sensible person would read the Failure-to-Vote Clause
prohibiting what subsections (c) and (d) expressly allow. Nor does
Cite as: 584 ____ (2018)
Syllabus
the Court interpretation render the Failure-to-Vote Clause superfluous; the clause retains meaning because prohibits States from
using nonvoting both the ground for removal and the sole evidence for another ground for removal (e.g., the sole evidence that
someone has died). Pp. 15.
(4) Respondents additional argument that many registered
voters discard return cards upon receipt that the failure send cards
back worthless evidence that addressee has moved based dubious empirical conclusion that conflicts with the congressional judgment found subsection (d). Congress clearly did not think
that the failure send back return card was evidentiary value, having made that conduct one the two requirements for removal under subsection (d). Pp. 16.
(b) Nor has Ohio violated other NVRA provisions. Pp. 21.
(1) Ohio removes the registrants issue permissible
ground: change residence. The failure return notice and the
failure vote simply serve evidence that registrant has moved,
not the ground itself for removal. Pp. 17.
(2) The NVRA contains reliable indicator prerequisite
sending notices, requiring States have good information that
someone has moved before sending them return card. long
the trigger for sending such notices uniform, nondiscriminatory,
and compliance with the Voting Rights Act, 20507(b)(1), States
may use whatever trigger they think best, including the failure
vote. Pp. 19.
(3) Ohio has not violated the NVRA reasonable effort provision, 20507(a)(4). Even assuming that this provision authorizes federal courts beyond the restrictions set out subsections (b), (c),
and (d) and strike down state law that does not meet some standard reasonableness, Ohio process cannot unreasonable because uses the change-of-residence evidence that Congress said
could: the failure send back notice coupled with the failure
vote for the requisite period. Ohio process accordingly lawful.
Pp. 21.
838 699, reversed.
ALITO, J., delivered the opinion the Court, which ROBERTS, J.,
and KENNEDY, THOMAS, and GORSUCH, JJ., joined. THOMAS, J., filed
concurring opinion. BREYER, J., filed dissenting opinion, which
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed
dissenting opinion.
Cite as: 584 ____ (2018)
Opinion the Court
NOTICE: This opinion subject formal revision before publication the
preliminary print the United States Reports. Readers are requested
notify the Reporter Decisions, Supreme Court the United States, Washington, 20543, any typographical other formal errors, order
that corrections may made before the preliminary print goes press.
SUPREME COURT THE UNITED STATES
_________________
No. 980
_________________
JON HUSTED, OHIO SECRETARY STATE,
PETITIONER PHILIP RANDOLPH
INSTITUTE, AL. WRIT CERTIORARI THE UNITED STATES COURT
APPEALS FOR THE SIXTH CIRCUIT
[June 11, 2018]
JUSTICE ALITO delivered the opinion the Court. has been estimated that million voter registrations the United States about one eight are either
invalid significantly inaccurate. Pew Center the
States, Election Initiatives Issue Brief (Feb. 2012). And
about 2.75 million people are said registered vote more than one State. Ibid. issue today case Ohio law that aims keep
the State voting lists date removing the names those who have moved out the district where they are
registered. Ohio uses the failure vote for two years
rough way identifying voters who may have moved, and then sends preaddressed, postage prepaid card
these individuals asking them verify that they still
reside the same address. Voters who not return this
card and fail vote any election for four more years are
presumed have moved and are removed from the rolls. are asked decide whether this program complies
with federal law.
HUSTED PHILIP RANDOLPH INSTITUTE
Opinion the Court
Like other States, Ohio requires voters reside the
district which they vote.
Ohio Rev. Code Ann.
3503.01(A) (West Supp. 2017); see National Conference
State Legislatures, Voting Nonresidents and Noncitizens (Feb. 27, 2015). When voters move out that
district, they become ineligible vote there.
See
3503.01(A). And since more than 10% Americans move
every year, deleting the names those who have moved
away small undertaking.
For many years, Congress left the States
maintain accurate lists those eligible vote federal
elections, but 1993, with the enactment the National
Voter Registration Act (NVRA), Congress intervened. The
NVRA erect[s] complex superstructure federal regulation atop state voter-registration systems. Arizona
Inter Tribal Council Ariz., Inc., 570 (2013).
The Act has two main objectives: increasing voter registration and removing ineligible persons from the States voter
registration rolls. See 107 Stat. 77,
20501(b). achieve the latter goal, the NVRA requires States
conduct general program that makes reasonable effort remove the names voters who are ineligible
reason death change residence. 20507(a)(4). United States Census Bureau, CB16 189, Americans Moving
Historically Low Rates (Nov. 16, 2016), available https://www.
census.gov/newsroom/press-releases/2016/cb16-189.html (all Internet
materials last visited June 2018). States must update the addresses even those voters who move within their county residence,
for (among other reasons) counties may contain multiple voting districts. Cf. post, (BREYER, J., dissenting). For example, Cuyahoga
County contains State House districts. See House District Map,
Ohio House Districts 2012 2022, online http://www.ohiohouse.gov/
members/district-map.
Cite as: 584 ____ (2018)
Opinion the Court
The Act also prescribes requirements that State must
meet order remove name change-of-residence
grounds. 20507(b), (c), (d).
The most important these requirements prior
notice obligation. Before the NVRA, some States removed
registrants without giving any notice. See Harris, Nat.
Munic. League, Model Voter Registration System (rev.
4th ed. 1957). The NVRA changed that providing
20507(d)(1) that State may not remove registrant
name change-of-residence grounds unless either (A) the
registrant confirms writing that she has moved
(B) the registrant fails return preaddressed, postage
prepaid return card containing statutorily prescribed
content. This card must explain what registrant who
has not moved needs order stay the rolls, i.e.,
either return the card vote during the period covering
the next two general federal elections. 20507(d)(2)(A).
And for the benefit those who have moved, the card
must contain information concerning how the registrant
can continue eligible vote. 20507(d)(2)(B).
the State does not send such card otherwise get written notice that the person has moved, may not remove
the registrant change-of-residence grounds.
See
20507(d)(1).
While the NVRA clear about the need send return card (or obtain written confirmation move)
before pruning registrant name, provision federal
law specifies the circumstances under which return card The
principal dissent attaches misleading label this return card,
calling last chance notice. Post, (opinion BREYER,
J.). actually such thing. Sending back the notice does not
represent voter last chance avoid having his her name
stricken from the rolls. Instead, such voter has many more chances
over period four years avoid that result. All that the voter must vote any election during that time.
See
20507(d)(1)(B).
HUSTED PHILIP RANDOLPH INSTITUTE
Opinion the Court
may sent. Accordingly, States take variety approaches. See Nat. Assn. Secretaries State (NASS)
Report: Maintenance State Voter Registration Lists
(Dec. 2017). The NVRA itself sets out one option. State
may send these cards those who have submitted
change-of-address information the United States
Postal Service. 20507(c)(1). Thirty-six States least
that. See NASS Report, supra, and (listing
States). Other States send notices every registered
voter specified intervals (say, once year). See, e.g.,
Iowa Code 48A.28.3 (2012); Code Ann.
330(F), 340(2) (3) (2017 Cum. Supp.); see also Rep.
No. 103 (1993). Still other States, including Ohio,
take intermediate approach, see NASS Report, supra, such sending notices those who have turned their driver licenses, e.g., Ind. Code 38.2
2(b)(2), (c)(4) (2004), sending notices those who have
not voted for some period time, see, e.g., Ga. Code Ann. 234 (Supp. 2017); Ohio Rev. Code Ann.
3503.21(B)(2); Okla. Admin. Code 230:15 19(a)(3)
(2016); Pa. Stat. Ann., Tit. 25, 1901(b)(3) (Purdon 2007);
Wis. Stat. Ann. 6.50(1) (2017 West Cum. Supp.).
When State receives return card confirming that
registrant has left the district, the State must remove the
voter name from the rolls. 20507(d)(1)(A), (3). And
the State receives card stating that the registrant has
not moved, the registrant name must kept the list.
See 20507(d)(2)(A).
What return card mailed back? Congress obviously anticipated that some voters who received cards
would fail return them for any number reasons, and addressed this contingency 20507(d), which, for
convenience, will simply call subsection (d). Subsection (d) treats the failure return card some evidence but means conclusive proof that the voter
has moved. Instead, the voter name kept the list
Cite as: 584 ____ (2018)
Opinion the Court
for period covering two general elections for federal office
(usually about four years). Only the registrant fails
vote during that period and does not otherwise confirm
that she still lives the district (e.g., updating
address information online) may the registrant name
removed. 20507(d)(2)(A); see 20507(d)(1)(B), (3). addition these specific change-of-residence requirements, the NVRA also imposes two general limitations that are applicable state removal programs. First,
all such programs must uniform, nondiscriminatory,
and compliance with the Voting Rights Act 1965.
20507(b)(1). Second, the NVRA contains what will
call the Failure-to-Vote Clause. See 20507(b)(2). present, this clause contains two parts. The first
prohibition that was included the NVRA when was
originally enacted 1993. provides that state program shall not result the removal the name any
person reason the person failure vote. Ibid.
The second part, added the Help America Vote Act
2002 (HAVA), 116 Stat. 1666, explains the meaning
that prohibition. This explanation says that nothing
[the prohibition] may construed prohibit State from
using the procedures described 20507](c) and (d)
remove individual from the official list eligible voters. 20507(b)(2).
These referenced subsections, 20507(c) and (d), are
the provisions allowing the removal registrants who
either submitted change-of-address information the
Postal Service (subsection (c)) did not mail back return card and did not vote during period covering two
general federal elections (subsection (d)). And since one
the requirements for removal under subsection (d) the
failure vote during this period, the explanation added HAVA 2002 makes clear that the statutory phrase reason the person failure vote the Failure-toVote Clause does not categorically preclude the use
HUSTED PHILIP RANDOLPH INSTITUTE
Opinion the Court
nonvoting part test for removal.
Another provision HAVA makes this point more
directly. After directing that registrants who have not
responded notice and have not voted consecutive general elections for Federal office shall removed, adds that registrant may removed solely reason failure vote. 21083(a)(4)(A) (emphasis added).
Since 1994, Ohio has used two procedures identify
and remove voters who have lost their residency
qualification.
First, the State utilizes the Postal Service option set out the NVRA. The State sends notices registrants
whom the Postal Service national change address
service identifies having moved. Ohio Rev. Code Ann.
3503.21(B)(1). This procedure undisputedly lawful.
See 20507(c)(1).
But because according the Postal Service [a]s many percent people who move not inform the Postal
Service, Ohio does not rely this information alone.
its so-called Supplemental Process, Ohio identif[ies]
electors whose lack voter activity indicates they may
have moved. Record 401 (emphasis deleted). Under this
process, Ohio sends notices registrants who have not
engage[d] any voter activity for period two consecutive years. Id., 1509. Voter activity includes casting ballot any election whether general, primary,
special and whether federal, state, local. See id.,
1507. (And Ohio regularly holds elections both even
and odd years.) Moreover, the term voter activity Postal Service, Office Inspector Gen., 006,
Strategies for Reducing Undeliverable Addressed Mail (2015); see
also Brief for Buckeye Institute Amicus Curiae 10. Respondents and
one their amici dispute this statistic. See Tr. Oral Arg. 46; Brief
for Asian Americans Advancing Justice al. Amici Curiae 28.
Cite as: 584 ____ (2018)
Opinion the Court
broader than simply voting. also includes such things sign[ing] petition, filing voter registration form,
and updating voting address with variety [state]
entities. Id., 295, 357.
After sending these notices, Ohio removes registrants
from the rolls only they fai[l] respond and continu[e] inactive for additional period four consecutive years, including two federal general elections.
Id., 1509; see Ohio Rev. Code Ann. 3503.21(B)(2).
Federal law specifies that registration may canceled
the registrant does not vote election during the
period covering two general federal elections after notice,
20507(d)(1)(B)(ii), but Ohio rounds four consecutive years nonvoting after notice, Record 1509. Thus,
person remains the rolls she votes any election during that period which Ohio typically means
voting any the least four elections after notice.
Combined with the two years nonvoting before notice
sent, that makes total six years nonvoting before
removal. Ibid. pair advocacy groups and Ohio resident (respondents here) think that Ohio Supplemental Process
violates the NVRA and HAVA. They sued petitioner,
Ohio Secretary State, seeking enjoin this process.
Respondents alleged, first, that Ohio removes voters who
have not actually moved, thus purging the rolls eligible
voters.
They also contended that Ohio violates the
NVRA Failure-to-Vote Clause because the failure vote
plays prominent part the Ohio removal scheme: Failure vote for two years triggers the sending return
card, and the card not returned, failure vote for four
more years results removal.
The District Court rejected both these arguments and
entered judgment for the Secretary. held that Ohio
HUSTED PHILIP RANDOLPH INSTITUTE
Opinion the Court
Supplemental Process mirror[s] the procedures established the NVRA for removing people change-ofresidence grounds and does not violate the Failure-to-Vote
Clause because does not remove anyone solely for
[their] failure vote. App. Pet. for Cert. 43a, 57a,
69a 70a. divided panel the Court Appeals for the Sixth
Circuit reversed. 838 699 (2016). focused
respondents second argument, holding that Ohio violates
the Failure-to-Vote Clause because sends change-ofresidence notices based solely person failure
vote. Id., 711. dissent, Judge Siler explained why saw the case simple one: The State cannot remove
the registrant name from the rolls for failure vote
only, and Ohio does not [that]. Id., 716. granted certiorari, 581 ___ (2017), and now
reverse. noted, subsection (d), the provision the NVRA that
directly addresses the procedures that State must follow
before removing registrant from the rolls change-ofresidence grounds, provides that State may remove
registrant who (i) has failed respond notice and
(ii) has not voted appeared vote during the period beginning the date the notice and ending the
day after the date the second general election for Federal office that occurs after the date the notice (about
four years). 20507(d)(1)(B). Not only are
States allowed remove registrants who satisfy these
requirements, but federal law makes this removal mandatory. 20507(d)(3); see also 21083(a)(4)(A).
Ohio Supplemental Process follows subsection (d)
the letter. undisputed that Ohio does not remove
registrant change-of-residence grounds unless the
Cite as: 584 ____ (2018)
Opinion the Court
registrant sent and fails mail back return card and
then fails vote for additional four years.
Respondents argue (and the Sixth Circuit held) that,
even Ohio process complies with subsection (d),
nevertheless violates the Failure-to-Vote Clause the
clause that generally prohibits States from removing
people from the rolls reason [a] person failure
vote. 20507(b)(2); see also 21083(a)(4)(A). Respondents
point out that Ohio Supplemental Process uses person
failure vote twice: once the trigger for sending return
cards and again one the requirements for removal.
Respondents conclude that this use nonvoting illegal. reject this argument because the Failure-to-Vote
Clause, both originally enacted the NVRA and
amended HAVA, simply forbids the use nonvoting
the sole criterion for removing registrant, and Ohio does
not use that way. Instead, permitted subsection
(d), Ohio removes registrants only they have failed
vote and have failed respond notice.
When Congress clarified the meaning the NVRA
Failure-to-Vote Clause HAVA, here what said:
[C]onsistent with the [NVRA], registrant may
removed solely reason failure vote.
21083(a)(4)(A) (emphasis added). The meaning these
words straightforward. Solely means alone. Webster Third New International Dictionary 2168 (2002);
American Heritage Dictionary 1654 (4th ed. 2000). And reason quite formal way saying [b]ecause
of. Ammer, American Heritage Dictionary Idioms (2d ed. 2013). Thus, State violates the Failure-toVote Clause only removes registrants for reason
other than their failure vote.
This explanation the meaning the Failure-to-Vote
Clause merely makes explicit what was implicit the
HUSTED PHILIP RANDOLPH INSTITUTE
Opinion the Court
clause originally enacted. that time, the clause
simply said that state program shall not result the
removal the name any person from the [rolls for
federal elections] reason the person failure vote.
107 Stat. 83. But that prohibition had read together
with subsection (d), which authorized removal registrant did not send back return card and also failed
vote during period covering two successive general elections for federal office. possible, [w]e must interpret
the statute give effect both provisions, Ricci
DeStefano, 557 557, 580 (2009), and here, that
quite easy.
The phrase reason denotes some form causation. See Gross FBL Financial Services, Inc., 557
167, 176 (2009). Thus, the Failure-to-Vote Clause applies
when nonvoting, some sense, causes registrant name removed, but the law recognizes several types
causation. When statutory provision includes undefined causation requirement, look context decide
whether the statute demands only but-for cause opposed proximate cause sole cause. See Holmes
Securities Investor Protection Corporation, 503 258,
265 268 (1992). Cf. CSX Transp., Inc. McBride, 564 685, 692 693 (2011).
Which form causation required the Failure-toVote Clause? can readily rule out but-for causation. reason the Failure-to-Vote Clause meant but-for
causation, State would violate the clause the failure
vote played necessary part the removal name
from the list. Burrage United States, 571 204, 211
(2014). But the removal process expressly authorized
subsection (d) allows State remove registrant the
registrant, addition failing send back return
card, fails vote during period covering two general
federal elections. the Failure-to-Vote Clause were
read this way, would cannibalize subsection (d).
Cite as: 584 ____ (2018)
Opinion the Court
Interpreting the Failure-to-Vote Clause incorporating proximate cause requirement would lead similar
problem. Proximate cause elusive concept, see
McBride, supra, 692 693, but matter how the term understood, hard escape the conclusion that the
failure vote proximate cause removal under
subsection (d). registrant, having failed send back
return card, also fails vote during the period covering
the next two general federal elections, removal the
direct, foreseeable, and closely connected consequence.
See Paroline United States, 572 434, 444 445
(2014); Bridge Phoenix Bond Indemnity Co., 553
639, 654 (2008). process elimination, are left with sole causation. This reading harmonizes the Failure-to-Vote Clause
and subsection (d) because the latter provision does not
authorize removal solely reason person failure
vote. Instead, subsection (d) authorizes removal only
registrant also fails mail back return card.
For these reasons, conclude that the Failure-to-Vote
Clause, originally enacted, referred sole causation.
And when Congress enacted HAVA, made this point
explicit. added the Failure-to-Vote Clause itself
explanation how read, i.e., way that does
not contradict subsection (d). And language that cannot misunderstood, reiterated what the clause means:
[R]egistrants who have not responded notice and who
have not voted consecutive general elections for Federal office shall removed from the official list eligible
voters, except that registrant may removed solely
reason failure vote. 21083(a)(4)(A) (emphasis
added). this way, HAVA dispelled any doubt that
state removal program may use the failure vote
factor (but not the sole factor) removing names from the
list registered voters.
That exactly what Ohio Supplemental Process does.
HUSTED PHILIP RANDOLPH INSTITUTE
Opinion the Court does not strike any registrant solely reason the
failure vote. Instead, expressly permitted federal
law, removes registrants only when they have failed
vote and have failed respond change-of-residence
notice.
Respondents and the dissent advance alternative
interpretation the Failure-to-Vote Clause, but that
reading inconsistent with both the text the clause and
the clarification its meaning 21083(a)(4)(A). Respondents argue that the clause allows States consider
nonvoting only the extent that subsection (d) requires
that is, only after registrant has failed mail back
notice. Any other use the failure vote, including
the trigger for mailing notice, they claim, proscribed. essence, respondents read the language added the
clause HAVA except that nothing this paragraph
may construed prohibit State from using the procedures described subsections (c) and (d) exception the general rule forbidding the use nonvoting.
See Brief for Respondents 37. And the Sixth Circuit
seemed find this point dispositive, reasoning that exceptions statutes must strictly construed. 838 3d, 708 (quoting Detroit Edison Co. SEC, 119
730, 739 (CA6 1941)). reject this argument for three reasons. First,
distorts what the new language added HAVA actually
says. The new language does not create exception
general rule against the use nonvoting. does not say
that the failure vote may not used except that this
paragraph does not prohibit State from using the procedures described subsections (c) and (d). Instead,
says that nothing this paragraph may construed
have that effect. 20507(b)(2) (emphasis added). Thus,
sets out not exception, but rule interpretation.
Cite as: 584 ____ (2018)
Opinion the Court
does not narrow the language that precedes it; clarifies
what that language means. That precisely what Congress said when enacted HAVA: added the may not construed provision [c]larif[y], not alter, the
prohibition scope. 903, 116 Stat. 1728.
Second, under respondents reading, HAVA new language worse than superfluous. Even without the added
language, sensible person would read the Failure-toVote Clause prohibiting what subsections (c) and (d)
expressly allow. Yet according respondents, that all
that the new language accomplishes. minimum,
would redundant.
But the implications this reading are actually worse
than that. There reason create exception
prohibition unless the prohibition would otherwise forbid
what the exception allows. the new language were exception, would seem follow that prior HAVA,
the Failure-to-Vote Clause did outlaw what subsections (c)
and (d) specifically authorize. And that, course, would nonsensical.
Third, respondents reading the language that HAVA
added the Failure-to-Vote Clause makes hard
understand why Congress prescribed another section
the same Act, i.e., 21083(a)(4)(A), that registrant may removed solely reason failure vote. interpreted respondents, the amended Failure-to-Vote
Clause prohibits any use nonvoting with just two narrow exceptions the uses allowed subsections (c) and
(d). So, according respondents, the amended Failure-toVote Clause prohibits much more than 21083(a)(4)(A).
That provision, addition allowing the use nonvoting accordance with subsections (c) and (d), also permits
the use nonvoting any other way that does not treat
nonvoting the sole basis for removal.
There plausible reason why Congress would enact
the provision that respondents envision. interpreted
HUSTED PHILIP RANDOLPH INSTITUTE
Opinion the Court
respondents, HAVA would like law that contains one
provision making illegal drive with blood alcohol
level 0.08 higher and another provision making
illegal drive with blood alcohol level 0.10 higher.
The second provision would not only redundant;
would confusing and downright silly.
Our reading, the other hand, gives the new language
added the Failure-to-Vote Clause real and substantial
effect. Husky Int Electronics, Inc. Ritz, 578 ___,
___ (2016) (slip op., (internal quotation marks omitted). clarifies the meaning the prohibition against
removal reason nonvoting, matter that troubled
some States prior HAVA enactment. See, e.g., FEC
Report the NVRA the 106th Congress (1999).
Respondents and the dissent separately claim that the
Failure-to-Vote Clause must read bar the use
nonvoting trigger for sending return cards because
otherwise would superfluous. Post, (opinion
BREYER, J.); see Brief for Respondents 29. After all, subsection (d) already prohibits States from removing registrants because failure vote alone. See 20507(d)(1). have meaning independent subsection (d), respondents reason, the Failure-to-Vote Clause must prohibit
other uses the failure vote, including its use
trigger for sending out notices.
This argument flawed because the Failure-to-Vote
Clause has plenty work under our reading. Most
important, prohibits the once-common state practice
removing registered voters simply because they failed
vote for some period time.
Not too long ago,
[c]ancellation for failure vote [was] the principal means
used purge the [voter] lists. Harris, Model Voter
Registration System, 44. States did not use person
failure vote evidence that the person had died
moved but independent ground for removal. See
Cite as: 584 ____ (2018)
Opinion the Court
ibid. Ohio was one such State. Its Constitution provided
that [a]ny elector who fails vote least one election
during any period four consecutive years shall cease elector unless again registers vote. Art.
(1977). addition, our reading prohibits States from using the
failure vote the sole cause for removal any ground,
not just because change residence. Recall that
subsection (d) removal process applies only change-ofresidence removals but that the Failure-to-Vote Clause
applies all removals. Without the Failure-to-Vote
Clause, therefore, States could use the failure vote
conclusive evidence ineligibility for some reason other
than change residence, such death, mental incapacity, criminal conviction resulting prolonged imprisonment.
Respondents put forth one additional argument regarding the Failure-to-Vote Clause. essence, boils down this. many properly registered voters simply discard
return cards upon receipt that the failure send them
back worthless evidence that the addressee has
moved. respondents counsel put argument,
notice that doesn get returned tells the State absolutely
nothing about whether the person has moved. Tr. Oral
Arg. 41, 58. According respondents, when Ohio removes
registrants for failing respond notice and failing
vote, functionally removes people solely for non-voting
unless the State has additional reliable evidence that
registrant has moved. Id., 49, 71.
This argument based dubious empirical conclu See,
e.g., Haw. Rev. Stat. 17(a) (1993); Idaho Code Ann.
435 (1981); Minn. Stat. 201.171 (1992); Mont. Code Ann. 401(1)
(1993); Stat. Ann. 19:31 (West Supp. 1989); Okla. Stat., Tit. 26, 120.2 (1991); Utah Code 24(1)(b) (1991).
HUSTED PHILIP RANDOLPH INSTITUTE
Opinion the Court
sion that the NVRA and HAVA not allow indulge.
Congress clearly did not think that the failure send
back return card was evidentiary value because
Congress made that conduct one the two requirements
for removal under subsection (d).
Requiring additional evidence not only second-guesses
the congressional judgment embodied subsection (d)
removal process, but also second-guesses the judgment the Ohio Legislature expressed the State Supplemental Process. The Constitution gives States the
authority set the qualifications for voting congressional elections, Art. cl. Amdt. 17, well the
authority set the Times, Places and Manner conduct such elections the absence contrary congressional
direction, Art. cl. have authority dismiss
the considered judgment Congress and the Ohio Legislature regarding the probative value registrant
failure send back return card. See Inter Tribal, 570 S., 19; see also id., (THOMAS, J., dissenting); id., 43, (ALITO, J., dissenting).
For all these reasons, hold that Ohio law does not
violate the Failure-to-Vote Clause.
III similarly reject respondents argument that Ohio
violates other provisions the NVRA and HAVA.
Respondents contend that Ohio removes registered
voters ground not permitted the NVRA. They
claim that the NVRA permits the removal name for
only few specified reasons person request, criminal
conviction, mental incapacity, death, change residence,
and initial ineligibility. Brief for Respondents 26; see 20507(a)(3), (4). And they argue that Ohio
assume for the sake argument that Congress has the constitu-
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Opinion the Court
removes registrants for other reasons, namely, for failing respond notice and failing vote.
This argument plainly fails. Ohio simply treats the
failure return notice and the failure vote evidence that registrant has moved, not ground for
removal. And doing this, Ohio simply follows federal
law. Subsection (d), which governs removals the
ground that the registrant has changed residence, treats
the failure return notice and the failure vote
evidence that this ground satisfied. 20507(d)(1). respondents argument were correct, then would
also illegal remove name under 20507(c) because
that would constitute removal for submitting change-ofaddress information the Postal Service. Likewise,
State removed name after receiving death certificate judgment criminal conviction, that would illegal
because receipt such documents not listed
permitted ground for removal under 20507(a)(3)
20507(a)(4). About this argument more need said.
Respondents maintain, finally, that Ohio procedure
illegal because the State sends out notices without having
any reliable indicator that the addressee has moved.
Brief for Respondents 31. The [f]ailure vote for mere
two-year period, they argue, does not reliably indicate
that registrant has moved out the jurisdiction. Id.,
30; see also, e.g., Brief for State New York al.
Amici Curiae 28.
This argument also fails. The degree correlation
between the failure vote for two years and change
residence debatable, but know from subsection (d)
that Congress thought that the failure vote for period
tional authority limit voting eligibility requirements the way
respondents suggest.
HUSTED PHILIP RANDOLPH INSTITUTE
Opinion the Court two consecutive general elections was good indicator change residence, since made nonvoting for that
period element subsection (d) requirements for
removal. similar vein, the Ohio Legislature apparently thought that nonvoting for two years was sufficiently
correlated with change residence justify sending
return card.
What matters for present purposes not whether the
Ohio Legislature overestimated the correlation between
nonvoting and moving whether reached wise policy
judgment about when return cards should sent. For us,
all that matters that provision the NVRA prohibits
the legislature from implementing that judgment. Neither
subsection (d) nor any other provision the NVRA demands that State have some particular quantum
evidence change residence before sending registrant return card. long the trigger for sending
such notices uniform, nondiscriminatory, and compliance with the Voting Rights Act, 20507(b)(1), States
can use whatever plan they think best. That may why
not even the Sixth Circuit relied this rationale.
Respondents attempt find support for their argument subsection (c), which allows States send notices based Postal Service change-of-address information. This
provision, they argue, implicitly sets minimum reliability requirement. Thus, they claim, State may not send
out return card unless its evidence change residence least probative the information obtained
from the Postal Service. See Tr. Oral Arg. 56.
Nothing subsection (c) suggests that designed
play this role. Subsection (c) says that [a] State may
meet its obligation remove the names ineligible
voters change-of-residence grounds sending notices voters who are shown the Postal Service information have moved, but subsection (c) does not even hint that
imposes any sort minimum reliability requirement for
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Opinion the Court
sending such notices. 20507(a)(4), (c). its terms,
subsection (c) simply provides one way the minimal
way which State may meet the [NVRA requirement[s] for change-of-residence removals.
20507(c)
(emphasis added). respondents agreed argument, not the only way. Tr. Oral Arg. 53.
Nothing the two dissents changes our analysis the
statutory language.
Despite its length and complexity, the principal dissent
sets out only two arguments. See post, (opinion
BREYER, J.). The first one that have already discussed length, namely, that the Failure-to-Vote Clause
prohibits any use the failure vote except permitted subsections (c) and (d). have explained why this
argument insupportable, supra, 16, and the dissent has answer any the problems identify.
The dissent only other argument that Ohio process
violates 20507(a)(4), which requires States make
reasonable effort remove the names ineligible voters
from the rolls. The dissent thinks that this provision
authorizes the federal courts beyond the restrictions
set out subsections (b), (c), and (d) and strike down
any state law that does not meet their own standard
reasonableness. But see Brief for United States
Amicus Curiae 29. The dissent contends that Ohio
system violates this supposed reasonableness requirement primarily because relies the failure mail back
the postcard sent those who have not engaged voter
activity for two years. Based its own cobbled-together
statistics, post, 13, and feature human nature
which the dissent has apparently taken judicial notice
(i.e., the human tendency not send back cards received
HUSTED PHILIP RANDOLPH INSTITUTE
Opinion the Court the mail, post, 13), the dissent argues that the failure send back the card question has tendency
reveal accurately whether the registered voter has
changed residences irrelevant factor that
shows nothing all that statutorily significant. Post, 14, 17.
Whatever the meaning 20507(a)(4) reference
reasonableness, the principal dissent argument fails
since the federal NVRA, not Ohio law, that attaches
importance the failure send back the card. See
20507(d)(1)(B)(i), (d)(2)(A). The dissenters may not
think that the failure send back the card means anything, but that was not Congress view. The NVRA plainly
reflects Congress judgment that the failure send back
the card, coupled with the failure vote during the period
covering the next two general federal elections, significant evidence that the addressee has moved. not our prerogative judge the reasonableness
that congressional judgment, but note that, whatever
the general human tendency may with respect
mailing back cards received the mail, the notice sent
under subsection (d) nothing like the solicitations for
commercial products contributions that recipients may
routinely discard. The notice question here warns
recipients that unless they take the simple and easy step mailing back the preaddressed, postage prepaid card take the equally easy step updating their information
online their names may removed from the voting rolls they not vote during the next four years. See Record
295 296, 357. was Congress judgment that reasonable person with interest voting not likely ignore
notice this sort.
JUSTICE SOTOMAYOR dissent says nothing about what relevant this case namely, the language the
Cite as: 584 ____ (2018)
Opinion the Court
NVRA but instead accuses ignor[ing] the history
voter suppression this country and uphold[ing]
program that appears further the disenfranchisement minority and low-income voters. Post,
Those charges are misconceived.
The NVRA prohibits state programs that are discriminatory, see 20507(b)(1), but respondents did not assert
claim under that provision. And JUSTICE SOTOMAYOR has
not pointed any evidence the record that Ohio instituted has carried out its program with discriminatory
intent.
The dissents have policy disagreement, not just with
Ohio, but with Congress. But this case presents question statutory interpretation, not question policy. have authority second-guess Congress
decide whether Ohio Supplemental Process the ideal
method for keeping its voting rolls date. The only
question before whether violates federal law.
does not.
The judgment the Sixth Circuit reversed. ordered.
Cite as: 584 ____ (2018)
THOMAS, J., concurring
SUPREME COURT THE UNITED STATES
_________________
No. 980
_________________
JON HUSTED, OHIO SECRETARY STATE,
PETITIONER PHILIP RANDOLPH
INSTITUTE, AL. WRIT CERTIORARI THE UNITED STATES COURT
APPEALS FOR THE SIXTH CIRCUIT
[June 11, 2018]
THOMAS, J., concurring. join the Court opinion full. write separately
add that respondents proposed interpretation the National Voter Registration Act (NVRA) should also rejected because would raise significant constitutional
concerns.
Respondents would interpret the NVRA prevent
States from using failure vote evidence when deciding whether their voting qualifications have been satisfied.
Brief for Respondents 30. The Court opinion explains
why that reading inconsistent with the text the
NVRA. See ante, 18. But even the NVRA were
susceptible respondents reading, could not prevail
because raises serious constitutional doubts that the
Court interpretation avoids. Jennings Rodriguez, 583 ___, ___ (2018) (slip op., 2). have previously explained, constitutional text and
history both confirm that States have the exclusive authority set voter qualifications and determine whether
those qualifications are satisfied.
Arizona Inter
Tribal Council Ariz., Inc., 570 (2013)
(THOMAS, J., dissenting). The Voter-Qualifications Clause
provides that, elections for the House Representatives, the Electors each State shall have the Qualifica-
HUSTED PHILIP RANDOLPH INSTITUTE
THOMAS, J., concurring
tions requisite for Electors the most numerous Branch the State Legislature. Const., Art. cl.
The Seventeenth Amendment imposes identical requirement for elections Senators. And the Constitution
recognizes the authority States appoint Presidential
electors such Manner the Legislature thereof may
direct. Art. II, cl. see Inter Tribal Council Ariz.,
570 S., 35, (opinion THOMAS, J.). States thus
retain the authority decide the qualifications vote
federal elections, limited only the requirement that
they not establish special requirements for congressional elections that not apply elections for the
state legislature. Id., (quoting Term Limits,
Inc. Thornton, 514 779, 865 (1995) (THOMAS, J.,
dissenting)). And because the power establish requirements would mean little without the ability enforce
them, the Voter Qualifications Clause also gives States
the authority verify whether [their] qualifications
are satisfied. 570 S., 28.
Respondents reading the NVRA would seriously
interfere with the States constitutional authority set
and enforce voter qualifications. vote Ohio, electors
must have been state resident days before the election, well resident the county and precinct where
they vote. Ohio Rev. Code Ann. 3503.01(A) (Lexis 2015);
see also Ohio Const., Art. Ohio uses record
nonvoting one piece evidence that voters longer
satisfy the residence requirement. Reading the NVRA
bar Ohio from considering nonvoting would therefore
interfere with the State authority verify that its
qualifications are met the way deems necessary.
Inter Tribal Council Ariz., supra, 36. Respondents
reading thus renders the NVRA constitutionally suspect
and should disfavored. See Jennings, supra, ___ (slip
op., 2).
Respondents counter that Congress power regulate
Cite as: 584 ____ (2018)
THOMAS, J., concurring
the Times, Places and Manner holding congressional
elections includes the power impose limits the evidence that State may consider when maintaining its
voter rolls. See Brief for Respondents 55; see also
Art. cl. The Times, Places and Manner holding
Elections for Senators and Representatives, shall prescribed each State the Legislature thereof; but the
Congress may any time Law make alter such
Regulations, except the Places chusing Senators
But, originally understood, the Times, Places and Manner Clause grants Congress power only over the when,
where, and how holding congressional elections, not
over the question who can vote. Inter Tribal Council
Ariz., supra, (opinion THOMAS, J.) (quoting
Parsons, Notes Convention Debates, Jan. 16, 1788,
Documentary History the Ratification the Constitution 1211 (J. Kaminski Saladino eds. 2000) (Massachusetts ratification delegate Sedgwick)). The Manner
holding Elections was understood refer the circumstances under which elections were held and the mechanics the actual election. 570 S., (quoting Art. cl. 1). does not give Congress the authority displace state voter qualifications dictate what evidence
State may consider deciding whether those qualifications have been met. See 570 S., 33. The Clause
thus does not change the fact that respondents reading
the NVRA constitutionally suspect.
The Court interpretation the NVRA was already the
correct reading the statute: The NVRA does not prohibit State from considering failure vote evidence that
registrant has moved. The fact that this reading avoids
serious constitutional problems additional reason
why, view, today decision undoubtedly correct.
Cite as: 584 ____ (2018)
BREYER, J., dissenting
SUPREME COURT THE UNITED STATES
_________________
No. 980
_________________
JON HUSTED, OHIO SECRETARY STATE,
PETITIONER PHILIP RANDOLPH
INSTITUTE, AL. WRIT CERTIORARI THE UNITED STATES COURT
APPEALS FOR THE SIXTH CIRCUIT
[June 11, 2018]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
Section the National Voter Registration Act 1993
requires States conduct general program that makes reasonable effort remove the names ineligible voters from the official lists eligible voters reason change the residence the registrant. 8(a)(4), 107
Stat. 83, 20507(a)(4). This case concerns
the State Ohio change-of-residence removal program
(called the Supplemental Process under which registered voter failure vote single federal election
begins process that may well result the removal
that voter name from the federal voter rolls. See infra, The question whether the Supplemental Process
violates which prohibits State from removing registrants from the federal voter roll reason the person
failure vote. 20507(b)(2). view, Ohio program
does just that. And shall explain why and how that so.
This case concerns the manner which States maintain
federal voter registration lists. the late 19th and early
20th centuries, number [r]estrictive registration laws
and administrative procedures came into use across the
HUSTED PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
United States from literacy tests the poll tax and from
strict residency requirements selective purges.
Rep. No. 103 (1993). Each was designed keep
certain groups citizens from voting and discourage
participation. Ibid. 1965, the Voting Rights Act
abolished some the more obvious impediments registration, but still, 1993, Congress concluded that had
unfinished business attend this domain. Id., That year, Congress enacted the National Voter Registration Act protect the integrity the electoral process, increase the number eligible citizens who register vote elections for Federal office, and ensure that
accurate and current voter registration rolls are maintained. 20501(b). did mindful that the purpose
our election process not test the fortitude and determination the voter, but discern the will the majority. Rep. No. 103 (1993). accordance with these aims, the Registration
Act sets forth series requirements that States must
satisfy their administration voter registration for
elections for Federal office. 20507. Ohio Supplemental
Process fails comport with these requirements; erects
needless hurdles voting the kind Congress sought
eliminate enacting the Registration Act. Four
provisions are critical this case: subsections (a), (b), (c),
and (d). The text each subsection detailed and contains multiple parts. Given the complexity the statute,
readers should consult these provisions themselves (see
Appendix infra, 24) and try keep the thrust
those provisions mind while reading this opinion.
the outset, shall address each them. begin with subsection (a) Reasonable Program
requirement. That provision says that each State shall
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BREYER, J., dissenting
conduct general program that makes reasonable
effort remove the names ineligible voters from
the official lists eligible voters reason
change the residence the registrant, accordance with subsections (b), (c), and (d). 20507(a)(4).
This provision tells each State that must try remove
ineligible voters from the rolls, that must act reasonably doing so, and that, when does so, must follow the
rules contained the next three subsections
namely, subsections (b), (c), and (d).
Subsection (b) Failure-to-Vote Clause generally
forbids state change-of-residence removal programs that
rely upon registrant failure vote basis for removing the registrant name from the federal voter roll.
Before 1993, when Congress enacted this prohibition,
many States would assume registered voter had changed
his address, and consequently remove that voter from the
rolls, simply because the registrant had failed vote.
Recognizing that many registered voters who not vote
may not have moved, Rep. No. 103 17, Congress
consequently prohibited States from using the failure
vote proxy for moving and thus basis for purging the
voter name from the rolls. The Failure-to-Vote Clause,
originally enacted, said:
Any State program activity protect the integrity the electoral process ensuring the maintenance accurate and current voter registration roll for
elections for Federal office shall not result the
removal the name any person from the official
list voters registered vote election for Federal office reason the person failure vote.
107 Stat. 83; see 20507(b)(2). shall discuss, Congress later clarified that using
HUSTED PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
the procedures described subsections (c) and (d)
remove individual from the federal voter roll permissible and does not violate the Failure-to-Vote Clause.
See 8(b)(2) the National Voter Registration Act, 107
Stat. 83, and amended, 116 Stat. 1728,
20507(b)(2).
Subsection (c), which entitled Voter Removal Programs, explains how [a] State may meet the requirement subsection (a)(4). 20507(c)(1). Because subsection
(a)(4) itself incorporates all the relevant requirements
subsections (b), (c), and (d) within it, see 20507(a)(4),
subsection (c) sets forth one way State can comply with
the basic requirements issue this case (including subsection (b)). State removal program qualifies
under subsection (c) the following two things are true
about the program:
(A) change-of-address information supplied the
Postal Service through its licensees used identify
registrants whose addresses may have changed; and
(B) appears [that] the registrant has moved different residence address not the same registrar jurisdiction, the registrar uses the notice procedure described subsection (d)(2) confirm the
change address. 20507(c)(1).
The upshot that subsection (c) explains one way State
may comply with subsection (a) Reasonable Program
requirement without violating subsection (b) Failure-toVote prohibition. roadmap that points two-step
removal process. step States first identify registered
voters whose addresses may have changed; here, subsection (c) points one (but not the only) method State
may use so. step subsection (c) explains,
States must confirm the change address using
special notice procedure, which further described
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BREYER, J., dissenting
subsection (d).
Subsection (d) sets forth the final procedure, which Ohio
refers the Confirmation Procedure. Brief for Petitioner The statute makes clear that State must use
the Confirmation Procedure confirm change address respect any registered voter initially identifies someone who has likely changed addresses.
works follows: the State must send the registrant identified having likely moved special kind notice
forwardable mail. That notice must warn the registrant
that his her name will removed from the voter roll
unless the registrant either returns attached card and
confirms his her current address writing votes election during the period covering the next two federal
elections. sense, the notice State required send part the Confirmation Procedure gives registered
voters whom the State has identified likely ineligible
last chance correct the record before being removed from
the federal registration list. The Confirmation Procedure
mandatory for all change-of-residence removals, regardless the method the State uses make its initial identification registrants whose addresses may have changed. particular, subsection (d) says: State shall not remove the name registrant
from the official list eligible voters the
ground that the registrant has changed residence unless the registrant [either]
(A) confirms writing that the registrant has
changed residence place outside the registrar jurisdiction which the registrant registered;
(B)(i) has failed respond notice described
[subsection (d)(2)]; and (ii) has not voted [in two subsequent federal elections]. 20507(d)(1).
HUSTED PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
Subsection (d)(2) then goes describe (in considerable detail) the last chance notice the State must send
the registrant. particular, the notice must sent
forwardable mail that the notice will reach the registrant even the registrant has changed addresses.
must include postage-prepaid, preaddressed return
card that the registrant may send back the State
confirm correct the State record his her current
address. And, the notice must warn the registrant that
unless the card returned, the registrant does not vote the next two federal elections, then his her name will removed from the list eligible voters. sum, tells States the following: general, establish removal-from-registration
program that makes reasonable effort remove
voters who become ineligible because they change
residences. not target registered voters for removal from
the registration roll because they have failed
vote. However, using the procedures described
subsections (c) and (d) remove individual
from the federal voter roll permissible and does
not violate the Failure-to-Vote prohibition.
The procedures described subsections (c) and (d)
consist two-step removal process which
step the State uses change-of-address information (which the State may obtain, for instance,
from the Postal Service) identify registrants
whose addresses may have changed; and then
step the State must use the mandatory last
chance notice procedure described subsection
(d) confirm the change address.
The last chance confirmation notice must sent forwardable mail. must also include postage-
Cite as: 584 ____ (2018)
BREYER, J., dissenting
prepaid, preaddressed return card that the registrant may send back the State verifying his
her current address. And must warn the registrant that unless the card returned, the registrant does not vote the next two federal elections, then his her name will removed from
the list eligible voters.
The Supplemental Process, Ohio program for removing
registrants from the federal rolls the ground that the
voter has changed his address, much simpler. Each
Ohio boards elections sends its version subsection (d) last chance notice those list individuals who, according the board records, have not engaged certain kinds voter activity including
casting ballot for period generally two years.
Record 1507. Accordingly, each board list can include
registered voters who failed vote single federal
election. And anyone the list who continues
inactive failing vote for the next four consecutive
years, including two federal elections, and fails respond the notice removed from the federal voter roll. Id.,
1509. Under the Supplemental Process, person failure vote the sole basis which the State identifies
registrant person whose address may have changed
and the sole reason Ohio initiates registered voter
removal using subsection (d) Confirmation Procedure.
Section requires that Ohio program mak[e] reasonable effort remove ineligible registrants from the
rolls because change the residence the registrant, and must accordance with subsections
(b), (c), and (d). 20507(a)(4)(B). view, Ohio
program unlawful under two respects. first
HUSTED PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
violates subsection (b) Failure-to-Vote prohibition because Ohio uses nonvoting manner that expressly
prohibited and not otherwise authorized under
addition, even that were not so, the Supplemental Process also fails satisfy subsection (a) Reasonable Program requirement, since using registrant failure
vote not reasonable method for identifying voters
whose registrations are likely invalid (because they have
changed their addresses).
First, subsection (b) Failure-to-Vote Clause,
recall that Ohio targets for removal registrants who fail
vote. identifying registered voters who have likely
changed residences looking see those registrants
failed vote, Ohio program violates subsection (b)
express prohibition [a]ny State program activity
[that] result[s] the removal registered voter
reason the person failure vote. 20507(b)(2) (emphasis added). view, these words are most naturally
read prohibit State from considering registrant
failure vote part any process that used start, has the effect starting, purge the voter rolls. Rep. No. 103 15. addition, Congress enacted
the Failure-to-Vote Clause prohibit the elimination
names voters from the rolls solely due registrant
failure respond mailing. Ibid. But that precisely
what Ohio Supplemental Process does. The program
violates subsection (b) prohibition because under it,
registrant who fails vote single federal election,
fails respond forwardable notice, and fails vote
for another four years may well purged. Record 1508. the registrant had voted any point, the registrant
would not have been removed. See supra, infra, 14.
Ohio does use subsection (d) Confirmation Procedure,
but that procedure alone does not satisfy requirements. How know that Ohio use the Confirma-
Cite as: 584 ____ (2018)
BREYER, J., dissenting
tion Procedure alone cannot count statutorily significant? The statute basic structure along with its language makes clear that this so. respect language, says that the function
subsection (d) Confirmation Procedure confirm the
change address whenever the State has already identif[ied] registrants whose addresses may have changed.
20507(c)(1)(A), (d)(2). The function the Confirmation
Procedure not make the initial identification registrants whose addresses may have changed. matter
English usage, you cannot confirm that event happened
without already having some reason believe least
that might have happened. Black Law Dictionary 298
(6th ed. 1990) (defining confirm meaning [t]o complete establish that which was imperfect uncertain
Ohio, course, says that has ground for believing
that those persons they remove from the rolls have,
fact, changed their address, but the ground the fact that
the person did not vote the very thing that the Failureto-Vote Clause forbids Ohio use basis for removing registered voter from the registration roll. respect structure, two statutory illustrations make
clear what the word confirm already suggests, namely,
that the Confirmation Procedure necessary but not
sufficient procedure for removing registered voter from
the voter roll. The first illustration how the Confirmation Procedure supposed function appears subsection (c), which describes removal process under which
the State first identifies registrants who have likely
changed addresses and then confirm[s] that change
residence using the Confirmation Procedure and sending
the required last chance notice. 20507(c)(1) (emphasis
added). The identification method subsection (c) says
State may use change-of-address information supplied the Postal Service. 20507(c)(1)(A). person does not
notify the Postal Service that moving unless
HUSTED PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
likely move has already moved. And, the Registration Act says, appears from change-of-address
provided the Postal Service that the registrant has
moved different residence not the same registrar
jurisdiction, the State has reasonable (hence acceptable)
basis for us[ing] the notice procedure described subsection (d)(2) confirm the change address.
20507(c)(1)(B).
The second illustration how the Confirmation Procedure supposed function appears portion the
statute have not yet discussed namely, the National Voter Registration Act, which sets out the rules for
voter registration mail. See 107 Stat. 80, 20505. particular, 6(d), entitled Undelivered Notices, says that, [i]f notice the disposition
mail voter registration application sent nonforwardable mail and returned undelivered, that point
the State may proceed accordance with section 8(d),
namely, the Confirmation Procedure, and send the same
last chance notice that have just discussed. 20505(d)
(emphasis added).
Note that 6(d) specifies nonforwardable mailing and
not forwardable mailing, like one specified 8(d). This
distinction matters. Why? person moves, forwardable mailing will sent along (i.e., forwarded that
person new address; contrast, nonforwardable mailing will not forwarded the person new address but
instead will returned the sender and marked undeliverable. And nonforwardable mailing that returned the sender marked undeliverable indicates
that the intended recipient may have moved. After all, the
Postal Service, the majority points out, returns mail
marked undeliverable the intended recipient has
moved not the person still lives his old address.
Ante, and
Under 6(d), the Registration Act expressly endorses
Cite as: 584 ____ (2018)
BREYER, J., dissenting
nonforwardable mailings reasonable method for
States use step identify registrants whose addresses may have changed before the State proceeds
step and sends the forwardable notice required under
subsection (d) Confirmation Procedure.
Specifically,
6(d) explains that, State sends its registrants mailing nonforwardable mail (which States often do), and
[that mailing] returned undelivered, the State has
fairly good reason for believing that the person has moved
and therefore may proceed accordance with 8(d)
sending the last chance forwardable notice that the
Confirmation Procedure requires. 20505(d). contrast nonforwardable notice that returned undeliverable,
which tells the State that registrant has likely moved,
forwardable notice that elicits response whatsoever
tells the State close nothing all. That because,
shall discuss, most people who receive confirmation notices
from the State simply not send back the return card
attached that mailing whether they have moved
not. sum, 6(d), just like 8(a) and 8(c), indicates that the
State, initial matter, must use reasonable method identify person who has likely moved and then must
send that person confirmatory notice that will effect
give him last chance remain the rolls. And these
provisions thus tend deny, not support, the majority
suggestion that somehow sending last chance notice
itself way (other than nonvoting) identify someone
who has likely moved. concede that some individuals who have, fact,
moved do, fact, send return card back the State
making clear that they have moved. And some registrants send back card saying that they have not moved.
Thus, the Confirmation Procedure will sometimes help
provide confirmation what the initial identification
procedure supposed accomplish: finding registrants
HUSTED PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
who have probably moved. But more often than not, the
State fails receive anything back from the registrant,
and the fact that the State hears nothing from the registrant essentially proves nothing all.
Anyone who doubts this last statement need simply
consult figures the record along with few generally
available statistics. general matter, the problem
these numbers reveal follows: Very few registered
voters move outside their county registration. But
many registered voters fail vote. Most registered voters
who fail vote also fail respond the State last
chance notice. And the number registered voters who
both fail vote and fail respond the last chance
notice exceeds the number registered voters who move
outside their county each year.
Consider the following facts. First, Ohio tells that
small number Americans about all Americans
move outside their county each year. Record 376. (The
majority suggests the relevant number 10%, ante,
but that includes people who move within their county.) the same time, large number American voters fail vote, and Ohio voters are exception. 2014, around
59% Ohio registered voters failed vote. See Brief for
League Women Voters al. Amici Curiae 16, and (citing Ohio Secretary State, 2014 Official Election
Results).
Although many registrants fail vote and only small
number move, under the Supplemental Process, Ohio uses registrant failure vote identify that registrant
person whose address has likely changed. The record
shows that 2012 Ohio identified about 1.5 million registered voters nearly 20% its million registered voters likely ineligible remain the federal voter roll
because they changed their residences. Record 475. Ohio
then sent those 1.5 million registered voters subsubsection
(d) last chance confirmation notices. response
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BREYER, J., dissenting
those 1.5 million notices, Ohio only received back about
60,000 return cards (or 4%) which said, effect, You are
right, Ohio. have, fact, moved. Ibid. addition,
Ohio received back about 235,000 return cards which said, effect, You are wrong, Ohio, have not moved. the
end, however, there were more than 1,000,000 notices the
vast majority notices sent which Ohio received back return card all. Ibid.
What about those registered voters more than million strong who did not send back their return cards?
there any reason all (other than their failure vote)
think they moved? The answer this question must
no. There reason all. First, those million
voters accounted for about 13% Ohio voting population. those million registered voters (or even
half them) had, fact, moved, then vastly more people
must move each year Ohio than generally true the
roughly all Americans who move different county
nationwide (not all whom are registered voters). See
Id., 376. But there reason think this. Ohio
offers such reason. And the streets Ohio cities are
not filled with moving vans; nor has Cleveland become the
Nation residential moving companies headquarters.
Thus, think fair assume (because the human
tendency not send back cards received the mail,
confirmed strongly the actual numbers this record)
the following: respect change residence, the failure more than million Ohio voters respond forwardable notices (the vast majority those sent) shows nothing all that statutorily significant. put the matter the present statutory context:
When State relies upon registrant failure vote
initiate the Confirmation Procedure, violates the Failureto-Vote Clause, and State subsequent use the Confirmation Procedure cannot save the State program from
that defect. Even that were not so, nonreturned con-
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BREYER, J., dissenting
firmation notice adds nothing the State understanding whether the voter has moved not. And that, repeat, because nonreturned confirmation notice (as the numbers show) cannot reasonably indicate change address.
Finally, let return basic mandate and purpose.
Ohio program must mak[e] reasonable effort remove
the names ineligible voters from its federal rolls
change-of-residence grounds.
20507(a)(4) (emphasis
added). Reasonableness under 8(a) primarily measured terms the program compliance with subsections (b), (c), and (d). 20507(a)(4)(B). That includes the
broad prohibition removing registrants because their
failure vote. More generally, the statute seeks protect the integrity the electoral process and ensure that
accurate and current voter registration rolls are maintained. 20501(b)(3), (4). Ohio system adds its nonvoting-based identification system factor that has
tendency reveal accurately whether the registered voter
has changed residences. Nothing plus one still one.
And, that one consists failure vote, then Ohio
program also fails make the requisite reasonable effort comply with subsection (a) statutory mandate.
must violate the statute.
III
The majority tries find support two provisions
different statute, namely, the Help America Vote Act
2002, 116 Stat. 1666, the pertinent part which reprinted Appendix infra, 26. The first entitled Clarification Ability Election Officials Remove Registrants From Official List Voters Grounds Change Residence. 903, id., 1728. That provision was added the National Voter Registration Act
Failure-to-Vote Clause, subsection (b)(2), which says that State registrant removal program shall not result
the removal the name any person from the official list
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BREYER, J., dissenting reason the person failure vote. 20507(b)(2);
see supra, The Clarification adds:
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
the [confirmation] notice sent the applicable registrar; and then (B) has not voted appeared vote more consecutive general elections for Federal office. 903, id., 1728 (emphasis added).
This amendment simply clarified that the use nonvoting specified subsections (c) and (d) does not violate the
Failure-to-Vote Clause. The majority asks why, the
matter simple, Congress added the new language
all. The answer this question just what the title
attached the new language says, namely, Congress
added the new language for purposes clarification. And
the new language clarified any confusion States may have
had about the relationship between, the one hand,
subsection (b) broad prohibition any use person
failure vote removal programs and, the other
hand, the requirement subsections (c) and (d) that
State consider whether registrant has failed vote
the end the Confirmation Procedure. This reading finds
support several other provisions both the National
Voter Registration Act and the Help America Vote
Act, which make similar clarifications.
See, e.g.,
20507(c)(2)(B) (clarifying that particular prohibition
shall not construed preclude States from complying with separate statutory obligations); see also
20510(d)(2) (similar rule construction), 21081(c)(1),
21083(a)(1)(B), (a)(2)(A)(iii), (b)(5), (d)(1)(A) (B); 21084.
The majority also points out that another provision
HUSTED PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
the Help America Vote Act, 303. See 303(a)(4), 116 Stat.
1708, 21083(a)(4). That provision once again
reaffirms that State registration list-maintenance
program must mak[e] reasonable effort remove registrants who are ineligible vote and adds that consistent
with the National Voter Registration Act 1993 registrants who have not responded notice and who have
not voted consecutive general elections for Federal
office shall removed from the official list eligible
voters, except that registrant may removed solely
reason failure vote. 21083(a)(4)(A) (emphasis
added).
The majority tries make much the word solely.
But the majority makes too much too little. For one
thing, the Registration Act Failure-to-Vote Clause under
subsection (b) does not use the word solely. And 303
the Help America Vote Act tells interpret its language (which includes the word solely consistent with
the Registration Act. 21083(a)(4)(A). For another, the
Help America Vote Act says that nothing this [Act]
may construed authorize require conduct prohibited under [the National Voter Registration Act], supersede, restrict limit the application [t]he National Voter Registration Act. 21145(a)(4).
The majority view the statute leaves the Registration Act Failure-to-Vote Clause with nothing
respect change-of-address programs. Let anyone who
doubts this read subsection (d) (while remaining aware
the fact that requires the sending confirmation
notice) and ask himself herself: What else there for
the Failure-to-Vote Clause do? The answer nothing.
Section 8(d) requires States send confirmation notice
for all change-of-address removals, and, the majority
view, failing respond that forwardable notice always valid cause for removal, even that notice was
sent reason the registrant initial failure vote.
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BREYER, J., dissenting
Thus the Failure-to-Vote Clause left with independent weight since complying with subsection (d) shields
State from violating subsection (b). repeat the point,
under the majority view, the Failure-to-Vote Clause
superfluous respect change-of-address programs:
subsection (d) already accomplishes everything the majority says required State removal program namely,
the sending notice.
Finally, even were accept the majority premise
that the question here whether Ohio system removes
registered voters from the registration list solely reason failure vote, that would not change anything. have argued, Part II, supra, the failure respond forwardable notice irrelevant factor terms
what shows about whether that registrant changed his her residence. add irrelevant factor failure
vote, say, factor like having gone vacation having
eaten too large meal, cannot change Ohio sole use
failure vote into something not.
JUSTICE THOMAS, concurring, suggests that reading the statute raises serious constitutional doubts.
Ante, (quoting Jennings Rodriguez, 583 ___,
___ (2018) (slip op., 2)). believes that would
seriously interfere with the States constitutional authority set and enforce voter qualifications. Ante, the
same time, the majority assume[s] that Congress has
the constitutional authority limit voting eligibility
requirements the way respondents suggest. Ante,
16, But suggests possible agreement with JUSTICE
THOMAS, for makes this assumption only for the sake
argument. Ibid.
Our cases indicate, however, that neither exceeds
Congress authority under the Elections Clause, Art.
nor interferes with the State authority under the Voter
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BREYER, J., dissenting
Qualification Clause, Art. Indeed, this Court
precedents interpreting the scope congressional authority
under the Elections Clause make clear that Congress has
the constitutional power adopt the statute before us.
The Elections Clause states:
The Times, Places and Manner holding Elections
for Senators and Representatives, shall prescribed each State the Legislature thereof; but the Congress may any time Law make alter such
Regulations, except the Places chusing Senators. Const., Art. cl.
The Court has frequently said that [t]he Clause substantive scope broad, and that empowers Congress pre-empt state regulations governing the Times, Places
and Manner holding congressional elections. Arizona Inter Tribal Council Ariz., Inc., 570 (2013). have long held that [t]he power Congress over the
Times, Places and Manner congressional elections
paramount, and may exercised any time, and any
extent which deems expedient; and far exercised, and farther, the regulations effected supersede
those the State which are inconsistent therewith. Id., (quoting parte Siebold, 100 371, 392 (1880)).
The words Times, Places, and Manner, have said,
are comprehensive words that embrace authority
provide complete code for congressional elections.
Tribal Council, supra, (quoting Smiley Holm, 285 355, 366 (1932)). That complete code includes the
constitutional authority enact regulations relating
registration. Ibid.; see also Cook Gralike, 531
510, 524 (2001) (same); Roudebush Hartke, 405 15, (1972). That precisely what does.
Neither does tell the States who may vote federal
elections. Tribal Council, 570 S., 16. Instead,
considers the manner registering those whom the State
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BREYER, J., dissenting
itself considers qualified. Unlike the concurrence, not
read our precedent holding the contrary. But see id., (THOMAS, J., dissenting). And, our precedent strongly
suggests that, given the importance voting democracy, State effort (because failure vote) remove
from federal election roll those considers otherwise
qualified unreasonable. Cf. Carrington Rash, 380 89, 93, (1965) (State can impose reasonable
residence restrictions the availability the ballot but
cannot forbid otherwise qualified members military
vote); see also Kramer Union Free School Dist. No. 15,
395 621, 625 (1969) States have the power impose reasonable citizenship, age, and residency requirements the availability the ballot (emphasis added));
Harper Virginia Bd. Elections, 383 663, 668
(1966) introduce wealth payment fee
measure voter qualifications introduce capricious irrelevant factor
For these reasons, with respect, dissent.
HUSTED PHILIP RANDOLPH INSTITUTE
BREYER J., dissenting
Appendix ,opinion BREYER,
APPENDIXES
The National Voter Registration Act 1993
SEC. FINDINGS AND PURPOSES.
(a) FINDINGS. The Congress finds that
(1) The right citizens the United States vote
fundamental right;
(2) the duty the Federal, State, and local governments promote the exercise that right; and
(3) discriminatory and unfair registration laws and
procedures can have direct and damaging effect voter
participation elections for Federal office and disproportionately harm voter participation including racial
minorities.
(b) PURPOSES. The purposes this Act are
(1) establish procedures that will increase the number eligible citizens who register vote elections for
Federal office;
(2) make possible for Federal, State, and local
governments implement this Act manner that
enhances the participation eligible citizens voters
elections for Federal office;
(3) protect the integrity the electoral process; and
(4) ensure that accurate and current voter registration rolls are maintained. 107 Stat. 77.
SEC. SIMULTANEOUS APPLICATION FOR VOTER
REGISTRATION AND APPLICATION FOR MOTOR VEHICLE
DRIVER LICENSE.
(d) CHANGE ADDRESS. Any change address form
submitted accordance with State law for purposes
State motor vehicle drivers license shall serve notification change address for voter registration with respect elections for Federal office for the registrant in-
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BREYER J., dissenting
Appendix ,opinion BREYER,
volved unless the registrant states the form that the
change address not for voter registration purposes.
Id., 79.
SEC. MAIL REGISTRATION.
(d) UNDELIVERED NOTICES. notice the disposition mail voter registration application under section
8(a)(2) sent nonforwardable mail and returned
undelivered, the registrar may proceed accordance with
section 8(d). Id., 80.
SEC. REQUIREMENTS WITH RESPECT ADMINISTRATION VOTER REGISTRATION.
(a) GENERAL the administration voter regis-
tration for elections for Federal office, each State shall
(1) ensure that any eligible applicant registered
vote election
(2) require the appropriate State election official
send notice each applicant the disposition the
application;
(3) provide that the name registrant may not
removed from the official list eligible voters except
(A) the request the registrant;
(B) provided State law, reason criminal
conviction mental incapacity;
(C) provided under paragraph (4);
(4) conduct general program that makes reasonable
effort remove the names ineligible voters from the
official lists eligible voters reason
(A) the death the registrant;
(B) change the residence the registrant, accordance with subsections (b), (c), and (d);
(b) CONFIRMATION VOTER REGISTRATION. Any
State program activity protect the integrity the
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BREYER J., dissenting
Appendix ,opinion BREYER,
electoral process ensuring the maintenance accurate and current voter registration roll for elections for
Federal office
(1) shall uniform, nondiscriminatory, and compliance with the Voting Rights Act 1965 (42 1973 seq.); and
(2) shall not result the removal the name any
person from the official list voters registered vote election for Federal office reason the person
failure vote.
(c) VOTER REMOVAL PROGRAMS. (1) State may meet
the requirement subsection (a)(4) establishing
program under which
(A) change-of-address information supplied the
Postal Service through its licensees used identify
registrants whose addresses may have changed; and
(B) appears from information provided the
Postal Service that
(i) registrant has moved different residence address the same registrars jurisdiction which the
registrant currently registered, the registrar changes
the registration records show the new address and
sends the registrant notice the change forwardable
mail and postage prepaid pre-addressed return form
which the registrant may verify correct the address
information;
(ii) the registrant has moved different residence
address not the same registrars jurisdiction, the registrar uses the notice procedure described subsection
(d)(2) confirm the change address.
(2)(A) State shall complete, not later than days
prior the date primary general election for Federal office, any program the purpose which systematically remove the names ineligible voters from the
official lists eligible voters.
(B) Subparagraph (A) shall not construed pre-
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BREYER J., dissenting
Appendix ,opinion BREYER,
clude
(i) the removal names from official lists voters
basis described paragraph (3)(A) (B) (4)(A)
subsection (a);
(ii) correction registration records pursuant this
Act.
(d) REMOVAL NAMES FROM VOTING ROLLS. (1)
State shall not remove the name registrant from the
official list eligible voters elections for Federal office the ground that the registrant has changed residence
unless the registrant
(A) confirms writing that the registrant has changed
residence place outside the registrar jurisdiction
which the registrant registered;
(B)(i) has failed respond notice described
paragraph (2); and
(ii) has not voted appeared vote (and, necessary,
correct the registrars record the registrants address) election during the period beginning the date the
notice and ending the day after the date the second
general election for Federal office that occurs after the
date the notice.
(2) notice described this paragraph
postage prepaid and pre-addressed return card, sent
forwardable mail, which the registrant may state his
her current address, together with notice the following
effect:
(A) the registrant did not change his her residence, changed residence but remained the registrar jurisdiction, the registrant should return the card not later
than the time provided for mail registration under subsection (a)(1)(B). the card not returned, affirmation
confirmation the registrant address may required
before the registrant permitted vote Federal
election during the period beginning the date the
notice and ending the day after the date the second
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BREYER J., dissenting
Appendix ,opinion BREYER,
general election for Federal office that occurs after the
date the notice, and the registrant does not vote
election during that period the registrant name will
removed from the list eligible voters.
(B) the registrant has changed residence place
outside the registrar jurisdiction which the registrant registered, information concerning how the registrant
can continue eligible vote.
(3) voting registrar shall correct official list
eligible voters elections for Federal office accordance
with change residence information obtained conformance with this subsection. Id., 84.
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BREYER J., dissenting
Appendix ,opinion BREYER,
The Help America Vote Act 2002
COMPUTERIZED STATEWIDE VOTER
SEC. 303.
REGISTRATION LIST REQUIREMENTS AND REQUIREMENTS FOR VOTERS WHO REGISTER MAIL.
(a) COMPUTERIZED STATEWIDE VOTER REGISTRATION
LIST REQUIREMENTS.
(4) MINIMUM STANDARD FOR ACCURACY STATE
VOTER REGISTRATION RECORDS. The State election system shall include provisions ensure that voter registration records the State are accurate and are updated
regularly, including the following:
(A) system file maintenance that makes reasonable effort remove registrants who are ineligible vote
from the official list eligible voters. Under such system,
consistent with the National Voter Registration Act
1993 (42 U.S.C. 1973gg seq.), registrants who have not
responded notice and who have not voted consecutive general elections for Federal office shall removed
from the official list eligible voters, except that registrant may removed solely reason failure vote.
(B) Safeguards ensure that eligible voters are not
removed error from the official list eligible voters.
116 Stat. 1708 1710.
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Appendix ,opinion BREYER,
SEC. 903. CLARIFICATION ABILITY ELECTION
OFFICIALS REMOVE REGISTRANTS FROM OFFICIAL
LIST VOTERS GROUNDS CHANGE
RESIDENCE.
Section 8(b)(2) the National Voter Registration Act
1993 amended striking the period the end and
inserting the following: 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. Id.,
1728.
SEC. 906. EFFECT OTHER LAWS.
(a) GENERAL. [N]othing this Act may
construed authorize require conduct prohibited under
any the following laws, supersede, restrict, limit
the application such laws [including]:
(4) The National Voter Registration Act 1993. Id., 1729.
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SOTOMAYOR, J., dissenting
SUPREME COURT THE UNITED STATES
_________________
No. 980
_________________
JON HUSTED, OHIO SECRETARY STATE,
PETITIONER PHILIP RANDOLPH
INSTITUTE, AL. WRIT CERTIORARI THE UNITED STATES COURT
APPEALS FOR THE SIXTH CIRCUIT
[June 11, 2018]
JUSTICE SOTOMAYOR, dissenting. join the principal dissent full because agree that
the statutory text plainly supports respondents interpretation. write separately emphasize how that reading bolstered the essential purposes stated explicitly
the National Voter Registration Act 1993 (NVRA)
increase the registration and enhance the participation eligible voters federal elections.
20501(b)(1) (2). Congress enacted the NVRA against
the backdrop substantial efforts States disenfranchise low-income and minority voters, including programs
that purged eligible voters from registration lists because
they failed vote prior elections. The Court errs
ignoring this history and distorting the statutory text
arrive conclusion that not only contrary the plain
language the NVRA but also contradicts the essential
purposes the statute, ultimately sanctioning the very
purging that Congress expressly sought protect against.
Concerted state efforts prevent minorities from voting
and undermine the efficacy their votes are unfortunate feature our country history. See Schuette
BAMN, 572 291, 337 338 (2014) (SOTOMAYOR, J.,
dissenting). the principal dissent explains, [i]n the
late 19th and early 20th centuries, number
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SOTOMAYOR, J., dissenting
[r]estrictive registration laws and administrative procedures came use across the United States. Ante,
(opinion BREYER, J.). States enforced poll tax[es],
literacy tests, residency requirements, selective purges, and annual registration requirements, which were
developed keep certain groups citizens from voting. Rep. No. 103 (1993). Particularly relevant
here, some States erected procedures requiring voters
renew registrations whenever [they] moved failed
vote election, which sharply depressed turnout,
particularly among blacks and immigrants. Keyssar,
The Right Vote 124 (2009). Even after the passage
the Voting Rights Act 1965, many obstacles remained.
See ante, (opinion BREYER, J.).
Congress was well aware the long history such list
cleaning mechanisms which have been used violate the
basic rights citizens when enacted the NVRA. Rep. No. 103 (1993). Congress thus made clear the statutory findings that the right citizens the
United States vote fundamental right, that
the duty the Federal, State, and local governments
promote the exercise that right, and that discriminatory and unfair registration laws and procedures can have direct and damaging effect voter participation and
disproportionately harm voter participation various
groups, including racial minorities. 20501(a). light those findings, Congress enacted the NVRA
with the express purposes increas[ing] the number
eligible citizens who register vote and enhanc[ing] the
participation eligible citizens voters. 20501(b)(1)
(2). These stated purposes serve least part counteract the history voter suppression, evidenced
20507(b)(2), which forbids the removal the name
any person from the official list voters registered vote election for Federal office reason the person
failure vote. Ibid.
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SOTOMAYOR, J., dissenting course, Congress also expressed other objectives,
protect the integrity the electoral process and ensure that accurate and current voter registration rolls are
maintained. 20501(b)(3) (4).* The statute contemplates, however, that States can, and indeed must, further
all four stated objectives. relevant here, Congress
crafted the NVRA with the understanding that, while
States are required make reasonable effort remove ineligible voters from the registration lists,
20507(a)(4), such removal programs must developed manner that prevent[s] poor and illiterate voters from
being caught purge system which will require them
needlessly re-register and prevent[s] abuse which has
disparate impact minority communities, Rep. No.
103 18.
Ohio Supplemental Process reflects precisely the type purge system that the NVRA was designed prevent.
Under the Supplemental Process, Ohio will purge registrant from the rolls after six years not voting, e.g., sitting out one Presidential election and two midterm elections, and after failing send back one piece mail, even
though there reasonable basis believe the individual actually moved. See ante, (BREYER, J., dissenting). This purge program burdens the rights eligible
voters. best, purged voters are forced needlessly
reregister they decide vote subsequent election; worst, they are prevented from voting all because
they never receive information about when and where The majority characterizes these objectives ones remov[e]
ineligible persons from the States voter registration rolls, ante,
but maintaining accurate rolls and protecting the integrity the
electoral process surely encompass more than just removing ineligible
voters. accurate voter roll and fair electoral process should also
reflect the continued enrollment eligible voters. this way, the
NVRA enhanced-participation and accuracy-maintenance goals are achieved simultaneously, and are mutually reinforcing.
HUSTED PHILIP RANDOLPH INSTITUTE
SOTOMAYOR, J., dissenting
elections are taking place. unsurprising light the history such purge
programs that numerous amici report that the Supplemental Process has disproportionately affected minority,
low-income, disabled, and veteran voters. one example,
amici point investigation that revealed that Hamilton County, African-American-majority neighborhoods downtown Cincinnati had 10% their voters removed
due inactivity since 2012, compared only
voters suburban, majority-white neighborhood. Brief
for National Association for the Advancement Colored
People al. Amici Curiae 19. Amici also explain
length how low voter turnout rates, language-access problems, mail delivery issues, inflexible work schedules, and
transportation issues, among other obstacles, make
more difficult for many minority, low-income, disabled,
homeless, and veteran voters cast ballot return
notice, rendering them particularly vulnerable unwarranted removal under the Supplemental Process. See
Brief for Asian Americans Advancing Justice AAJC
al. Amici Curiae 26; Brief for National Disability
Rights Network al. Amici Curiae 17, 24, 31;
Brief for VoteVets Action Fund Amicus Curiae 30.
See also Brief for Libertarian National Committee
Amicus Curiae (burdens principled nonvoters).
Neither the majority nor Ohio meaningfully dispute that
the Supplemental Process disproportionately burdens
these communities. oral argument, Ohio suggested
that such disparate impact not pertinent this case
because respondents did not challenge the Supplemental
Process under 20507(b)(1), which requires that any removal program uniform, nondiscriminatory, and
compliance with the Voting Rights Act. Tr. Oral Arg.
23. The fact that respondents did not raise claim under
20507(b)(1), however, wholly irrelevant our assessment whether, matter statutory interpretation,
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SOTOMAYOR, J., dissenting
the Supplemental Process removes voters reason the
person failure vote violation 20507(b)(2). Contrary the majority view, ante, 21, the NVRA
express findings and purpose are highly relevant that
interpretive analysis because they represent the assumed
facts and the purposes that the majority the enacting
legislature had mind, and these can shed light
the meaning the operative provisions that follow.
Scalia Garner, Reading Law 218 (2012). Respondents need not demonstrate discriminatory intent establish that Ohio interpretation the NVRA contrary
the statutory text and purpose. concluding that the Supplemental Process does not
violate the NVRA, the majority does more than just misconstrue the statutory text. entirely ignores the history voter suppression against which the NVRA was enacted
and upholds program that appears further the very
disenfranchisement minority and low-income voters
that Congress set out eradicate. States, though, need
not choose unwise. Our democracy rests the
ability all individuals, regardless race, income,
status, exercise their right vote. The majority
States have found ways maintain accurate voter rolls
without initiating removal processes based solely
individual failure vote. See App. Brief for League
Women Voters the United States al. Amici Curiae 9a; Brief for State New York al. Amici Curiae 28. Communities that are disproportionately affected unnecessarily harsh registration laws should not tolerate efforts marginalize their influence the political
process, nor should allies who recognize blatant unfairness
stand idly by. Today decision forces these communities
and their allies even more proactive and vigilant
holding their States accountable and working dismantle
the obstacles they face exercising the fundamental right vote.