Brief of Certain Members of the Congressional Black Caucus as Amici in Support of Respondents

Brief of Certain Members of the Congressional Black Caucus as Amici in Support of Respondents

September 22, 2017
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SUMMARY OF ARGUMENT

Petitioner tries to defend voter registration purges triggered by non-voting as a “longstanding state practice.” Brief for the Petitioner at 2. “Longstanding” as Ohio’s practice may be, Congress intended to uproot it in the NVRA. The Department of Justice and the Federal Election Commission acknowledged that Congressional mandate when they repeatedly put states on notice—in lawsuits, written reports, and otherwise—that the practice of targeting non-voters with confirmation mailings to initiate the purge process was either prohibited by the NVRA or, at best, was of doubtful validity.

In the years after the NVRA was enacted, bills seeking to amend the statute to allow non-voters to be targeted for registration purges were introduced in both the House and Senate, further demonstrating that the NVRA did not already permit the practice. None of those bills, however, was enacted. When Congress enacted HAVA in 2002, it repeatedly confirmed, in both the text of the statute and in the Conference Report, that the NVRA’s substantive and procedural protections would be preserved. The Federal Election Commission, the Department of Justice and Members of Congress all understood that the targeting of nonvoters for confirmation mailings violated the NVRA’s ban on purges of non-voters; the “clarification” of the NVRA in HAVA cannot be construed to effect that change implicitly in light of the previous failures to effect it explicitly.

The Sixth Circuit’s decision correctly interpreted the NVRA and HAVA when it invalidated Ohio’s “Supplemental Process” of targeting non-voters for confirmation mailings and eventual removal from the rolls; its decision should be affirmed. 

 

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