Brief of the Lawyers' Committee for Civil Rights Under Law, Rock the Vote, The Nuns on the Bus of Ohio, The Texas Civil Rights Project and the Center for Media and Democracy in Support of Respondants

Brief of the Lawyers' Committee for Civil Rights Under Law, Rock the Vote, The Nuns on the Bus of Ohio, The Texas Civil Rights Project and the Center for Media and Democracy in Support of Respondants

September 22, 2017
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SUMMARY OF ARGUMENT

Ohio’s “Supplemental Process” for removing registrants from its voter rolls, which is triggered by an individual’s failure to vote for a mere two years, violates the plain language of the National Voter Registration Act of 1993 (the “NVRA”) and runs counter to Congress’s intent and purpose in enacting the law. The NVRA reflects Congress’s efforts to expand voter protection beyond the Voting Rights Act of 1965, to increase voter participation in the United States, particularly among historically disenfranchised groups,2 by eliminating administrative barriers to registering and voting. In enacting the NVRA, Congress found that “the right of citizens of the United States to vote is a fundamental right,” “it is the duty of the Federal, State, and local governments to promote the exercise of that right,” and “discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.” 52 U.S.C. § 20501(a). 

The NVRA permits a State to remove individuals from its list of eligible voters only in limited circumstances and requires States to employ reasonable efforts to remove ineligible voters from their registration rolls. See 52 U.S.C. § 20507(a)(3)- (4). Although Ohio’s Supplemental Process purports to rely on one of these exclusive grounds for voter purging—a registrant’s change of address—it does so by selecting for removal voters who simply failed to vote. Congress was keenly aware that the failure to vote is not a reliable indicator whether a registered voter has moved, and for that reason expressly prohibited States from purging voters due to a failure to vote. Id. § 20507(b)(2). Congress thus squarely answered the question of whether the method utilized in Ohio’s Supplemental Process is a legitimate “reasonable effort” for the maintenance of accurate voter registration rolls: it is not.

Nor can Ohio rely on the amendments to the NVRA that were included in the Help America Vote Act of 2002 (“HAVA”) to rescue the Supplemental Process from invalidation. In enacting HAVA, Congress made clear that nothing was meant to undermine the NVRA; rather, Congress sought to clarify that the NVRA’s prohibition against purging registered voters due to their failure to vote does not prevent States from relying on registrants’ failure to vote in two subsequent Federal elections once they have been otherwise reasonably identified as potentially having changed residences. Because the NVRA prohibits the bare use of nonvoting as a means for targeting individuals to be purged from the registration rolls, and because HAVA may not be construed “to authorize or require conduct prohibited under [the NVRA], or to supersede, restrict, or limit the application of [the NVRA],” 52 U.S.C. § 21145(a)(4), HAVA does not permit Ohio’s Supplemental Process.

Finally, census data support the concerns reflected in the legislative history of the NVRA that purging based on nonvoting disproportionately impacts minorities. A smaller percentage of registered minority voters show up at the polls than registered white voters, especially in mid-term elections. Ohio’s Supplemental Process thus threatens to impact minorities disproportionately compared to other voters, frustrating a core goal of the NVRA: to increase voter registration, especially among minorities.

The NVRA’s clear language and legislative history support the U.S. Court of Appeals for the Sixth Circuit’s conclusion that Ohio’s Supplemental Process violates the law. 

Note:

2 President Clinton, upon signing the NVRA into law, remarked: “The victory we celebrate today is but the most recent chapter in the overlapping struggles of our Nation’s history to enfranchise women and minorities, the disabled, and the young with the power to affect their own destiny and our common destiny by participating fully in our democracy.” Presidential Statement on Signing the National Voter Registration Act of 1993, 29 Weekly Comp. Pres. Doc. 914 (May 20, 1993). 

 

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