Brief for 13 States as Amici Curiae in Support of Respondents

Brief for 13 States as Amici Curiae in Support of Respondents

September 22, 2017


Voter inactivity is a poor measure to identify ineligible voters. Ohio presumes that a registrant who has failed to vote in a single federal election has likely moved outside his registration jurisdiction. But in any particular election, many people decline to vote for reasons having nothing to do with changing their residence. And voter turnout among particular demographic groups—including racial minorities, young voters, poor voters, uneducated voters, and voters with disabilities—historically has been even more depressed than in the general population. Targeting nonvoters for a State’s deregistration process thus threatens to disenfranchise many eligible voters, particularly in populations with lower rates of voter turnout.

There is no pressing need for States to target nonvoters. In amici States’ experience, there are far better sources of readily available evidence that a voter has moved than the mere fact that a person did not vote. States may use change-of-address information from the U.S. Postal Service, as specifically approved by Congress, 52 U.S.C. § 20507(c)(1)(A), or they may track mail that is returned as undeliverable, including sample ballots or other election-related mailings. They may reconcile the information on their voter registration rolls with other, potentially more up-to-date public or private sources of information. They may offer voters online tools to inform elections officials of changes of address. And they may cooperate with other States to share information so that they can be reliably informed when one of their residents moves to another State.

Relying on voter inactivity rather than these other, more direct sources of information about likely change of residence creates a substantial and unnecessary risk that eligible voters will be removed from the rolls—a risk that is not adequately cured by a State’s use of the NVRA’s confirmation procedure. Such erroneous removals seriously injure voters by preventing them from exercising their fundamental right to vote. In addition, these errors impose substantial costs on local and state elections officials who must correct these errors and handle complaints from surprised and irate voters who discover—often for the first time on election day—that their registrations were canceled. By contrast, keeping inactive voters on the registration rolls imposes relatively fewer harms because in our experience few if any inactive voters who have actually moved away nonetheless vote at their old addresses.