Brief for American History Professors as Amici Curiae in Support of Respondents

Brief for American History Professors as Amici Curiae in Support of Respondents

September 22, 2017


This case is about voting, a right “at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). The franchise has expanded throughout our history via constitutional amendments and federal legislation, as well as shifting norms and attitudes. See id. at 555 & n.28. Even so, elections too often are marred by low voter turnout, a problem exacerbated by state practices that burden registration and reduce access to the polls. In this case, Petitioner, the Ohio Secretary of State, defends one such practice. Ohio’s Supplemental Process automatically cancels the registration of everyone who has not voted in two years and then fails to respond to a single notice and vote in the ensuing four years. Purging residents in this way for exercising their right not to vote violates federal law, regardless of whether the State provides notice and an opportunity to challenge removal. Respondents explain why that is so under the plain text of the relevant statute. Amici agree and seek here to place that text in its historical context. The Court should reject Petitioner’s contrary revisionist history and affirm the Sixth Circuit’s decision below.

In the early twentieth century, state and local governments increasingly began purging the names of citizens who failed to vote as an imprecise but inexpensive way to keep voter rolls accurate. Substantial “dead wood” on voter rolls, the theory went, made for inaccurate registration lists that might enable the likes of Tammany Hall to pad votes. The working assumption behind these purging practices was that people who did not vote in a jurisdiction failed to do so because they had lost their voting eligibility in that jurisdiction—perhaps they moved away, died, or were convicted of a crime. And even if that assumption proved incorrect in any particular case (i.e., the person in fact remained eligible to vote in that jurisdiction), proponents asserted that the affected person could either prevent the purge from going into effect (assuming that the person received advance notice) or reregister (assuming that the person understood reregistration was an option). None of that is to say that these purges were innocent—historians like amici have since found that in many cases registration systems and purging practices had both the intent and effect of disfranchising voters, particularly African-American voters. Nevertheless, many States agreed with the early proponents of these laws and adopted purging for non-voting as a quick-and-easy method to clean up voter registration lists. But over time even once-proponents of purging for failure to vote came to see the shortcomings of this practice, and Congress ultimately banned the practice entirely.

Mounting experience with these purging practices generated concerns about their efficacy and fairness. Many who studied the causes of low voter turnout in the United States concluded that cumbersome state registration laws—including purging for non-voting— were among the primary culprits. Critics also cited evidence showing that these laws disproportionately impacted poor and minority voters. Courts joined the fray as well. The Michigan Supreme Court, for example, questioned the logic of using failure to vote as a proxy for voter ineligibility when the “absence of baby-sitters” or the conscious exercise of the right not to vote were equally plausible explanations for someone sitting out an election. Michigan State UAW Cmty. Action Program Council (CAP) v. Austin, 198 N.W.2d 385, 388 (Mich. 1972). And the Fifth Circuit exposed a dark underbelly of the practice in a case where a local election official violated federal law by applying Louisiana’s purge process in a racially discriminatory manner against African Americans. Toney v. White, 476 F.2d 203, 205-06, 208 (5th Cir.), vacated in part on reh’g en banc, 488 F.2d 310 (5th Cir. 1973).

In the late 1980s, Congress addressed concerns over state laws that purged registrants for non-voting when it tackled comprehensive voting rights and election law reform. Over the course of several years of hearings, Congress heard from numerous groups about the need to reform the complex maze of state and local voter registration laws to increase citizen participation in the voting process. At the same time, state and local officials testified about their legitimate need to maintain accurate voter registration lists.

The result was the National Voter Registration Act of 1993, Pub. L. No. 103-31, 107 Stat. 77 (“NVRA”), which struck a balance between these competing interests. This balance came out against the continued use of purge laws based on failure to vote—regardless of whether the laws allowed for extended time periods to measure non-voting and regardless of whether they provided notice and an opportunity to challenge before an individual was removed from a registration list. Congress recognized that purging for non-voting was a relatively common practice, and that States had a legitimate interest in maintaining accurate voter registration lists. Congress simply decided that a person’s failure to vote should not be used to achieve that goal. Congress directed States instead to use more precise and less discriminatory methods for identifying ineligible voters, including the National Change of Address program available through the U.S. Post Office.

Amici are not alone in this understanding of the text and purpose of the NVRA. The United States had—and over two decades consistently advocated— precisely the same understanding, from the moment Congress passed the NVRA until this late stage of this case. That understanding of the NVRA was, and remains today, correct, the Government’s recent aboutace notwithstanding.

That understanding, moreover, has not been superseded legislatively. When Congress passed the Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666 (”HAVA”), it did not resurrect the ability of States to purge voters who failed to vote. To the contrary, Congress explicitly intended that HAVA “leave[] NVRA intact, and ... not undermine it any way.” H.R. Rep. No. 107-730, at 81 (2002) (Conf. Rep.) (emphasis added).