Brief of Amici Curiae for Common Cause, et al. v. Georgia Secretary of State Brian Kemp

Brief of Amici Curiae for Common Cause, et al. v. Georgia Secretary of State Brian Kemp

June 12, 2017


The American Civil Liberties Union Foundation (“ACLU”) is a nationwide, non-partisan organization of approximately 1.6 million members, nearly 300 staff attorneys, thousands of volunteer attorneys, and offices throughout the nation. The ACLU is dedicated to the principles of liberty and equality embodied in the Constitution and our nation’s civil rights laws. Since 1965, the ACLU, through its Voting Rights Project, has litigated more than 300 voting rights cases. These include several voting rights cases before this Court in which the ACLU served as party’s counsel or as an amicus.

The American Civil Liberties Union Foundation of Georgia, Inc. (“ACLU Georgia”) is the Georgia affiliate of the ACLU. Having more than 20,000 members in Georgia, ACLU Georgia appears routinely in state and federal courts both as amicus and direct counsel to protect and to defend—without bias or political partisanship—the right to vote.

Dēmos is a public policy organization working for an America where we all have an equal say in our democracy and an equal chance in our economy. The goals of removing barriers to political participation and ensuring full representation of America’s diverse citizenry are central to Dēmos’ mission. Dēmos deploys original research, advocacy, litigation, and strategic communications to protect voting rights and ensure that the voices of all citizens can be heard. 

Amici Curiae have a significant interest in the outcome of this case and in other cases across the country involving state laws and practices that result in the erroneous removal of eligible voters from a state’s voter rolls and that place onerous barriers on voter registration. Such laws and practices disenfranchise and disillusion eligible voters, and simultaneously place additional burdens on election administrators. Dēmos, the ACLU, and the ACLU’s Ohio affiliate are currently counsel to plaintiffs in Ohio A. Philip Randolph Institute v. Husted, No. 16-CV- 303, 2016 WL 3542450 (S.D. Ohio, June 29, 2016), rev’d, 838 F.3d 699 (6th Cir. 2016), cert granted, Husted v. APRI, No. 16-980, 2017 WL 515274 (May 30, 2017), a case under the National Voter Registration Act of 1993 (“NVRA”) challenging an Ohio roll-maintenance practice analogous to the one at issue here, namely, the use of a person’s failure to vote as the trigger to initiate a purge process. Amici Curiae have also participated in other NVRA cases involving unnecessary and unlawful registration obstacles, see, e.g., Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) (ACLU as counsel for plaintiffs); Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349 (11th Cir. 2005) (ACLU as counsel for amicus curiae), and purge processes, see, e.g., Voter Integrity Project v. Wake Cty. Bd. of Elec., No. 16-CV-683-BR (E.D.N.C.) (Dēmos as counsel for Defendant- Intervenors); Am. Civil Rights Union v. Snipes, No. 16-CV-61474-BB (S.D. Fla.) (Dēmos as counsel for Defendant-Intervenors); Am. Civil Rights Union v. Phila. City Comm’rs, Civ. A. No. 16-1507, 2016 WL 4721118 (E.D. Pa., Sept. 9, 2016), appeal docketed, No. 16-3811 (3rd Cir. Oct. 12, 2016) (Dēmos as amicus curiae).

Accordingly, Amici Curiae submit this brief to urge reversal of the District Court’s determination that Georgia’s use of a voter’s failure to vote to initiate a purge process does not violate the National Voter Registration Act of 1993 and decision to dismiss Appellants’ complaint.

Pursuant to Rule 29(a)(2) of the Federal Rules of Appellate Procedure, Amici state that all parties have consented to the filing of this brief. 


In enacting the National Voter Registration Act of 1993 (“NVRA”), Congress sought first and foremost to “establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office.” 52 U.S.C. § 20501(b)(1). Congress also sought to “ensure that accurate and current voter registration rolls are maintained,” id. § 20501(b)(4), but strictly limited the circumstances under which a voter can be removed from the rolls. In particular, while states must make a “reasonable effort” to remove voters who have become ineligible by reason of a change in address from the voter rolls, states are expressly prohibited from establishing procedures that “result in the removal of the name of any person from the official list of voters . . . by reason of the person’s failure to vote.” Id. § 20507(a)(4), (b)(2).

Animating this prohibition is the basic principle that just as every eligible voter has the constitutional right to vote, each voter also has the right not to cast a ballot—and the mere exercise of that right should not provide grounds for removing a voter from the voter rolls. Thus, the NVRA permits an individual’s failure to vote to play a role in list maintenance in only one circumstance: As a component of a back-end procedure to confirm that a voter is no longer eligible to vote in a particular jurisdiction due to a change in residence, a procedure that may be used only after a state receives independent and reliable information indicating that a voter may have moved. See generally id. § 20507(a)-(d); see also A. Philip Randolph Institute (APRI) v. Husted, 838 F.3d 699, 710-11 (6th Cir. 2016), cert. granted, Husted v. APRI, 16-980, 2017 WL 515274 (May 30, 2017).

Section 21-2-234 of the Georgia Election Code, Ga. Code § 21-2-234 (“Section 234”), completely disregards this limitation, using failure to vote as the front end impetus to initiate a process of removing a voter from the registration rolls. Based on the assumption that a mere failure to vote, in itself, signals that a voter has moved,1 Section 234 requires the Secretary of State to begin a change-of- address confirmation process for any registered voter who has not voted and who has otherwise had “no contact”2 with election officials in the “preceding three calendar years.” Ga. Code § 21-2-234(a)(2). Under this process, the voter is sent a notice and will be removed from the registration rolls if the voter does not take any affirmative action in or prior to the second federal general election that takes place after the notice was sent. Id. § 21-2-234(a)(2), (b), (g).3 Thus, Section 234 violates the NVRA because use of failure-to-vote to trigger a purge process (1) plainly results in a voter’s removal from the rolls “by reason of the person’s failure to vote” in violation of the NVRA’s express prohibition; and (2) cannot qualify as a “reasonable effort” to identify voters who have become ineligible by reason of a change in residence, see 52 U.S.C. § 20507(a)(4), (b)(2), because a voter’s failure to vote is simply not reliable evidence that the voter has moved.

Yet, while the District Court recognized that under Section 234 a voter’s “failure to vote is necessary to trigger” the change-of-address purge process, Doc. 34 at 12, it still concluded that this removal process is somehow consistent with the NVRA’s prohibition on list maintenance programs that purge eligible voters “by reason of [their] failure to vote.” 52 U.S.C. § 20507(b)(2). This interpretation contradicts the plain language of the NVRA, disenfranchises voters, and imposes the precise re-registration burdens on eligible voters that the NVRA sought to avoid. Indeed, if implemented nationally, the Section 234 purge procedure would threaten millions of lawfully registered voters with removal from the rolls. With forty percent of qualified voters in the United States not casting a ballot in the 2016 General Election,4 such list maintenance practices would serve only to further depress democratic participation.

The Sixth Circuit’s decision in APRI v. Husted, 838 F.3d 699, exposes the errors in the District Court’s analysis. In APRI, the Sixth Circuit addressed whether an Ohio roll-maintenance process that relies on failure to vote to trigger a change- of-address purge process violates the NVRA’s prohibition on removal procedures that “result in the removal of the name of any person from the official list of voters . . . by reason of the person’s failure to vote”—the identical question of statutory interpretation at issue here. Id. at 707-12 (analyzing whether Ohio’s purge process violates 52 U.S.C. § 20507(b)(2)). Using traditional tools of statutory construction, the Sixth Circuit correctly concluded that the Ohio process violates the plain language of the NVRA because using failure to vote to trigger a removal process “constitutes perhaps the plainest possible example of a process that ‘result[s] in’ removal of a voter from the rolls by reason of his or her failure to vote.” Id. at 712. In doing so, the Sixth Circuit recognized the narrow and carefully circumscribed back-end confirmation role that failure to vote plays in the NVRA change-of- address removal process. Id. at 710-11; see also 52 U.S.C. § 20507(a)-(d).

This limited use of failure to vote is consistent with the NVRA’s goals of “increas[ing] the number of eligible citizens who register to vote,” 52 U.S.C.
§ 20501(b)(1), protecting the right of citizens to choose whether to vote, and not punishing voters who exercise their right not to cast a ballot in a particular election. See, e.g., S. Rep. No. 103-6, at 17 (1993). As the documented experiences of voters in Ohio underlying the Sixth Circuit’s decision amply illustrate, roll-maintenance processes like those created by Section 234 result in large numbers of eligible voters being erroneously removed from the registration rolls and subsequently denied their right to vote. See infra Part II.

Georgia voters will continue to be denied their fundamental right to vote and required to unnecessarily re-register under the District Court’s erroneous interpretation of the NVRA. The District Court’s decision should be reversed. 

Read full brief here.



1 Georgia uses several other methods to remove voters from its rolls who have become—or who the state suspects have become—ineligible by reason of a change in address, none of which are at issue in the case at hand. See Ga. Code § 21-2- 232(a) (voter removed from state’s registration rolls upon voter’s request); id. § 21-2-232(b) (“[A]n elector [who] moves to another county or state and registers to vote” will be removed from rolls if “the registration officials send a notice of cancellation reflecting the registration of the elector in the other county or state[.]”); id. § 21-2-233 (Secretary of State may use U.S. Postal Service’s National Change of Address database to identify a voter who may have moved and initiate process to remove that voter from rolls).

2 Georgia law defines “no contact” to “mean that the elector has not filed an updated voter registration card, has not filed a change of name or address, has not signed a petition which is required by law to be verified by the election superintendent of a county or municipality or the Secretary of State, has not signed a voter’s certificate, and has not confirmed the elector’s continuation at the same address during the preceding three calendar years.” Ga. Code § 21-2-234(a)(1). 

3 Under Georgia law, if a voter has been sent a notice by reason of their failure to vote and does not respond to that notice within 30 days, the voter will be placed on an inactive list. Ga. Code § 21-2-234(g). The voter will “remain on [the inactive] list until the day after the second November general election held after the elector is placed on the inactive list of electors.” Id. § 21-2-235(b); see also id. § 21-2- 2(15) (defining November election to mean a federal general election). If at that point in time the voter has not voted or otherwise had any contact with election officials, the voter is purged from the registration rolls. Id. § 21-2-235(b). 

4 See Michael P. McDonald, 2016 November General Election Turnout Rates, United States Election Project, (last visited June 12, 2017).