Brief of Amici Curiae NAACP and the Ohio State Conference of the NAACP in Support of Respondents

Brief of Amici Curiae NAACP and the Ohio State Conference of the NAACP in Support of Respondents

September 22, 2017


Despite centuries of struggle, the sacred right to vote continues to evade a large number of voters of color in the United States. as the court has recognized, the right of suffrage is fundamental to a free and democratic society. Reynolds v. Sims, 377 U.S. 533, 561-62 (1962). although advances have been achieved in the ght to secure the right to vote for all citizens, the ability to participate fully in U.S. democracy still eludes far too many voters, particularly voters of color due to suppressive state tactics.2 This court has long recognized that racial discrimination in the administration of elections is unconstitutional. See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). This denial of the right to vote is especially troubling, considering the various forms of physical violence that people of color have faced over the years in their attempts to register and vote. See, e.g., Northeast Ohio Coalition for the Homeless v. Husted, 837 f.3d 612, 639-651 (6th cir. 2016) (Keith, J., dissenting).

While overt acts of violence have been used historically to deny the vote, today more insidious means of restricting access to the ballot are common. Ohio has a long history of barriers to the ballot, as demonstrated by consistent cuts to same-day registration and early in-person (“EiP”) voting. See Ohio Democratic Party v. Husted, 834 f.3d 620, 624 (6th cir. 2016). Ohio has designed and fostered a system of voting that creates impermissible administrative barriers, such as long lines and unwarranted voter challenges that disproportionately impact voters of color. See Obama for America v. Husted, 697 f.3d 423, 425 (6th Cir. 2012) (af rming preliminary injunction preventing Ohio from cutting early voting). The United States court of appeals for the Sixth circuit previously noted that during the 2004 election, Ohioans faced long lines and wait times, sometimes stretching into the early morning the following day. Id. at 426. in recent years, additional burdens that affect access to the ballot have emerged, such as poll worker errors and problems with provisional ballots. See League of Women Voters of Ohio v. Brunner, 548 f.3d 463, 478 (6th cir. 2008).

in response to these problems, Ohio adopted a promising measure called Golden Week, which greatly extended same day registration and early voting opportunities for Ohioans. See NAACP, 768 f.3d at 531. Black voters utilized the early voting allowed by Golden Week at higher rates than White voters. Id. at 534. in spite of the law’s success, Ohio then eliminated Golden Week. Voting rights advocates challenged the state’s action in an effort to preserve the program’s monumental gains. Id. These barriers to voting in Ohio have chilled the vote in communities of color.

The National Voter registration act of 1993 (“NVRA”), 52 U.S.c. § 20501 et seq., sought to establish a system that extended the right to vote to americans who had been previously shut out of the democratic process. congress passed the NVRA with two priorities in mind: an assurance that as many citizens as possible could register and participate in federal elections, and an accurate maintenance of state voter rolls. See A. Philip Randolph Inst. v. Husted, 838 f.3d 699, 705 (6th cir. 2016) (“APRI”) (quoting Common Cause of Colo. v. Buescher, 750 f. Supp. 2d 1259, 1274 (D. colo. 2010)). The Sixth circuit acknowledged the tension between the two primary purposes of the NVRA, but also noted that one of the guiding principles of the law is to ensure that, once registered, a voter remains on the rolls so long as he or she is eligible to vote in that jurisdiction. Id. at 706; see also H.r. rep. No. 103-9, at 18 (1993). The Sixth Circuit’s analysis con rms that the NVRA was signed into law with the intent of securing and expanding the right to vote. Unfortunately, the Ohio Secretary of State’s misapplication of the NVRA continues the pattern of denying the right to vote to communities of color.

The NVRA is clear: a State cannot begin registration removal proceedings on the basis of an individual’s failure to vote in an election. yet, Ohio adopted the voter maintenance procedure at issue in this case, known as the Ohio Supplemental Process, which does just that. See Ohio rev. code § 3503.21 (a)(7) & (B). The Sixth circuit agreed, holding that the Ohio Supplemental Process violates Section 8, subsection (b)(2) of the NVRA. APRI, 838 f.3d at 712. as set forth below, Ohio’s Supplemental Process follows a long line of suppressive tactics that have limited participation in the electoral process of countless Ohio voters of color. indeed, a direct connection exists between Ohio’s suppressive tactics–such as the elimination of Golden Week, voter challenges, and long lines at the polls—and the inactivity that, through the Supplemental Process, results in the removal of voters from registration rolls. Amici also address the impact of mail delivery on the inactivity of voters of color, which may contribute to a voter’s lack of response to correspondence from the state. in sum, amici contend that the Ohio Supplemental Process violates the language of the NVRA and disproportionately impacts voters of color. for these reasons, amici respectfully request af rmance of the Sixth circuit’s decision that the Supplemental Process violates the NVRA. 


2 Recent examples include NC NAACP v. McCrory, 831 f.3d 204 (4th cir. 2016) (challenging voter suppression law passed by the North carolina General assembly), and Texas NAACP v. Steen, 71 f. Supp. 3d 627 (S.D. Tx. 2014) (ongoing challenge to a discriminatory voter iD law in Texas). See also (summarizing the timeline of events and litigation related to Steen).