Brief of Amicus Curiae Common Cause in Support of Respondents

Brief of Amicus Curiae Common Cause in Support of Respondents

September 22, 2017


The outcome of this case will not affect only Petitioner and the state of Ohio. Nor will it just affect the hundreds of thousands of eligible voters in Ohio who have been and will be unlawfully removed from the voter registration rolls by virtue of Petitioner’s illegal practices. What the Court decides here will have ramifications across the country, potentially resulting in the removal of millions of eligible Americans from voter registration rolls, preventing them from exercising their constitutionally protected right to vote in upcoming elections – at a time when collective participation is already too low for a democracy of our kind.

Indeed, in a handful of other states, voters are currently being illegally purged from voter registration rolls because of practices comparable to those of Petitioner. In many, if not most, instances, these citizens may not become aware that they are no longer registered – and thus no longer able to cast a ballot in the next election – until they arrive at the polls on Election Day. By the time they arrive and learn of their removal, it is too late to remedy the problem; these individuals must then sit out that election. (This is so because most of the states subject to the requirements of the NVRA do not have Election Day or same day registration on their legislative books.)

Voters in Georgia, like those in Ohio, face that fate. Georgia has a voter removal program that is substan- tially identical to the one addressed in this case. Geor- gia has used this program to remove hundreds of thousands of eligible voters from its rolls over the course of just a few federal election cycles. These purges violate the text of the NVRA because they permit elections officials to identify for purging eligible, registered voters who have not voted for a specified period of time – despite the fact that such temporary inactivity provides no indication that the individuals have since moved from their homes or otherwise become ineligible to vote. Such temporary inactivity only indicates that an eligible registered voter has, for one of any number of reasons, opted against casting a ballot – a right as American as the right to vote itself – or was prevented from doing so, due to any number of obstacles or external factors.

In 2016, this amicus, among others, sued the Georgia Secretary of State to prevent him from illegally removing voters from the rolls for such inactivity. In Georgia, a comparable voter removal program targets individuals who failed to vote for a consecutive three- year period. The case is currently pending in the Eleventh Circuit. Common Cause and Georgia NAACP v. Kemp, No. 17-11315 (11th Cir. filed March 23, 2017). After the Supreme Court granted certiorari in this case, Georgia’s Secretary of State purged an additional 590,000 individuals from the voter registration rolls – many of whom were purged precisely because they had been placed on the “inactive” list due to not having voted during a three-year period. Practices like those of Petitioner and the Georgia Secretary of State violate the NVRA’s express terms and fly directly in the face of the NVRA’s purpose. As such, they must be prevented in any state.