Brief of Amicus Curiae for Public Citizen, Inc. in Support of Respondents

Brief of Amicus Curiae for Public Citizen, Inc. in Support of Respondents

September 22, 2017


The National Voter Registration Act of 1993 (NVRA) provides that no state may engage in any program or activity that will “result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.” 52 U.S.C. § 20507(b)(2). This prohibition is subject to a single exception: “[N]othing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters” when specified conditions are met. Id. Subsections (c) and (d), in turn, provide procedures by which states may confirm information that a registered voter has changed residence to a place outside the jurisdiction in which he or she is registered. Under those procedures, a voter’s failure to respond to a notice seeking confirmation of his or her change of address and to vote during the period ending with the second general election after the date of the notice permits removal from the voter rolls.

This case involves Ohio’s use of a notice-and-failure-to-respond-or-vote procedure to purge its voter registration lists in the absence of any information that voters have changed residence. Rather, under Ohio’s “supplemental” process for deregistering voters, voters are targeted to receive notices initiating the process solely because of their failure to vote in prior elections. As explained by respondents—organizations and an individual voter who challenge Ohio’s actions—the use of failure to vote as a trigger for sending notice and deregistering voters violates the NVRA’s prohibition on activities that result in removal of voters for failure to vote. Ohio’s method falls outside the NVRA exception because it is not a use of the “procedures described” in subsections (c) and (d) of §20507 to confirm information that a voter has changed residences.

Although respondents’ position coincides with the longstanding view of the United States Department of Justice, the United States has reversed its view since the court of appeals’ decision in this case, and now asserts that the Ohio procedure comports with the statute. The newly minted position of the United States rests in significant part on its argument that respondents’ reading of the law renders superfluous the exception language in § 20507(b)(2), which was added as a clarification when Congress enacted the Help America Vote Act (HAVA) in 2002. See U.S. Br. 23. At the same time, however, the government acknowledges that its new view renders other language of HAVA superfluous. U.S. Br. 26.

The government then invites the Court to apply the canon against superfluity to choose between two competing interpretations that, it says, both fail to account for all of the statutory language. According to the government, the Court should select the reading that avoids what it calls “the more glaring superfluity.” U.S. Br. 26 n.8. Its interpretive methods cannot be squared with this Court’s decisions, which have recognized that the canon against superfluity applies only when the litigant who relies on it is able to proffer a construction that gives effect to all the language of a statute—a test the government concedes it cannot meet. See id.

The flaws in the government’s invocation of the canon do not stop there. The respondents’ position does not in fact render any part of § 20507 superfluous. The government’s, on the other hand, ignores the plain meaning of express language in each of the relevant subsections of § 20507, fails to address key language in HAVA that expressly negates the government’s argument that it narrows or limits the prohibitions of the NVRA, and disregards the interpretive principle that exceptions to remedial statutes should be narrowly construed.

In short, the United States’ construction of the statute is untenable.