Brief of Constitutional Accountability Center as Amicus Curiae in Support of Respondents

Brief of Constitutional Accountability Center as Amicus Curiae in Support of Respondents

September 22, 2017


Using its authority under the Elections Clause, Congress passed the National Voter Registration Act (NVRA), which prohibits state voter purge laws that “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). The NVRA’s command reflects the basic constitutional principle that individuals may not be stripped of their fundamental rights—including the right to vote—because they do not exercise them. “‘No other rights guaranteed to citizens are bound by the constant exercise of that right. We do not lose our right to free speech because we do not speak out on every issue.’” S. Rep. 103-6, at 17 (1993) (citation omitted). Ohio, however, asserts that, despite what the NVRA says, states may purge qualified voters from the voting rolls simply because they did not vote during a six-year period and did not respond to a request to confirm their eligibility. According to Ohio, the NVRA must be interpreted to allow for this vote purging to avoid raising doubts about its constitutionality. Pet’r Br. at 46-57. Ohio’s argument cannot be squared with the text and history of the Elections Clause.

More than two centuries ago, our Constitution’s Framers concluded that the federal government must have the final say over the mechanics of federal elections. After lengthy debates over the Elections Clause—beginning at the Constitutional Convention in Philadelphia, continuing in the state ratifying conventions, and through the debates over the Amendments to the Constitution proposed in 1789—the Framers conferred on Congress the power to “make or alter” state election law in order to protect the right to vote in federal elections and allow Congress to set uniform rules for the time, place, and manner of those elections. Where Congress invokes its power to “make or alter” state law, federal law expressly preempts state time, place, and manner regulations, ensuring that states do not interfere with the people’s right to vote for their federal representatives.

As this Court has recognized, the Elections Clause “was the Framers’ insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress,” Arizona v. Inter Tribal Council, Inc., 133 S. Ct. 2247, 2253 (2013), and it provides a “safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate,” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2672 (2015). The Framers wrote the Elections Clause using “words of great latitude,” because “it was impossible to foresee all the abuses that might be made of the [States’] discretionary power.” 2 Records of the Federal Convention 240 (Max Farrand ed., 1911). As this Court has repeatedly held, “[t]he Clause’s substantive scope is broad. ‘Times, Places, and Manner’ . . . are ‘comprehensive words,’ which ‘embrace authority to provide a complete code for congressional elections,’ including . . . regulations relating to ‘registration.’” Inter Tribal Council, 133 S. Ct. at 2253 (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)).

Using its Elections Clause authority, Congress took account of the “continuing, essential interest in the integrity and accuracy of the process used to select both state and federal officials,” id. at 2261 (Kennedy, J., concurring), giving states authority to remove individuals from the rolls because of “the death of the registrant” or “a change in the residence of the registrant.” 52 U.S.C. § 20507(a)(4)(A), (B). But the NVRA denied states the authority to strip a citizen of the right to vote “by reason of the person’s failure to vote.” Id. § 20507(b)(2). While Congress permitted states to use failure to vote as part of the process of confirming a voter’s change of residence, id. § 20507(c), (d), it prohibited states from stripping the right to vote from inactive voters on the basis of their choice not to vote. In making that judgment, Congress acted for reasons at the very core of the Elections Clause and used its express power to “make or alter” state law in order to “avoid requiring voters to re-register unnecessarily.” U.S. Br. at 3. As the United States concedes, “Congress concluded that individuals who fail to vote ‘may not have moved or died’ and that eligible individuals should not be removed from the rolls ‘merely for exercising their right not to vote.’” Id. at 5 (citation omitted). Exercising its power under the Elections Clause, Congress determined that purges targeting inactive voters were an unjustifiable barrier to the right to vote in federal elections. Ohio disagrees, but “the Constitution explicitly gives Congress the final say” on that question. Foster v. Love, 522 U.S. 67, 72 (1997). Because Ohio’s purge of inactive voters cannot be squared with the command of the NVRA, Resp’ts Br. at 24-51, the judgment of the court of appeals should be affirmed.