Brief for Former Department of Justice Officials as Amici Curiae in Support of Respondents

Brief for Former Department of Justice Officials as Amici Curiae in Support of Respondents

September 22, 2017


I. Under Ohio’s “supplemental process,” the failure to vote is both the reason the state initiates its voter-purge procedure and the most immediate cause of a registrant’s removal from the rolls at the end of that procedure. That process violates the NVRA. It is not a “reasonable effort” to identify voters who changed their residence, 52 U.S.C. § 20507(a)(4)(B), and it “result[s] in the removal” of a registrant “by reason of the person’s failure to vote,” id. § 20507(b)(2).

When Congress adopted the NVRA, it declared the right to vote to be a fundamental right. As with other fundamental rights of expression and association, Congress recognized that the right to vote includes a right  not to vote. It accordingly sought to protect citizens against being penalized for nonvoting by being purged from the voter rolls. The NVRA provided that voters may be removed from the rolls for only four reasons: the registrant’s request; criminal conviction or mental incapacity; death; or a change in residence. The statute specifically barred practices that result in the removal of a registrant due to the failure to vote.

Ohio defends its “supplemental process” as a means of identifying voters who have changed their residence. But the text and structure of the NVRA make clear that the failure to vote – even when followed by the mail-notice procedure required by the statute – is not a “reasonable” means of identifying those individuals who have become “ineligible . . . by reason of . . . a change in the residence of the registrant.” 52 U.S.C. § 20507(a)(4)(B). There are simply too many competing explanations for a voter’s failure to cast a ballot at a particular election. Congress recognized these problems when it adopted the NVRA. Under the one means specifically listed in the statute for identifying voters who have moved, a state would begin the mail-notice voter-purge process only after it had obtained independent information – in the form of a listing on the Postal Service’s change of address database – that the voter had in fact moved. Although the NVRA does not require a state to use the Postal Service’s database, the “reasonableness” standard requires, at a minimum, that the state have some reliable, independent indication that a voter has moved before initiating the voter-purge process. 

In addition to being an unreasonable means of identifying voters who have moved, Ohio’s “supplemental process” violates the failure-to-vote clause in the NVRA and the parallel language in the Help America Vote Act, Pub. L. No. 107-252, 116 Stat. 1666 (2002) (“HAVA”). Under Ohio’s process, the failure to vote is both the trigger that sets the purge process in motion and the final step that leads to the removal of a voter from the rolls. The state argues that the failure to vote is not the “sole proximate cause” of the removal, because the voter must also have failed to respond to a notice mailed by election officials. But that argument denies effect to the failure-to-vote clauses in the NVRA and HAVA. It also disregards ordinary principles of proximate causation. If the failure-to-vote clauses mean anything, they must mean that a state may not use nonvoting as a basis for initiating the mail-notice purge process. Although the NVRA allows a state to confirm its belief that a voter has changed her residence by sending a mailing and then seeing that she has not voted in several elections, it forbids the state from using nonvoting to derive its belief that a voter has changed her residence.

Ohio argues that its interpretation of the NVRA is supported by the canon of constitutional avoidance. But reading the NVRA to bar the “supplemental process” raises no serious constitutional question. To the contrary, it is Ohio’s interpretation that would raise serious constitutional questions, by reading the NVRA to have empowered states to remove citizens from the rolls simply for exercising their protected right not to vote.

II. In the Sixth Circuit, the United States contended that Ohio’s “supplemental process” violates the NVRA. That argument was consistent with the Department of Justice’s longstanding interpretation of the NVRA. From 1994 until the Solicitor General’s brief in this case, the Department had repeatedly expressed its view that the statute prohibits states from initiating a voter-purge process based merely on the failure to vote.

The Department took that position in litigation and correspondence with states in the 1990s, shortly after the NVRA became law. After HAVA’s 2002 enactment, the Department negotiated settlement agreements in Arkansas (in 2004), Indiana (in 2006), and New Mexico (in 2007), all of which barred the defendants from initiating a voter-purge process based on nonvoting. A 2007 settlement agreement with the City of Philadelphia contained some language that might appear inconsistent with those other decrees, but that agreement did not, in context, undermine the Department’s longstanding interpretation. In 2010, the Department issued extensive guidance regarding the application of the NVRA – guidance that specifically reaffirmed that the failure to vote cannot be the basis for commencing a purge process. And the Department subsequently defended that interpretation in the lower courts. The Solicitor General’s brief thus marks a significant departure from the Department’s longstanding position.