Brief of NAACP Legal Defense and Educational Fund, Inc. and The Leadership Conference on Civil and Human Rights as Amici Curiae in Defense of Respondents

Brief of NAACP Legal Defense and Educational Fund, Inc. and The Leadership Conference on Civil and Human Rights as Amici Curiae in Defense of Respondents

September 22, 2017


The right to vote is foundational to our system of government and essential to all other rights of citizenship. It is so foundational that it cannot be forfeited simply by a failure to exercise it. Indeed, citizens can choose not to vote without losing their right to vote again later. While this Court regularly examines questions about the affirmative exercise of the vote, this case involves the equally important issue of when a citizen does not or cannot vote for a certain period and whether such inactivity can justify purges of the voter rolls. In practice, non-voting can happen for any number of reasons, including, but not limited to: military service; workplace or family obligations on Election Day; the costs of obtaining voter identification; relocation; lack of confidence that existing voting systems provide an equal opportunity to participate in the political process and to elect candidates of one’s choice; or dissatisfaction with the options on the ballot. Indeed, senior national security and intelligence officials regularly choose not to vote as an expression of non-partisanship.

Consistent with these principles, and with the plain text of the statutes, the United States Department of Justice (“Department” or “DOJ”) has long recognized that HAVA and the NVRA prohibit laws that purge voter rolls based on the fact that a person has not voted. And, just fourteen months ago, in this very case, the Department of Justice represented to the Sixth Circuit that:

Congress designed the NVRA to “ensure that once a citizen is registered to vote, he or she should remain on the voting list so long as he or she remains eligible to vote in that jurisdiction,” recognizing that “while voting is a right, people have an equal right not to vote, for whatever reason.”

Brief for the United States as Amicus Curiae Supporting Plaintiffs-Appellants and Urging Reversal at 28, A. Philip Randolph Inst. v. Husted, 838 F.3d 699 (6th Cir. 2016) (No. 16-3746) (hereinafter “U.S. Sixth Circuit Amicus Brief”) (quoting S. Rep. No. 6, 103d Cong., 1st Sess., at 17 (1993) and H.R. Rep. No. 9, 103d Cong., 1st Sess., at 18 (1993)). Congress passed HAVA to further “improve our country’s election system” by “assisting state and local government in modernizing their election systems.” H.R. Rep. No. 107-329, 107th Cong., 1st Sess., at 32 (2001). The Department of Justice recognized that HAVA “does not alter the NVRA’s basic requirements,” and, more specifically, “HAVA provides that if an individual is to be removed from a State’s voter registration list, the voter ‘shall be removed in accordance with’ the NVRA.” U.S. Sixth Circuit Amicus Brief at 14 (quoting 52 U.S.C. 21083(a)(2)(A)(i)) and n.4 (noting one exception “not applicable here”). 

Accordingly, the Department explained that Ohio’s Supplemental Process for inquiring into a voter’s change in address, which is triggered by the person’s voting inactivity, violates the NVRA and HAVA. Triggering the address confirmation process based “solely on voter inactivity,” the Department stressed, “inevitably results in the removal of voters based on nonvoting, which violates the NVRA and HAVA.” Id. at 8. This conclusion was compelled by the NVRA’s “text, structure, purpose, and history.” Id. Infra § I.A.

One year later, in a startling volte-face, the Department of Justice now argues in the same case that “the NVRA does not,” in fact, “prohibit a State from using nonvoting” as the trigger for its voter removal process. Brief for the United States as Amicus Curiae Supporting Petitioner at 14, Husted v. A. Philip Randolph Inst., No. 16-980 (U.S. Aug. 7, 2017), 2017 WL 3485554, at *14 (hereinafter “U.S. Supreme Court Amicus Brief”). It now contends that this position, not the opposite one it espoused for more than two decades, including in this very case until August 7, 2017, is “supported by the NVRA’s text, context, and history.” Id. Infra § I.B.

The Court should give no weight to the Department’s revisionist construction of the NVRA and HAVA. The Department offers no meaningful explanation for why it now reads the same words of those Acts to mean the converse of what it has said for more than twenty years. To be sure, there is nothing inherently improper about the Department changing its position on a given issue. It might appropriately do so when the law has changed or when, in the course of administering or enforcing the law, the Department finds that its prior position is no longer feasible or justifiable. Or, in some cases, the Department may find it prudent to adapt to evolving societal understandings or respond to new scientific developments.

But here, the law has not changed. And the Department of Justice has not cited any findings or other data to justify the 180-degree reversal of its longstanding interpretation of the NVRA and HAVA, which it memorialized years ago in guidelines given to States, local governments, and the public to aid their understanding of the Acts’ requirements. See U.S. Sixth Circuit Amicus Brief at 15-16 (describing the Department’s 2010 guidelines).

Nor has the Department advanced any reasoned analysis, based on its enforcement of these laws, that would justify its change in position. The Department professes an abstract concern about “voter fraud,” but that only highlights that there is no principled basis for the Department’s change of position in this case. See U.S. Supreme Court Amicus Brief at 3, 32. The Department offers no evidence to suggest that voter inactivity is evidence of a change in residence, much less an indication of improper voting. And voter fraud is, by all reputable accounts, virtually nonexistent in this country. Nonetheless, it has unfortunately become a fashionable mantra in certain quarters, often invoked as a pretext to limit or contort voter protection laws, like the NVRA and HAVA. Infra § I.C.

Ultimately, this case is about more than Ohio’s particular electoral processes, and it will have broad implications. It arises amidst a nationwide push to make it more difficult and costly to vote—including by regularly removing registered voters from the active voter rolls. If Ohio’s position, newly endorsed by this Administration, is embraced by this Court, it is likely to unleash a wave of new state and local laws that are aimed at or will result in unnecessarily purging and shrinking the voting rolls. The Court should foreclose the manipulation of such a critical aspect of voter registration and affirm the decision of the Sixth Circuit.