Demos, ACLU of Ohio, and ACLU National filing in Jon Husted v. A. Philip Randolph Institute, et al.

Demos, ACLU of Ohio, and ACLU National filing in Jon Husted v. A. Philip Randolph Institute, et al.

September 15, 2017


Ohio assumes that a registered voter who has not voted or engaged in other voter activity for two years “may have moved.” Directive 2015-09, R.42-2, PageID#1588. It directs county boards of elections to mail “confirmation notices” to all such voters, and to remove anyone who fails to respond to a single notice and fails to vote in the next four years. See id. PageID#1587-88, PageID#1591-92. Countless eligible voters across Ohio have been purged from the voter rolls pursuant to this so-called “Supplemental Process”—even where, as in the case of Respondent Larry Harmon, Ohio’s own records show that the voter has not moved.

Section 8 of the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20507 (“Section 8”), protects registered voters against removal from the voter rolls simply for failing to vote and requires that, once registered, voters remain on the rolls so long as they are eligible to vote. Prior to the NVRA, states commonly purged registrants if they failed to vote and required them to re-register. Congress found that these and other “discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office.” Id. § 20501(a)(3).

The NVRA species that registrants may not be removed from the list of eligible voters except in five specific circumstances: when they have requested to be removed, been convicted of a crime, become mentally incapacitated, died, or moved out of the jurisdiction. Id. § 20507(a)(3)-(4). By removing people for failing to vote and failing to respond to a notice, Ohio’s Supplemental Process ignores this restriction, and violates subsection 8(a).

The NVRA also specifically prohibits “[a]ny State program or activity” that “result[s] in the removal ... of any person from the official list of voters registered to vote ... by reason of the person’s failure to vote.” Id. § 20507(b)(2). Congress reaffirmed this prohibition in the Help America Vote Act of 2002 (“HAVA”). As the Sixth Circuit correctly held, Ohio’s Supplemental Process “constitutes perhaps the plainest possible example of a process that ‘result[s] in’ removal of a voter from the rolls by reason of his or her failure to vote.” Appendix to Petition for Certiorari (“Pet. App.”) at 24a. It therefore violates subsection 8(b).

Petitioner maintains that the Supplemental Process is authorized under subsection 8(d). But as the statute makes clear, subsection 8(d) sets forth a procedure that states must follow “to confirm [a registrant’s] change of address” before removing her from the rolls; it is not a license to impose burdens on those who exercise their right not to vote but have not moved. 52 U.S.C. § 20507(c)(1)(B)(ii) (emphasis added).

Absent the decision below, the ballots of more than 7,500 eligible Ohioans would have gone uncounted in the November 2016 election. Pet. Br. at 14. None of these voters had become ineligible to vote by reason of a change in residence or otherwise; nonetheless, all had been purged from the rolls pursuant to the Supplemental Process. See, e.g., Directive 2016-39, R.90-1, PageID#23354-55. That result is contrary to the language and purpose of the NVRA. This Court should affirm. 

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