Amicus Curiae Brief — Husted v. A. Philip Randolph Inst., 138 S. Ct. 43 (2017) (No. 16-980)

No. 16-980

IN THE

Supreme Court of the United

JON HUSTED, OHIO SECRETARY OF STATE,

Petitioner,

v.

A. PHILIP RANDOLPH INSTITUTE, NORTHEAST

OHIO COALITION FOR THE HOMELESS,

AND LARRY HARMON,

Respondents.

On Petition For A Writ OF CERTIORARI TO THE UNITED

States Court or APPEALS FOR THE Sixta Circuir

ee ___

BRIEF OF FORMER ATTORNEYS OF THE CIVIL

RIGHTS DIVISION OF THE UNITED STATES

DEPARTMENT OF JUSTICE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

—_—_—_—_—__—

——-~- -— -

WILLiaM 8. Consovoy

Counsel of Record

J. MICHAEL CONNOLLY

CAMERON T. Norris*

Consovoy McCartruy Park PLLC

ANTONIN ScALia Law ScHOOL

SuPREME Court CLINIC

3033 Wilson Boulevard, Suite 700

Arlington, VA 22201

(703) 243-9423

will@consovoymecarthy.com

*Licensed in Tennessee, but not

Virginia. Practice supervised by

members of the firm.

Counsel for Amici Curiae ineery of CoB

_-*- —

i

TABLE OF CONTENTS

Page

Se cee deasawaeee i

TABLE OF CITED AUTHORITIES .............. ii

IDENTITY & INTEREST OF AMICI CURIAE ..... 1

SUMMARY OF ARGUMENT..............--..+.. 1

ic dcxtavsstdvvsedeusecdshcabveseetes 6

I. The Sixth Circuit’s interpretation of

the NVRA is incorrect and contradicts

the Justice Department’s longstanding

I habe devevoceavenvesvuces os 6

A. The Sixth Circuit’s interpretation of

the NVRA conflicts with the law’s

text, structure, and history.............. 6

B. The Sixth Circuit’s decision contradicts

the Justice Department’s longstanding

interpretation of the NVRA ............ 13

Il. TheSixth Circuit’s decision will undermine the

states’ efforts to maintain accurate voter rolls

and to promote the integrity of elections ...... 15

ET 6 646 bene ban ceKe edcrsetecenseeus ea 20

a2

TABLE OF CITED AUTHORITIES

CASES

Alden v. Maine,

NG 46 ovideddsauncesueskves

Arizona v. Inter Tribal Council of Ariz., Inc.,

OT Ik ws co ceseccnccacesecen

BFP v. Resolution Trust Corp.,

Es i.weew cass setsence diane

Crawford v. Marion Cty. Election Bad.,

PN Sn oacecers ccsescevdees ce

CTS Corp. v. Waldburger,

er ore

Encino Motorcars, LLC v. Navarro,

SE ENS 6 bc iccecnceecccnuec os

Purcell v. Gonzalez,

EN 56 tdde rcsveevivesereons

Quality King Distribs., Inc. v.

Lanza Research Int'l, Inc.,

Se I Sen sees issecsccscceseds

Rodriguez v. United States,

IG Bb 06 dd csvcsevesavcveces

114

Cited Authorities

Page

United States v. Atl. Research Corp.,

ee I As Con 6d shabecauvecéess sane 11

STATUTES AND OTHER AUTHORITIES

i ds ceceoethbeeseweiecesd oy 6, 12

cs cics cedeeavsesesseeaducus 15

ED 6 on Kduvenbevtesseénsekavace 15

52 U.S.C. § 20507(a)(3) ...... ‘ioektinaikenea serene 11

ee ED oc cncbedhenteccviscdceawes 11

52 U.S.C. § 20507(@)(4)(B)..... 1. cece cere eens 6, 12

Se A ED 6 oe kat sicccscuccueccwes passim

EE dy cbcb ou sbeunkdcetingecewss 11

er es IN dc be vaccccdrcevescceedes 12

PP Pk skbbaveeedecéstuvevedscbeneuaus 8

See SA SIE v0 osc cccvccceccsccceces 8, 12

Am. Compl., United States v. City of Philadelphia,

No. 2:06-cv-4592, 2007 WL 1476781

8 be. ST ee rar 13

iw

Cited Authorities

Page

Antonin Sealia & Bryan A. Garner,

is cekecdetuascussdcee wis 12

Comm’n on Fed. Election Reform,

Building Confidence in U.S. Elections

nasi dienes eee ete eueekaxae st 15, 16

Consent Decree and Order, United States v. Indiana,

No. 1:06-cv-1000 (S.D. Ind., June 27, 2006)........ 14

Consent Order, United States v. Pulaski County,

No. 4:04-cev-389 (E.D. Ark. Apr. 19, 2004)......... 14

H.R. Rep. No. 108-9 (1998). ...........cccccees 5, 9, 11

Heritage Found., A Sampling of Election

Fraud Cases from Across the Country

(last updated Mar. 3, 2017) ..............-0.. 18, 19

Kan. Sec’y of State, Grid of Potential Duplicate

Registration Within States by DOB (2016) ....... 17

Kris W. Kobach, Presentation on Interstate

Voter Registration Crosscheck Program

to Nat’l Ass’n of State Election Directors

i Ue ose ee eeu ee ae Rbawek ened 18

Pew Ctr. on the States, Inaccurate, Costly,

and Inefficient: Evidence that America’s

Voter Registration System Needs an

Upgrade (2012)........cccccceccecccceccuunees 16

Vv

Cited Authorities

Page

BL EEE oo coc cacintcccscsuves 5, 9, 11, 15

Settlement Agreement, United States

v. Philadelphia, No. 2:06-cv-4592

(B.D. Pa. Apr. 26, 2007).......0..-cceeecceceess 14

U.S. Comm’n on Civil Rights, Department of

Justice Voting Rights Enforcement for the

2008 U.S. Presidential Election (2009)........ 16, 19

1

IDENTITY & INTEREST OF AMICI CURIAE'

Amici are six former attorneys of the Civil Rights

Division of the United States Department of Justice:

1. Colonel Karl S. “Butch” Bowers is the State Staff

Judge Advocate for the Joint Force Headquarters, South

Carolina Air National Guard, and a lawyer in private

practice, focusing on governmental and legislative affairs,

campaign finance and election law, and regulatory matters.

In 2007-08, Col. Bowers was appointed by President

George W. Bush as Special Counsel for Voting Matters at

the U.S. Department of Justice. He also has served as the

Staff Judge Advocate for the 169th Fighter Wing, as the

Chairman of the South Carolina Election Commission, and

as a JAG officer. Col. Bowers received a J.D. from Tulane

Law School, an M.P.A. from the College of Charleston, and

a B.A. from the University of South Carolina.

2. Christopher Coates is General Counsel for the

American Civil Rights Union. He worked in the Voting

Section of the Justice Department from 1996-2010.

During ten of those years, he worked in a supervisory

or management position, and during two of those years

he was the Chief of the Voting Section. He earned the

Walter W. Barnett Memorial Award in 2007, the Civil

Rights Division’s second highest award for excellence in

advocacy. From 1985-96, Mr. Coates was an attorney with

1. Counsel of record for all parties received timely notice

of amicv’s intent to file this brief, and the parties have provided

written consent to its filing. No counsel for any party authored

this brief in whole or in part; and no person or entity, other than

amici and their counsel, made a monetary contribution intended

to fund the preparation or submission of this brief.

2

the Voting Rights Project of the American Civil Liberties

Union. In 1991, he was awarded the Thurgood Marshall

Decade Award by the Georgia NAACP for his work in

voting rights and civil rights law. He is a graduate of

the University of North Carolina at Chapel Hill and the

University of North Carolina School of Law.

3. Christy McCormick has worked in voting and

elections for over twenty-five years, starting out as an

assistant voter registrar in Connecticut in 1988. She is

currently a Commissioner on and former Chair of the U.S.

Election Assistance Commission (EAC). Prior to the EAC,

she was a Senior Trial Attorney in the Voting Section of

the Department of Justice’s Civil Rights Division for eight

years. During 2009-10, she was detailed by the Deputy

Attorney General to the U.S. Embassy in Baghdad to

work on the [ragi national] elections and rule-of-law

matters. Previously, she clerked for Justice Elizabeth A.

McClanahan on the Court of Appeals of Virginia. She also

served as an Assistant Solicitor and Assistant Attorney

General in Virginia. Commissioner McCormick received a

B.A. from the University of Buffalo and a J.D. with honors

from the George Mason University (now Antonin Scalia)

Law School. She also has attended the William & Mary

School of Law.

4. Robert D. Popper has been practicing law for

twenty-six years. He has special knowledge and expertise

in the area of voting law. Along with Professor Daniel

D. Polsby, he is the co-creator of the “Polsby-Popper”

compactness standard, used to measure racial and

partisan gerrymandering. In 1995, he represented

plaintiffs in a successful constitutional challenge alleging

racial segregation in the design of New York’s 12th

3

Congressional District. In 2005, Mr. Popper joined the

Voting Section of the Civil Rights Division of the U.S.

Department of Justice, and in 2008, he was promoted to

Deputy Chief. In 2013, he joined Judicial Watch as Director

of the Election Integrity Project, in which capacity he

litigates voting rights cases. Mr. Popper is a graduate of

the University of Pennsylvania and Northwestern Law

School.

5. Bradley J. Schlozman served as a Deputy Assistant

Attorney General (and Acting Assistant Attorney General)

of the Civil Rights Division from 2003-06, where his

responsibilities included supervision of the Voting Section.

He also later served as U.S. Attorney for the Western

District of Missouri from 2006-07. Mr. Schlozman now

practices law at the Hinkle Law Firm and frequently

represents states and municipalities on a variety of voting

rights matters.

6. Hans A. von Spakovsky is a Senior Legal Fellow

and Manager of the Election Law Reform Initiative in

the Center for Legal and Judicial Studies at the Heritage

Foundation, where he concentrates on voting, elections,

campaign finance, civil rights, immigration enforcement,

and government reform. In 2006-07, he served as a

Commissioner of the Federal Election Commission. From

2002-05, he served as Counsel to the Assistant Attorney

General for Civil Rights, providing expertise and advice

on voting and election issues. The Commission on Federal

Election Reform organized by President Jimmy Carter

and Secretary James Baker also sought his expertise.

Mr. von Spakovsky has served as a member of the first

Board of Advisers of the EAC, as Vice Chairman of the

Fairfax County Electoral Board in Virginia, as amember

4

of the Fulton County Registration and Election Board in

Georgia, and as a member of the Virginia Advisory Board

to the U.S. Commission on Civil Rights. He is a graduate of

Vanderbilt University Law School and the Massachusetts

Institute of Technology.

During their tenures, amici were charged with

enforcing the nation’s election laws, including the National

Voter Registration Act of 1993 (NVRA) and the Help

America Vote Act of 2002 (HAVA). Amici have a continued

interest in the proper interpretation and enforcement of

these laws. The Sixth Circuit adopted an interpretation

of the NVRA that contradicts how amici enforced that

statute. In fact, during amici’s tenures, the Justice

Department negotiated settlement agreements that

required localities to do exactly what the Sixth Cireuit held

was illegal here. The Sixth Circuit’s interpretation of the

NVRA squarely contradicts this history of enforcement

and threatens to undermine the core purposes of the

NVRA—ensuring the accuracy of state voter rolls and

protecting the integrity of federal elections.

SUMMARY OF ARGUMENT

Amici were once tasked with enforcing the NVRA,

part of the “complex superstructure of federal regulation”

that “Congress has erected ... atop state voter-registration

systems.” Arizona v. Inter Tribal Council of Ariz., Inc.,

133 S. Ct. 2247, 2251 (2013). The NVRA requires the states

to keep their voter rolls up to date. Each state must adopt

a program that removes voters from the rolls when they

move to a different jurisdiction. Although a voter cannot

be removed solely because he failed to vote, a voter can

be removed if the state sends him a notice and he neither

5

responds nor votes in two consecutive federal elections.

There are no limits on when the states can send these

notices or to whom they can send them; the NVRA says

nothing about that.

Or at least that is how amici interpreted and enforced

the NVRA when they served in the Civil Rights Division

of the Justice Department. But the Sixth Circuit, in

a 2-1 decision, rejected this settled interpretation. It

struck down Ohio’s Supplemental Process, which sends

individuals an NVRA-compliant notice if they have not

engaged in voter activity for two years. The Supplemental

Process violates the NVRA, according to the Sixth

Circuit, because the “trigger” for the notice is a person’s

failure to vote.

The Sixth Circuit erred, and its error warrants this

Court’s intervention. The text, structure, and history of

the NVRA all point in the same direction: the NVRA

requires the states to send notices before removing

voters for changing residences. But it does not regulate

the “triggers” for those notices. In fact, amici helped

the Justice Department negotiate settlements with

localities in Pennsylvania, Indiana, and Arkansas that

required a notice procedure indistinguishable from

Ohio’s Supplemental Process. The decision below directly

contradicts this history of federal enforcement. And it

deprives the states of an important tool in combatting

bloated voter rolls. “[A]ecurate and current voter

registration lists,” in turn, “are essential to the integrity

of the election process and for the protection of the

individual.” H.R. Rep. No. 103-9, at 14 (1993); S. Rep. No.

103-6, at 31 (1993).

6

ARGUMENT

This Court should grant certiorari for two main

reasons. First, the Sixth Circuit’s interpretation of the

NVRA conflicts with its text, structure, and history.

Amici have long interpreted the statute oppositely, and

they helped the Justice Department negotiate settlements

that would be illegal under the Sixth Circuit’s view.

Second, the Sixth Circuit’s decision deprives Ohio and

other jurisdictions of an important means to combat

bloated voter rolls, a real and pressing threat to the

integrity of federal elections.

I. The Sixth Circuit’s interpretation of the NVRA is

incorrect and contradicts the Justice Department’s

longstanding enforcement policy.

A. The Sixth Circuit’s interpretation of the NVRA

conflicts with the law’s text, structure, and

history.

The NVRA has two main goals: maximizing the

number of eligible citizens on the voter rolls and

minimizing the number of ineligible citizens on the voter

rolls. See 52 U.S.C. § 20501(b). To minimize the number

of ineligible voters, the NVRA requires states to adopt

a “program” that removes registered voters who become

ineligible “by reason of ... a change in the[ir) residence.”

Id. § 20507(a)(4)(B).

The NVRA limits how states can remove these now-

ineligible voters—two of those limits are relevant here.

First, under subsection (b)(2), states cannot adopt a

program that “result[s] in the removal of the name of any

7

person ... by reason of the person’s failure to vote.” Jd.

§ 20507(b)(2). Second, under subsection (d), states cannot

remove voters without confirming that they actually

have changed residences. See id. § 20507(d). A state can

conclude that a voter changed residences, however, if he

“fail[s] to respond to a notice” sent by the state and “has

not voted or appeared to vote” in two consecutive federal

elections. Jd. § 20507(d)(1)(B).

At first blush, these limits may seem contradictory.

Subsection (b)(2) prohibits states from removing voters

“by reason of [their] failure to vote.” Jd. § 20507(b)(2). Yet

subsection (d)’s notice procedure allows states to remove

voters precisely because they failed to vote in consecutive

federal elections. But the NVRA resolves this tension

by clarifying that subsection (d)’s notice procedure does

not “result in the removal of the name of any person ...

by reason of the person’s failure to vote” for purposes of

subsection (b)(2):

[A state program] shall not 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, except that nothing in this paragraph

may be construed to prohibit a State from using

[subsection (d)’s notice procedure] to remove an

individual from the official list of eligible voters

if the individual—

(A) has not either notified the

applicable registrar (in person or

in writing) or responded during the

period described in subparagraph (B)

8

to the notice sent by the applicable

registrar; and then

(B) has not voted or appeared to

vote in 2 or more consecutive general

elections for Federal office.

Id. § 20507(b)(2) (emphases added).

The “except” clause of subsection (b)(2) was added

by the HAVA in 2002. In using the word “construed,” the

except clause does not change the meaning of subsection

(b)(2); it clarifies what subsection (b)(2) has always meant.

See Alden v. Maine, 527 U.S. 706, 722-23 (1999) (explaining

that the use of the word “construed” in the Eleventh

Amendment means it was enacted “not to change” but to

“address|| the proper interpretation of ... the original”).

The notice procedure in subsection (d) never “resulti[ed]

in the removal of the name of any person ... by reason of

the person’s failure to vote.” Although the failure to vote

(in two consecutive elections) is one requirement under

the notice procedure, it is the voter’s failure to respond to

the notice—not his failure to vote—that ultimately leads

to his removal from the voting rolls.

Another provision of the HAVA makes the same point.

Section 21083 expressly incorporates the notice procedure

of the NVRA. It explains the notice procedure this way:

“(Rjegistrants who have not responded to a notice and

who have not voted in 2 consecutive general elections for

Federal office shall be removed from the official list of

eligible voters, except that no registrant may be removed

solely by reason of a failure to vote.” 52 U.S.C. § 21083(a)

(4)(A) (emphasis added). The use of the word “solely” is

9

telling. It confirms that, under the NVRA, a person’s

failure to vote can be a factor in removing him from the

voter rolls. It just cannot be the sole factor.

This distinction is precisely the one that Congress

meant to draw. Both the House and the Senate reports

surveyed the state voter-registration policies existing at

the time and explained how the NVRA would affect them:

Almost all states now employ some procedure

for updating lists at least once every two years,

though practices may vary somewhat from

county to county. About one-fifth of the states

canvass all voters on the list. The rest of the

states do not contact all voters, but instead

target only those who did not vote in the most

recent election (using not voting as an indication

that an individual might have moved). Of

these, only a handful of states simply drop the

non-voters from the list without notice. These

states could not continue this practice under

[the NVRA].

H.R. Rep. No. 103-9, at 30; S. Rep. No. 103-6, at 46. The

“handful” of state programs that “removie] registrants

from the list simply for not voting” were the ones the

NVRA prohibited—not the majority of state programs

that first “send a notice to assess whether the person has

moved.” H.R. Rep. No. 103-9, at 30; S. Rep. No. 103-6, at

46.

Ohio’s Supplemental Process is not among the

“handful” of programs the N VRA prohibited. Ohio sends a

notice to anyone who fails to engage in any “voter activity”

10

for two years. If the voter does not respond to the notice

and does not vote (or appear) in two consecutive federal

elections—the two requirements in subsection (d) of the

NVRA—Ohio cancels his registration. As Judge Siler

recognized, “no voter is removed solely by reason of a

failure to vote” under Ohio’s Supplemental Process. Pet.

App. 35a (Siler, J., dissenting). A voter is removed only

if he fails to respond to the notice. And a voter can stay

registered by engaging in any kind of voter activity during

this four-year period. See Pet. 10.

The Sixth Circuit nevertheless held that Ohio’s

Supplemental Process violates subsection (b)(2) of the

NVRA. The Sixth Circuit gave three reasons for reaching

this conclusion. None is persuasive.

First, the Sixth Circuit noted that the “trigger” for

the notices sent out under the Supplemental Process “is

ultimately based ‘solely’ on a person’s failure to vote.”

Pet. App. 22a (majority opinion). But, as the district court

explained, the word “trigger” is “nowhere to be found in

the NVRA.” /d. at 56a (district court opinion). The NVRA

explains that subsection (d)’s notice procedure complies

with subsection (b)(2), and it does not limit “the events

that need or need not happen before a state may initiate”

that notice procedure. /d. at 58a. No matter what trigger

a state chooses, the removal of a voter under subsection

(d)’s notice procedure is premised on the voter’s failure to

respond to the notice—not on his failure to vote.

Second, the Sixth Circuit reasoned that, if a state’s

use of subsection (d)’s notice procedure automatically

satisfies subsection (b)(2), then subsection (b)(2) would

be reduced to “mere surplusage.” /d. at 17a (majority

11

opinion). After all, states are required to use subsection

(d)’s notice procedure before they can remove a voter for

changing his residence. See id. But this argument fails

on multiple levels. For one, subsection (b)(2)’s prohibition

on removing a voter solely for his failure to vote retains

some “independent meaning” under Ohio’s interpretation.

Quality King Distribs., Inc. v. Lianza Research Int'l,

Inc., 523 U.S. 135, 148-49 (1998). Unlike subsection (d),

subsection (b)(2) is not confined to removal “on the ground

that the registrant has changed residence.” 52 U.S.C.

§ 20507(d)(1). No matter the meaning of subsection (d),

then, subsection (b)(2) applies fully to the NVRA’s other

grounds for removal, including criminal conviction, mental

incapacity, and death. See id. § 20507(a)(3)-(4).

Even in the context of changed residences, moreover,

subsection (b)(2) is not superfluous. In the context

of change-of-residence removals, subsection (d) and

subsection (b)(2) are not two rules but one: together, they

prohibit the practice of presuming that a non-voter has

changed residences (and dropping him from the voter

rolls) without first giving him notice. See H.R. Rep. No.

103-9, at 30; S. Rep. No. 103-6, at 46. That Congress

explained how this rule works in more than one provision

is not surplusage; it is a helpful attempt to clarify how the

statute operates. See United States v. Atl. Research Corp.,

551 U.S. 128, 137 (2007). Clarification was important

because, as explained, it is not immediately obvious how

subsection (b)(2) and subsection (d) coexist in the NVRA.

See BFP v. Resolution Trust Corp., 511 U.S. 531, 543 n.7

(1994) (“It is no superfluity for Congress to clarify what

had been at best unclear ....”).

12

Third, the Sixth Circuit invoked the “traditional rule”

that a statute’s exceptions should be “construed narrowly.”

Pet. App. 16a. But this “made-up canon” is illegitimate.

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,

2131 (2016) (Thomas, J., dissenting). The Court has not

invoked it consistently, see Antonin Scalia & Bryan A.

Garner, Reading Law 359-63 (2012), and it contradicts

important principles of statutory construction, such as

“‘no legislation pursues its purposes at all costs’ and

“Tcjongressional intent is discerned primarily from the

statutory text,” CTS Corp. v. Waldburger, 134 S. Ct. 2175,

2185 (2014) (quoting Rodriguez v. United States, 480 U.S.

522, 525-26 (1987) (per curiam)).

In any event, this canon cannot apply to the NVRA.

The law serves dwal purposes: increasing the registration

of eligible voters and decreasing the registration of

ineligible voters. See 52 U.S.C. § 20501(b). It is impossible

to tell which purpose is the “general rule” and which

purpose is the “exception.” For example, the principle that

a voter can be removed for failing to respond to a notice is

framed as a rule, see id. §§ 20507(a)(4)(B); 21083(a)(4)(A),

and as an exception, see id. § 20507(d)(1)(B). In subsection

(b)(2), it is framed neither as a rule nor as an exception,

but as a clarification. Jd. § 20507(b)(2). Put simply, even

if a canon that construes exceptions narrowly could ever

be applied sensibly, it could not be applied sensibly here.

In sum, the Sixth Circuit’s interpretation of the

NVRA contradicts the law’s text, structure, and history.

The NVRA requires the states to remove individuals who

change their residence from the voter rolls. To do so, the

NVRA allows the states to remove any individual who does

not respond to a notice and does not vote in two consecutive

13

federal elections; and it does not limit when the states can

send those notices. Ohio’s Supplemental Process follows

this procedure. It complies with the NVRA.

B. The Sixth Circuit’s decision contradicts

the Justice Department’s longstanding

interpretation of the NVRA.

There is little support for the Sixth Circuit’s

interpretation of the NVRA. Indeed, amici have long

taken the opposite view. When they were serving in the

Civil Rights Division, the Justice Department required

states to adopt procedures that are indistinguishable

from Ohio’s Supplemental Process. The Sixth Circuit’s

interpretation flouts this well-established history of

enforcement.

For example, in 2007, the Justice Department sued

the City of Philadelphia for violations of the NVRA, the

HAVA, and the Voting Rights Act. See Am. Compl., United

States v. City of Philadelphia, No. 2:06-cv-4592, 2007 WL

1476781 (E.D. Pa. Apr. 26, 2007) [Dkt. No. 35]. With respect

to the NVRA, the United States alleged that Philadelphia

“failfed] to conduct a meaningful general program of voter

registration list maintenance” and “d[id] not conduct a

program that makes a reasonable effort to remove the

names of ineligible voters.” Jd. 11 55-56. The parties

ultimately settled. As part of that settlement, Philadelphia

agreed to “send a forwardable confirmation notice to any

registered elector who has not voted or appeared to vote

during any election” and “remove inactive voters who

fail to appear to vote during the period beginning with

the date of the confirmation notice and ending after the

second federal general election following the date of the

14

confirmation notice.” Settlement Agreement 1 16, United

States v. Philadelphia, No. 2:06-cv-4592 (E.D. Pa. Apr. 26,

2007), available at, https://www,justice.gov/sites/default/

files/ert/legacy/2010/12/15/phila_settlement.pdf.

The settlement with Philadelphia was not an

isolated agreement. During amici’s tenures, the Justice

Department also negotiated similar agreements with

the State of Indiana and Pulaski County, Arkansas. See

Consent Decree and Order {| 4, United States v. Indiana,

No. 1:06-cev-1000 (S.D. Ind., June 27, 2006) [Dkt. No. 4],

available at, https://www.justice.gov/crt/consent-decree-

and-order; Consent Order 99 4-8, United States v. Pulaski

County, No. 4:04-cv-389 (E.D. Ark. Apr. 19, 2004) [Dkt.

No. 9], available at, https://epic.org/privacy/voting/regis

ter/pulaski_cd.html.

All of these agreements required the defendants to

adopt a program like Ohio’s Supplemental Process. The

defendants had to identify a list of nonvoters, send those

nonvoters a notice asking them to confirm their address,

and cance] the registration of voters who did not respond

to the notice and did not vote in two consecutive federal

elections. According to the Sixth Circuit, however, these

agreements forced the defendants to violate federal law.

Anvici respectfully disagree. Because the Sixth Circuit’s

interpretation of the NVRA undermines these agreements

and impugns this history of federal enforcement, it

warrants this Court’s review.

15

II. The Sixth Circuit’s decision will undermine the

states’ efforts to maintain accurate voter rolls and

to promote the integrity of elections.

Congress enacted the NVRA “to ensure that accurate

and current voter registration rolls are maintained” and

“to protect the integrity of the electoral process.” 52 U.S.C.

§ 20501(b)(3)-(4). These objectives are complementary.

“The maintenance of accurate and up-to-date voter

registration lists is the hallmark of a national system

seeking to prevent voter fraud.” S. Rep. No. 103-6, at

18. As this Court has recognized, “[t]he electoral system

cannot inspire public confidence if no safeguards exist to

deter or detect fraud,” and “[a] good registration list will

ensure that citizens are only registered in one place.”

Crawford v. Marion Cty. Election Bd., 553 U.S. 181,

193-94 (2008) (opinion of Stevens, J.) (quoting Comm’n

on Fed. Election Reform, Building Confidence in U.S.

Elections § 2.5 (Sept. 2005), goo.gl/6kCxRw). “[P]ublic

confidence in the integrity of the electoral process,” in

turn, “has independent significance, because it encourages

citizen participation in the democratic process.” Jd. at 197.

“Confidence in the integrity of our electoral processes

is essential to the functioning of our participatory

democracy. Voter fraud drives honest citizens out of the

democratic process and breeds distrust of our government.

Voters who fear their legitimate votes will be outweighed

by fraudulent ones will feel disenfranchised.” Purcell v.

Gonzalez, 549 U.S. 1, 4 (2006) (per curiam).

Programs like Ohio’s Supplemental Process are an

important tool in achieving these goals. Individuals who

move to a new jurisdiction are no longer eligible to vote

in their old jurisdiction and should not remain registered

16

there. Although states can track some of these voters

through the Postal Service’s change-of-address database,

that data is underinclusive. Many people who change

residences do not use this service. See Pet. 33-34. To

maintain accurate voter rolls, states need to be able to

use other reliable indicia of ineligibility—including a lack

of voter activity.

Recent voter registration data justify Ohio’s efforts. A

2012 Pew Study found major problems with the accuracy

of voter rolls in the United States. According to the study,

24 million voter registrations (one out of every eight) are

invalid or inaccurate. For example, 1.8 million deceased

persons are listed as voters, and 2.75 million people

are registered to vote in more than one state. See Pew

Ctr. on the States, Jnaccurate, Costly, and Inefficient:

Evidence that America’s Voter Registration System

Needs an Upgrade (2012), goo.gl/mQV8UL. “Inflated voter

lists are also caused by phony registrations and efforts

to register individuals who are ineligible.” Comm’n on

Fed. Election Reform, supra. After the 2008 election,

the Justice Department “sent letters tc a dozen states

inquiring about their list maintenance practices” because

“there appeared to be significant imbalances between

their numbers of registered voters and their citizen

populations.” U.S. Comm'n on Civil Rights, Department

of Justice Voting Rights Enforcement for the 2008 U.S.

Presidential Election 38 (2009), goo.gl/xp7nhe (testimony

of Christopher Coates, Acting Chief of the Voting Section).

As of 2016, thirty states participate in the Interstate

Voter Registration Crosscheck Program (administered

by the State of Kansas). This program analyzes the voter

rolls of the participating states and identifies individuals

who are registered in more than one state. As of February

17

2016, the Crosscheck Program revealed hundreds of

thousands of voters who were potentially registered in

multiple states. Of the twenty-five participating states

analyzed in 2016, the following states had potential voter

registration duplications with other participating states:

Alabama — 220,247

Arizona — 240,277

Arkansas — 110,200

Colorado — 257,413

Georgia — 540,245

Idaho — 20,834

Illinois — 454,325

Indiana — 452,577

Iowa — 129,925

Kansas — 123,502

Kentucky — 311,126

Louisiana — 119,207

Massachusetts — 144,587

Michigan — 406,268

Mississippi — 162,288

Missouri — 244,710

Nebraska — 60,766

Nevada — 85,968

New York — 392,365

North Carolina — 455,891

Ohio — 386,092

Oklahoma — 89,788

South Dakota — 34,367

Tennessee — 218,641

Virginia — 284,618

Kan. Sec’y of State, Grid of Potential Duplicate

Registration Within States by DOB (2016) (on file with

counsel).

18

These efforts have led to numerous prosecutions. Using

the Crosscheck data, in 2008 and 2010, Kansas referred

fourteen instances of double voting for prosecution, and

Colorado indicted or referred to the FBI ten instances

of double voting. See Kris W. Kobach, Presentation on

Interstate Voter Registration Crosscheck Program to

Nat'l Ass’n of State Election Directors (Jan. 26, 2013),

goo.gl/FQwRvQ.

Similarly, the Heritage Foundation has identified 755

recent criminal convictions for voter fraud in the United

States—many involving false registrations and double

voting. See Heritage Found., A Sampling of Election

Fraud Cases from Across the Country (last updated

Mar. 3, 2017), goo.gl/IIlwveM. Numerous convictions

involve individuals who voted in more than one state. For

example, Regina Beaupre pleaded guilty in 2015 to voting

in the same election in both Arizona and in Michigan. Jd.

at 12. James and Karen Marshall voted in both Arizona

and Kansas in 2008. Jd. at 18. Michael Hannum pleaded

guilty to voting in Nebraska and Kansas in 2012. Jd. at

78. Ron Weems pleaded guilty to voting in both Colorado

and Kansas in the 2012 and 2014 elections. Jd. at 79.

Steven Gaedtke was convicted of voting in both Arkansas

and Kansas in 2010. Jd. Wendy Rosen (a candidate for

Congress in Maryland) pleaded guilty to voting in both

Florida and Maryland in 2010. Jd. at 92. Pasco Parker

admitted to voting in Florida, North Carolina, and

Tennessee in the 2012 general election. Jd. at 183.

Other individuals were convicted of voting twice

in different parts of the same state. In Arizona, eight

individuals—David Culberson, Adam Hallin, John

Hamrick, Gerald Sack, Steven Streeter, Jay Thompson,

19

Franklin Turner, and Jeffery Hitchcock—pleaded guilty

to attempted double voting in the 2012 general election.

Id. at 8-12. In New Hampshire, Derek Castonguay

pleaded guilty to voting in Salem and Windham in the

2014 election. Jd. at 169. In Wisconsin, Todd Murray was

convicted of voting in both New Berlin and West Allis in

the 2012 election. Jd. at 229.

Still other individuals cast ballots on behalf of deceased

relatives who were not removed from state voter rolls. In

California, Mark Evans cast a ballot in the name of his

deceased father-in-law. Jd. at 21. In Oregon, Lafayette

Keaton pleaded guilty to casting multiple ballots using

his deceased son’s and brother’s identities. Jd. at 195.

Accurate voter rolls are vital in the effort to combat

voter fraud. Bloated rolls “create[] a potential for people

to fraudulently vote under the names of these illegally

registered individuals.” U.S. Comm’n on Civil Rights,

supra, at 12 (executive summary of Coates’s testimony).

Efforts like Ohio’s Supplemental! Process not only comply

with the NVRA; they are essential to achieving its

purposes.

20

CONCLUSION

For all these reasons, this Court should grant the

petition for a writ of certiorari and reverse the decision

of the Sixth Circuit.

March 9, 2017

Respectfully submitted,

Wr.uiaM §. Consovoy

Counsel of Record

J. MICHAEL CONNOLLY

CAMERON T. Norris*

Consovoy McCartuy Park PLLC

ANTONIN SCALIA Law SCHOOL

SUPREME Court CLINIC

3033 Wilson Boulevard, Suite 700

Arlington, VA 22201

(703) 243-9423

will@consovoymccarthy.com

*Licensed in Tennessee, but not

Virginia. Practice supervised by

members of the firm.

Counsel for Amici Curiae