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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0728%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0728%3A06. Public record. Not legal advice.