Amicus Curiae Brief — Husted v. A. Philip Randolph Inst., 138 S. Ct. 43 (2017) (No. 16-980)
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BRIEFS
In The
Supreme Court of the Anited States
co
JON HUSTED, OHIO SECRETARY OF STATE,
Petitioner,
V.
A. PHILIP RANDOLPH INSTITUTE, ET AL.,
Respondents.
-o-
On Writ Of Certiorari To The
United States Court Of Appeals
For The Sixth Circuit
+-
BRIEF FOR ERIC H. HOLDER, JR..,
THOMAS E. PEREZ, BILL LANN LEE,
DEVAL L. PATRICK, LORETTA KING,
V ILLIAM R. YEOMANS, JAMES P. TURNER,
PAMELA S. KARLAN, MATTHEW COLANGELO,
JULIE A. FERNANDES, SAMUEL R. BAGENSTOS,
SPENCER A. OVERTON, ANITA S. EARLS,
JOSEPH RICH, J. GERALD HEBERT,
GILDA R. DANIELS, AND ROBERT KENGLE AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS
a
SAMUEL R. BAGENSTOS
Counsel of Record
625 S. State St.
Ann Arbor, MI 48109
(734) 647-7584
sbagen@gmail.com
——————SSS=E=aTa"|{l]— eee ee_ee_eeeeeeee
COCKLE LEGAL BRIEFS (800) 225-6964
i
TABLE OF CONTENTS
Page
INTEREST OF THE AMICI CURIAE................. 1
SUMMARY OF ARGUMENT ...............ccc00cceeseeee 4
(ERNE RCRA neece naar aan eRe ea 8
I. The NVRA Prohibits Ohio’s “Supplemental
PII iinintcabiinbntiabenisnangdudutdininledihaicbbitadanes 8
A. The NVRA Protects Both the Right to
Vote and the Right Not to Vote............ 8
B. Under the NVRA’s Narrow Limitations
on Removing Registrants, States May
Not Initiate a Voter-Purge Process
Based on the Failure to Vote ............... 11
C. Under the Failure-to-Vote Clauses in
the NVRA and HAVA, States May Not
Use the Failure to Vote to Initiate a
VORSI FT UTID FECGGED .eccceccccsseccccceseccceess 18
D. Principles of Constitutional Avoidance,
if Anything, Argue Against Ohio’s
Construction of the NVRA................... 29
Il. From 1994 Until the Solicitor General’s
Brief in This Case, the Department of Jus-
tice Repeatedly Interpreted the NVRA to
Prohibit Using the Failure to Vote as the
Basis for Initiating a Purge Procedure ....... 31
i eamabaaanilonied 37
ii
TABLE OF AUTHORITIES
Page
CASES:
Anderson v. Celebrezze, 460 U.S. 780 (1983) .............. 10
Arizona v. Inter Tribal Council of Arizona, Inc.,
ee icicccsicnncttniaeiiesbeetandeniiiiende 29
Burroughs v. United States, 290 U.S. 534 (1924)....... 30
Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73
ER. SEARED RRS Fo as Stee ny Oe ee ED Fee 21
Clark v. Martinez, 543 U.S. 371 (2005)....................... 30
Cook v. Gralike, 531 U.S. 510 (2001) ..................cccceeee 30
F-C.C. v. NextWave Personal Communications,
Te Te tcrcicictatiunniinhsnnditdpineitiabs 27, 28
McCutcheon v. Federal Election Comm’n, 134
i & ERS nee 10
Norman v. Reed, 502 U.S. 279 (1992) .............cccceeceeseses i)
Obama for America v. Husted, 697 F.3d 423 (6th
STITT Uitininhncediniintctntinnalaieiiaaiaiaeadsinbaiibiiatimetadadebegs 14
Ohio State Conference of NA.A.C.P. v. Husted,
No. 2:14-CV-404 (S.D. Ohio, April 17, 2015)........... 14
Roberts v. United States Jaycees, 468 U.S. 609
STE cieichceieecpubenhmentibceniaiaeameinsiniandaidiatiniasa idntinpinatbinstit 10
Smiley v. Holm, 285 U.S, 355 (1932) .0............cccccceeeees 30
United States v. Cibola County, No. CIV-93-1134-
LH/LFG (D.N.M., decree entered Jan. 31,
United States v. City of Philadelphia, No. 06-4592
(E.D. Pa., decree entered Apr. 26, 2007)........... 35, 36
il
TABLE OF AUTHORITIES — Continued
Page
United States v. Indiana, No. 1:06-cv-1000-RLY-
TAB (S.D. Ind., decree entered June 27, 2006) ....34, 35
United States v. Oakland Cannabis Buyers’ Co-
operative, 532 U.S. 483 (2001)................ccceeeseeeee cee 31
United States v. Pulaski County, No. 4-04-CV-
389 SWW (E.D. Ark., decree entered Apr. 19,
Sic iiniiciaapdaihasidasideneaiaidiiiendiiiettheaieadidimmnbisiadpibetnianianteunts 34, 35
Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en
banc), cert. denied, 137 S. Ct. 612 (2017)................ 14
Vieth v. Jubelirer, 541 U.S. 267 (2004) ....... 0.0... .ccceeeee 10
Warger v. Shauers, 135 S. Ct. 521 (2014)................... 30
Williams v. Rhodes, 393 U.S. 23 (1968).............0:0000 10
Wilson v. United States, No. C 95-20042 at 5
(N.D. Cal. Nov. 2, 1995), as modified by Joint
Stipulation to Substitute Language (N.D. Cal.
Sli RS Ec IS A ee ce 19, 33
Wooley v. Maynard, 430 U.S. 705 (1977) ...............20... 10
CONSTITUTIONAL AND STATUTORY PROVISIONS:
Elections Clause, U.S. Const. Art. I, § 4............... 29, 31
SS eeereree meee 10, 11
I nrnsnicnnnsiniteenansntatlonsndeniatiadniibiaiii 28
, «- “ (TT Smee 14
Section 5, 52 U.S.C. § 10304.............ccccccccsrscssesssseees 32
National Voter Registration Act, 52 U.S.C.
iv
TABLE OF AUTHORITIES — Continued
Page
See ane eT 8
a iter ch nasa inincgsinaninininidannnndiuidiae 30
Section 8(a), 52 U.S.C. § 20507(a)................... passim
Section 8(b), 52 U.S.C. § 20507(b)................... passim
Section 8(c), 52 U.S.C. § 20507(c)................ 16, 22, 24
Section 8(d), 52 U.S.C. § 20507(d)................... passim
Pub. L. No. 103-31 § 8(b)(2), 107 Stat. 77, 87
SIT itiiccliniaripdcienitcinnindshtheaiinatdiaiadadieaneibiniesdintnmenismee: 18
Help America Vote Act, Pub. L. No. 107-252, 116
I ss crialiiesielitinaeeinemiitaidl passim
BD es OF IID cnsevccceccseccccccssccssceses 20, 23, 26, 27
I latina alll 24
I eeniaribeemnnlenieleeni 30
OTHER AUTHORITIES:
Be By I iccencniecccsasdnsesansscsnenesensenesioneel 9
See EN UNS GY IED sesccenecestsccnsvesencnssecsescnscssessins 9
Black’s Law Dictionary (10th ed. 2014)..................... 22
Ronald Brownstein, The Great Midterm Divide,
THE ATLANTIC, Nov. 2014, https://goo.gl/P3QSBn....... 15
Civil Rights Div., Dep’t of Justice, The National
Voter Registration Act of 1993 (NVRA), https://
TIE cicidndoneiouenictccdasevenminteedivesanciindint 16, 17, 36
Vv
TABLE OF AUTHORITIES — Continued
Drew DeSilver, Voter Turnout Always Drops Off
for Midterm Elections, But Why?, PEw RESEARCH
CENTER FACTANK, July 24, 2014, https://goo.gl/
Richard Holden, Voting and Elections: New So-
cial Science Perspectives, 12 ANN. REv. L. &
SES Ieee ee ey eee
Jon Husted, Ohio Sec’y of State, Directive No.
2011-15 at 1 (Apr. 18, 2011), https://goo.gl/
Ee ccsssinnemciniaiinniadianittaniasvetvegpinibidenintannniiannese
JAN E. LEIGHLEY & JONATHAN NAGLER, WHO
VoTEs Now? DEMOGRAPHICS, ISSUES, INEQUAL-
ITY, AND TURNOUT IN THE UNITED STATES
eR niscntccssesenesntnssveceninocsusectesiniesnusioneiadetbaiennnens
Letter from Deval L. Patrick, Assistant Attorney
General, Civil Rights Div., to Dennis R. Dunn,
Senior Assistant Attorney General, State of
Georgia (Oct. 24, 1994).....c.ccccccsecesesseseesessesseseere:
Letter from Isabelle Katz Pinzler, Acting Assis-
tant Attorney General, Civil Rights Div., to
Mark Barnett, Attorney General, State of
South Dakota (Feb. 11, 19977)...............:::ccccceeeee
Letter from Isabelle Katz Pinzler, Acting Assis-
tant Attorney General, Civil Rights Div., to
Bruce M. Botelho, Attorney General, State of
BE CE PIT ccocitncnineninudimtinationoseccdncbe:
Page
vi
TABLE OF AUTHORITIES — Continued
Page
Memorandum in Support of Motion for Sum-
mary Judgment, United States v. Pennsylva-
nia, No. 95-CV-382 (E.D. Pa., filed Aug. 7,
DE i ciitinctiinnesscnvindstanntsnmmebenbindoueveabebssedeinsctbatnnuneis 32, 33
Nat'l Ass’n of Secretaries of State, Maintenance
of State Voter Registration Lists (Oct. 6, 2009),
TRGB OO. WEIN oc ccccoccccosccccsvescesscesccccccosseses 17, 25
LYN RAGSDALE & JERROLD G. Rusk, THE AMERI-
CAN NONVOTER (2017) ......2....0..cceeeecseeeeees Dentesnins 13, 15
Statement of Interest of the United States, Com-
mon Cause v. Georgia, No. 1:16-cv-452-TCB
(N.D. Ga., filed May 4, 2016).................:cccceceeeeeeeeees 37
United States’ Memorandum in Support of Mo-
tion for Further Relief, Wilson v. United States,
No. C-95-20042 JW (N.D. Cal., filed Oct. 23,
1
INTEREST OF THE AMICI CURIAE’
Amici are former attorneys for the United States
Department of Justice, all of whom had responsibility
for the Department’s interpretation and enforcement
of the National Voter Registration Act, 52 U.S.C.
§ 20501 et seq. (“NVRA”). Amici include individuais
who served as career civil servants, as well as those
who held politically appointed positions. Amici have
served in both Republican and Democratic administra-
tions.
In his brief, the Solicitor General has renounced
the interpretation of the NVRA that the Department
repeatedly endorsed since the statute’s enactment in
1993 — an interpretation that the Department en-
dorsed even in its brief in this very case in the Sixth
Circuit. Unusually, the Solicitor General’s brief was
not signed by a single career attorney in the Civil
Rights Division, the component of the Department that
is responsible for enforcing the NVRA provisions at
issue here. And the Solicitor General explicitly de-
scribed “the change in Administrations” as having mo-
tivated his renunciation of the Department’s prior
interpretation. U.S. Br. 14. Amici submit this brief in
their individual capacities to provide the Court with
the Department’s longstanding view of the Question
? Pursuant to S.Ct. R. 37.6, Amici state that no counsel for a
party authored this brief in whole or in part and that no person
other than Amici or their counsel made a monetary contribution
to its preparation or submission. All parties have filed blanket
consents to the filing of amicus curiae briefs in this case.
2
Presented, the view the current administration has
abandoned.
Amici are:
Eric H. Holder, Jr. served as Attorney General of
the United States from 2009 to 2015. From 1997 to
2001, he was Deputy Attorney General, and from 1993
to 1997 he was United States Attorney for the District
of Columbia. From 1986 to 1988, he was an attorney in
the Criminal Division.
Thomas E. Perez served as Assistant Attorney
General for Civil Rights from 2009 to 2013. He was
Deputy Assistant Attorney General from 1998 to 1999,
and a Trial Attorney, then Deputy Chief of the Crimi-
nal Section, from 1989 to 1995.
Bill Lann Lee served as Acting Assistant Attor-
ney General for Civil Rights, and then Assistant Attor-
ney General for Civil Rights, from 1997 to 2001.
Deval L. Patrick served as Assistant Attorney
General for Civil Rights from 1994 to 1997.
Loretta King served as Deputy Assistant Attor-
ney General for Civil Rights (with an 8-month period
as Acting Assistant Attorney General) from 1994 to
2011. She was Deputy Chief of the Voting Section from
1992 to 1994, and a Trial Attorney from 1980 to 1990.
William R. Yeomans served in the Civil Rights
Division from 1981 to 2005. He served as Acting Assis-
tant Attorney General, Chief of Staff, Acting Deputy
Assistant Attorney General, Counsel to the Assistant
3
Attorney General, Deputy Section Chief, and Trial At-
torney.
James P. Turner served as Deputy Assistant At-
torney General for Civil Rights from 1969 to 1994.
From 1993 to 1994, he was Acting Assistant Attorney
General. From 1965 to 1969, he was a Trial Attorney.
Pamela S. Karlan served as Deputy Assistant At-
torney General for Civil Rights from 2014 to 2015.
Matthew Colangelo served as Deputy Assistant
Attorney General for Civil Rights from 2011 to 2013,
and as Counsel to the Assistant Attorney General from
2010 to 2011.
Julie A. Fernandes served as Deputy Assistant
Attorney General for Civil Rights from 2009 to 2011
and as Counsel to the Assistant Attorney General from
1999 to 2001. She was also a Trial Attorney in the Civil
Rights Division’s Housing and Voting Sections.
Samuel R. Bagenstos served as Deputy Assis-
tant Attorney General for Civil Rights, and then Prin-
cipal Deputy Assistant Attorney General for Civil
Rights, from 2009 to 2011. From 1994 to 1997, he was
a Trial Attorney in the Civil Rights Division’s Appel-
late Section.
Spencer A. Overton served as Principal Deputy
Assistant Attorney General for Legal Policy from 2009
to 2010.
Anita S. Earls served as Deputy Assistant Attor-
ney General for Civil Rights from 1998 to 2000.
4
Joseph Rich was an attorney in the Civil Rights
Division from 1968 to 2005. From 1999 to 2005, he
served as Chief of the Voting Section.
J. Gerald Hebert served in the Civil Rights Divi-
sion from 1973 to 1994. He held a number of positions
in the Voting Section, including Acting Chief, Deputy
Chief, and Senior Litigation Counsel.
Gilda R. Daniels served as Deputy Chief of the
Voting Section of the Civil Rights Division from 2000
to 2006 and as a Trial Attorney from 1995 to 1998.
Robert Kengle served as Deputy Chief of the
Voting Section from 1999 to 2005. From 1984 to 1999,
he was a Trial Attorney, then Special Counsel, in the
Section.
°
SUMMARY OF ARGUMENT
I. Under Ohio’s “supplemental process,” the fail-
ure 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 “re-
sult{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, Con-
gress recognized that the right to vote includes a right
5
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 fol-
lowed 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 regis-
trant.” 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 recog-
nized these problems when it adopted the NVRA. Un-
der 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 re-
quires, at a minimum, that the state have some relia-
ble, independent indication that a voter has moved
before initiating the voter-purge process.
6
In addition to being an unreasonable means of
identifying voters who have moved, Ohio’s “supple-
mental process” violates the failure-to-vote clause in
the NVRA and the parallel language in the Help Amer-
ica 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, be-
cause 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 resi-
dence 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 pro-
cess” raises no serious constitutional question. To the
contrary, it is Ohio’s interpretation that would raise se-
rious constitutional questions, by reading the NVRA to
have empowered states to remove citizens from the
7
rolls simply for exercising their protected right not to
vote.
II. In the Sixth Circuit, the United States con-
tended that Ohio’s “supplemental process” violates the
NVRA. That argument was consistent with the De-
partment of Justice’s longstanding interpretation of
the NVRA. From 1994 until the Solicitor General’s
brief in this case, the Department had repeatedly ex-
pressed 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 de-
fendants 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 specifi-
cally reaffirmed that the failure to vote cannot be the
basis for commencing a purge process. And the Depart-
ment subsequently defended that interpretation in
the lower courts. The Solicitor General’s brief thus
8
marks a significant departure from the Department’s
longstanding position.
+
ARGUMENT
I. The NVRA Prohibits Ohio’s “Supplemental
Process”
Under Ohio’s “supplemental process,” the failure
to vote is the reason the state initiates its voter-
purge procedure by sending a confirmation notice.
The failure to vote is also, as the Solicitor General
acknowledges, “the most immediate cause” of a voter’s
removal after the state sends that notice. U.S. Br. 19
n.5. That process is not, as the NVRA requires, a
“reasonable effort” to identify voters who are “ineligi-
ble” by reason of a change in residence. 52 U.S.C.
§ 20507(a)(4)(B). To the contrary, it violates the statute
by “result[ing] in the removal of” a registrant “by rea-
son of the person’s failure to vote.” Id. § 20507(b)(2).
A. The NVRA Protects Both the Right to
Vote and the Right Not to Vote
When it adopted the NVRA, Congress declared
that “the right of citizens of the United States to vote
is a fundamental right.” 52 U.S.C. § 20501(a)(1). Con-
gress recognized that, as with other fundamental
rights, the right to vote includes a right not to vote. The
House and Senate Reports explained that the NVRA
aimed “to ensure that once a citizen is registered to
vote, he or she should remain on the voting list so long
9
as he or she remains eligible to vote in that jurisdic-
tion.” S. Rep. No. 103-6 at 17 (1993) (“Senate Report”).
Accord H.R. Rep. No. 103-9 at i8 (1993). The Senate
Report noted that citizens not only have the affirma-
tive right to vote; they also “have an equal right not to
vote, for whatever reason.” Senate Report at 17. And it
explained that the statute sought to prevent states
from “penaliz[ing] such non-voters by removing their
names from the voter registration rolls merely because
they have failed to cast a ballot in a recent election.”
Id. “Such citizens,” the Report went on, “may not have
moved or died or committed a felony. Their only ‘crime’
was not to have voted in a recent election.” Jd. Quoting
the testimony of Rev. Jesse Jackson, the Report ob-
served: “‘No other rights guaranteed to citizens are
bound by the constant exercise of that right. We do not
lose our right to free speech because we do not speak
out on every issue.’” Jd.
Congress’s understanding of the right to vote —
and the right not to vote — resonates with two
important strands of this Court’s cases. First, the
Court has recognized that voting is an important
means of expression and association. Voting is the ul-
timate expression of one’s political preferences. And it
is a means of associating with others to express sup-
port for a political candidate and the agenda for which
that candidate stands. See, e.g., Norman v. Reed, 502
U.S. 279, 288 (1992) (describing voting for a chosen po-
litical party as implicating “the constitutional interest
of like-minded voters to gather in pursuit of common
political end” and to “express their own political
10
preferences”); Anderson v. Celebrezze, 460 U.S. 780,
787-788 (1983) (describing voting for a preferred can-
didate as an aspect of an individual’s “right to associ-
ate with others for political ends”); Williams v. Rhodes,
393 U.S. 23, 31 (1968) (describing “the right to vote” as
“that of having a voice in the election of those who
make the laws”) (internal quotation marks omitted).
Cf. Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Ken-
nedy, J., concurring in the judgment) (discussing “the
First Amendment interest of not burdening or penaliz-
ing citizens because of their participation in the elec-
toral process, their voting history, their association
with a political party, or their expression of political
views”). In McCutcheon v. Federal Election Comm’n,
134 S. Ct. 1434, 1440-1441 (2014), Chief Justice Rob-
erts’s plurality opinion specifically included “vot[ing]”
along with “run(ning] for office,” “urgling] others to
vote for a particular candidate, volunteer[ing] to work
on a campaign, and contributling] to a candidate’s
campaign,” all as components of the “right to partici-
pate in electing our political leaders.”
Second, this Court has recognized that the rights
to speak and associate include a right not to speak and
associate. See Roberts v. United States Jaycees, 468
U.S. 609, 623 (1984) (“Freedom of association therefore
plainly presupposes a freedom not to associate.”);
Wooley v. Maynard, 430 U.S. 705, 714 (1977) (describ-
ing “[tl]he right to speak and the right to refrain from
speaking” as “complementary”).
The NVRA’s protection of the right not to vote is
most overt in the failure-to-vote clause, 52 U.S.C.
11
§ 20507(b)(2), which we discuss in Part I.C., infra. But
the statute’s express, narrow limitations on the cir-
cumstances in which states may remove properly reg-
istered voters from the rolls, which we discuss in Part
1.B., immediately below, plainly advance the same end.
By recognizing that citizens do not lose their right to
vote in future elections by failing to vote in past elec-
tions, the NVRA underscored the important principle
that the right to vote includes a right not to vote.
B. Under the NVRA’s Narrow Limitations
on Removing Registrants, States May
Not Initiate a Voter-Purge Process
Based on the Failure to Vote
As an exercise of Congress’s Elections Clause power,
the NVRA did not, of course, simply adopt the rules
this Court has applied in its First Amendment juris-
prudence. But the statute did impose narrow limita-
tions on the circumstances in which states may remove
registered voters from the rolls. Those limitations pro-
hibit states from using the mere failure to vote as the
basis for initiating a voter-purge process.
Section 8(a)(3) of the NVRA, 52 USC.
§ 20507(a\(3), directs that “the name of a registrant
may not be removed from the official list of eligible
voters except” for the following delineated reasons: “at
the request of the registrant,” id. § 20507(a)(3)(A); “as
provided by State law, by reason of criminal conviction
or mental incapacity,” id. § 20507(a)(3)(B); or “as pro-
vided under paragraph (4),” id. § 20507(aX(3)(C). Para-
graph (4) provides, in turn, that states shall “conduct a
12
general program that makes a reasonable effort to
remove the names of ineligible voters from the official
lists of eligible voters by reason of” either “the death
of the registrant” or “a change in the residence of the
registrant.” Id. § 20507(a)(4). And Section 8(d), id.
§ 20507(d), further limits states’ ability to remove
voters based on a change in residence. That provision
directs that a “State shall not remove the name of a
registrant from the official list of eligible voters in elec-
tions for Federal office on the ground that the regis-
trant has changed residence unless the registrant”
either (a) “confirms in writing that the registrant has
changed residence” or (b) “has failed to respond to a
notice” sent by forwardable mail, and has not voted in
the two federal general elections following that notice.
Id.
The statutory text thus provides that, once a state
determines that a voter is eligible and places her on
the rolls, it can remove her for only four reasons: the
registrant’s request; criminal conviction or mental in-
capacity; death; or a change in residence. Noticeably
absent from this list is the failure to vote.
Ohio does not defend its “supplemental process” as
a means of removing voters due to request, criminal
conviction or mental capacity, or death. It defends the
process only as a means of removing those who have
moved. Ohio Br. 49. See also Jon Husted, Ohio Sec’y of
State, Directive No. 2011-15 at 1 (Apr. 18, 2011),
https://goo.gi/frd7Pb (stating that the “supplemental
process” seeks “to identify electors whose lack of voter
initiated activity indicates they may have moved”). But
13
the text and structure of the NVRA make clear that
the failure to vote, even when followed by the Section
8(d)(2) confirmation procedure, is not a “reasonable”
means of identifying those individuals who have be-
come “ineligible ... by reason of ... a change in the
residence of the registrant.” 52 U.S.C. § 20507(a)(4)(B).
The failure to vote is not a reasonable indication
that someone has moved. There are simply too many
competing explanations for a citizen’s failure to cast a
ballot at a particular election. See generally LYN Raas-
DALE & JERROLD G. RUSK, THE AMERICAN NONVOTER 114
(2017) (describing many reasons for not voting, includ-
ing a lack of clear distinctions between candidates,
negative views of one or both candidates, and “hard-
ship” that makes it difficult to vote). Nonvoters may
conclude that no candidate running in a given election
sufficiently represents their views, and thus that they
have nothing to vote for. See JAN E. LEIGHLEY & JONA-
THAN NAGLER, WHO VOTES NOW? DEMOGRAPHICS, Is-
SUES, INEQUALITY, AND TURNOUT IN THE UNITED STATES
121-153 (2014). They may conclude that there is little
difference between the candidates, so that choosing be-
tween them is pointless. See RAGSDALE & RUSK, supra,
at 105-108. Or they may conclude that the election will
not be a competitive one, so their votes are unlikely to
matter. See LEIGHLEY & NAGLER, supra, at 122-123. In-
creasingly sophisticated gerrymandering, which often
packs members of the minority party into noncompet-
itive districts, see Richard Holden, Voting and Elec-
tions: New Social Science Perspectives, 12 ANN. REV. L.
Soc. Sci. 255, 259 (2016), exacerbates these problems.
14
And, for many citizens, the failure to vote may result
from barriers imposed by state and local election pro-
cedures. Limitations on absentee and early voting, for
example, present a particular problem for poor and
working-class voters.” So do restrictive voter identifi-
cation laws. See, e.g., Veasey v. Abbott, 830 F.3d 216, 251
(5th Cir. 2016) (en banc) (noting district court findings
that Texas’s voter identification law “disproportion-
ately impacts the poor”), cert. denied, 137 S. Ct. 612
(2017).
It is apparent from the NVRA’s legislative history
that Congress recognized these problems. The Senate
Report explains that, even when states “use the proce-
dure of removal for non-voting merely as an inexpen-
sive method for eliminating persons believed to have
moved or died,” the result will be to remove “many per-
sons” from the rolls “merely for exercising their right
not to vote.” Senate Report at 17. The Report noted con-
cerns that such a practice “tends to disproportionately
affect persons of low incomes, and blacks and other mi-
norities.” Jd. at 18.
The Ohio process, which begins purge procedures
after failure to vote for a mere two years, presents
these problems in a particularly extreme form. Under
? Limitations like these have been a particular focus of con-
troversy in Ohio. See, e.g., Obama for America v. Husted, 697 F.3d
423 (6th Cir. 2012) (affirming preliminary injunction against law
limiting early voting for nonmilitary voters); Ohio State Confer-
ence of N.A.A.C.P. v. Husted, No, 2:14-CV-404 (S.D. Ohio, April 17,
2015) (settlement agreement in litigation challenging limitations
on early voting hours), https://goo.gi/bJQsUk.
15
that process, a voter will be subject to the purge proce-
dures if she votes in a presidential election but then
fails to vote in the subsequent midterm election. But
many citizens vote only in presidential years. See Drew
DeSilver, Voter Turnout Always Drops Off for Midterm
Elections, But Why?, PEW RESEARCH CENTER FACTANK,
July 24, 2014, https://goo.gl/84ZHKE. In midterm elec-
tions, voters who see no clear ideological differences be-
tween the candidates are even more likely to stay
home than in presidential elections. See RAGSDALE &
Rusk, supra, at 108. Midterm falloff is particularly sig-
nificant for minority voters. See Ronald Brownstein,
The Great Midterm Divide, THE ATLANTIC, Nov. 2014,
https://goo.g/P3QSBn (“Midterm elections have long
attracted fewer voters than elections in presidential
years have, with minorities and young people among
the groups most likely to stay home.”). Especially fol-
lowing the 2008 presidential election — which saw his-
torically high turnout — a failure to vote in the
following election does not at all suggest that a voter
had moved out of the jurisdiction. See DeSilver, supra
(noting that in 2008 “57.1% of the voting-age popula-
tion cast ballots — the highest level in four decades,”
while “two years later only 36.9% voted in the midterm
election”).
The unreasonableness of the Ohio process is ap-
parent when compared to the one means specifically
listed in the NVRA for identifying voters who have
moved. The statute provides that a “State may meet
the requirement of subsection (a)(4) by establishing a
16
program under which” it uses “change-of-address infor-
mation supplied by the Postal Service” to “identify reg-
istrants whose addresses may have changed.” 52
U.S.C. § 20507(c)(1)(A). If “it appears from [that] infor-
mation” that “the registrant has moved to a different
residence address not in the same registrar’s jurisdic-
tion,” the state must then “use[] the notice procedure
described in subsection (d)(2) to confirm the change of
address.” Id. § 20507(c)(1)(B)(ii).
Under the procedure laid out in the statute, the
purge process is not triggered by voting behavior. In-
stead, it is triggered by an independent indication that
the voter has moved — the voter’s listing on the Na-
tional Change of Address (NCOA) database main-
tained by the United States Postal Service. Of course,
a state is not limited to using the NCOA database. As
the Department of Justice has long explained, there
are other independent indications of a change in resi-
dence on which a state might rely to begin the purge
process. See Civil Rights Div., Dep’t of Justice, The Na-
tional Voter Registration Act of 1993 (NVRA) at {J 33-
35, https://goo.gl/fMWdc8 (“2010 NVRA Guidance”).*
For example, a state could send “a uniform mailing” to
“all voters in a jurisdiction,” and then “use information
obtained from returned non-deliverable mail” to begin
® The Department first issued this guidance in 2010. On Au-
gust 7, 2017, to accompany the Solicitor General’s filing of his
brief in this case, the Department amended the language relevant
to this case, and deleted the prior language from its website. See
US. Br. 14 n.4. We cite the 2010 guidance, as it appeared on the
Department’s website prior to that change; it can currently be
found on the Internet Archive’s “Wayback Machine.”
17
the confirmation procedure set forth in the statute. Jd.
{ 33. A 2009 report by the National Association of Sec-
retaries of State found that 14 states used “nonfor-
wardable address confirmation mailings” in this way.
Nat’ Ass’n of Secretaries of State, Maintenance of
State Voter Registration Lists 6 (Oct. 6, 2009), https://
goo.gl/wgjiAC. Or a state could begin the process based
on some other “reliable second-hand information indi-
cating a change of address outside of the jurisdiction.”
2010 NVRA Guidance J 34. For example, the National
Association of Secretaries of State found that five
states employ the confirmation process “whenever in-
formation received from the state’s department of mo-
tor vehicles indicates that a registered voter has
surrendered their driver’s license and obtained a new
license in a different state.” Nat'l Ass’n of Secretaries
of State, supra, at 7. And states may rely on other in-
formation as well, such as “juror notices,” id., or even
in-person canvassing, see id. at 22, 49, 54.
The mere failure to vote, however, is not a reliable
indication that an individual has become “ineligible . . .
by reason of . . . a change in the residence of the regis-
trant.” 52 U.S.C. § 20507(a)(4)(B). To the contrary, if a
state may begin the purge process simply because a
registrant failed to vote, there is a substantial risk that
the result will be to penalize the exercise of a protected
right to refrain from voting. That is not a fair reading
of the NVRA’s text, which requires states to make a
“reasonable effort” to identify those voters who are no
18
longer eligible — not those who have simply declined to
vote. 52 U.S.C. § 20507(a)(4).*
C. Under the Failure-to-Vote Clauses in
the NVRA and HAVA, States May Not
Use the Failure to Vote to Initiate a
Voter-Purge Process
1. Ohio argues that its “Supplemental Process” is
consistent with the failure-to-vote clause in the NVRA.
Ohio Br. 19-35. As originally enacted, that clause pro-
vided that “[aJlny State program or activity to protect
the integrity of the electoral process by ensuring the
maintenance of an accurate and current voter registra-
tion roll * * * shall not result in the removal of the
name of any person from the official list of voters reg-
istered to vote in an election for Federal office by rea-
son of the person’s failure to vote.” Pub. L. No. 103-31
§ 8(b)(2), 107 Stat. 77, 87 (1993).
But a problem immediately arose in interpret-
ing that clause. A separate provision of the statute,
Section 8(d), mandates that states use the confirma-
tion procedure before removing a voter based on change
* Departing from the position the government took below, see
U.S. CA6 Br. 18-20, the Solicitor General argues that Section
8(a)(4) “should not be read as” imposing limitations on states, be-
cause it uses the phrase “reasonable efforts.” U.S. Br. 28. But
whatever “latitude” that subsection provides to states, cf. id., Sec-
tions 8(a)(3) and 8(a)(4) together plainly prohibit using un-“rea-
sonable” means to identify voters who have moved. As we show in
text, and as the government argued below, Ohio’s “supplemental
process” violates that prohibition.
19
in residence. See 52 U.S.C. § 20507(d). Under that pro-
cedure, unless the voter confirms in writing that she
no longer lives in the jurisdiction, the immediate rea-
son the state will remove her from the rolls will be her
failure to vote. See U.S. Br. 19 n.5 (conceding that “[t}he
registrants’ failure to vote after receipt of the notice
could fairly be deemed a proximate cause of their re-
moval — indeed, it is the most immediate cause”). Con-
troversy quickly developed regarding how to reconcile
that confirmation procedure with the failure-to-vote
clause. In one of the first cases litigated under the stat-
ute, California proposed to send a nonforwardable res-
idency confirmation postcard to all registrants who
had not voted within the past six months. For any reg-
istrant for whom that postcard was returned as unde-
liverable, the state would begin Section 8(d)’s two-
election-cycle mail-notice procedure. See Wilson v.
United States, No. C 95-20042 at 5 (N.D. Cal. Nov. 2,
1995), as modified by Joint Stipulation to Substitute
Language (N.D. Cal. Nov. 13, 1995). Private plaintiffs
and the United States argued that California’s pro-
posal violated the failure-to-vote clause, but the court
disagreed. Because the state did not initiate the Sec-
tion 8(d) procedure until the postcard was returned as
undeliverable — an action that gave the state an inde-
pendent indication that the voter had moved — the
court concluded that California’s proposal complied
with the NVRA. See id. at 5-6.
When it enacted the Help America Vote Act in
2002, Congress resolved any controversy by making
clear that Section 8(b)(2)’s failure-to-vote clause does
20
not bar Section 8(d)’s confirmation procedure. HAVA
added the following language to the end of NVRA Sec-
tion 8(b){2):
except that nothing in this paragraph may be
construed to prohibit a State from using the
procedures described in subsections (c) and
(d) 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 re-
sponded during the period described in sub-
paragraph (B) 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.
52 U.S.C. § 20507(b)(2). HAVA also added a separate,
stand-alone provision that required states to adopt a
“system of file maintenance that makes a reasonable
effort to remove registrants who are ineligible to vote
from the official list of eligible voters.” 52 U.S.C.
§ 21083(a)(4)(A). That provision included its own, par-
allel failure-to-vote clause. Congress directed that,
“consistent with the National Voter Registration Act of
1993, registrants who have not responded to a notice
and who have not voted in 2 consecutive general elec-
tions for Federal office shall be removed from the offi-
cial list of eligible voters, except that no registrant may
be removed solely by reason of a failure to vote.” Id.
(citation omitted).
21
2. Ohio and the Solicitor General contend that
these provisions authorize the “Supplemental Pro-
cess.” Because no registrant is struck from the rolls un-
less she has both failed to respond to the mail notice
and failed to vote, the state argues that the failure to
vote is not the “sole proximate cause” of the registrant’s
removal. Ohio Br. 24-25. That is true, the Solicitor Gen-
eral argues, even though failures to vote serve as 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. See U.S. Br. 16-17. That argumert fails for
two reasons.
a. First, Ohio’s argument misses the point. The
HAVA amendments clarified that a state does not
violate the failure-to-vote clause merely by using the
Section 8(d) procedure to confirm that a registrant
has moved. They “made a conclusion clear that might
otherwise have been fought over in litigation,” Chevron
U.S.A., Inc. v. Echazabal, 536 U.S. 73, 87 (2002), and
thus, contrary to the Solicitor General’s insinuation,
had a “practical effect.” U.S. Br. 22. Cf. Ohio Br. 41 (ar-
guing that its interpretation is necessary to prevent
the HAVA amendments from being “meaningless”)
(internal quotation marks omitted). But they did not
at all change the underlying rule, in Section 8(a) of
the NVRA, that the state must use a reasonable means
of idencifying registrants to whom to send the confir-
mation notice in the first place. As we showed above,
Section 8(a) requires states to have reliable independ-
ent information suggesting that the registrant has
22
moved out of the jurisdiction before commencing the
mail-notice process. See Part I.B., supra.
Indeed, the NVRA’s text makes clear that the
mail-notice process is, as Ohio acknowledges, a “Con-
firmation Procedure,” Ohio Br. 7-8 — a process designed
to corroborate some independent indication that the
registrant is no longer eligible. See Black’s Law Dic-
tionary (10th ed. 2014) (definition of “confirm” is “ver-
ify” or “corroborate”). Thus, Section 8(c) provides that
when a state uses the NCOA procedure to identify vot-
ers who have moved, it must then “use[] the notice pro-
cedure described in subsection (d)(2) to confirm the
change of address.” 52 U.S.C. § 20507(c)(1)(BXii) (em-
phasis added). And Section 8(d) provides that in all
cases a “State shall not remove the name of a regis-
trant from the official list of eligible voters in elections
for Federal office on the ground that the registrant has
changed residence unless the registrant” either “con-
firms in writing that the registrant has changed resi-
dence” or fails to respond to the mail notice. Jd.
§ 20507(d)(1) (emphasis added).
When a state initiates the Section 8(d) process
based solely on a failure to vote, the process cannot
confirm the registrant's change of address, because
that failure may indicate nothing more than that the
registrant has exercised the protected right not to vote.
See Parts LA. & B., supra. A voter’s lack of response to
the notice, too, does not indicate that she has moved
out of the jurisdiction. The voter may have failed to see
the notice, thought it was junk mail, or intended to re-
turn the card but been unable to follow through in the
23
press of daily life. If the process began with some reli-
able evidence that a registrant had moved — such as
the individual’s inclusion on the NCOA database, or
the return of mail as undeliverable to her address on
file — the subsequent failure to return a card or to vote
might lead a reasonable person to conclude that the
registrant had, in fact, left the jurisdiction. Absent any
such evidence, the failure to vote or return the card is
too readily explained on too many alternative grounds.
It thus cannot “confirm” that the registrant is no longer
eligible to vote.
Neither HAVA’s amendment to the NVRA’s failure-
to-vote clause, nor its stand-alone file-maintenance
provision, suggests that a state may employ the
mail-notice process without first having reliable inde-
pendent information that a registrant is no longer eli-
gible. The amendment to the failure-to-vote provision
specifically allows the state to employ “the procedures
described in subsections (c) and (d),” 52 U.S.C.
§ 20507(b)(2) — procedures that, as we have shown, are
expressly designed to confirm prior indications that
a registrant has moved. And the stand-alone file-
maintenance provision requires that a state’s efforts
to remove ineligible voters must be “consistent with
the National Voter Registration Act.” 52 U.S.C.
§ 21083(a)(4)(A). See also id. § 21083(a)(2A)i) (pro-
viding that “[iJf an individual is to be removed from
the computerized list, such individual shall be re-
moved in accordance with the provisions of the Na-
tional Voter Registration Act of 1993”). It thus does not
grant states any latitude that the NVRA denies them.
24
Indeed, HAVA provides that, except for a specific pro-
vision relating to identification requirements for first-
time voters who registered by mail, “nothing in [the
statute] may be construed to authorize or require
conduct prohibited under” the NVRA. 52 U.S.C.
§ 21145(a)(4).
b. Second, Ohio’s interpretation denies inde-
pendent force to the NVRA’s failure-to-vote clause, and
to the parallel language in HAVA’s stand-alone file-
maintenance provision. A “failure to respond to a no-
tice,” the state contends, “breaks th[e] required causal
connection between nonvoting and removal.” Ohio Br.
19. Under that argument, it is impossible to violate the
failure-to-vote clause, and the parallel HAVA provi-
sion, so long as a state conducts the mail-notice proce-
dure before ultimately removing a registrant from the
rolls. And that is true even if a registrant’s failure to
vote is the proximate or even sole reason why the state
initiates the purge process. If Ohio’s interpretation
were right, there would be no need for Section 8(b)(2)’s
failure-to-vote clause, because Sections 8(c) and (d) of
the NVRA already require states to conduct the mail-
notice procedure before removing registrants from the
rolls.
In its brief on the merits, Ohio tries to suggest
some daylight between the provisions. Because Sec-
tions 8(c) and (d) specifically address removal of voters
based on a change in residence, the state says that the
failure-to-vote clause has the independent effect of bar-
ring states from using nonvoting — at least absent the
confirmation process — to determine that a registrant
25
has died. Ohio Br. 34. But states do not use nonvoting
to determine that a registrant has died. They have
much more authoritative ways of making that deter-
mination. See Nat'l Ass’n of Secretaries of State, supra,
at 9 (“In most states, information on deceased voters is
received from a state office of vital statistics, the state
department of health, or a similar entity. Additionally,
a number of states permit election officials to remove
a deceased voter from sources such as obituary notices,
copies of death certificates, and notification from close
relatives.”). It is implausible that Congress would have
included the failure-to-vote clause to address removals
due to death.
Ohio also asserts that Congress used different lan-
guage to describe the voters covered by Section 8(b)’s
failure-to-vote clause and Section 8(d)’s requirement to
use the mail-notice procedure. See Ohio Br. 34-35 (ar-
guing that Section 8(d) applies only to “registrants,”
while Section 8(b) applies to “any person”). That differ-
ence, it avers, suggests that Section 8(d)’s confirmation
procedure applies only when a state seeks to remove
voters who have become ineligible after they registered
to vote, while “the Failure-To-Vote Clause applies even
to state programs or activities designed to uncover per-
sons who were wrongly added to the rolls as an initial
matter.” Ohio Br. 35.
Ohio’s argument founders on a basic problem: The
language Congress used to describe the reach of Sec-
tion 8(b) is essentially identical to the language it used
to describe the reach of Section 8(d). Compare 52 U.S.C.
§ 20507(b)(2) (covering “the removal of the name of any
26
person from the official list of voters registered to
vote”), with id. § 20507(d)(1) (covering the removal “of
a registrant from the official list of eligible voters”).
And in HAVA’s stand-alone file-maintenance provi-
sion, the mail-notice clause and the failure-to-vote
clause use exactly the same language to describe the
individuals they cover. See 52 U.S.C. § 21083(a)(4)(A)
(stating that “registrants 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”)
(emphasis added). Ohio’s interpretation rests on a
strained effort to find a distinction between the lan-
guage of NVRA Section 8(b) and 8(d), and it denies in-
dependent force to the failure-to-vote clause in HAVA’s
file-maintenance provision.
3. if the failure-to-vote clauses in the NVRA and
HAVA 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 deriving its belief that she has changed
her residence based on nonvoting. If a registrant’s
failure to vote before the mailing of the notice is the
reason the state begins the mail-notice process, and the
failure to vote after not returning the card is, as
the Solicitor General concedes, “the most immediate
cause” of the registrant’s removal from the rolls at
27
the end of the process, U.S. Br. 19 n.5, the state’s action
plainly “result[s] in the removal” of that registrant
“by reason of the person’s failure to vote.” 52 U.S.C.
§ 20507(b)(2).
Contrary to Ohio’s suggestion, Ohio Br. 19, 24-25,
the registrant’s failure to return the card sent with the
notice is not an independent, intervening cause. The
state, after all, waits a full two federal election cycles
after sending that notice before removing the voter
from the rolls. The failure to vote — which is the reason
the state sends the notice in the first place, and which
must continue for a four-year period afterwards — is
the proximate cause of the registrant’s removal. The
removal thus violates the NVRA’s failure-to-vote
clause.
Nor can the state find shelter in the “solely by rea-
son of” language of HAVA’s failure-to-vote clause. 52
U.S.C. § 21083(a)(4)(A). The state suggests that if there
is any other fact that led a voter to be removed from
the rolls — such as not returning a card — then the fail-
ure to vote cannot have been the “sole[]” reason for the
removal. Ohio Br. 39. That is an implausible reading of
the statutory text. As an analytic matter, there is never
a single but-for cause for anything. This Court has thus
read statutory “sole cause” language in a more practi-
cal way, as imposing a requirement of proximate cause.
For example, in F-C.C. v. NextWave Personal Communi-
cations, Inc. , 53'7 U.S. 293 (2003), the Court considered
the meaning of a statute that barred the FCC from re-
voking the license of a debtor “‘solely because’” the
28
debtor had not paid a debt dischargeable in bank-
ruptcy. Jd. at 300 (quoting 11 U.S.C. § 525(a)). The FCC
agreed that the proximate reason it cancelled the
debtor’s license was the failure to pay a debt, but it ar-
gued that it had a “valid regulatory motive” for the can-
cellation; that motive, it contended, meant that the
failure to pay the debt was not the “sole[]” reason for
its action. Jd. at 301. In an opinion by Justice Scalia,
the Court rejected that argument. The sole-cause lan-
guage, the Court held, “means nothing more or less
than that the failure to pay a dischargeable debt must
alone be the proximate cause of the cancellation — the
act or event that triggers the agency’s decision to can-
cel.” Id.
So too here. The failure to vote is what triggers
Ohio’s “supplemental process,” and it is the final prox-
imate step before the state removes a registrant under
that process. The process thus violates the failure-to-
vote clauses in both the NVRA and HAVA. And even if
those clauses were not alone sufficient to establish the
unlawfulness of Ohio’s process, they would nonetheless
bolster the conclusion that the process violates Section
8(a) of the NVRA, because it is not a “reasonable effort”
to identify voters who are ineligible due to a change in
residence.
29
D. Principles of Constitutional Avoidance,
if Anything, Argue Against Ohio’s Con-
struction of the NVRA
Ohio argues that its interpretation of the NVRA is
supported by the canon of constitutional avoidance.
Ohio Br. 46-53. Ohio contends, principally, that barring
the use of nonvoting as a basis for beginning a purge
process will improperly encroach on the state’s power
to make residency a qualification for voting. Jd. at 49-
51. That argument is unpersuasive. States have ample
means of obtaining information about residency even
without relying on the failure to vote. As we have
shown, states can use the Postal Service’s NCOA data-
base, send registrants a nonforwardable mailing, or
rely on other reliable information. See pp. 15-17, supra.
Because “the statute provides another means by which
[the state] may obtain information needed for enforce-
ment,” Arizona v. Inter Tribal Council of Arizona, Inc.,
133 S. Ct. 2247, 2259 (2013), there is no serious consti-
tutional question that implicates the avoidance canon.
Ohio invokes the avoidance canon for two other
reasons: First, the state argues that voter registration
might itself be a “qualification” that Congress may not
regulate under the Elections Clause, U.S. Const. Art. I,
§ 4. Ohio Br. 51-53. Second, the NVRA regulates how
states administer presidential elections, a matter Ohio
argues might fall outside of congressional power. Ohio
Br. 53. But there is no serious constitutional question
here. This Court has long explained that the Elections
30
Clause power extends to registration,® and that Con-
gress has authority to regulate the procedures used in
presidential elections.®
In any event, these latter arguments misunder-
stand what the avoidance canon does. That canon
“is a tool for choosing between competing plausible
interpretations of a statutory text, resting on the
reasonable presumption that Congress did not intend
the alternative which raises serious constitutional
doubts.” Clark v. Martinez, 543 U.S. 371, 381 (2005).
Even if regulating voter registration or regulating the
administration of presidential elections did raise seri-
ous constitutional questions, there is no plausible in-
terpretation of the NVRA’s text that would avoid them.
By its plain text, the statute extensively regulates
voter registration (a fact evident from its title, the Na-
tional Voter Registration Act). And it also plainly co-
vers presidential elections. See 52 U.S.C. § 20502(2)
(incorporating by reference 52 U.S.C. § 30101(3)). Any
constitutional questions regarding those aspects of the
statute thus provide no basis for invoking the avoid-
ance canon. See Warger v. Shauers, 135 S. Ct. 521, 529
(2014) (canon “‘has no application in the absence of. . .
® See, e.g., Cook v. Gralike, 531 U.S. 510, 523-524 (2001)
(“manner” of holding elections under Article I, Section 4 “encom-
passes matters like ‘notices, registration, supervision of voting,
protection of voters, prevention of fraud and corrupt practices,
counting of votes, duties of inspectors and canvassers, and making
and publication of election returns.’”) (quoting Smiley v. Holm,
285 U.S. 355, 366 (1932); emphasis added).
® See Burroughs v. United States, 290 U.S. 534, 544 (1924).
31
ambiguity’ ”) (quoting United States v. Oakland Can-
nabis Buyers’ Cooperative, 532 U.S. 483, 494 (2001)).
If anything, constitutional avoidance concerns
counsel against the interpretation Ohio places on the
NVRA. If the state’s reading is correct, Congress has,
pursuant to its Article I, Section 4 power to “make or
alter” election regulations, authorized states to remove
citizens from the rolls simply for exercising their pro-
tected right not to vote. See Part 1.A., supra. That in-
terpretation would itself raise serious constitutional
questions. Fortunately, the reading of the NVRA that
avoids those questions is also the best interpretation:
The statute bars states from initiating a purge process
based on a registrant’s failure to vote. See Parts I.B.-
C., supra.
Il. From 1994 Until the Solicitor General’s
Brief in This Case, the Department of Jus-
tice Repeatedly Interpreted the NVRA to
Prohibit Using the Failure to Vote as the Ba-
sis for Initiating a Purge Procedure
In the Sixth Circuit, the United States contended,
consistent with the argument we have presented in
this brief, that Ohio’s “supplemental process” violates
the NVRA. See U.S. CA6 Br. 11-30. That argument is
also consistent with the Department of Justice’s
longstanding interpretation of the NVRA, under which
a state may not initiate a purge process based merely
on the failure to vote. The Department first articulated
32
that interpretation shortly after the statute’s enact-
ment. Until the Solicitor General’s brief in this Court,
the Department had repeatedly reaffirmed that inter-
pretation — both before and after HAVA became law —
in a variety of fora.
Congress enacted the NVRA in 1993. The next
year, Georgia amended its voter registration practices.
Under those new practices, registrants “who fail[ed] to
vote (or otherwise have ‘contact’ with the election ad-
ministration system) during a three-year period would
be specifically targeted to be included in the state’s
purge procedures.” Letter from Deval L. Patrick, Assis-
tant Attorney General, Civil Rights Div., to Dennis R.
Dunn, Senior Assistant Attorney General, State of
Georgia, at 2 (Oct. 24, 1994) (“Georgia Preclearance
Objection”). When the state sought preclearance under
Section 5 of the Voting Rights Act, 52 U.S.C. § 10304,
the Department of Justice objected. Then-Assistant At-
torney General Patrick explained that the state’s reli-
ance on nonvoting as the trigger for a purge process
was “directly contrary to the language and purpose of
the NVRA” and was “likely to have a disproportionate
adverse effect on minority voters in the state.” Georgia
Preclearance Objection, supra, at 2.
The Department subsequently reiterated this po-
sition in litigation. In 1995, Pennsylvania adopted leg-
islation under which election officials would initiate
the mail-notice purge process for any registrant who
had not voted in the previous five years. The Depart-
ment argued that Pennsylvania’s law violated the
NVRA. See Memorandum in Support of Motion for
33
Summary Judgment at 14-18, United States v. Penn-
sylvania, No. 95-CV-382 (E.D. Pa., filed Aug. 7, 1996).
It explained that the law improperly removed voters
from the rolls by reason of their failure to vote: “a voter
gets a notice for failing to vote, and it is for failing to
vote in the ensuing period after the notice is sent, that
a registrant is then stricken from the rolls.” Jd. at 16.
The Department took the same position when Cal-
ifornia sought to adopt a new voter-purge procedure.
Recall that in 1995, the district court in Wilson, supra,
had upheld a procedure in which the Section 8(d) mail-
notice process was triggered by the return of a resi-
dency-confirmation postcard as undeliverable. In 1996,
the state sought to abandon that regime in favor of one
in which the simple failure to vote for four years initi-
ated the Section 8(d) process. The Department argued
that the proposed procedure violated the NVRA be-
cause it would function “as a purge for nonvoting.”
United States’ Memorandum in Support of Motion for
Further Relief at 9, Wilson v. United States, No. C-95-
20042 JW (N.D. Cal., filed Oct. 23, 1997).’
* Also in 1997, the Acting Assistant Attorney General for
Civil Rights notified the States of Alaska and South Dakota that
she had authorized lawsuits against them for violating the NVRA
by using nonvoting as a basis for initiating the purge process. See
Letter from Isabelle Katz Pinzler, Acting Assistant Attorney Gen-
eral, Civil Rights Div., to Bruce M. Botelho, Attorney General,
State of Alaska (Feb. 11, 1997); Letter from Isabelle Katz Pinzler,
Acting Assistant Attorney General, Civil Rights Div., to Mark Bar-
nett, Attorney General, State of South Dakota (Feb. 11, 1997).
34
After HAVA’s enactment, the Department negoti-
ated a series of settlement agreements that incorpo-
rated the same interpretation of the NVRA. In United
States v. Pulaski County, No. 4-04-CV-389 SWW (E.D.
Ark., entered Apr. 19, 2004), the Department entered
into a consent decree that permitted the defendants to
initiate Section 8(d)’s confirmation process only for
those “active voters for whom there is reason to believe
there has been a change of address”; the decree did not
identify the failure to vote as such a reason. Jd., Con-
sent Decree J 5. In United States v. Indiana, No. 1:06-
cv-1000-RLY-TAB (S.D. Ind., entered June 27, 2006),
the Department entered into a consent decree that di-
rected the state to send Section 8(d) confirmation no-
tices to those voters for whom prior mailings had been
“returned as undeliverable with no forwarding address
or a forwarding address outside the registrar’s juris-
diction.” Jd., Consent Decree and Order { 2. The decree
noted that the state might also infer that voters had
become ineligible, and thus initiate the mail-notice
procedure, based on “specific information provided in
writing that calls into question those voters’ continued
eligibility to vote at their currently registered ad-
dresses, such as jury declinations or county or state tax
filings which claim non-resident status.” Jd. J 4. But
the decree did not list nonvoting as a permitted basis
for initiating the purge process. Contrary to the sug-
gestion made by the group of former Department of
Justice attorneys who filed in support of the state, see
Former Civ. Rts. Div. Attys. Br. 14, the Pulaski County
and Indiana decrees did not permit the defendants to
35
initiate a purge process based on nonvoting. Indeed,
they barred such a practice.*
And in a decree in United States v. Cibola County,
No. CIV-93-1134-LH/LFG (D.N.M., entered Jan. 31,
2007), the Department stated its position especially
clearly. The decree provided:
The County shall not place the name of any
voter on the inactive list or otherwise remove
the voter’s name from the official voter regis-
tration list solely by reason of the person’s
failure to vote. The County shall only place
the name of any voter on an inactive list based
on objective information indicating that the
voter has become ineligible to vote due to hav-
ing moved, such as returned mail with no for-
warding address or National Change of
Address program data showing a move out-
side the County.
Id., Amended Joint Stipulation { 13 (emphasis added).
That language plainly barred the defendant election
officials from using the failure to vote as a basis for
initiating the NVRA’s mail-notice confirmation proce-
dure.
One sub-provision of a settlement agreement the
Department also entered in 2007, when read out of
context, might seem to suggest a contrary position. See
Settlement Agreement J 16(5), United States v. City of
® Notably, the Solicitor General does not endorse the sugges-
tion that the government’s current position is consistent with the
Pulaski County and Indiana consent decrees. See U.S. Br. 14 n.3.
36
Philadelphia, No. 06-4592 (E.D. Pa., entered Apr. 26,
2007) (stating that it was to “be the policy of the [Phil-
adelphia County Board of Elections]” to “send a for-
wardable confirmation notice to any registered elector
who has not voted nor appeared to vote during any
election, or contacted the Board in any manner”). On
closer examination, however, that sub-provision does
not undermine the Department’s longstanding inter-
pretation of the NVRA. The Philadelphia case, as filed,
was principally about providing language assistance to
Spanish-speaking voters, not about voter-purge proce-
dures. See id. at 1-2 (recitals). And it is doubtful that
the sub-provision addressing confirmation notices,
which was framed in terms of the Board’s “policy” ra-
ther than as a direct mandate, was even enforceable.
Even taking it for everything it is worth, that single
sub-provision, which formed a small part of a larger
settlement agreement, is an outlier. It is inconsistent
with the interpretation and practice of the Department
both before and since.
In 2010, the Department issued extensive guid-
ance regarding the application of the NVRA. See 2010
NVRA Guidance, supra. Reaffirming the longstanding
position described above, the guidance explained that
the statute barred states from initiating the mail-no-
tice purge process without “reliable second-hand infor-
mation indicating a change of address outside of the
jurisdiction from a source such as the NCOA program,
or a general mailing to all voters.” Jd. J 34. The Depart-
ment relied on its longstanding interpretation, and on
the 2010 guidance, when it argued below that Ohio’s
37
“supplemental process” violates the NVRA. See U.S.
CA6 Br. 2-3. See also Statement of Interest of the
United States, Common Cause v. Georgia, No. 1:16-cv-
452-TCB (N.D. Ga., filed May 4, 2016) (taking the same
position in a challenge to a Georgia purge practice).
From 1994 until the Solicitor General’s brief in
this case, the Department of Justice had repeatedly in-
terpreted the NVRA to prohibit a state from using a
registrant’s failure to vote as the basis for initiating
the Section 8(d) voter-purge process. As we showed in
Part I, supra, the Department’s longstanding interpre-
tation was correct. Ohio’s “supplemental process” vio-
lates the statute.
+
CONCLUSION
The judgment of the court of appeals should be af-
firmed.
Respectfully submitted.
SAMUEL R. BAGENSTOS
Counsel of Record
625 S. State St.
Ann Arbor, MI 48109
(734) 647-7584
sbagen@gmail.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.