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

"FILED |

RECORD No. 16-980 SEP 22 207

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BRIFFS IN THE

Supreme Court of the United States

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JON HUSTED, OHIO SECRETARY OF STATE,

Petitioner,

—Y,——

A. PHILIP RANDOLPH INSTITUTE, et al.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF THE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW, ROCK THE VOTE,

THE NUNS ON THE BUS OF OHIO, THE TEXAS CIVIL

RIGHTS PROJECT, AND THE CENTER FOR

MEDIA AND DEMOCRACY AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

KRISTEN CLARKE MICHAEL C. KEATS

JON M. GREENBAUM Counsel of Record

EZRA D. ROSENBERG MICHELE L. PAHMER

BRENDAN DOWNES DANIEL N. BERTACCINI

LAWYERS’ COMMITTEE FOR STROOCK & STROOCK

CIVIL RIGHTS UNDER LAW & LAVAN LLP

1401 New York Avenue, NW, 180 Maiden Lane

Suite 400 New York, New York 10038

Washington, DC 20005 (212) 806-5400

(202) 662-8600 mkeats@stroock.com

jgreenbaum@lawyerscommittee.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................

STATEMENT OF INTEREST..............

SUMMARY OF ARGUMENT ..............

i vxdcvecesandeveekdessokesbewe.

I. OH1LO’S SUPPLEMENTAL PROCESS

FAILS TO MAKE A REASONABLE

EFFORT TO TARGET AND REMOVE

INELIGIBLE VOTERS ..............

A.

The NVRA Requires States to Use

Reasonable Efforts to Identify

Voters Who Have Moved..........

Ohio’s Supplemental Process

Violates the NVRA Because It

Is Not Reasonably Tethered to

Voter Ineligibility and Results in

the Impermissible Removal of

Registrants Due to a Failure to

hs sVoacousweeikdewkes ave cvseae

Relying on a Failure to Vote as an

Indication that a Voter Has Moved

Also Runs Afoul of the NVRA’s

Requirement that States’ Voter

List Maintenance Procedures Must

Be Uniform, Nondiscriminatory,

and in Compliance with the Voting

Ds scesshetduaen aves wes

10

ll

PAGE

Il. NOTHING IN HAVA ALTERS THE

NVRA’S PROHIBITION AGAINST

PURGING VOTERS FROM THE

REGISTRATION ROLLS DUE TO

A FAILURE TO VOTE............... 17

Ill. THE SUPPLEMENTAL PROCESS

DISPROPORTIONATELY

DISENFRANCHISES

ed ncvivns ¢¢sacueveeewbes 20

EY snscndscckeusivsbesvececsuns 24

ill

TABLE OF AUTHORITIES

PAGE(S)

Cases

Alabama Legislative Black Caucus v. Alabama,

) kg RRP ES See nyt eae ne 1

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

Ts Ses SE IEE cevccdccunrtcccceccsbenacinceesssnn l

Bartlett v. Strickland,

I oc adinebeaiideienee 1

Bethune-Hill v. Virginia State

Board of Elections,

i ce ciiveiunieeas 1

City of Mobile v. Bolden,

en os snes nsndbenepuasnabbuasenensen 2

Clark v. Roemer,

Ie al aaa] 1

Clinton v. Smith,

SS ERC i Sel RD a 1

Connor v. Finch,

RET EER e eee pe 1

Cooper v. Harris,

ESET SL Re ec ee 1

Northwest Austin Municipal Utility District

No. 1 v. Holder,

I etal 1

Reno v. Bossier Parish School Board,

a isapuideenbemsaniansios 1

1V

PAGE(S)

Shaw v. Reno,

alee seienbnbeaniall 2

Shelby County v. Holder,

a a nail ceca sulted 1

Thornburg v. Gingles,

on cncint ngieaecendnenanenanidiabses 2

Young v. Fordice,

a ac claatineseniel 1

Statutes

42 U.S.C. § 1973gg-6(b)(2) (2000)............ cece eeee ees 18

I a etrtnidiinhpanttionieinin 4,7

a a ss eelieneinansloneeanenti 5

I eeideeniieenianiniiabonsions 7

Se Pe Oe I vicscccsccconcietnsoctersasenctnnesnes 7 n.

es Oe I icerencessesnncmesvescenrensiinnectactens GT

Fe ey Se eR cctcnensnnensmnascsnstusasesrsctceanent passim

Be ee Se intntenecnnsuctessersinnsescsciannsetbenina 14

i eee. OF I ettisceccctccsnnticscensctonscennnees 5, 8, 12

ee ae © ED ccensccnscesconesmmanscectonsscecnetion 8,9

52 U.S.C. § 20507(c)(1)(B) GI) «0... eees sical 10

Be Sere Oe ID cntccretccnienesensesisnensetsiotensnnneeiens 9, 10

PAGE(S)

52 U.S.C. § 20507(d)(2)(A) ......cccccccseececesescececeeceesenees 9 n.

Lit toe 0)?’ ea eae 6, 20

Pub. L. No. 107-252, 116 Stat. 1666 (2002)........ 18, 19

Other Authorities

Cass R. Sunstein, Deciding by Default,

ee Os ke ks IS Br CI bse ntcctnadccciccsccccccse 16

Donald Moynihan, et al., Administrative

Burden: Learning, Psychological, and

Compliance Costs in Citizen-State

Interactions, 25 J. Pub. Admin.

Res. & Theory 43 (Jan. 2015)........... 16 & 16 n.

Frederic Blavin, et al., Using Behavioral

Economics to Inform the Integration of

Human Services and Health Programs

Under the Affordable Care Act,

ET I Se capasnannneannonets 15

H.R. Rep. No. 103-9 (1993)...................0000 passim

H.R. Rep. No. 107-329 (2001)........... 11, 17, 19-20

Presidential Statement on Signing the

National Voter Registration Act of 1993,

29 Weekly Comp. Pres. Doc. 914

I i oo ninsupedeneuneke 4n.

PAGE(S)

Bg. ees, es. TE I deicticegccencsannnsccnenccices passim

Thom File, U.S. Census Bureau, Voting in

America: A Look at the 2016 Presidential

I I iii cc cic acieianehictiebindsionsaudse 21 n.

Thom File, U.S. Census Bureau, Who Votes?

Congressional Elections and the

American Electorate: 1978-2014

I cscs bait tdepail niaah adie ietvenehbi 21 & 21 n.

1

STATEMENT OF INTEREST!

The Lawyers’ Committee for Civil Rights Under

Law (“Lawyers’ Committee”) was formed in 1963 at

the request of President John F. Kennedy to involve

private attorneys throughout the country in the effort

to ensure civil rights to all Americans. Protection of

the voting rights of racia] and language minorities is

an important part of the Lawyers’ Committee’s work.

The Lawyers’ Committee has represented litigants in

numerous voting rights cases throughout the nation

over the past 50 years, including cases before this

Court. See, e.g., Arizona v. Inter Tribal Council of

Ariz., Inc., 133 S. Ct. 2247 (2013); Shelby County v.

Holder, 133 S. Ct. 2612 (2013); Nw. Austin Mun. Util.

Dist. No. 1 v. Holder, 557 U.S. 193 (2009); Reno v.

Bossier Parish Sch. Bd., 528 U.S. 320 (2000); Young

v. Fordice, 520 U.S. 273 (1997); Clark v. Roemer, 500

U.S. 646 (1991); Clinton v. Smith, 488 U.S. 988

(1988); and Connor v. Finch, 431 U.S. 407 (1977).

Moreover, like this case, the Arizona case concerned

the statutory interpretation of the National Voter

Registration Act. The Lawyers’ Committee has also

participated as amicus curiae in other significant

voting rights cases in this Court, including Bethune-

Hill v. Va. State Bd. of Elections, 137 S. Ct. 788

(2017); Cooper v. Harris, 137 S. Ct. 1455 (2017); Ala.

Legislative Black Caucus v. Alabama, 135 8S. Ct. 1257

(2015); Bartlett v. Strickland, 556 U.S. 1 (2009);

1 No counsel for a party has authored this brief in whole or in

part, and no counsel or any party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amici or their counsel made a monetary

contribution to its preparation or submission. The parties have

consented to the filing of amicus briefs, and these letters are on

file with the Clerk.

2

Shaw v. Reno, 509 U.S. 630 (1993); Thornburg v.

Gingles, 478 U.S. 30 (1986); and City of Mobile v.

Bolden, 446 U.S. 55 (1980). The Lawyers’ Committee

has an interest in the instant appeal because it raises

important voting rights issues that are central to its

mission.

Founded in 1990, Rock the Vote is a national

nonpartisan, nonprofit organization dedicated to

building the long-term political strength of young

people. From 1991 to 1993, Rock the Vote worked

with partners including MTV, Rolling Stone, major

musical artists of the era, and elected leaders to

support the passage of the National Voter

Registration Act of 1993. In 1999, Rock the Vote

worked to further increase accessibility of the voter

registration process through the creation of an online

voter registration tool. Since then, Rock the Vote has

continued to advocate for state and federal policies

that protect the rights of all eligible voters, while

supporting and building innovative technological

solutions that make it easier for eligible voters to

register and exercise those rights. Rock the Vote has

an interest in the instant appeal because it raises

important voting rights issues—in particular, issues

related to the voting rights of young people and racial

and language minorities—that are central to Rock

the Vote’s mission.

The Nuns on the Bus of Ohio (“NOTB-O”) is a

gatuering of Catholic sisters and their supporters

who comprise a subgroup of the national campaign

Nuns on the Bus sponsored by NETWORK Lobby for

Catholic Social Justice. NOTB-O members have been

personally involved in ensuring that all voting in

Ohio is fair and open. The members have countered

voter discrimination at the local and state level with

both on the ground voter registration and

3

confirmation as well as advocacy. NOTB-O works at

the local level to counter systematic voter purging

like Ohio’s in order to prevent disenfranchising the

poor and marginalized.

In its twenty-six year history, the Texas Civil

Rights Project (“TCRP”) has brought thousands of

strategic lawsuits to protect and expand voting

rights, challenge the injustices in our broken criminal

justice system, and advance racial and economic

justice. Today, TCRP’s Voting Rights Program

represents Texas communities to fight to turn the

tide on the state’s abysmal voting rights record by

removing barriers to voter registration, supporting

grassroots voter mobilization efforts, and opposing

new attempts to suppress voting. TCRP currently

leads a litigation effort to compel Texas to comply

with the National Voter Registration Act.

The Center for Media and Democracy is a

nonprofit, nonpartisan organization based in

Madison, Wisconsin. Founded in 1993, it has focused

on investigating and exposing abuses of power that

corrupt the proper workings of democratic

government. Its particular interest in this case is to

bring to light, and end, state voting practices that

have the intent or effect of creating discriminatory

obstacles to voting.

SUMMARY OF ARGUMENT

Ohio’s “Supplemental Process” for removing

registrants from its voter rolls, which is triggered by

an individual’s failure to vote for a mere two years,

violates the plain language of the National Voter

Registration Act of 1993 (the “NVRA”) and runs

counter to Congress’s intent and purpose in enacting

the law. The NVRA reflects Congress’s efforts to

4

expand voter protection beyond the Voting Rights Act

of 1965, to increase voter participation in the United

States, particularly among historically disenfranchised

groups,? by eliminating administrative barriers to

registering and voting. In enacting the NVRA,

Congress found that “the right of citizens of the

United States to vote is a fundamental right,” “it is

the duty of the Federal, State, and local governments

to promote the exercise of that right,” and

“discriminatory and unfair registration laws and

procedures can have a direct and damaging effect on

voter participation in elections for Federal office and

disproportionately harm voter participation by

various groups, including racial minorities.” 52

U.S.C. § 20501(a).

Because the Voting Rights Act did not prevent

States from erecting “a complicated maze of local

laws and procedures...through which eligible

citizens had to navigate in order to exercise their

right to vote,” Congress deemed it necessary “to

reduce these obstacles to voting to the absolute

minimum while maintaining the integrity of the

electoral process.” H.R. Rep. No. 103-9, at 3 (1993).

Accordingly, Congress’s stated purposes in enacting

the NVRA were “to establish procedures that will

increase the number of eligible citizens who register

to vote in elections for Federal office,” “to make it

possible for Federal, State, and local governments to

2 President Clinton, upon signing the NVRA into law,

remarked: “The victory we celebrate today is but the most recent

chapter in the overlapping struggles of our Nation’s history to

enfranchise women and minorities, the disabled, and the young

with the power to affect their own destiny and our common

destiny by participating fully in our democracy.” Presidential

Statement on Signing the National Voter Registration Act of

1993, 29 Weekly Comp. Pres. Doc. 914 (May 20, 1993).

5

implement this chapter in a manner that enhances

the participation of eligible citizens as voters in

elections for Federal office,” “to protect the integrity

of the electoral process,” and “to ensure that accurate

and current voter registration rolls are maintained.”

52 U.S.C. § 20501(b). Congress also emphasized

“that once registered, a voter should remain on the

list of voters so long as the individual remains eligible

to vote in that jurisdiction.” H.R. Rep. No. 103-9, at

18. Ohio’s Supplemental Process is antithetical to

these goals and principles.

The NVRA permits a State to remove individuals

from its list of eligible voters only in limited

circumstances and requires States to employ

reasonable efforts to remove ineligible voters from

their registration rolls. See 52 U.S.C. § 20507(a)(3)-

(4). Although Ohio’s Supplemental Process purports

to rely on one of these exclusive grounds for voter

purging—a registrant's change of address—it does so

by selecting for removal voters who simply failed to

vote. Congress was keenly aware that the failure to

vote is not a reliable indicator whether a registered

voter has moved, and for that reason expressly

prohibited States from purging voters due to a failure

to vote. Id. § 20507(b)(2). Congress thus squarely

answered the question of whether the method utilized

in QOhio’s Supplemental Process is a _ legitimate

“reasonable effort” for the maintenance of accurate

voter registration rolls: it is not.

Nor can Ohio rely on the amendments to the NVRA

that were included in the Help America Vote Act of

2002 (“HAVA”) to rescue the Supplemental Process

from invalidation. In enacting HAVA, Congress

made clear that nothing was meant to undermine the

NVRA; rather, Congress sought to clarify that the

NVRA's prohibition against purging registered voters

6

due to their failure to vote does not prevent States

from relying on registrants’ failure to vote in two

subsequent Federal elections once they have been

otherwise reasonably identified as potentially having

changed residences. Because the NVRA prohibits the

bare use of nonvoting as a means for targeting

individuals to be purged from the registration rolls,

and because HAVA may not be construed “to

authorize or require conduct prohibited under [the

NVRA], or to supersede, restrict, or limit the

application of [the NVRA],” 52 U.S.C. § 21145(a)(4),

HAVA does not permit Ohio’s Supplemental Process.

Finally, census data support the concerns reflected

in the legislative history of the NVRA that purging

based on nonvoting disproportionately impacts

minorities. A smaller percentage of registered

minority voters show up at the polls than registered

white voters, especially in mid-term elections. Ohio’s

Supplemental Process thus threatens to impact

minorities disproportionately compared to other

voters, frustrating a core goal of the NVRA: to

increase voter registration, especially among

minorities.

The NVRA’s clear language and legislative history

support the U.S. Court of Appeals for the Sixth

Circuit’s conclusion that Ohio’s Supplemental Process

violates the law.

7

ARGUMENT

I. OHIO’S SUPPLEMENTAL PROCESS FAILS

TO MAKE A REASONABLE EFFORT TO

TARGET AND REMOVE = INELIGIBLE

VOTERS

A. The NVRA Requires States to Use

Reasonable Efforts to Identify Voters Who

Have Moved.

Congress made the following findings when it

enacted the NVRA:

(1) the right of citizens of the United States

to vote is a fundamental right;

(2) it is the duty of the Federal, State, and

local governments to promote the exercise of

that right; and

(3) discriminatory and unfair registration

laws and procedures can have a direct and

damaging effect on voter participation in

elections for Federal office and

disproportionately harm voter participation

by various’ groups, including racial

minorities.

52 U.S.C. § 20501(a). Accordingly, one of Congress’s

main purposes in enacting the NVRA was to

“Increase the number of eligible citizens who register

to vote in elections for Federal office.” 52 U.S.C.

§ 20501(b)(1).2 Consistent with this objective is

8 Petitioner focuses on Congress’s stated purposes of

“protect[ing] the integrity of the electoral process” and

“ensur(ing] that accurate and current voter registration rolls are

maintained.” 52 U.S.C. § 2050) (b)(3)-(4). But the Supplemental

Process does nothing to further these goals, and, in fact, has the

8

Congress’s intent to ensure that eligible voters

remain registered. Thus, the NVRA mandates that

States may not remove registrants from the voter

rolls except in four circumstances: at the registrant’s

request; upon the registrant’s criminal conviction or

mental incapacity, both as determined by state law;

upon the death of the registrant; and, as relevant

here, upon a change in the registrant’s residence. 52

U.S.C. § 20507(a)(3), (4). The NVRA proscribes that

in no case shall anyone be removed from the list of

registered voters “by reason of the person’s failure to

vote.” Id. § 20507(b)(2).

With respect to removal due to a change of address,

the NVRA instructs that States must conduct a

general program that “makes a reasonable effort” to

remove ineligible voters from the official lists. Id.

§ 20507(a)(4)(B). It then provides an example of a

reliable method to identify individuals whose

residences may have changed: utilizing the U.S.

Postal Service’s national change of address (““NCOA”)

data. Id. § 20507(c)(1)(A). Regardless of the program

employed by a State to identify voters who appear to

have moved, the NVRA prohibits a State from

removing someone from the list of registered voters

due to a change in residence unless the registrant

confirms his or her change of residence in writing, or

fails to do the following after receiving the notice that

opposite result. As discussed infra Part I.B, because the failure

to vote is not a reliable means of identifying individuals who

may have moved, the Supplemental Process leads to the removal

of eligible voters from Ohio’s registration rolls. The end result is

to subvert the integrity of the electoral process, not protect it.

9

the NVRA mandates?: i) return or otherwise respond

to the notice card required to be sent; and ii) vote or

appear to vote in either of the next two Federal

elections (referred to herein as the “Removal

Confirmation Process”). Id. § 20607(d).

As mentioned above, the NVRA expressly sanctions

the use of the U.S. Postal Service’s NCOA data to

identify registrants who may have moved (the

“NCOA Process”). 52 U.S.C. § 20507(c)(1)(A). In fact,

Congress implored States to rely on the NCOA

Process because it reasonably and indiscriminately

identifies potential ineligible voters: “The Committee

strongly encourages all States to implement the

NCOA program, which is efficient, is cost-

effective ..., and properly implemented, is uniform

and objective.” S. Rep. No. 103-6, at 19 (1993).

Although States are free to devise other methods for

identifying voters who have become ineligible due to

a change in residence, they do so at their own peril,

and Congress was clear that the touchstone for any

such State-devised method is _ reasonableness:

“Jurisdictions which choose not to use the NCOA

program should implement another reasonable

program which is designed to meet the requirements

of the bill, i.e. that it be uniform, non-discriminatory

4 Specifically, the notice required by the NVRA must be a

“postage prepaid and pre-addressed return card,” on which the

registrant can provide his or her current address, and which

notifies the registrant, among other things: i) that if he or she

does not return the card within the specified time, the registrant

may be required to confirm his or her address prior to voting;

and ii) if the registrant does not vote in either of the next two

Federal elections, his or her registration will be canceled. 52

U.S.C. § 20607(d)(2)A).

10

and in conformance with the Voting Rights Act of

1965.” S. Rep. No. 103-6, at 19 (emphasis added).

B. Ohio’s Supplemental Process Violates the

NVRA Because It Is Not Reasonably

Tethered to Voter Ineligibility and

Results in the Impermissible Removal of

Registrants Due to a Failure to Vote.

The list maintenance procedures adopted by Ohio

include utilizing the NCOA Process. But Ohio also

uses a Supplemental Process pursuant to which it

targets for removal from its list of eligible voters

individuals who have not engaged in any voter

activity for two years, on the ground that a failure to

vote indicates that the person may have moved. If an

individual is identified under either the NCOA

Process or the Supplemental Process as possibly

having moved out of the voting jurisdiction, Ohio

initiates the Removal Confirmation Process provided

for under the NVRA that can lead to registrants’

removal from the list of eligible voters. See id.

§ 20507(d)(1)(B), (d)(2); id. § 20507(c)(1)(B)(i)

(referring to “the notice procedure described in

subsection (d)(2)” as meant “to confirm the change of

address’).

5 The district court below held that the program adopted by a

State need not be “reasonable” and that if a program is

“otherwise lawful” under the NVRA, the State need not use

“reasonable means to purge the voter rolls.” See 2016 WL

3542450, at *9. This reading of the statute is untenable and

irreconcilable with the express statutory requirement that any

program must constitute a “reasonable effort” directed at

removing registrants who are ineligible to vote due to a change

in residence, 562 U.S.C. § 20507(a)(4)(B), and it directly conflicts

with the NVRA’s legislative history.

11

Ohio’s Supplemental Process does not satisfy the

NVRA’s requirement that a State make a “reasonable

effort to remove the names of ineligible voters” from

its voter rolls. Jd. § 20507(a)(4). Petitioner offers no

basis for its assumption that lack of voting activity

for two years indicates that electors “likely have

moved.” See Damschroder Decl. § 12, Case No. 16

Civ. 303, ECF No. 38-2 (S.D. Ohio filed May 24,

2016). To the contrary, Congress was mindful when

it enacted the NVRA that “people have an equal right

not to vote, for whatever reason.” S. Rep. No. 103-6,

at 17; see also Help America Vote Act, H.R. Rep. No.

107-329, at 71 (2001) (“[Mjany voters intentionally do

not vote in every race.”). And yet, Congress

admonished:

[Mjany States continue to penalize 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. Such citizens may not have moved

or died or committed a felony. Their only

“crime” was not to have voted in a recent

election. As the Reverend Jesse Jackson

stated during the House hearings on voter

registration reform in the 101st Congress:

“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.”. . .

Such purging for non-voting tends to be

highly inefficient and costly. It not only

requires eligible citizens to re-register when

they have chosen not to exercise their vote,

12

but it also unnecessarily places additional

burdens on the registration system because

persons who are legitimately registered must

be processed all over again.

S. Rep. No. 103-6, at 17-18. The flawed assumption

in the Supplemental Process that nonvoting

correlates to having moved is further belied by

Congress’s recognition at the time it enacted the

NVRA of low voter turnout rates even among

eligible citizens. See H.R. Rep. No. 103-9, at 3

(noting that there are “many factors involved in the

lack of public participation” in Federal elections and

that “[e]xpanding the rolls of the eligible citizens

who are registered is no guarantee that the total

number of voters will increase”); S. Rep. No. 103-6,

at 2 (acknowledging that “there are multiple and

complex factors that contribute to the decline in

voter participation in Federal elections,” though

“most contributing factors may not be affected by

legislation”).

At the same time, Congress was intent on doing

everything it could “to assure that voters’ names are

maintained on the rolls so long as they remain

eligible to vote in their current jurisdiction and to

assure that voters are not required to re-register

except upon a change of voting address.” S. Rep. No.

103-6, at 2. Accordingly, the NVRA expressly

prohibits States from purging individuals from the

voter rolls because of their failure to vote. 52 U.S.C.

§ 20507(b)(2). Yet, by targeting people who have not

voted for two years, this is precisely what the

Supplemental Process does: there is no dispute that

all of the registrants actually removed from the

voting rolls through the Supplemental Process are

individuals who had not engaged in any voting

13

activity for two years prior to being identified for

potential removal based on that reason alone.

Requiring non-voters to take some affirmative step to

confirm their continued eligibility to vote is

antithetical to Congress’s expressed motivations in

enacting the NVRA.

Given the utter failure of the State to correlate lack

of voting with a likelihood of having moved, Ohio's

program cannot be said to satisfy the requirement

that it make a reasonable effort to remove only

ineligible voters from the rolls. It therefore violates

the NVRA, as the court of appeals correctly found.

838 F.3d 699, 710-12.

C. Relying on a Failure to Vote as an

Indication that a Voter Has Moved Also

Runs Afoul of the NVRA’s Requirement

that States’ Voter List Maintenance

Procedures Must Be Uniform,

Nondiscriminatory, and in Compliance

with the Voting Rights Act.

Petitioner, and some of its amici, maintain that

employing the Removal Confirmation Process

immunizes States from liability regardless of the

procedure used to identify registrants who may have

moved. See, eg., Pet’r’s Br. 37 (“{T|he Failure-To-

Vote Clause does not regulate the classes of

registrants to whom States send notices as long as

they remove registrants under the Confirmation

Procedure.”); Br. Amicus Curiae of the United States

at 28 (“[NJothing in Section 20507 explicitly requires

a State to have ‘reliable information’ affirmatively

14

indicating a change in residence before sending a

[confirmation] notice . . . .”).6

But this ignores that the NVRA sets standards for

any program developed by a State to monitor its

voting rolls for accuracy. All such State programs

and activities must be “uniform, nondiscriminatory,

and in compliance with the Voting Rights Act of

1965.” 52 U.S.C. § 20507(b)(1). “The purpose of this

requirement is to prohibit selective or discriminatory

purge programs. This requirement may not be

avoided by . . . conducting a purge program or activity

based on lists provided by other parties where such

lists were compiled as the result of a selective, non-

uniform, or discriminatory program or activity.” H.R.

Rep. No. 103-9, at 15. Moreover, Congress intended

“to impose the uniform, nondiscriminatory and

conforming with the Voting Rights Act standards on

any activity that is used to start, or has the effect of

starting, a purge of the voter rolls, without regard to

how it is described or to whether it also may have

some other purpose.” Jd. at 31 (emphasis added).

There are, therefore, clear limits to a State’s

discretion in how it designs a program aimed at

6 Of course, as its amicus brief candidly acknowledges, the

United States’ current position represents a complete about-face

from its prior views, occasioned by the “change in

Administrations.” U.S. Sup. Ct. Amicus Br. at 14. Just last year,

the United States appeared in this case as amicus curiae in the

Sixth Circuit on behalf of Respondents herein, where it

unequivocally maintained that “States cannot use non-voting,

without more, as evidence of a change in residence sufficient to

trigger the confirmation process.” U.S. 6th Cir. Amicus Br. at 10;

see also id. at 9 (“[I]nitiating the removal process without some

reliable evidence to suggest that voters have moved cannot qualify

as the ‘reasonable effort’ the statute requires to identify voters

who are no longer eligible.” (citing 52 U.S.C. § 20507(a)(4))).

15

maintaining accurate voter registration rolls, and a

State may not rely on the NVRA’s Removal

Confirmation Process to cleanse an otherwise tainted

program that improperly targets a select group of

voters for removal.

Requiring registrants to perform some affirmative

act to remain on the voter rolls, simply because they

have not voted, discriminates against individuals who

do not vote in a given election, and as discussed infra

Part III, affects minority voters in particular. The

Supplemental Process thus constitutes a “selective”

voter purging method prohibited by the NVRA as it is

certain to result in the removal from the rolls of

numerous individuals who continue to remain eligible

to vote.

This discriminatory effect is exacerbated by the

normal human response—substantiated by social

science—to decline participation in programs where

affirmative steps are required. Under the

Supplemental Process, infrequent voters who receive

a confirmation notice will be removed from the rolls

unless they do something to halt the removal process.

Even modest administrative requirements have been

shown to reduce “take up” or participation rates in a

variety of public programs. Cf. Frederic Blavin, et

al., Using Behavioral Economics to Inform the

Integration of Human Services and Health Programs

Under the Affordable Care Act, at 10 (Urb. Inst. July

2014) (“[W]hen consumers must meet apparently

modest procedural requirements, such as checking an

opt-in box, returning a simple form, or making a

telephonic or on-line acknowledgment, they are much

less likely to participate in available programs,

because of inertia, procrastination, short-term

orientation, distraction, confusion, actual underlying

preferences, or other factors.” (emphasis added));

16

Donald Moynihan, et al., Administrative Burden:

Learning, Psychological, and Compliance Costs in

Citizen-State Interactions, 25 J. Pub. Admin. Res. &

Theory 43, 46 (Jan. 2015) (positing that behavioral

economics explains why burdens “that seem minor

and defensible” may “exert dramatic effects when

experienced by citizens”).

Numerous studies demonstrate the impact of

affirmative opt-in requirements on participation rates

across a wide range of behaviors, including organ

donation, car insurance preferences, and online

privacy settings and information sharing. See Cass

R. Sunstein, Deciding by Default, 162 U. Pa. L. Rev. 1

(2013) (summarizing studies). Similarly here,

Congress implicitly recognized that administrative

requirements can be a barrier to voter participation

when it eliminated reregistration requirements. See,

e.g., H.R. Rep. No. 103-9, at 2 (identifying annual

reregistration requirements as among _ the

“techniques developed to discourage participation”).?

Given this reality of human behavior, many

recipients of a confirmation notice can be expected

not to respond. It is therefore vital that the

population of voters who receive the confirmation

notice be selected based on objective and reliable

criteria for believing that they may have moved, not

7 It has also been suggested that administrative burdens can

serve as a means of “hidden politics” that appear to be “technical

fixes without any specific policy intent,” but are, in fact,

preferences by political actors. Moynihan, supra, at 52-53 (“For

example, increasing burdens might be justified as a means to

prevent fraud, even if their intended instrumental effect is to

support other partisan goals (such as reducing the size of the

welfare state, or limiting voter turnout in the case of

elections).”).

17

because they have failed to vote.2 Because Ohio’s

Supplemental Process fails to meet that standard, it

violates the NVRA.

ll. NOTHING IN HAVA ALTERS THE NVRA’S

PROHIBITION AGAINST PURGING VOTERS

FROM THE REGISTRATION ROLLS DUE TO A

FAILURE TO VOTE

When it enacted HAVA, Congress was clear that

nothing in that legislation was meant to undermine

the NVRA. HAVA was enacted in response to the

2000 presidential election and the fallout from the

litigation that ensued over Florida’s recount. See,

eg., H.R. 107-329, at 59 (“The disadvantages of

punch card voting systems were highlighted during

the recount that took place in Florida following the

November 2000 election. Large portions of the

American public have lost confidence in them.”).

Congress incentivized States to modernize their

voting systems by offering election funds for States

that met certain criteria. HAVA is consistent with

the general theme of the Voting Rights Act and the

NVRA, namely, to increase voter participation. It

8 Petitioner also appears to suggest that its Supplemental

Process is more lenient than the NVRA's Removal) Confirmation

Process because the former allows a longer period of time beforc

a registrant is removed from the voting rolls (six years versus

four). See Pet’r’s Br. 26. But that is a red herring. The

Removal Confirmation Process is a congressivnally sanctioned

procedure for removing a registrant from the voting rolls only

after a State has reliable information that the individual has

moved, and Congress determined that a four-year removal)

period was appropriate in such circumstances. Ohio cannot cure

the impropriety of commencing the remova) process based on an

individual's failure to vote simply by extending the actual

removal period beyond the statutorily-permissible four years.

18

sought to achieve this by: setting minimum standards

for statewide voting registration systems; creating a

Federal Election Assistance Commission to assist

States in following best practices for administering

elections; establishing the Help America Vote

Foundation and College Program to encourage

increased participation in the electoral process among

young voters; encouraging States to allow in-precinct

provisional voting; and making it easier for military

personnel and citizens living abroad to vote. See

generally Pub. L. No. 107-252, 116 Stat. 1666 (2002).

The only connection HAVA has to the NVRA’s voter

purging guidelines is to clarify that a State may rely

on the Removal Confirmation Process set forth in the

NVRA (i.e., a failure to respond to the required notice

coupled with the failure of the individual to vote in

two subsequent general elections) to confirm that a

voter has, in fact, changed residences. Section 903 of

HAVA is entitled, “Clarification of Ability of Election

Officials to Remove Registrants from Official List of

Voters on Grounds of Change of Residence.”

(emphasis added) Prior to HAVA, the NVRA

provided, in relevant part:

Any State program or activity to protect the

integrity of the electoral process by ensuring

the maintenance of an accurate and current

voter registration roll for elections for

Federal office...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.

42 U.S.C. § 1973gg-6(b)(2) (2000). The purpose of

section 903 of HAVA was merely to clarify that a

State with reason to believe that a voter has changed

19

residences may rely on the Removal Confirmation

Process in the NVRA to confirm the voter's change of

address:

Section 8(b)(2) of the National Voter

Registration Act of 1993 (42 U.S.C. 1974gg-

6(b)(2)) is amended by striking the period at

the end and inserting the following: “, 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 officia}

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) 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.

Pub. L. No. 107-252, 116 Stat. 1666, 1728.

Because, as reflected in the legislative history of

the NVRA, an individual’s failure to vote in a single

election (such as a mid-term election) is not evidence

that the person has changed residences, Section 903

of HAVA likewise does not permit a State to use the

failure to vote as a basis to start the purging process.

Indeed, the Joint Explanatory Statement of the

Committee on Conference for HAVA includes the

following warning:

The minimum standard requires that

removal of those deemed ineligible must be

done in a manner consistent with the

National Voter Registration Act (NVRA).

20

The procedures established by NVRA that

guard against removal of eligible registrants

remain in effect under this Act. Accordingly,

[HAVA] leaves NVRA intact, and does not

undermine it in any way.

H.R. Rep. No. 107-329, at 66. For avoidance of doubt,

HAVA explicitly provides that it may not be

construed “to authorize or require conduct prohibited

under [the NVRA], or to supersede, restrict, or limit

the application of [the NVRAJ].” 52 U.S.C.

§ 21145(a)(4). Accordingly, HAVA does not permit

Ohio’s Supplemental Process.

Il, THE SUPPLEMENTAL PROCESS

DISPROPORTIONATELY

DISENFRANCHISES MINORITIES

The NVRA was enacted in the wake of decades

marking a proliferation of state laws and procedures

aimed at keeping certain groups of citizens from

voting, including immigrants, minorities and the

poor. See H.R. Rep. No. 103-9, at 2. While great

strides have been made to close the gap, the

percentage of minorities who register and vote is still

less than that for whites. Nationwide census data

confirms that turnout differentials persist between

whites and non-whites. See generally U.S. Census

Bureau, Voting and Registration Tables, available at

https://census.gov/topics/public-sector/voting. htm]

(ast visited September 21, 2017). The gap exists

during Presidential elections (except for 2012, when

voting rates for non-Hispanic blacks exceeded that for

non-Hispanic whites for the first time in Presidential

21

elections since 1980),° but it is particularly stark in

midterm election years: “Since 1978, voting rates for

non-Hispanic blacks and Hispanics have trailed those

for non-Hispanic whites in every congressional

election ....”” Thom File, U.S. Census Bureau, Who

Votes? Congressional Elections and the American

Electorate: 1978-2014, at 5 (2015), available at

https://census.gov/content/dam/Census/library/public

ations/20 15/demo/p20-577.pdf.

Moreover, as particularly relevant here, even when

viewed in terms of individuals registered to vote (as

opposed to those merely eligible), the turnout rates

for minorities still Jag behind that of whites. For

exainple, in the most recent midterm election year,

2014, census data reflects that 67% of registered non-

Hispanic whites turned out to vote as compared to

63% of registered blacks, 56% of registered Asians

and 53% of registered Hispanics. See U.S. Census

Bureau, Voting and Registration in the Election of

November 2014, available at https://census.gov/data/

tables/time-series/demo/voting-and-registration/p20-

577.html (follow links under “Table 2, Reported

Voting and Registration, by Race, Hispanic Origin,

Sex, and Age, for the United States: November 2014”)

® See Thom File, U.S. Census Bureau, Voting in America: A

Look at the 2016 Presidential Election (2017), available at

https://census.gov/newsroom/blogs/random -samplings/2017/05/

voting_in_ america.html.

' As uscd in this context by the U.S. Census Bureau, “voting

rates are calculated by dividing the total number of rcported

voters by the total number of eligible voters (i.c., citizens who

are at least 18 years old).” Id. at 2.

22

(last visited September 21, 2017).1! Given the racial

gap in voter turnout rates, Congress’s efforts to

protect from improper removal individuals who vote

only sporadically are particularly important for

voters of color. Yet, because the Supplemental

Process targets individuals for removal based on their

failure to vote in even one election, it has a

disproportionate impact on minorities, particularly

following midterm election years.

Even if response rates to the confirmation notice or

subsequent voting activities are substantially

comparable across races, minorities are likely to be

removed from the voter rolls at a greater rate than

whites based on the initial trigger. This disparity

was noted prior to passage of the NVRA. See S. Rep.

No. 103-6, at 17-18 (noting that, by relying on non-

voting as a trigger for removal, “many persons may

be removed from the election rolls merely for

exercising their right not to vote, a practice which

some believe tends to disproportionately affect

persons of low incomes, and blacks and other

minorities”); id. at 18 (“[Purging] processes... must

be scrutinized to prevent poor and illiterate voters

from being caught in a purge system which will

require them to needlessly re-register. Such

processes must be structured to prevent abuse which

has a disparate impact on minority communities.

Unfortunately, there is a long history of such list

cleaning mechanisms which have been used to violate

the basic rights of citizens.”).

1. To calculate the turnout rates among registered voters,

divide (i) the value reflected in the “US Citizen” column showing

the “Number” of “Both sexes,” “Total 18 years and over,” who

“Reported voted,” by (ii) the value reflected in the “US Citizen”

column showing the “Number” of “Both sexes,” “Total 18 years

and over,” who “Reported registered.”

23

The discriminatory impact of this procedure was

Congress's precise concern when it passed the NVRA.

See id. at 3 (“[T]he Committee has been concerned

with the impact of a regulation or practice on the

exercise of the right to vote and not with the question

of whether its impact was intentional or

inadvertent.”), As a result of the Supplemental

Process, a greater percentage of voters of color who

remain eligible are likely to be removed from the

voter rolls in Ohio and will be required to reregister

in order to regain their constitutiona) right to vote.

Thus, using the failure to vote as a trigger for

removal continues the very “discriminatory nature of

periodic voter purges” that the NVRA sought to

redress. /d. at 20.

Contrary to the language and intent of the NVRA.,

the Supplementa] Process is likely to decrease

registration and turnout rates among eligible citizens

of color, because it is based on a standard that has a

disproportionate impact on minorities. This is the

opposite of what Congress intended in enacting the

NVRA.

24

CONCLUSION

For the foregoing reasons, as well as those in

Respondents’ Brief, the judgment of the U.S. Court of

Appeals for the Sixth Circuit should be affirmed.

September 22, 2017

Respectfully submitted,

MICHAEL C. KEATS

Counsel of Record

MICHELE L. PAHMER

DANIEL N, BERTACCINI

STROOCK & STROOCK

& LAVAN LLP

180 Maiden Lane

New York, New York 10038

(212) 806-5400

mkeats@stroock.com

KRISTEN CLARKE

JON M. GREENBAUM

EZRA D. ROSENBERG

BRENDAN DOWNES

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1491 New York Avenue, NW,

Suite 400

Washington, DC 20005

(202) 662-8600

jgreenbaum@lawyerscommittee.org

Counsel for Amici Curiae