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

No. 16-980

Shy Z2 2017

CLERK

si L* 85,

— IN THE

BRicre Supreme Court of the United

of ij ice tek Ti it

. b>.» 7)

JON HUSTED, OHIO SECRETARY OF STATE,

Petitioner,

v.

A. PHILIP RANDOLPH INSTITUTE, et al.,

Respondents.

On Wait or CERTIORARI TO THE UNITED STATES

Court or APPEALS FOR THE SixtH CIRCUIT

——

BRIEF OF AMICI CURIAE NATIONAL

ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE AND THE OHIO

STATE CONFERENCE OF THE NAACP

IN SUPPORT OF RESPONDENTS

Martin L. SAAD GILDA R. DANIELS

KATHLEEN K. SHERIDAN Counsel of Record

JOHN C. VAZQUEZ JupitH BRowneE DIANIS

CHRISTOPHER N. Moran Donita JUDGE

VENABLE LLP EILEEN Ma

600 Massachusetts Avenue, NW ANDREW HAIRSTON

Washington, DC 20001 ADVANCEMENT PROJECT

(202) 344-4000 1220 L Street, NW, Suite 850

Washington, DC 20005

(202) 728-9557

gdaniels@advancementproject.org

Counsel for Amici Curiae

(Additional Counsel Listed on Signature Page)

September 22, 2017

——————eee ee aa

i

TABLE OF CONTENTS

Page

ps FP Ai ges 5, ., FO errerrre rer rire i

TABLE OF CITED AUTHORITIES .............. iv

IDENTITY AND INTEREST OF AMICI

ES ecu coca wu be eas eNaUe eee nema neeses es 1

INTRODUCTION AND SUMMARY OF

in 346s Nee kylescnesedeesauace 0a 2

FRE eo are ee nae re end ee 6

I. OHIO’S SUPPRESSIVE VOTER

TACTICS DENY THE RIGHT TO

WE csG os psawasepesneen ents uss etes ceo 6

A. History of Voter Suppression in Ohio...... 6

a ee 7

2. Long Lines and Poll Worker Error... .7

DC wceedednbuvucesacccdes 8

el ee 10

5. Other Election Administration

a AL adie ne a eae ll

ii

Table of Contents

Page

B. Ohio’s History of Suppressive Voting

Measures Has Led to Decreased Voter

Engagement and Inactive Voters........ 12

l. A Decline in Black Voter

Participation in Ohio in 2016

Reflects the Impact of Voter

is cd's cbnee Veesuesee es 13

2. Disenfranchisement Results in

Low Voter Participation Rates in

Communities of Color .............. 14

Il. OHIO’S SUPPLEMENTAL PROCESS

HAS A DISPROPORTIONATE IMPACT

ee EE CUED ve cvesvececcescnccces 17

A. Qhio’s Supplemental Process Has

Disproportionately Purged Voters of

Color from Registration Rolls........... 17

B. Ohio’s Supplemental Process Is Based

on a Faulty Correlation Between

Voter Inactivity and Voter Change

SE ba cb cSKsbdd0ckscdctsnvesees 19

C. The Supplemental Process’s

Mail Response Requirement

Disproportionately Places Voters of

Color on the Inactive List............... 21

tit

Table of Contents

Iii OHIO IS NOT ALONE IN ITS

VIOLATION OF THE NVRA

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iw

TABLE OF CITED AUTHORITIES

Page

CASES

A. Philip Randolph Inst. v. Husted,

838 F.3d 699 (th Cir. 2016)...............2.04. 4,5

Common Cause and Georgia NAACP v. Kemp,

No. 17-11315 (11th Cir. June 5, 2017) ............. 24

Common Cause of Colo. v. Buescher,

750 F. Supp. 2d 1259 (D. Colo. 2010) .............. 4

League of Women Voters of Ohio v. Brunner,

548 F.3d 463 (6th Cir. 2008) ............. 3, 7, 10, 12

NC NAACP v. McCrory,

S31 F.8d 204 (4th Cir. 2016)... 1... cece ccccvcces 2

NEOCH v. Husted,

696 F.3d 580 (6th Cir. 2012) ............. 0.20 ees 10

Northeast Ohio Coalition for the Homeless v.

Husted,

Pe aes Ge See CI Bc vc ve cceccewssenccees 3

Obama for America v. Husted,

697 F.3d 423 (6th Cir. 2012) ...............006- 3, 8

Ohio Democratic Party v. Husted,

S834 F.3d G20 (th Cir. BONG)... cc ccccccccccccess 3

Vv

Cited Authorities

Page

Ohio State Conference of the NAACP v. Husted,

768 F.3d 524 (6th Cir. 2014), vacated as moot,

2014 WL 10384647 (6th. Cir. Oct. 1, 2014)...... 2,7,9

Reynolds v. Sims,

ee 2

South Carolina v. Katzenbach,

See eo . becescetcceses 3

State ex rel. Painter v. Brunner,

128 Ohio St. 3d 17, 941 N.E. 2d 782 (2011) ........ 10

Summit Cty. Democratic Cent. & Exec. Comm.

v. Blackwell,

388 F.3d 547 (6th Cir. 2004) .............00--0ee- 7

Texas NAACP v. Steen,

71 F. Supp. 3d 627 (S.D. Tx. 2014) ................ 3

United States v. Ortiz,

897 F. Supp. 199 (E.D. Pa. 1995) ................ 23

STATUTES AND OTHER AUTHORITIES

EEE 6

EE 4

2005 Ohio Laws 40 (Sub. H.B. 234). ..............5.- 8

vt

Cited Authorities

Page

Act of Apr. 16, 1868, § 1, 1868 Ohio Gen. & Loc.

Laws Ist Sess. 97 (L.D. Myers & Bro. 1868) ....... 6

Alice Miranda Olistein and Kira Lerner, Think

Progress, “Republicans were wildly successful

at suppressing voters in 2016” (Nov. 15, 2016)..... 13

America Goes to the Polls 2014, Nonprofit Vote . . .20, 21

Andy Sullivan and Grant Smith, Use it or Lose

it: Occasional Ohio Voters May Be Shut

Out in November, Reuters (June 2, 2016)......... 18

Billy Corriher and Liz Kennedy, Ctr. for Am.

Progress, Preventing Problems at the

eB Ree 12

Darrel Rowland, Voting in Ohio | Fight over

poll hours isn't just political, The Columbus

Dispatch (Aug. 19, 2012) .......... 2... ccc cece eens 4

Earl Letourneau, U.S. Census Bureau, Mail

Response/Return Rates Assessment (2012)....... 22

Emily Badger, Why Long Voting Lines

Could Have Long-Term Consequences,

N.Y. Times (Nov. 8, 2016)................0085 12-13

Emily L. Mahoney, Hillary Davis, and Jimmy

Miller, Ctr. for Public Integrity, America

Scrubs Millions from the Rolls. Is it Fair?

vit

Cited Authorities

H.R. Rep. No. 103-9 (1998)..........0.-.eceeeeeceee 4

Hannah Yi, Mori Rothman and Chris Bury, PBS

Newshour, Why Ohio has purged at least

200,000 from the voter rolls (July 31, 2016)........ 19

Hawaii Rev. Stat. §11-12 (2016)..................-. 25

ns ve ecu cigedae ekbuae 25

Jackie Borchardt, Ohio lawmaker wants

the state to stop purging inactive voters,

Cleveland.com (Dec. 2, 2015) ................ 23-24

Jens Manuel Krogstad and Mark Hugo Lopez,

Pew Research Ctr.: Fact Tank, Black Voter

Turnout Fell in 2016, Even as a Record Number

of Americans Cast Ballots (May 12, 2017)........ 15

Jens Manuel Krogstad, Pew Research Ctr.,

Asian American voter turnout lags

behind other groups; some non-voters say

they are ‘too busy’ (Apr. 9, 2014) ...............-. 16

John P. Bueker, Jury Source Lists: Does

Supplementation Really Work?, 82 CorNELL

pS 6 a Lice an kau da warmraee Ge 23

Joshua Field, Charles Posner, and Anna

Chu, Ctr. for Am. Progress, Uncounted

Votes: The Racially Discriminatory

Effects of Provisional Ballots (Oct. 2014)......... 12

Viti

Cited Authorities

Page

Kristen Taylor & Alexandra Eichler, Voting Problems

in Ohio, Texas According to Election Protection

Volunteers, Huffington Post (Nov. 6, 2012)........ 11

Lauren Harmon, Charles Posner, Michele

Jawando, and Matt Dhaiti, Ctr. for Am.

Progress Action Fund, The Health of

American Democracies (July 2015) ............. 12

Michael P. McDonald, 2012 Turnout:

Race, Ethnicity and the Youth Vote,

Huffington Post (July 8, 2013) .................. 14

Michael Powell and Peter Slevin, Several

Factors Contributed to ‘Lost’ Voters in

Ohio, Wash. Post (Dec. 15, 2004) ............. 10, 11

Nathan Eagle, Should Hawaii Purge More

People from List of Registered Voters?

Ns so ccc beeestoode’ 25

coda die cegesetesddenedede 24

idk cddccdedkseebedsnaents ven 24

Ohio Rev. Code § 3503.21(A)(7) ....... 2... eee eee eeee 5

Ge FE, Ce OD voc cv ccecccccccoccoccess 5

Ohio Rev. Code § 3505.20... 2.2... 2. ccc eee eee ee eee 6

ix

Cited Authorities

Page

Ohio Rev. Code § 3509.01(B)(2) .............0.-.2-45- 9

Ohio Rev. Code § 3509.01(B)() .......-...--. 2002 ee. ny)

Ohio Rev. Code § 3509.05(A) ............ 02 ec ee eneee 8

cc ccncncebewendesoesves 12

Ohio Sen. Nina Turner and Ohio Rep. Kathleen

Clyde, Voter Suppression in Ohio in the

November 2012 Election (June 5, 2013)........... 11

Peter S. Canellos, Jn Prosecuting Federal

Crime, Jury Pool can be an Issue of

Race, Boston Globe (Sept. 20, 2005) ............. 23

Robert Walters and Mark Curriden, A Jury of One’s

Peers?: Investigating Underrepresentation in

Jury Venires, 43 Judges’ Journal (2004).......... 22

Summit County Board of Elections Challenge

Hearings, Oct. 28, 2004, Tr. 72:23-73-12........... 7

PE Acie iccbhecvcdidaveuseseden teesenke 1

i, CD 6 bvbcécccetcebs auedeceees 24

Tea Party Group Works to Remove Names from

Ohio Voter List, LA Times (Sept. 26, 2012) ........ 7

x

Cited Authorities

Page

Ted Eades, Revisiting the Jury System in

Texas: A Study of the Jury Pool in Dallas

County, 54 SMU L. REV. 1813 (2001)............ 23

The Other Side: Lot Wright Shows How the

Negroes Were Frightened from the Polis,

Fort Worth Daily Gazette (Jan. 16, 1885).......... 6

Thom File, U.S. Census Bureau, Voting

in America: A Look at the 2016

Presidential Election (May 10, 2017) ......... 13, 15

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

Congressional Elections and the American

Electorate: 1978-2014 (July 2015). .............-. 17

U.S. Census Bureau, Reported Voting and

Registration by Sex, Race and Hispanic

Origin; from States; U.S. Census Bureau,

Current Population Survey (Nov. 2016).......... 16

U.S. Census Bureau, Voting and Registration of

the Election of November 2016 (May 2017). . .15, 20, 21

U.S. Election Assistance Commission Report

to the 114th Cong.: The 2014 EAC Election

Admin. and Voting Survey Comp. Rept.

EE So vebsconakbedaeeds codeéulexesi 25

xvi

Cited Authorities

Page

Wendy Weiser & Margaret Chen, Brennan

Center for Justice, Voter Suppression

Incidents in 2008 (Nov. 3, 2008). .............-.- ll

William H. Frey, Census Shows Pervasive

Decline in 2016 Minority Voter Turnout,

Brookings Institution (May 18, 2017) ......... 13, 14

Zachary Roth, After early voting cuts,

Souls to the Polls takes a hit in Ohio,

DERE? COUN Gy Ue oo cece cccccceneccceccsecs 9

1

Pursuant to Supreme Court Rule 37.2, the National

Association for the Advancement of Colored People

(“NAACP”) and the Ohio State Conference of the NAACP

(“OH NAACP”) respectfully submit this amici curiae

brief in support of Respondents in this matter.’

IDENTITY AND INTEREST OF AMICI CURIAE

The NAACP is a non-profit organization founded on

the goal of achieving an equitable society for African-

Americans and communities of color. The right to vote is

under constant threat of being diminished to a privilege

instead of a guarantee to all United States citizens.

Former Assistant Attorney General Deval Patrick’s letter

to the Senate Judiciary Committee on the nomination

of Jeff Sessions to be Attorney General highlights the

triumphs of past voting rights cases and emphasizes the

danger when the “rule of law is imperiled.” “Voting,” as he

writes, “is a civic and even sacred right in our country.”

The NAACP’s core mission is to protect the right to vote,

and the organization has spent all 108 years of its existence

in pursuit of that goal.

The OH NAACP serves as the statewide arm of

the NAACP, one of the country’s oldest racial justice

organizations. The OH NAACP works toward eliminating

race-based discrimination and has done so for almost

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

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

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

person other than civict curiae, their members, or their counsel

inade a monetary contribution to its preparation or submission.

The parties have filed blanket consents to the filing of all amicus

briefs in this matter.

2

a century. Throughout its history, the OH NAACP has

actively fought for voting rights, most recently and

prominently in the 2014 case, Ohio State Conference of the

NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014), vacated

as moot, 2014 WL 10384647, at *1 (6th. Cir. Oct. 1, 2014).

The OH NAACP has invested significant resources in

the efforts to expand American democracy and increase

participation in the electoral process.

In Ohio, amici have worked arduously to fulfill the

protections of the U.S. Constitution and ensure that

the voices of Ohio’s voters are heard at the polls. The

organization is dedicated to securing the fundamental

right to vote for those who have been historically silenced.

Amici submit this brief to help the Court appreciate and

understand the negative impact of Ohio’s Supplementa!

Process and similar provisions in other states on the

African American community and voters of color.

INTRODUCTION AND SUMMARY

OF ARGUMENT

Despite centuries of struggle, the sacred right to vote

continues to evade a large number of voters of color in the

United States. As the Court has recognized, the right of

suffrage is fundamental to a free and democratic society.

Reynolds v. Sims, 377 U.S. 533, 561-62 (1962). Although

advances have been achieved in the fight to secure the

right to vote for all citizens, the ability to participate

fully in U.S. democracy still eludes far too many voters,

particularly voters of color due to suppressive state

tactics. This Court has long recognized that racial

2. Recent examples include NC NAACP v. McCrory, 831

F.3d 204 (4th Cir. 2016) (challenging voter suppression law passed

3

discrimination in the administration of elections is

unconstitutional. See, e.g., South Carolina v. Katzenbach,

383 U.S. 301, 308 (1966). This denial of the right to vote

is especially troubling, considering the various forms of

physical violence that people of color have faced over the

years in their attempts to register and vote. See, ¢.g.,

Northeast Ohio Coalition for the Homeless v. Husted, 837

F.3d 612, 639-651 (6th Cir. 2016) (Keith, J., dissenting).

While overt acts of violence have been used historically

to deny the vote, today more insidious means of restricting

access to the ballot are common. Ohio has a long history

of barriers to the ballot, as demonstrated by consistent

cuts to same-day registration and early in-person (“EIP”)

voting. See Ohio Democratic Party v. Husted, 834 F.3d

620, 624 (6th Cir. 2016). Ohio has designed and fostered a

system of voting that creates impermissible administrative

barriers, such as long lines and unwarranted voter

challenges that disproportionately impact voters of color.

See Obama for America v. Husted, 697 F.3d 423, 425 (6th

Cir. 2012) (affirming preliminary injunction preventing

Ohio from cutting early voting). The United States Court

of Appeals for the Sixth Circuit previously noted that

during the 2004 election, Ohioans faced long lines and

wait times, sometimes stretching into the early morning

the following day. Jd. at 426. In recent years, additional

burdens that affect access to the ballot have emerged,

such as poll worker errors and problems with provisional

ballots. See League of Women Voters of Ohio v. Brunner,

548 F.3d 463, 478 (6th Cir. 2008).

by the North Carolina General Assembly), and Texas NAACP

v. Steen, 71 F. Supp. 3d 627 (S.D. Tx. 2014) (ongoing challenge

to a discriminatory voter ID law in Texas). See also http://

brennancenter.org/legal-work/naacp-v-steen (summarizing the

timeline of events and litigation related to Steen).

4

In response to these problems, Ohio adopted a

promising measure called Golden Week, which greatly

extended same day registration and early voting

opportunities for Ohioans. See NAACP, 768 F.3d at 531.

Black voters utilized the early voting allowed by Golden

Week at higher rates than White voters. Jd. at 534. In spite

of the law’s success, Ohio then eliminated Golden Week.

Voting rights advocates challenged the state’s action in

an effort to preserve the program’s monumental gains.

Id. These barriers to voting in Ohio have chilled the vote

in communities of color.

The National Voter Registration Act of 1993

(“NVRA”), 52 U.S.C. § 20501 et seg., sought to establish

a system that extended the right to vote to Americans

who had been previously shut out of the democratic

process. Congress passed the NVRA with two priorities

in mind: an assurance that as many citizens as possible

could register and participate in federal elections, and

an accurate maintenance of state voter rolls. See A.

Philip Randolph Inst. v. Husted, 838 F.3d 699, 705 (6th

Cir. 2016) (“CAPRI”) (quoting Common Cause of Colo.

v. Buescher, 750 F. Supp. 2d 1259, 1274 (D. Colo. 2010)).

The Sixth Circuit acknowledged the tension between

the two primary purposes of the NVRA, but also noted

that one of the guiding principles of the law is to ensure

that, once registered, a voter remains on the rolls so long

as he or she is eligible to vote in that jurisdiction. Jd. at

706; see also H.R. Rep. No. 103-9, at 18 (1993). The Sixth

Circuit’s analysis confirms that the NVRA was signed

into law with the intent of securing and expanding the

right to vote. Unfortunately, the Ohio Secretary of State’s

misapplication of the NVRA continues the pattern of

denying the right to vote to communities of color.

5

The NVRA is clear: a State cannot begin registration

removal proceedings on the basis of an individual’s

failure to vote in an election. Yet, Ohio adopted the voter

maintenance procedure at issue in this case, known as

the Ohio Supplemental Process, which does just that. See

Ohio Rev. Code § 3503.21 (A)(7) & (B). The Sixth Circuit

agreed, holding that the Ohio Supplemental Process

violates Section 8, subsection (b)(2) of the NVRA. APRI,

838 F.3d at 712. As set forth below, Ohio’s Supplemental

Process follows a long line of suppressive tactics that

have limited participation in the electoral process of

countless Ohio voters of color. Indeed, a direct connection

exists between Ohio’s suppressive tactics—such as the

elimination of Golden Week, voter challenges, and long

lines at the polls—and the inactivity that, through the

Supplemental Process, results in the removal of voters

from registration rolls. Amici also address the impact of

mail delivery on the inactivity of voters of color, which may

contribute to a voter’s lack of response to correspondence

from the state. In sum, amici contend that the Ohio

Supplemental Process violates the language of the NVRA

and disproportionately impacts voters of color. For these

reasons, amici respectfully request affirmance of the

Sixth Circuit’s decision that the Supplemental] Process

violates the NVRA.

6

ARGUMENT

I. OQHIO’SSUPPRESSIVE VOTER TACTICS DENY

THE RIGHT TO VOTE

A. History of Voter Suppression in Ohio

Historically, voters of color in Ohio have faced

suppressive tactics that have led to voter inactivity. Ohio’s

voter challenge statute, Ohio Rev. Code § 3505.20, for

instance, descends from laws explicit in their intent to

exclude African Americans from voting. See Act of Apr.

16, 1868, § 1, 1868 Ohio Gen. & Loc. Laws Ist Sess. 97, 97

(L.D. Myers & Bro. 1868) (“[I]t shall be the duty of the

judges of election to challenge any person offering to vote

at any election held under any law of this state, having a

distinct and visible admixture of African blood.”).

Even after the enactment of the Fifteenth Amendment

in 1870, Ohioans continued to use poll challenges that

impeded and intimidated African American voters.’ As

recently as 2004, Ohio’s voter challenge laws have been

used to deliberately target African American and other

voters of color. For example, ahead of the 2004 general

election, the Summit County Board of Elections dismissed

as unfounded nearly a thousand citizen voter challenges.

During a hearing to address those challenges, a Board

member called for reform of the citizen challenge statute

3. See The Other Side: Lot Wright Shows How the Negroes

Were Frightened from the Polls, Fort Worth Daily Gazette

(Jan. 16, 1885) at 5, http://chroniclingamerica.loc.gov/Iccn/

8n86064205/1885-01-16/ed-1/seq-5/ (describing how numerous

African American voters were challenged, and one voter attacked,

during a recent Cincinnati election).

7

asserting that it served as an artifact of Jim Crow-era

discrimination. See Summit County Board of Elections

Challenge Hearings, Oct. 28, 2004, Tr. 72:23-73-12.

1. Voter Challenges

While Ohio amended its challenge law to prohibit

private citizens from challenging voters inside the polls in

2006, poll watchers and pre-election challenges continued

to target African Americans disproportionately.* The

vigorous use of same-day voter challenges have created

long lines, delays, and confusion at the polls. See Summit

Cty. Democratic Cent. & Exec. Comm. v. Blackwell,

388 F.3d 547, 551 (6th Cir. 2004). While they do not

directly deprive voters of their franchise, such challenges

contribute to conditions that deter and discourage voters

from turning out at the polls.

2. Long Lines and Poll Worker Error

Long lines and poll worker errors have also

disproportionately impacted the ability of people of color

to vote in Ohio. See League of Women Voters of Ohio, 548

F.3d at 468-69 (“Insufficient voting machines and long

wait times...caused many voters to leave without voting

to attend work, school, or provide care to family members.

Poll workers did not inform these voters of their right to

4. See NAACP, 768 F.3d at 556 (listing the use of poll watchers

as a recently implemented voting practice that suppresses political

participation in communities of color); see also Tea Party Group

Works to Remove Names frum Ohio Voter List, LA Times (Sep.

26, 2012), http://articles.latimes.com/2012/sep/26/nation/la-na-

ohio-voting-fight-20120927 (describing voter challenges aimed

at African Americans in counties President Obama won in 2012).

8

vote by paper ballot.”). In response to these problems,

Ohio passed Substitute House Bill 234, which greatly

expanded early voting. See 2005 Ohio Laws 40 (Sub. H.B.

234). With the enactment of HB 234, Ohio voters had the

option of voting early via an “absentee ballot,” which may

be cast either EIP or by mailing the ballot to the Board

of Elections. Ohio Rev. Code § 3509.05(A).

3. Golden Week

Further, under the 2005 early-voting scheme, the

Boards of Election were required to make absentee

ballots available for voters—either for EIP voting or by

mail voting—no later than 35 days before the election,

effectively providing a five-day window wherein Ohio

voters could register and vote on the same day (“Golden

Week”). See NAACP, 768 F.3d at 556. A large number

of Ohio voters utilized the new Golden Week voting

procedures. See Obama for America, 697 F.3d at 426

(noting that approximately 1.7 million Ohioans cast

their ballots before election day during the 2008 general

election, amounting to 20.7% of registered voters and

29.7% of total votes cast). Data from Cuyahoga and

Franklin Counties, the two counties with the highest

percentage of African American residents, suggests that

early yoters were disproportionately African American.

Id. (82% of EIP votes in Franklin County were cast after

hours on weekdays, on the weekend, or on the Monday

before the election).

Ohio then sharply curtailed Golden Week registration

and voting opportunities with the issuance of Directive

2012-35, which significantly reduced weekend voting

hours, and the passage of SB 238, which effectively

9

eliminated Golden Week. Ohio Rev. Code § 3509.01(B)

(2)-(3). The elimination of Golden Week, and the cuts to

weekend and evening voting hours further burdened lower

income and African American voters who are more likely

to rely on public transportation and wage-based jobs,

making them less likely to be able to vote in the hours

permitted at the one early-voting location in each county.

See NAACP, 768 F.3d at 539; Obama for America, 973 F.3d

at 433 (“early voters tend to be members of demographic

groups that may be unable to vote on Election Day or

during the workday at local boards of elections because

of work schedules.”). The decision to end Golden Week

significantly affected voter turnout in Black communities

when the hours were cut for voting the last Sunday before

Election Day.* Historically, Black churches, organized

“Souls to the Polls” during Golden Week to transport

Black voters unable to vote on Election Day due to work

restrictions or who lacked transportation.‘

The fact that reduced evening and weekend voting

opportunities disproportionally affects African American

voters was no secret. Discussing his vote to shorten polling

hours, a member of the Franklin County Election Board

commented, “I guess I really actually feel we shouldn’t

contort the voting process to accommodate the urban—

read African-American—voter turnout machine.”

5. Zachary Roth, After early voting cuts, Souls to the Polis

takes a hit in Ohio, MSNBC (Nov. 3, 2014), http://www.msnbc.com/

msnbe/ohio-early-voting-cuts-souls-the-polls-takes-hit.

6. Id.

7. Darrel Rowland, Voting in Ohio | Fight over poll hours

isn't just political, The Columbus Dispatch (Aug. 19, 2012), http://

www.dispatch.com/content/stories/local/2012/08/19/fight-over-

poll-hours-isnt-just-politica].html.

10

4. Provisional Ballots

Provisional ballot challenges have been yet another

source of disenfranchisement of voters of color in Ohio. See

League of Women Voters, 548 F.3d at 467 (noting that 22%

of provisional ballots were not counted in the 2004 general

election, with the percentage ranging from 1.5% to 39.5%

from county to county). Prior to the Sixth Circuit’s decision

in NEOCH v. Husted, 696 F.3d 580 (6th Cir. 2012), and the

enactment of SB 216, Ohio disqualified provisional ballots

cast in the correct polling location, but the wrong precinct.

The state did not make exceptions for poll-worker error,

even though nearly all such ballots were cast as a result

of poll-worker error, such as providing the voter with a

provisional ballot for the wrong precinct. See State ex rel.

Painter v. Brunner, 128 Ohio St. 3d 17, 941 N.E. 2d 782,

794 (2011) (per curiam). This process resulted in 14,355

provisional ballots being thrown out in 2008, and 11,775 in

2010 despite having been cast in the correct polling place.*

Even after Ohio was required to count these so-called

“right church, wrong pew” ballots, it has continued to

discard provisional votes cast within the correct county,

but at the wrong polling place. A report by two Ohio state

legislators regarding the 2012 election determined that

9,483 ballots were thrown out as a result of poll workers

directing voters to the wrong polling place (and nearly

8. See NEOCH, 696 F.3d at 585; see also Michael Powell and

Peter Slevin, Several Factors Contributed to ‘Lost’ Voters in Ohio,

Wash. Post, A01 (Dec. 15, 2004) (reporting that in the 2004 election

in Cleveland, “poorly trained poll workers apparently gave faulty

instructions to voters that led to the disqualification of thousands

of provisional ballots and misdirected several hundred votes to

third-party candidates.”).

11

3,000 were rejected simply because the voter failed to

print or sign their name in two places on the outside of

the ballot envelope).*

5. Other Election Administration Errors

Other systemic failures in administering elections

~ which would give rise to inactive voters — are well-

documented in Ohio. In 2004, for example, malfunctioning

voting machines, uninformed poll workers, and

malapportionment of resources in high-population-density

neighborhoods all contributed to an election cycle where

hundreds of voters stood in lines for up to ten hours to

cast their ballots.° During the 2008 election, Ohio failed

to offer voter registration at public assistance offices

and attempted to deny absentee ballots to people with

mismatching state and voting-information records." In

2012, Ohio reduced the number of polling places to save

on costs. This increased the number of voters in each

precinct, with much of this overcrowding occurring in

neighborhoods populated with people of color.”

9. Ohio Sen. Nina Turner and Ohio Rep. Kathleen Clyde,

Voter Suppression in Ohio in the November 2012 Election (June

5, 2013).

10. Powell & Slevin, Several Factors Contributed to ‘Lost’

Voters in Ohio, Wash. Post, AO1 (Dec. 15, 2004).

11. Wendy Weiser & Margaret Chen, Brennan Center for

Justice, Voter Suppression Incidents in 2008 (Nov. 3, 2008).

12. Kristen Taylor & Alexandra Eichler, Voting Problems

in Ohio, Texas According to Election Protection Volunteers,

Huffington Post (Nov. 6, 2012).

12

Additional errors include registered voters not

appearing on voting rolls in their precincts; improper

denials of requests for absentee ballots; election officials

providing voters with incorrect information about polling

places; early closure of polling places; poll workers sending

voters away without voting contrary to Ohio Rev. Code

§ 3509.32, which permits anyone in line as of closing time to

vote; poll workers not providing provisional ballots where

necessary, running out of provisional ballots or envelopes,

or never having any at all. See League of Women Voters,

548 F.3d at 469. All of these measures, while varied, have

a similar result — disenfranchising Black voters.

B. Ohio’s History of Suppressive Voting Measures

Has Led to Decreased Voter Engagement and

Inactive Voters

Ohio’s long history of voter suppression tactics has

led to the denial of access to the ballot for many voters in

the state. A 2015 Center for American Progress report

ranked Ohio 37th in the nation in “accessibility of the

ballot.”"* Reduced access to the ballot box has resulted

in a pronounced and disparate impact on voters of color,

decreasing their participation in the electoral process.'*

13. Billy Corriher and Liz Kennedy, Ctr. for Am.

Progress, Preventing Problems at the Polls: Ohio (Oct. 11,

2016), https://www.americanprogress.org/issues/democracy/

reports/2016/10/11/145796/preventing-problems-at-the-polls-ohio.

14. Lauren Harmon, Charles Posner, Michele Jawando,

and Matt Dhaiti, Ctr. for Am. Progress Action Fund, The Health

of American Democracies at 12, 15, 18-19, 22, 23 (July 2015);

see also, Joshua Field, Charles Posner, and Anna Chu, Ctr. for

Am. Progress, Uncounted Votes: The Racially Discriminatory

Effects of Provisional Ballots (Oct. 2014); Emily Badger, Why

13

1. A Decline in Black Voter Participation in

Ohio in 2016 Reflects the Impact of Voter

Suppression

In the 2016 general election, Ohio saw a decline in

Black voter participation rates comparable to the national

decrease in Black voter turnouts, despite overall record

national turnout among total voters.” The 2016 election

was only the second since 1980 in which the share of Black

voters decreased.” This decrease, from 12.9% in 2012 to

11.9%, is a reversal from 2012’s precedent-setting Black

turnout rate, which exceeded that of whites for the first

time in recorded history."” The decline in rate and share of

Long Voting Lines Could Have Loug-Term Consequences, N.Y.

Times (Nov. 8, 2016), https://www.nytimes.com/2016/11/09/upshot/

why-long-voting-lines-today-couid-have-long-term-consequences.

html; Alice Miranda Ollstein and Kira Lerner, Think Progress,

“Republicons were wildly snecesafil at suppressing voters in

2016” (Nov. 15, 2016), https://thinkprogress.org/2016-a-case-study-

in-voter-suppression-258b5f90ddcd.

15. William H. Frey, Census Shows Pervasive Decline in

2016 Minority Voter Turnow, Brookings Institution (May 18,

2017), https://www.brookings.edu/blog/the-avenue/2017/05/18/

census-shows-pervasive-decline-in-2016-minority-voter-turnout.

16. Between 2000 and 2004, the share of Black voters also

decreased. Recent voting rates among Latinos, Asian Americans,

and Pacific Islanders have been below those of White and Black

voters, ranging from 5 to 20 percentage points lower. Thom File,

U.S. Census Bureau, Voting in America: A Look at the 2016

Presidential Election (May 10, 2017), https://www.census.gov/

newsroom/blogs/random-samplings/2017/05/voting in america.

html.

17. When survey non-respondents are removed from turnout

rate calculations, the Black vote first exceeded White turnout

14

the Black turnout is noteworthy, given slight increases in

the Black share and number of eligible voters.'* The data

describes lower rates of Black voter turnout as compared

to Whites nationally and in numerous states, including

Ohio.”® The 2016 election findings deepen concerns about

voter suppression, in light of the sharp decline of voting

rates among Black voters and other voters of color, even

as White voting rates increased. Moreover, the decrease

in Black voter participation increases the likelihood that

Black voters will be designated as inactive, which initiates

removal from the voter rolls. In line with Ohio’s past

practices, the current procedures continue to present

unfortunate barriers to voting in communities of color,

in turn leading to voter inactivity.

2. Disenfranchisement Results in Low Voter

Participation Rates in Communities of

Color

Persistently low voter participation among people

of color reflects a lack of equitable access to the ballot

in 2008. Michael P. McDonald, 2012 Turnout: Race, Ethnicity

and the Youth Vote, Huffington Post (July 8, 2013), http://www.

huffingtonpost.com/michael-p-medonald/2012-turnout-race-

ethnict _b 3240179.html.

18. “For the first time in more than a decade, the black share

of voters declined, compared to the previous election—from 12.9

percent in 2012 to only 11.9 percent in 2016. This occurred despite

a small rise in eligible black American voters.” William H. Frey,

Census Shows Pervasive Decline in 2016 Minority Voter Turnout,

Brookings Institution (May 18, 2017), https://www.brookings.edu/

blog/the-avenue/2017/05/18/census-shows-pervasive-decline-in-

2016-minority-voter-turnout.

19. Id.

15

and results in perpetual exclusion from the democratic

process. A process that triggers removal of voters from the

registration rolls for not voting exacerbates this problem.

Nationally, from the 1980s to the present, with just two

notable exceptions, voter turnout rates have consistently

been lower for people of color than White voters.”

The 2016 presidential election held consistent with the

historical trend; voting rates were comparatively lower

among people of color than Whites: Whites voted at a

rate of 65.3%, Blacks at 59.6%, Hispanics at 47.6%, and all

others at 49.3%.” For people of color, these rates fall below

the national voting rate of 61.4%.”* The national decline

in Black voter turnout was accompanied by a decline in

the total number of Black voters.” In Ohio, voting rates

20. In 2008, the voting rate among White voters was 66.1 %,

Black non-Hispanic 64.1%, Hispanic 8.0%, all other 49.9%. In 2012,

the rates were as follows: White 59.6%, Black 66.6%, Hispanic 48%,

and other 49.9%. The higher rates of participation in communities

of color in 2012 were widely associated with support for Barack

Obama and excitement in the African American community

about voting for the first Black president. Thom File, U.8. Census

Bureau, Voting in America: A Look at the 2016 Presidential

Election (May 10, 2017), https://www.census.gov/newsroom/blogs/

random-samplings/2017/05/voting_in_america.html.

21. U.S. Census Bureau, Voting and Registration of the

Election of November 2016 (May 2017), https://www.census.gov/

data/tables/time-series/demo/voting-and-registration/p20-580.

html.

22. Id.

23. Jens Manuel Krogstad and Mark Hugo Lopez, Pew

Research Ctr.: Fact Tank, Black Voter Turnout Fell in 2016, Even

as a Record Number of Americans Cast Ballots (May 12, 2017),

16

in 2016 among eligible Asian and Hispanic voters were

also dramatically lower than for Whites, who registered

at 72.4% and voted at 64.2%, compared to just 53.1% of

Asians registered, and 46.8% who voted, while 68.9% of

Hispanics registered and just 57.8% voted.** These low

voting rates provide clear evidence that voters of color

consistently participate less in elections than White

voters.

Voter participation data from mid-term elections over

past decades shows similar lower voting rates among

communities of color. From 2002-2010, mid-term voting

rates among Black voters ranged from around 42-44%,

while Whites voted at 48.6% or higher.* This voting

disadvantage is found among not only Black voters, but

other communities of color as well. In the same period,

2002-2010, Latino and Asian mid-term election voting

rates hovered around 31%.” Census reports show that in

2014, Black/non-Hispanics voted at a rate of 40.6% and

Hispanics at a woeful 27% in Congressional elections,

http://www.pewresearch.org/fact-tank/2017/05/12/black-voter-

turnout-fell-in-2016-even-as-a-record-number-of-americans-

cast-ballots.

24. U.S. Census Bureau, Reported Voting and Registration

by Sex, Race and Hispanic Origin; from States; U.S. Census

Bureau, Current Population Survey (Nov. 2016).

25. Jens Manuel Krogstad, Pew Research Ctr., Asian

American voter turnout lags behind other groups; some non-voters

say they are ‘too busy’ (Apr. 9, 2014), http://www.pewresearch.org/

fact-tank/2014/04/09/asian-american-voter-turnout-lags-behind-

other-groups-some-non-voters-say-theyre-too-busy.

26. Id.

17

compared to 45.8% of Whites.”” The low mid-term voter

participation rates reveal that low or suppressed turnout

of voters of color is a perennial issue.

In sum, this compilation of election data shows an

enduring problem of inactivity at the polls by communities

of color. These undeniable historical statistics suggest

that voter inactivity is due to institutional challenges, not

idiosyncratic factors. In part, these low participation rates

are a consequence of the adoption and implementation of

unfair election laws and policies, past and present, that

have denied historically disenfranchised voters of color the

ability to participate at national average levels or at levels

commensurate with White voters. The low voting rates

among voters of color is undoubtedly a result of decades

of complete exclusion from the franchise, followed by a

litany of voter suppression practices, carried on by the

Supplemental! Process at issue here.

It, OHIO’S SUPPLEMENTAL PROCESS HAS A

DISPROPORTIONATE IMPACT ON BLACK

VOTERS

A. Ohio’s Supplemental Process Has

Disproportionately Purged Voters of Color

from Registration Rolls

Data on the removal of voters from registration rolls

due to Ohio’s Supplemental Process demonstrates that the

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

Congressional Elections and the Americau Electorate: 1978-2014

(July 2015), http://www.census.gow/content/dam/Census/library/

publications/2015/demo/p20-577.pdf.

18

measure disproportionately affects voters of color. These

voters are routinely removed from the rolls in higher

percentages than their White counterparts.

For instance, one study found voters in certain

neighborhoods in the three most populous and diverse

counties in the state were up to 200% more likely to be

removed from voting rolls as a result of the Supplemental

Process.” Hamilton County presents a grave contrast:

African-American-majority neighborhoods in downtown

Cincinnati had 10% of their voters removed due to

inactivity, compared to only 4% of voters in a suburban,

majority-white neighborhood.” A similar pattern appears

in Ohio’s two other large, urban counties. In Cuyahoga

County, which includes Cleveland, 5 percent of voters

in neighborhoods in which President Obama received

60 percent or more of the vote in 2008 were removed.

By contrast, only 2.5 percent of voters were removed

in neighborhoods where President Obama received less

than 40 percent of the vote. Even Ohio’s capital was not

immune. In Franklin County, home of Columbus, 11

percent of voters in Democratic-leaning neighborhoods

have been removed for inactivity since 2012. Yet only 6

percent of voters in Republican-majority neighborhoods

were removed.

28. Andy Sullivan and Grant Smith, Use it or Lose it:

Occasional Ohio Voters May Be Shut Out in November, Reuters

(June 2, 2016), http://www.reuters.com/article/us-usa-votingrights-

ohio-insight/use-it-or-lose-it-occasional-ohio-voters-may-be-shut-out-

in-november-idUSKCNOYOI19D (hereinafter “Reuters Report”).

29. Id.

30. Id.

19

Placed within this context, it is not surprising

that Ohio’s efforts to purge voter rolls have fallen

disproportionately on voters of color. The five largest

counties in Ohio contain nearly 73 percent of all African

Americans living in Ohio, and these large counties have

been the disproportionate target of voter purges. One

analysis found that Ohio’s twenty most populous counties

had purged more than 200,000 names from voter roles

for inactivity in 2015 alone, and that Ohio’s single largest

county, Cuyahoga, accounted for more than 25 percent of

these purges, or nearly 52,000 names." Investigators have

also noted that in Hamilton County, African American

neighborhoods near downtown Cincinnati have had

more than ten percent of the registered voters purged

for inactivity since 2012, while in the more affluent (and

whiter) suburbs that ring the city, only four percent of

voters have been purged due to inactivity.™

In sum, Ohio’s purge process is yet another barrier, in

a long history of hurdles, to participation in the electora!

process by voters of color.

B. Ohio’s Supplemental Process Is Based on a

Faulty Correlation Between Voter Inactivity

and Voter Change of Address

Ohio’s Supplemental Process wrongly equates not

voting with a change of address. The Secretary of State

31. Hannah Yi, Mori Rothman and Chris Bury, PBS

Newshour, Why Ohio has purged at least 200,000 from the voter

rolls (July 31, 2016), http://www.pbs.org/newshour/bb/inside-ohios-

fight-voting-rules.

32. See Reuters Report.

20

submits that “[Ohio’s Supplemental Process] ‘seeks to

identify electors whose lack of voter activity indicates they

may have moved, even though their names did not appear’

in the change-of-address database.” As explained above,

Ohio’s history of voter suppression mechanisms has led to

high levels of inactivity among voters of color. Moreover,

the state provides no evidence that “not voting for 2 years”

is areasonable proxy for “having moved out of one’s voting

jurisdiction.” And the NVRA and HAVA statutes prohibit

any assumption that lack of voter activity equates to a

change of address for triggering voter removal from

registration rolls. While certainly some voters have

moved, Ohio offers no substantiation for a generalization

that voting activity or inactivity bears any direct, cause-

or-consequence, or implied relationship with their moving

or remaining at their address.

Numerous factors may contribute to a voter missing

an election, including: schedule conflicts, inability to

get off work, forgetfulness, lack of transportation to

the polls, being out-of-town, sickness, dissatisfaction

with candidates, apathy, etc.** By using “not voting”

as the trigger for removal, and given the historic

over-representation of voters of color among those not

voting, this process inevitably impacts voters of color

disproportionately. Given this community’s lower turnout

33. Petition for Writ of Certiorari at 10 (citation omitted).

34. America Goes to the Polls 2014, Nonprofit Vote,

http://www.nonprofitvote.org/documents/2015/03/america-

goes-polls-2014.pdf; see also U.S. Census Bureau, Voting and

Registration in the Election of November 2016, Table 10, Reasons

for Not Voting, by Selected Characteristics: November 2016 (May

2017), https://www.census.gov/data/tables/time-series/demo/

voting-and-registration/p20-580.html.

21

rates, the Supplemental Process has and will continue

to result in disproportionately higher removal rates of

Black voters.

Indeed, Ohio’s Supplemental Process perpetuates the

problem of low turnout, leading to greater inactivity. In

2016, analysts found the “largest barrier to voting” is related

to proper registration.** The Ohio Supplemental Process

exacerbates this problem by adding an administrative

burden and removing voters who have already managed

successfully to register. Again, voters of color are

disproportionately impacted. By adding this remova)

process to the ongoing challenge of comparatively lower

registration rates, Ohio creates yet another impediment

to voters of color to remain registered and vote.*

C. The Supplemental Process’s Mail Response

Requirement Disproportionately Places Voters

of Color on the Inactive List

The Supplemental Process requires that registered

voters who are placed on the inactive list take an additional]

action—respond to a confirmation notice via U.S. mail—in

order to stay on the rolls. While use of the mail to provide

notices is prescribed under the Help America Vote Act of

2002 (HAVA) and the NVRA, the evidence related to use

of mail suggests that the addition of a mail voter response

3%. America Goes to the Polls 2014, Nonprofit Vote, at 19.

36. “In 2016 in the United States, the voting rate for Non-

Hispanic Whites was 65.3% while only 59.4% of Blacks and 47.6%

of Hispanics voted.” U.S. Census Bureau, Voling and Registration,

https://thedataweb.1m.census.gov/TheDataWeb_HotReport2/

voting/voting. html.

22

requirement for registered voters has an especially harsh

impact on voters of color. Mail response and return rates

suggest that non-white racial groups return mail at rates

lower than the national total and are under-represented

in mail returns when compared to their race’s percentage

of total households in America.” As one study explained,

“twlhen Hamilton County, Ohio, where Cincinnati is the

county seat, removed 75,000 voters this year, nearly half,

and in some neighborhoods far more, were purged because

of ‘non-response’ [. .. and there was a] connection between

the poverty rate and racial composition of ZIP codes in

the county and the purge rates of registered voters.”™

Further, a study conducted in 2000 on jury summonses,

which are sometimes generated using voter registration

rolls, supports the assertion that communities of color fail

to receive mail at rates higher than whites.” Similarly,

37. Compared to the national rate of 79.3% and the rate

for Whites of 82.5%, the mail return rates for other households

by race are: Black (70.0%), Asian (75.4%), American Indian and

Alaska Native (69.8%), Native Hawaiian and Other Pacific Islander

(59.7%), Some Other Race (56.2%), Two or More Races (71.7%). Black

householders made up 12.1% of all householders, but only 10.7% of

mail returns, Asian householders made up 4.1% of all householders,

but only 3.9 % of all mail returns, and Some Other Race householders

made up 4.2% of all householders, but only 3.0 % of all mail returns.

Ear! Letourneau, U.S. Census Bureau, Mail Response/Return Rates

Assessment (2012) at 23-24, https://www.census.gov/2010census/

pdf/2010 Census Mail Response Return Rates Assessment.pdf

38. Emily L. Mahoney, Hillary Davis, and Jimmy Miller,

Ctr. for Public Integrity, America Scrubs Millions from the

Rolls. Is it Fair? (Aug. 22, 2016), https://www.publicintegrity.

org/2016/08/22/20079/america-scrubs-millions-voter-rolls-it-fair.

39. Robert Walters and Mark Curriden, A Jury of One’s Peers?:

Investigating Underrepresentation in Jury Venires, 43 Judges’

23

Black neighborhoods experience a higher percentage of

undeliverable-as-addressed (UAA) jury summonses than

White suburban areas.“ Studies have also found that

UAA summonses disproportionately affected households

earning less than $35,000", and that mail delivery in

general is less reliable in urban areas, like Ohio’s largest

cities, Cleveland, Cincinnati and Columbus, where people

of color are more likely to live than whites.

These studies show that the Supplemental Process,

which requires voters to respond by mail to confirm

their addresses in order to stay on the voter rolls,

disproportionately results in the removal of voters of color.

Mi. OHIO IS NOT ALONE IN ITS VIOLATION OF

THE NVRA

Ohio’s unnecessary supplemental process has made

it, as one State representative said “the number one

purger of voters in the country. But unfortunately, Ohio

Journal 17, 19 (2004); Ted Eades, Revisiting the Jury System in

Texas: A Study of the Jury Pool in Dallas County, 54SMU L. REV.

1813, 1815 (2001).

40. Peter S. Canellos, Jn Prosecuting Federal Crime, Jury

Pool can be an Issue of Race, Boston Globe (Sept. 20, 2005), http://

archive.boston.com/news/nation/washington/articles/2005/09/20/in _

prosecuting federal crime_jury_pool_can_be_an_issue_of_race.

41. Eades, Revisitng the Jury System in Texas, at 1815.

42. John P. Bueker, Jury Source Lists: Does Supplementation

Really Work?, 82 Corne.u L. Rev. 390, 425 (1997), citing United

States v. Ortiz, 897 F. Supp. 199, 204 (E.D. Pa. 1995).

43. Jackie Borchardt, Ohio lawmaker wants the state to stop

purging inactive voters, Cleveland.com (Dec. 2, 2015), http://www.

24

is not the only State failing to comply with the NVRA.

Ohio is only one of several States across the country

that undertake the extra—and unlawful—supplemental

process, which punishes its citizens for not voting.“* States

such as Oklahoma, Tennessee, Georgia, and Hawaii

impermissibly use a voter’s lack of participation to initiate

the voter-removal process. Several of the NAACP’s State

and State-Area Conferences have initiated litigation

to protect the rights of voters to remain on the rolls.

Tennessee and Georgia have similar statutes.”

Georgia developed a mandatory secondary system

of removing voters from its rolls for failure to vote,

while permitting, but not requiring, the State to use the

NVRA’s voter-removal procedure that relies on Postal

Service information. Cf 0.G.C.A. § 21-2-234(a) (mandatory

unlawful voter-removal scheme); 0.G.C.A. §21-2-233

(lawful, permissive voter-maintenance program). Deval

Patrick, the then-Assistant Attorney General for Civil

Rights, sent a letter to the State of Georgia in 1993 outlining

cleveland.com/open/index.ssf/2015/12/ohio_lawmaker_wants_

the_state.html

44. Notably, many of these states would have been covered

under Section 5 of the Voting Rights Act of 1965, and they have

high concentrations of African-Americans and other communities

of color, impoverished persons, and students.

45. Georgia’s unlawful procedure is described more fully

below. Tennessee’s procedure is codified at T.C.A. §2-2-106(c)

(2010) (“The county election commission shall also follow [address

verification] process if indications exist that the voter may no

longer reside at the address at which the voter is registered,

such as the voter's failure to vote, or otherwise update the voter’s

registration over a period of two (2) consecutive regular November

elections.”) (emphasis added). See also Common Cause and

Georgia NAACP v. Kemp, No. 17-11315 (11th Cir. June 5, 2017).

25

the N VRA’s prohibition of using a person’s failure to vote

as a starting process for voter roll maintenance. Georgia

not only continued using it, but made it mandatory.

Under this improper law, this mandatory purge process

is triggered solely by an individual’s failure to vote in

previous elections. Even though Georgia is on notice

that the NVRA specifically prohibits removal based on

failure to vote, it continues to enforce the law. Through

this impermissible process, Georgia removed over 370,000

voters from its rolls between 2012 and 2014.”

Similarly, pursuant to Hawaii Revised Statutes

§11-17, if a person has not voted in the last two general,

primary, or special elections, that person is removed from

the rolls.“’ Hawaiians are not warned that they may be

removed, and no confirmation notice is sent. The registrar

simply strikes those persons from the rolls. Notably, the

NVRA’s prescribed method of cleaning voter rolls is the

secondary plan used by Hawaii. As of 2014, Honolulu’s

election director alone removed 30,000 to 40,000 voters

from the roll each year after an election.”

Upholding the Sixth Circuit’s ruling would prevent

States from enacting new legislation that violates the

NVRA, and would create a uniform, nondiscriminatory

method of maintaining voter rolls—as Congress intended.

46. See U.S. Election Assistance Commission Report to the

114th Cong.: The 2014 EAC Election Admin. and Voting Survey

Comp. Rept. 106 (June 30, 2015).

47. Hawaii Rev. Stat. §11-12 (2016).

48. Nathan Eagle, Should Hawati Purge More People from

List of Registered Voters? Civil Beat (Oct. 20, 2014), http://www.

civilbeat.org/2014/10/should-hawaii-purge-more-people-from-list-

of-registered-voters/.

26

CONCLUSION

Ohio’s Supplemental Process is the most recent hurdle

in a long road of barriers to voters of color voting in the

State of Ohio. These impediments have disproportionately

impacted the rights of voters of color and led to voter

inactivity in communities of color. Pursuant to Ohio’s

Supplemental Process, these voters are vulnerable to

being purged improperly from the registration rolls based

solely on inactivity, which violates the letter and spirit of

the NVRA. Accordingly, the judgment of the Court of

Appeals should be affirmed.

Respectfully submitted,

MARTIN L, SAAD GILDA R. DANIELS

KATHLEEN K. SHERIDAN Counsel of Record

JOHN C. VAZQUEZ JUDITH BROWNE DIANIS

CHRISTOPHER N. MorAN DONITA JUDGE

VENABLE LLP EILEEN Ma

600 Massachusetts Avenue, NW ANDREW HarRsTOoN

Washington, DC 20001 ADVANCEMENT PROJECT

(202) 344-4000 1220 L Street, NW, Suite 850

Washington, DC 20005

BRADFORD M. BERRY (202) 728-9557

JANETTE M. LouaRp gdaniels@advancementproject.org

Kuyta D. CRAINE

NAACP JAMES WORKMAN

4805 Mt. Hope Drive H. LEE THOMPSON

Baltimore, MD 21215 Oxn10 STATE CONFERENCE

(410) 580-5624 or THE NAACP

P.O. Box 29014

Columbus, OH 43229

Counsel for Amici Curiae

September 22, 2017