Husted v. A. Philip Randolph Institute, 584 U.S. ___ (2018)

Justia Opinion Summary and Annotations

The National Voter Registration Act (NVRA), 52 U.S.C. 20507(d), provides that a state may not remove a name from voter rolls on change-of-residence grounds unless the registrant either confirms in writing that he has moved or fails to return a pre-addressed, postage prepaid “return card” containing statutorily prescribed content and then fails to vote in any election during the period covering the next two general federal elections. The “Failure-to-Vote Clause,” section 20507(b)(2), provides that a state removal program “shall not result in the removal of the name . . . by reason of the person’s failure to vote,” and, as added by the Help America Vote Act of 2002 (HAVA), specifies that “nothing in [this prohibition] may be construed to prohibit a State from using the [pre-addressed return card] procedures.” Section 21083(a)(4)(A) states that “no registrant may be removed solely by reason of a failure to vote.” Ohio uses the failure to vote for two years to identify voters who may have moved, then sends these non-voters a pre-addressed, postage prepaid return card. Voters who do not return the card and fail to vote in any election for four more years are removed from the rolls. The Supreme Court held that the Ohio process does not violate the NVRA. The process follows subsection (d): It does not remove a registrant on change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years. The Failure-to-Vote Clause simply forbids the use of nonvoting as the sole criterion for removing a registrant; Ohio does not use it that way. An argument that so many registered voters discard return cards upon receipt that the failure to send cards back is worthless as evidence that an addressee has moved “is based on a dubious empirical conclusion that conflicts with the congressional judgment.”

Annotation

Primary Holding

Supreme Court upholds Ohio's methods for removal of voters from voter rolls based on a change of residence.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

Husted, Ohio Secretary of State v. A. Philip Randolph Institute et al.

certiorari to the united states court of appeals for the sixth circuit

No. 16–980. Argued January 10, 2018—Decided June 11, 2018

The National Voter Registration Act (NVRA) addresses the removal of ineligible voters from state voting rolls, 52 U. S. C. §20501(b), including those who are ineligible “by reason of” a change in residence, §20507(a)(4). The Act prescribes requirements that a State must meet in order to remove a name on change-of-residence grounds, §§20507(b), (c), (d). The most relevant of these are found in subsection (d), which provides that a State may not remove a name on change-of-residence grounds unless the registrant either (A) confirms in writing that he or she has moved or (B) fails to return a preaddressed, postage prepaid “return card” containing statutorily prescribed content and then fails to vote in any election during the period covering the next two general federal elections.

In addition to these specific change-of-residence requirements, the NVRA also contains a general “Failure-to-Vote Clause,” §20507(b)(2), consisting of two parts. It first provides that a state removal program “shall not result in the removal of the name of any person . . . by reason of the person’s failure to vote.” Second, as added by the Help America Vote Act of 2002 (HAVA), it specifies that “nothing in [this prohibition] may be construed to prohibit a State from using the procedures” described above—sending a return card and removing registrants who fail to return the card and fail to vote for the requisite time. Since one of the requirements for removal under subsection (d) is the failure to vote, the explanation added by HAVA makes clear that the Failure-to-Vote Clause’s prohibition on removal “by reason of the person’s failure to vote” does not categorically preclude using nonvoting as part of a test for removal. Another provision makes this point even more clearly by providing that “no registrant may be removed solely by reason of a failure to vote.” §21083(a)(4)(A) (emphasis added).

Respondents contend that Ohio’s process for removing voters on change-of-residence grounds violates this federal law. The Ohio process at issue relies on the failure to vote for two years as a rough way of identifying voters who may have moved. It sends these nonvoters a preaddressed, postage prepaid return card, asking them to verify that they still reside at the same address. Voters who do not return the card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls.

Held:The process that Ohio uses to remove voters on change-of-residence grounds does not violate the Failure-to-Vote Clause or any other part of the NVRA. Pp. 8–21.

(a) Ohio’s law does not violate the Failure-to-Vote Clause. Pp. 8–16.

(1) Ohio’s removal process follows subsection (d) to the letter: It does not remove a registrant on change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years. See §20507(d)(1)(B). Pp. 8–9.

(2) Nonetheless, respondents argue that Ohio’s process violates subsection (b)’s Failure-to-Vote Clause by using a person’s failure to vote twice over: once as the trigger for sending return cards and again as one of the two requirements for removal. But Congress could not have meant for the Failure-to-Vote Clause to cannibalize subsection (d) in that way. Instead, the Failure-to-Vote Clause, both as originally enacted in the NVRA and as amended by HAVA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. The phrase “by reason of” in the Failure-to-Vote Clause denotes some form of causation, see Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176, and in context sole causation is the only type of causation that harmonizes the Failure-to-Vote Clause and subsection (d). Any other reading would mean that a State that follows subsection (d) nevertheless can violate the Failure-to-Vote Clause. When Congress enacted HAVA, it made this point explicit by adding to the Failure-to-Vote Clause an explanation of how the clause is to be read, i.e., in a way that does not contradict subsection (d). Pp. 9–12.

(3) Respondents’ and the dissent’s alternative reading is inconsistent with both the text of the Failure-to-Vote Clause and the clarification of its meaning in §21083(a)(4). Among other things, their reading would make HAVA’s new language worse than redundant, since no sensible person would read the Failure-to-Vote Clause as prohibiting what subsections (c) and (d) expressly allow. Nor does the Court’s interpretation render the Failure-to-Vote Clause superfluous; the clause retains meaning because it prohibits States from using nonvoting both as the ground for removal and as the sole evidence for another ground for removal (e.g., as the sole evidence that someone has died). Pp. 12–15.

(4) Respondents’ additional argument—that so many registered voters discard return cards upon receipt that the failure to send cards back is worthless as evidence that an addressee has moved—is based on a dubious empirical conclusion that conflicts with the congressional judgment found in subsection (d). Congress clearly did not think that the failure to send back a return card was of no evidentiary value, having made that conduct one of the two requirements for removal under subsection (d). Pp. 15–16.

(b) Nor has Ohio violated other NVRA provisions. Pp. 16–21.

(1) Ohio removes the registrants at issue on a permissible ground: change of residence. The failure to return a notice and the failure to vote simply serve as evidence that a registrant has moved, not as the ground itself for removal. Pp. 16–17.

(2) The NVRA contains no “reliable indicator” prerequisite to sending notices, requiring States to have good information that someone has moved before sending them a return card. So long as the trigger for sending such notices is “uniform, nondiscriminatory, and in compliance with the Voting Rights Act,” §20507(b)(1), States may use whatever trigger they think best, including the failure to vote. Pp. 17–19.

(3)  Ohio has not violated the NVRA’s “reasonable effort” provision, §20507(a)(4). Even assuming that this provision authorizes federal courts to go beyond the restrictions set out in subsections (b), (c), and (d) and strike down a state law that does not meet some standard of “reasonableness,” Ohio’s process cannot be unreasonable because it uses the change-of-residence evidence that Congress said it could: the failure to send back a notice coupled with the failure to vote for the requisite period. Ohio’s process is accordingly lawful. Pp. 19–21.

838 F. 3d 699, reversed.

Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Gorsuch, JJ., joined. Thomas, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 16–980

_________________

JON HUSTED, OHIO SECRETARY OF STATE, PETITIONER v. A. PHILIP RANDOLPH INSTITUTE, et al.

on writ of certiorari to the united states court of appeals for the sixth circuit

[June 11, 2018]

Justice Alito delivered the opinion of the Court.

It has been estimated that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate. Pew Center on the States, Election Initiatives Issue Brief (Feb. 2012). And about 2.75 million people are said to be registered to vote in more than one State. Ibid.

At issue in today’s case is an Ohio law that aims to keep the State’s voting lists up to date by removing the names of those who have moved out of the district where they are registered. Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed, postage prepaid card to these individuals asking them to verify that they still reside at the same address. Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls. We are asked to decide whether this program complies with federal law.

I

A

Like other States, Ohio requires voters to reside in the district in which they vote. Ohio Rev. Code Ann. §3503.01(A) (West Supp. 2017); see National Conference of State Legislatures, Voting by Nonresidents and Non- citizens (Feb. 27, 2015). When voters move out of that district, they become ineligible to vote there. See §3503.01(A). And since more than 10% of Americans move every year,[1] deleting the names of those who have moved away is no small undertaking.

For many years, Congress left it up to the States to maintain accurate lists of those eligible to vote in federal elections, but in 1993, with the enactment of the National Voter Registration Act (NVRA), Congress intervened. The NVRA “erect[s] a complex superstructure of federal regulation atop state voter-registration systems.” Arizona v. Inter Tribal Council of Ariz., Inc.,570 U. S. 1, 5 (2013). The Act has two main objectives: increasing voter registration and removing ineligible persons from the States’ voter registration rolls. See §2,107Stat.77,52 U. S. C. §20501(b).

To achieve the latter goal, the NVRA requires States to “conduct a general program that makes a reasonable effort to remove the names” of voters who are ineligible “by reason of” death or change in residence. §20507(a)(4). The Act also prescribes requirements that a State must meet in order to remove a name on change-of-residence grounds. §§20507(b), (c), (d).

The most important of these requirements is a prior notice obligation. Before the NVRA, some States removed registrants without giving any notice. See J. Harris, Nat. Munic. League, Model Voter Registration System 45 (rev. 4th ed. 1957). The NVRA changed that by providing in §20507(d)(1) that a State may not remove a registrant’s name on change-of-residence grounds unless either (A) the registrant confirms in writing that he or she has moved or (B) the registrant fails to return a preaddressed, postage prepaid “return card” containing statutorily prescribed content. This card must explain what a registrant who has not moved needs to do in order to stay on the rolls, i.e., either return the card or vote during the period covering the next two general federal elections. §20507(d)(2)(A). And for the benefit of those who have moved, the card must contain “information concerning how the registrant can continue to be eligible to vote.” §20507(d)(2)(B). If the State does not send such a card or otherwise get written notice that the person has moved, it may not remove the registrant on change-of-residence grounds. See §20507(d)(1).[2]

While the NVRA is clear about the need to send a “return card” (or obtain written confirmation of a move) before pruning a registrant’s name, no provision of federal law specifies the circumstances under which a return card may be sent. Accordingly, States take a variety of approaches. See Nat. Assn. of Secretaries of State (NASS) Report: Maintenance of State Voter Registration Lists 5–6 (Dec. 2017). The NVRA itself sets out one option. A State may send these cards to those who have submitted “change-of-address information” to the United States Postal Service. §20507(c)(1). Thirty-six States do at least that. See NASS Report, supra, at 5, and n. v (listing States). Other States send notices to every registered voter at specified intervals (say, once a year). See, e.g., Iowa Code §48A.28.3 (2012); S. C. Code Ann. §§7–5–330(F), 7–5–340(2)–(3) (2017 Cum. Supp.); see also S. Rep. No. 103–6, p. 46 (1993). Still other States, including Ohio, take an intermediate approach, see NASS Report, supra, at 5–6, such as sending notices to those who have turned in their driver’s licenses, e.g., Ind. Code §§3–7–38.2–2(b)(2), (c)(4) (2004), or sending notices to those who have not voted for some period of time, see, e.g., Ga. Code Ann. §21–2–234 (Supp. 2017); Ohio Rev. Code Ann. §3503.21(B)(2); Okla. Admin. Code §230:15–11–19(a)(3) (2016); Pa. Stat. Ann., Tit. 25, §1901(b)(3) (Purdon 2007); Wis. Stat. Ann. §6.50(1) (2017 West Cum. Supp.).

When a State receives a return card confirming that a registrant has left the district, the State must remove the voter’s name from the rolls. §§20507(d)(1)(A), (3). And if the State receives a card stating that the registrant has not moved, the registrant’s name must be kept on the list. See §20507(d)(2)(A).

What if no return card is mailed back? Congress obviously anticipated that some voters who received cards would fail to return them for any number of reasons, and it addressed this contingency in §20507(d), which, for convenience, we will simply call “subsection (d).” Subsection (d) treats the failure to return a card as some evidence—but by no means conclusive proof—that the voter has moved. Instead, the voter’s name is kept on the list for a period covering two general elections for federal office (usually about four years). Only if the registrant fails to vote during that period and does not otherwise confirm that he or she still lives in the district (e.g., by updating address information online) may the registrant’s name be removed. §20507(d)(2)(A); see §§20507(d)(1)(B), (3).

In addition to these specific change-of-residence requirements, the NVRA also imposes two general limitations that are applicable to state removal programs. First, all such programs must be “uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965.” §20507(b)(1). Second, the NVRA contains what we will call the “Failure-to-Vote Clause.” See §20507(b)(2).

At present, this clause contains two parts. The first is a prohibition that was included in the NVRA when it was originally enacted in 1993. It provides that a state program “shall not result in the removal of the name of any person . . . by reason of the person’s failure to vote.” Ibid. The second part, added by the Help America Vote Act of 2002 (HAVA),116Stat.1666, explains the meaning of that prohibition. This explanation says that “nothing in [the prohibition] may be construed to prohibit a State from using the procedures described in [§§20507](c) and (d) to remove an individual from the official list of eligible voters.” §20507(b)(2).

These referenced subsections, §§20507(c) and (d), are the provisions allowing the removal of registrants who either submitted change-of-address information to the Postal Service (subsection (c)) or did not mail back a return card and did not vote during a period covering two general federal elections (subsection (d)). And since one of the requirements for removal under subsection (d) is the failure to vote during this period, the explanation added by HAVA in 2002 makes it clear that the statutory phrase “by reason of the person’s failure to vote” in the Failure-to-Vote Clause does not categorically preclude the use of nonvoting as part of a test for removal.

Another provision of HAVA makes this point more directly. After directing that “registrants who have not responded to a notice and . . . have not voted in 2 consecutive general elections for Federal office shall be removed,” it adds that “no registrant may be removed solely by reason of a failure to vote.” §21083(a)(4)(A) (emphasis added).

B

Since 1994, Ohio has used two procedures to identify and remove voters who have lost their residency qualification.

First, the State utilizes the Postal Service option set out in the NVRA. The State sends notices to registrants whom the Postal Service’s “national change of address service” identifies as having moved. Ohio Rev. Code Ann. §3503.21(B)(1). This procedure is undisputedly lawful. See52 U. S. C. §20507(c)(1).

But because according to the Postal Service “[a]s many as 40 percent of people who move do not inform the Postal Service,”[3] Ohio does not rely on this information alone. In its so-called Supplemental Process, Ohio “identif[ies] electors whose lack of voter activity indicates they may have moved.” Record 401 (emphasis deleted). Under this process, Ohio sends notices to registrants who have “not engage[d] in any voter activity for a period of two consecutive years.” Id., at 1509. “Voter activity” includes “casting a ballot” in any election—whether general, primary, or special and whether federal, state, or local. See id., at 1507. (And Ohio regularly holds elections on both even and odd years.) Moreover, the term “voter activity” is broader than simply voting. It also includes such things as “sign[ing] a petition,” “filing a voter registration form, and updating a voting address with a variety of [state] entities.” Id., at 295, 357.

After sending these notices, Ohio removes registrants from the rolls only if they “fai[l] to respond” and “continu[e] to be inactive for an additional period of four consecutive years, including two federal general elections.” Id., at 1509; see Ohio Rev. Code Ann. §3503.21(B)(2). Federal law specifies that a registration may be canceled if the registrant does not vote “in an election during the period” covering two general federal elections after notice, §20507(d)(1)(B)(ii), but Ohio rounds up to “four consecutive years” of nonvoting after notice, Record 1509. Thus, a person remains on the rolls if he or she votes in any election during that period—which in Ohio typically means voting in any of the at least four elections after notice. Combined with the two years of nonvoting before notice is sent, that makes a total of six years of nonvoting before removal. Ibid.

C

A pair of advocacy groups and an Ohio resident (respondents here) think that Ohio’s Supplemental Process violates the NVRA and HAVA. They sued petitioner, Ohio’s Secretary of State, seeking to enjoin this process. Respondents alleged, first, that Ohio removes voters who have not actually moved, thus purging the rolls of eligible voters. They also contended that Ohio violates the NVRA’s Failure-to-Vote Clause because the failure to vote plays a prominent part in the Ohio removal scheme: Failure to vote for two years triggers the sending of a return card, and if the card is not returned, failure to vote for four more years results in removal.

The District Court rejected both of these arguments and entered judgment for the Secretary. It held that Ohio’s Supplemental Process “mirror[s] the procedures established by the NVRA” for removing people on change-of-residence grounds and does not violate the Failure-to-Vote Clause because it does not remove anyone “solely for [their] failure to vote.” App. to Pet. for Cert. 43a, 57a, 69a–70a.

A divided panel of the Court of Appeals for the Sixth Circuit reversed. 838 F. 3d 699 (2016). It focused on respondents’ second argument, holding that Ohio violates the Failure-to-Vote Clause because it sends change-of-residence notices “based ‘solely’ on a person’s failure to vote.” Id., at 711. In dissent, Judge Siler explained why he saw the case as a simple one: “The State cannot remove the registrant’s name from the rolls for a failure to vote only, and Ohio does not do [that].” Id., at 716.

We granted certiorari, 581 U. S. ___ (2017), and now reverse.

II

A

As noted, subsection (d), the provision of the NVRA that directly addresses the procedures that a State must follow before removing a registrant from the rolls on change-of-residence grounds, provides that a State may remove a registrant who “(i) has failed to respond to a notice” and “(ii) has not voted or appeared to vote . . . during the pe- riod beginning on the date of the notice and ending on the day after the date of the second general election for Fed- eral office that occurs after the date of the notice” (about four years).52 U. S. C. §20507(d)(1)(B). Not only are States allowed to remove registrants who satisfy these requirements, but federal law makes this removal mandatory. §20507(d)(3); see also §21083(a)(4)(A).

Ohio’s Supplemental Process follows subsection (d) to the letter. It is undisputed that Ohio does not remove a registrant on change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years.

B

Respondents argue (and the Sixth Circuit held) that, even if Ohio’s process complies with subsection (d), it nevertheless violates the Failure-to-Vote Clause—the clause that generally prohibits States from removing people from the rolls “by reason of [a] person’s failure to vote.” §20507(b)(2); see also §21083(a)(4)(A). Respondents point out that Ohio’s Supplemental Process uses a person’s failure to vote twice: once as the trigger for sending return cards and again as one of the requirements for removal. Respondents conclude that this use of nonvoting is illegal.

We reject this argument because the Failure-to-Vote Clause, both as originally enacted in the NVRA and as amended by HAVA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. Instead, as permitted by subsection (d), Ohio removes registrants only if they have failed to vote and have failed to respond to a notice.

When Congress clarified the meaning of the NVRA’s Failure-to-Vote Clause in HAVA, here is what it said: “[C]onsistent with the [NVRA], . . . no registrant may be removed solely by reason of a failure to vote.” §21083(a)(4)(A) (emphasis added). The meaning of these words is straightforward. “Solely” means “alone.” Webster’s Third New International Dictionary 2168 (2002); American Heritage Dictionary 1654 (4th ed. 2000). And “by reason of” is a “quite formal” way of saying “[b]ecause of.” C. Ammer, American Heritage Dictionary of Idioms 67 (2d ed. 2013). Thus, a State violates the Failure-to-Vote Clause only if it removes registrants for no reason other than their failure to vote.

This explanation of the meaning of the Failure-to-Vote Clause merely makes explicit what was implicit in the clause as originally enacted. At that time, the clause simply said that a state program “shall not result in the removal of the name of any person from the [rolls for federal elections] by reason of the person’s failure to vote.”107Stat.83. But that prohibition had to be read together with subsection (d), which authorized removal if a registrant did not send back a return card and also failed to vote during a period covering two successive general elections for federal office. If possible, “[w]e must interpret the statute to give effect to both provisions,” Ricci v. DeStefano,557 U. S. 557, 580 (2009), and here, that is quite easy.

The phrase “by reason of” denotes some form of causation. See Gross v. FBL Financial Services, Inc.,557 U. S. 167, 176 (2009). Thus, the Failure-to-Vote Clause applies when nonvoting, in some sense, causes a registrant’s name to be removed, but the law recognizes several types of causation. When a statutory provision includes an undefined causation requirement, we look to context to decide whether the statute demands only but-for cause as opposed to proximate cause or sole cause. See Holmes v. Securities Investor Protection Corporation,503 U. S. 258, 265–268 (1992). Cf. CSX Transp., Inc. v. McBride,564 U. S. 685, 692–693 (2011).

Which form of causation is required by the Failure-to-Vote Clause? We can readily rule out but-for causation. If “by reason of” in the Failure-to-Vote Clause meant but-for causation, a State would violate the clause if the failure to vote played a necessary part in the removal of a name from the list. Burrage v. United States,571 U. S. 204, 211 (2014). But the removal process expressly authorized by subsection (d) allows a State to remove a registrant if the registrant, in addition to failing to send back a return card, fails to vote during a period covering two general federal elections. So if the Failure-to-Vote Clause were read in this way, it would cannibalize subsection (d).

Interpreting the Failure-to-Vote Clause as incorporating a proximate cause requirement would lead to a similar problem. Proximate cause is an elusive concept, see McBride, supra, at 692–693, but no matter how the term is understood, it is hard to escape the conclusion that the failure to vote is a proximate cause of removal under subsection (d). If a registrant, having failed to send back a return card, also fails to vote during the period covering the next two general federal elections, removal is the direct, foreseeable, and closely connected consequence. See Paroline v. United States,572 U. S. 434, 444–445 (2014); Bridge v. Phoenix Bond & Indemnity Co.,553 U. S. 639, 654 (2008).

By process of elimination, we are left with sole causation. This reading harmonizes the Failure-to-Vote Clause and subsection (d) because the latter provision does not authorize removal solely by reason of a person’s failure to vote. Instead, subsection (d) authorizes removal only if a registrant also fails to mail back a return card.

For these reasons, we conclude that the Failure-to-Vote Clause, as originally enacted, referred to sole causation. And when Congress enacted HAVA, it made this point explicit. It added to the Failure-to-Vote Clause itself an explanation of how it is to be read, i.e., in a way that does not contradict subsection (d). And in language that cannot be misunderstood, it reiterated what the clause means: “[R]egistrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote.” §21083(a)(4)(A) (emphasis added). In this way, HAVA dispelled any doubt that a state removal program may use the failure to vote as a factor (but not the sole factor) in removing names from the list of registered voters.

That is exactly what Ohio’s Supplemental Process does. It does not strike any registrant solely by reason of the failure to vote. Instead, as expressly permitted by federal law, it removes registrants only when they have failed to vote and have failed to respond to a change-of-residence notice.

C

Respondents and the dissent advance an alternative interpretation of the Failure-to-Vote Clause, but that reading is inconsistent with both the text of the clause and the clarification of its meaning in §21083(a)(4)(A). Respondents argue that the clause allows States to consider nonvoting only to the extent that subsection (d) requires—that is, only after a registrant has failed to mail back a notice. Any other use of the failure to vote, including as the trigger for mailing a notice, they claim, is proscribed. In essence, respondents read the language added to the clause by HAVA—“except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d)”—as an exception to the general rule forbidding the use of nonvoting. See Brief for Respondents 37. And the Sixth Circuit seemed to find this point dispositive, reasoning that “ ‘exceptions in statutes must be strictly construed.’ ” 838 F. 3d, at 708 (quoting Detroit Edison Co. v. SEC, 119 F. 2d 730, 739 (CA6 1941)).

We reject this argument for three reasons. First, it distorts what the new language added by HAVA actually says. The new language does not create an exception to a general rule against the use of nonvoting. It does not say that the failure to vote may not be used “except that this paragraph does not prohibit a State from using the procedures described in subsections (c) and (d).” Instead, it says that “nothing in this paragraph may be construed” to have that effect. §20507(b)(2) (emphasis added). Thus, it sets out not an exception, but a rule of interpretation. It does not narrow the language that precedes it; it clarifies what that language means. That is precisely what Congress said when it enacted HAVA: It added the “may not be construed” provision to “[c]larif[y],” not to alter, the prohibition’s scope. §903,116Stat.1728.

Second, under respondents’ reading, HAVA’s new language is worse than superfluous. Even without the added language, no sensible person would read the Failure-to-Vote Clause as prohibiting what subsections (c) and (d) expressly allow. Yet according to respondents, that is all that the new language accomplishes. So at a minimum, it would be redundant.

But the implications of this reading are actually worse than that. There is no reason to create an exception to a prohibition unless the prohibition would otherwise forbid what the exception allows. So if the new language were an exception, it would seem to follow that prior to HAVA, the Failure-to-Vote Clause did outlaw what subsections (c) and (d) specifically authorize. And that, of course, would be nonsensical.

Third, respondents’ reading of the language that HAVA added to the Failure-to-Vote Clause makes it hard to understand why Congress prescribed in another section of the same Act, i.e., §21083(a)(4)(A), that “no registrant may be removed solely by reason of a failure to vote.” As interpreted by respondents, the amended Failure-to-Vote Clause prohibits any use of nonvoting with just two narrow exceptions—the uses allowed by subsections (c) and (d). So, according to respondents, the amended Failure-to-Vote Clause prohibits much more than §21083(a)(4)(A). That provision, in addition to allowing the use of nonvoting in accordance with subsections (c) and (d), also permits the use of nonvoting in any other way that does not treat nonvoting as the sole basis for removal.

There is no plausible reason why Congress would enact the provision that respondents envision. As interpreted by respondents, HAVA would be like a law that contains one provision making it illegal to drive with a blood alcohol level of 0.08 or higher and another provision making it illegal to drive with a blood alcohol level of 0.10 or higher. The second provision would not only be redundant; it would be confusing and downright silly.

Our reading, on the other hand, gives the new language added to the Failure-to-Vote Clause “real and substantial effect.” Husky Int’l Electronics, Inc. v. Ritz, 578 U. S. ___, ___ (2016) (slip op., at 4) (internal quotation marks omitted). It clarifies the meaning of the prohibition against removal by reason of nonvoting, a matter that troubled some States prior to HAVA’s enactment. See, e.g., FEC Report on the NVRA to the 106th Congress 19 (1999).

Respondents and the dissent separately claim that the Failure-to-Vote Clause must be read to bar the use of nonvoting as a trigger for sending return cards because otherwise it would be “superfluous.” Post, at 17 (opinion of Breyer, J.); see Brief for Respondents 29. After all, subsection (d) already prohibits States from removing registrants because of a failure to vote alone. See §20507(d)(1). To have meaning independent of subsection (d), respondents reason, the Failure-to-Vote Clause must prohibit other uses of the failure to vote, including its use as a trigger for sending out notices.

This argument is flawed because the Failure-to-Vote Clause has plenty of work to do under our reading. Most important, it prohibits the once-common state practice of removing registered voters simply because they failed to vote for some period of time. Not too long ago, “[c]ancellation for failure to vote [was] the principal means used . . . to purge the [voter] lists.” Harris, Model Voter Registration System, at 44. States did not use a person’s failure to vote as evidence that the person had died or moved but as an independent ground for removal. See ibid.[4] Ohio was one such State. Its Constitution provided that “[a]ny elector who fails to vote in at least one election during any period of four consecutive years shall cease to be an elector unless he again registers to vote.” Art. V, §1 (1977).

In addition, our reading prohibits States from using the failure to vote as the sole cause for removal on any ground, not just because of a change of residence. Recall that subsection (d)’s removal process applies only to change-of-residence removals but that the Failure-to-Vote Clause applies to all removals. Without the Failure-to-Vote Clause, therefore, States could use the failure to vote as conclusive evidence of ineligibility for some reason other than change of residence, such as death, mental incapac- ity, or a criminal conviction resulting in prolonged imprisonment.

D

Respondents put forth one additional argument regarding the Failure-to-Vote Clause. In essence, it boils down to this. So many properly registered voters simply discard return cards upon receipt that the failure to send them back is worthless as evidence that the addressee has moved. As respondents’ counsel put it at argument, “a notice that doesn’t get returned” tells the State “absolutely nothing about whether the person has moved.” Tr. of Oral Arg. 41, 58. According to respondents, when Ohio removes registrants for failing to respond to a notice and failing to vote, it functionally “removes people solely for non-voting” unless the State has additional “reliable evidence” that a registrant has moved. Id., at 49, 71.

This argument is based on a dubious empirical conclusion that the NVRA and HAVA do not allow us to indulge. Congress clearly did not think that the failure to send back a return card was of no evidentiary value because Congress made that conduct one of the two requirements for removal under subsection (d).

Requiring additional evidence not only second-guesses the congressional judgment embodied in subsection (d)’s removal process, but it also second-guesses the judgment of the Ohio Legislature as expressed in the State’s Supplemental Process. The Constitution gives States the authority to set the qualifications for voting in congressional elections, Art. I, §2, cl. 1; Amdt. 17, as well as the authority to set the “Times, Places and Manner” to conduct such elections in the absence of contrary congressional direction, Art. I, §4, cl. 1. We have no authority to dismiss the considered judgment of Congress and the Ohio Legislature regarding the probative value of a registrant’s failure to send back a return card. See Inter Tribal, 570 U. S., at 16–19; see also id., at 36–37 (Thomas, J., dissenting); id., at 42–43, 46 (Alito, J., dissenting).

For all these reasons, we hold that Ohio law does not violate the Failure-to-Vote Clause.

III

We similarly reject respondents’ argument that Ohio violates other provisions of the NVRA and HAVA.

A

Respondents contend that Ohio removes registered voters on a ground not permitted by the NVRA. They claim that the NVRA permits the removal of a name for only a few specified reasons—a person’s request, criminal conviction, mental incapacity, death, change of residence, and initial ineligibility. Brief for Respondents 25–26; see 52 U. S. C. §§20507(a)(3), (4).[5] And they argue that Ohio removes registrants for other reasons, namely, for failing to respond to a notice and failing to vote.

This argument plainly fails. Ohio simply treats the failure to return a notice and the failure to vote as evidence that a registrant has moved, not as a ground for removal. And in doing this, Ohio simply follows federal law. Subsection (d), which governs removals “on the ground that the registrant has changed residence,” treats the failure to return a notice and the failure to vote as evidence that this ground is satisfied. §20507(d)(1).

If respondents’ argument were correct, then it would also be illegal to remove a name under §20507(c) because that would constitute removal for submitting change-of-address information to the Postal Service. Likewise, if a State removed a name after receiving a death certificate or a judgment of criminal conviction, that would be illegal because receipt of such documents is not listed as a permitted ground for removal under §20507(a)(3) or §20507(a)(4). About this argument no more need be said.

B

Respondents maintain, finally, that Ohio’s procedure is illegal because the State sends out notices without having any “reliable indicator” that the addressee has moved. Brief for Respondents 31. The “[f]ailure to vote for a mere two-year period,” they argue, does not reliably “indicate that a registrant has moved out of the jurisdiction.” Id., at 30; see also, e.g., Brief for State of New York et al. as Amici Curiae 13–28.

This argument also fails. The degree of correlation between the failure to vote for two years and a change of residence is debatable, but we know from subsection (d) that Congress thought that the failure to vote for a period of two consecutive general elections was a good indicator of change of residence, since it made nonvoting for that period an element of subsection (d)’s requirements for removal. In a similar vein, the Ohio Legislature appar- ently thought that nonvoting for two years was sufficiently correlated with a change of residence to justify sending a return card.

What matters for present purposes is not whether the Ohio Legislature overestimated the correlation between nonvoting and moving or whether it reached a wise policy judgment about when return cards should be sent. For us, all that matters is that no provision of the NVRA prohibits the legislature from implementing that judgment. Neither subsection (d) nor any other provision of the NVRA demands that a State have some particular quantum of evidence of a change of residence before sending a registrant a return card. So long as the trigger for sending such notices is “uniform, nondiscriminatory, and in compliance with the Voting Rights Act,” §20507(b)(1), States can use whatever plan they think best. That may be why not even the Sixth Circuit relied on this rationale.

Respondents attempt to find support for their argument in subsection (c), which allows States to send notices based on Postal Service change-of-address information. This provision, they argue, implicitly sets a minimum reliability requirement. Thus, they claim, a State may not send out a return card unless its evidence of change of residence is at least as probative as the information obtained from the Postal Service. See Tr. of Oral Arg. 56.

Nothing in subsection (c) suggests that it is designed to play this role. Subsection (c) says that “[a] State may meet” its obligation “to remove the names” of ineligible voters on change-of-residence grounds by sending notices to voters who are shown by the Postal Service information to have moved, but subsection (c) does not even hint that it imposes any sort of minimum reliability requirement for sending such notices. §§20507(a)(4), (c). By its terms, subsection (c) simply provides one way—the minimal way—in which a State “may meet the [NVRA’s] requirement[s]” for change-of-residence removals. §20507(c) (emphasis added). As respondents agreed at argument, it is not the only way. Tr. of Oral Arg. 53.

C

Nothing in the two dissents changes our analysis of the statutory language.

1

Despite its length and complexity, the principal dissent sets out only two arguments. See post, at 7–8 (opinion of Breyer, J.). The first is one that we have already discussed at length, namely, that the Failure-to-Vote Clause prohibits any use of the failure to vote except as permitted by subsections (c) and (d). We have explained why this argument is insupportable, supra, at 12–16, and the dissent has no answer to any of the problems we identify.

The dissent’s only other argument is that Ohio’s process violates §20507(a)(4), which requires States to make a “reasonable effort” to remove the names of ineligible voters from the rolls. The dissent thinks that this provision authorizes the federal courts to go beyond the restrictions set out in subsections (b), (c), and (d) and to strike down any state law that does not meet their own standard of “reasonableness.” But see Brief for United States as Amicus Curiae 28–29. The dissent contends that Ohio’s system violates this supposed “reasonableness” requirement primarily because it relies on the failure to mail back the postcard sent to those who have not engaged in voter activity for two years. Based on its own cobbled-together statistics, post, at 12–13, and a feature of human nature of which the dissent has apparently taken judicial notice (i.e., “the human tendency not to send back cards received in the mail,” post, at 13), the dissent argues that the failure to send back the card in question “has no tendency to reveal accurately whether the registered voter has changed residences”; it is an “irrelevant factor” that “shows nothing at all that is statutorily significant.” Post, at 13–14, 17.

Whatever the meaning of §20507(a)(4)’s reference to reasonableness, the principal dissent’s argument fails since it is the federal NVRA, not Ohio law, that attaches importance to the failure to send back the card. See §§20507(d)(1)(B)(i), (d)(2)(A). The dissenters may not think that the failure to send back the card means anything, but that was not Congress’s view. The NVRA plainly reflects Congress’s judgment that the failure to send back the card, coupled with the failure to vote during the period covering the next two general federal elections, is significant evidence that the addressee has moved.

It is not our prerogative to judge the reasonableness of that congressional judgment, but we note that, whatever the general “human tendency” may be with respect to mailing back cards received in the mail, the notice sent under subsection (d) is nothing like the solicitations for commercial products or contributions that recipients may routinely discard. The notice in question here warns recipients that unless they take the simple and easy step of mailing back the preaddressed, postage prepaid card—or take the equally easy step of updating their information online—their names may be removed from the voting rolls if they do not vote during the next four years. See Record 295–296, 357. It was Congress’s judgment that a reasonable person with an interest in voting is not likely to ignore notice of this sort.

2

Justice Sotomayor’s dissent says nothing about what is relevant in this case—namely, the language of the NVRA—but instead accuses us of “ignor[ing] the history of voter suppression” in this country and of “uphold[ing] a program that appears to further the . . . disenfranchisement of minority and low-income voters.” Post, at 5. Those charges are misconceived.

The NVRA prohibits state programs that are discriminatory, see §20507(b)(1), but respondents did not assert a claim under that provision. And Justice Sotomayor has not pointed to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent.

*  *  *

The dissents have a policy disagreement, not just with Ohio, but with Congress. But this case presents a question of statutory interpretation, not a question of policy. We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date. The only question before us is whether it violates federal law. It does not.

The judgment of the Sixth Circuit is reversed.

It is so ordered.

Notes

1  United States Census Bureau, CB16–189, Americans Moving at Historically Low Rates (Nov. 16, 2016), available at https://www.census.gov/newsroom/press-releases/2016/cb16-189.html (all Internet materials as last visited June 8, 2018). States must update the addresses of even those voters who move within their county of residence, for (among other reasons) counties may contain multiple voting districts. Cf. post, at 12 (Breyer, J., dissenting). For example, Cuyahoga County contains 11 State House districts. See House District Map, Ohio House Districts 2012–2022, online at http://www.ohiohouse.gov/members/district-map.
2  The principal dissent attaches a misleading label to this return card, calling it a “ ‘last chance’ notice.” Post, at 6–7, 9–12 (opinion of Breyer, J.). It is actually no such thing. Sending back the notice does not represent a voter’s “last chance” to avoid having his or her name stricken from the rolls. Instead, such a voter has many more chances over a period of four years to avoid that result. All that the voter must do is vote in any election during that time. See52 U. S. C. §20507(d)(1)(B).
3  U. S. Postal Service, Office of Inspector Gen., MS–MA–15–006, Strategies for Reducing Undeliverable as Addressed Mail 15 (2015); see also Brief for Buckeye Institute as Amicus Curiae 10. Respondents and one of their amici dispute this statistic. See Tr. of Oral Arg. 46; Brief for Asian Americans Advancing Justice et al. as Amici Curiae 27–28.
4  See, e.g., Haw. Rev. Stat. §11–17(a) (1993); Idaho Code Ann. §34–435 (1981); Minn. Stat. §201.171 (1992); Mont. Code Ann. §13–2–401(1) (1993); N. J. Stat. Ann. §19:31–5 (West Supp. 1989); Okla. Stat., Tit. 26, §4–120.2 (1991); Utah Code §20–2–24(1)(b) (1991).
5  We assume for the sake of argument that Congress has the constitutional authority to limit voting eligibility requirements in the way respondents suggest.

SUPREME COURT OF THE UNITED STATES

_________________

No. 16–980

_________________

JON HUSTED, OHIO SECRETARY OF STATE, PETITIONER v. A. PHILIP RANDOLPH INSTITUTE, et al.

on writ of certiorari to the united states court of appeals for the sixth circuit

[June 11, 2018]

Thomas, J., concurring.

I join the Court’s opinion in full. I write separately to add that respondents’ proposed interpretation of the National Voter Registration Act (NVRA) should also be rejected because it would raise significant constitutional concerns.

Respondents would interpret the NVRA to prevent States from using failure to vote as evidence when deciding whether their voting qualifications have been satisfied. Brief for Respondents 25–30. The Court’s opinion explains why that reading is inconsistent with the text of the NVRA. See ante, at 7–18. But even if the NVRA were “susceptible” to respondents’ reading, it could not prevail because it “raises serious constitutional doubts” that the Court’s interpretation avoids. Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (slip op., at 2).

As I have previously explained, constitutional text and history both “confirm that States have the exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied.” Arizona v. Inter Tribal Council of Ariz., Inc., 570 U. S. 1, 29 (2013) (Thomas, J., dissenting). The Voter-Qualifications Clause provides that, in elections for the House of Representatives, “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” U. S. Const., Art. I, §2, cl. 1. The Seventeenth Amendment imposes an identical requirement for elections of Senators. And the Constitution recognizes the authority of States to “appoint” Presidential electors “in such Manner as the Legislature thereof may direct.” Art. II, §1, cl. 2; see Inter Tribal Council of Ariz., 570 U. S., at 35, n. 2 (opinion of Thomas, J.). States thus retain the authority to decide the qualifications to vote in federal elections, limited only by the requirement that they not “ ‘establish special requirements’ ” for congressional elections “ ‘that do not apply in elections for the state legislature.’ ” Id., at 26 (quoting U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 865 (1995) (Thomas, J., dissenting)). And because the power to establish requirements would mean little without the ability to enforce them, the Voter Qualifications Clause also “gives States the authority . . . to verify whether [their] qualifications are satisfied.” 570 U. S., at 28.

Respondents’ reading of the NVRA would seriously interfere with the States’ constitutional authority to set and enforce voter qualifications. To vote in Ohio, electors must have been a state resident 30 days before the election, as well as a resident of the county and precinct where they vote. Ohio Rev. Code Ann. §3503.01(A) (Lexis 2015); see also Ohio Const., Art. V, §1. Ohio uses a record of nonvoting as one piece of evidence that voters no longer satisfy the residence requirement. Reading the NVRA to bar Ohio from considering nonvoting would therefore interfere with the State’s “authority to verify” that its qualifications are met “in the way it deems necessary.” Inter Tribal Council of Ariz., supra, at 36. Respondents’ reading thus renders the NVRA constitutionally suspect and should be disfavored. See Jennings, supra, at ___ (slip op., at 2).

Respondents counter that Congress’ power to regulate the “Times, Places and Manner” of holding congressional elections includes the power to impose limits on the evidence that a State may consider when maintaining its voter rolls. See Brief for Respondents 51–55; see also Art. I, §4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators”). But, as originally understood, the Times, Places and Manner Clause grants Congress power “only over the ‘when, where, and how’ of holding congressional elections,” not over the question of who can vote. Inter Tribal Council of Ariz., supra, at 29 (opinion of Thomas, J.) (quoting T. Parsons, Notes of Convention Debates, Jan. 16, 1788, in 6 Documentary History of the Ratification of the Constitution 1211 (J. Kaminski & G. Saladino eds. 2000) (Massachusetts ratification delegate Sedgwick)). The “ ‘Manner of holding Elections’ ” was understood to refer to “the circumstances under which elections were held and the mechanics of the actual election.” 570 U. S., at 30 (quoting Art. I, §4, cl. 1). It does not give Congress the authority to displace state voter qualifications or dictate what evidence a State may consider in deciding whether those qualifications have been met. See 570 U. S., at 29–33. The Clause thus does not change the fact that respondents’ reading of the NVRA is constitutionally suspect.

The Court’s interpretation of the NVRA was already the correct reading of the statute: The NVRA does not prohibit a State from considering failure to vote as evidence that a registrant has moved. The fact that this reading avoids serious constitutional problems is an additional reason why, in my view, today’s decision is undoubtedly correct.

SUPREME COURT OF THE UNITED STATES

_________________

No. 16–980

_________________

JON HUSTED, OHIO SECRETARY OF STATE, PETITIONER v. A. PHILIP RANDOLPH INSTITUTE, et al.

on writ of certiorari to the united states court of appeals for the sixth circuit

[June 11, 2018]

Justice Sotomayor, dissenting.

I join the principal dissent in full because I agree that the statutory text plainly supports respondents’ interpretation. I write separately to emphasize how that reading is bolstered by the essential purposes stated explicitly in the National Voter Registration Act of 1993 (NVRA) to increase the registration and enhance the participation of eligible voters in federal elections. 52 U. S. C. §§20501(b)(1)–(2). Congress enacted the NVRA against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections. The Court errs in ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against.

Concerted state efforts to prevent minorities from voting and to undermine the efficacy of their votes are an unfortunate feature of our country’s history. See Schuette v. BAMN, 572 U. S. 291, 337–338 (2014) (Sotomayor, J., dissenting). As the principal dissent explains, “[i]n the late 19th and early 20th centuries, a number of ‘[r]estrictive registration laws and administrative procedures’ came to use across the United States.” Ante, at 1–2 (opinion of Breyer, J.). States enforced “poll tax[es], literacy tests, residency requirements, selective purges, . . . and annual registration requirements,” which were developed “to keep certain groups of citizens from voting.” H. R. Rep. No. 103–9, p. 2 (1993). Particularly relevant here, some States erected procedures requiring voters to renew registrations “whenever [they] moved or failed to vote in an election,” which “sharply depressed turnout, particularly among blacks and immigrants.” A. Keyssar, The Right To Vote 124 (2009). Even after the passage of the Voting Rights Act in 1965, many obstacles remained. See ante, at 2 (opinion of Breyer, J.).

Congress was well aware of the “long history of such list cleaning mechanisms which have been used to violate the basic rights of citizens” when it enacted the NVRA. S. Rep. No. 103–6, p. 18 (1993). Congress thus made clear in the statutory findings that “the right of citizens of the United States to vote is a fundamental right,” that “it is the duty of the Federal, State, and local governments to promote the exercise of that right,” and that “discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation . . . and disproportionately harm voter participation by various groups, including racial minorities.” 52 U. S. C. §20501(a). In light of those findings, Congress enacted the NVRA with the express purposes of “increas[ing] the number of eligible citizens who register to vote” and “enhanc[ing] the participation of eligible citizens as voters.” §§20501(b)(1)–(2). These stated purposes serve at least in part to counteract the history of voter suppression, as evidenced by §20507(b)(2), which forbids “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.” Ibid.

Of course, Congress also expressed other objectives, “to protect the integrity of the electoral process” and “to ensure that accurate and current voter registration rolls are maintained.” §§20501(b)(3)–(4).[1] The statute contemplates, however, that States can, and indeed must, further all four stated objectives. As relevant here, Congress crafted the NVRA with the understanding that, while States are required to make a “reasonable effort” to remove ineligible voters from the registration lists, §20507(a)(4), such removal programs must be developed in a manner that “prevent[s] poor and illiterate voters from being caught in a purge system which will require them to needlessly re-register” and “prevent[s] abuse which has a disparate impact on minority communities,” S. Rep. No. 103–6, at 18.

Ohio’s Supplemental Process reflects precisely the type of purge system that the NVRA was designed to prevent. Under the Supplemental Process, Ohio will purge a registrant from the rolls after six years of not voting, e.g., sitting out one Presidential election and two midterm elections, and after failing to send back one piece of mail, even though there is no reasonable basis to believe the individual actually moved. See ante, at 14 (Breyer, J., dissenting). This purge program burdens the rights of eligible voters. At best, purged voters are forced to “needlessly reregister” if they decide to vote in a subsequent election; at worst, they are prevented from voting at all because they never receive information about when and where elections are taking place.

It is unsurprising in light of the history of such purge programs that numerous amici report that the Supplemental Process has disproportionately affected minority, low-income, disabled, and veteran voters. As one example, amici point to an investigation that revealed that in Hamilton County, “African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity” since 2012, as “compared to only 4% of voters in a suburban, majority-white neighborhood.” Brief for National Association for the Advancement of Colored People et al. as Amici Curiae 18–19. Amici also explain at length how low voter turnout rates, language-access problems, mail delivery issues, inflexible work schedules, and transportation issues, among other obstacles, make it more difficult for many minority, low-income, disabled, homeless, and veteran voters to cast a ballot or return a notice, rendering them particularly vulnerable to unwarranted removal under the Supplemental Process. See Brief for Asian Americans Advancing Justice | AAJC et al. as Amici Curiae 15–26; Brief for National Disability Rights Network et al. as Amici Curiae 17, 21–24, 29–31; Brief for VoteVets Action Fund as Amicus Curiae 23–30. See also Brief for Libertarian National Committee as Amicus Curiae 19–22 (burdens on principled nonvoters).

Neither the majority nor Ohio meaningfully dispute that the Supplemental Process disproportionately burdens these communities. At oral argument, Ohio suggested that such a disparate impact is not pertinent to this case because respondents did not challenge the Supplemental Process under §20507(b)(1), which requires that any removal program “be uniform, nondiscriminatory, and in compliance with the Voting Rights Act.” Tr. of Oral Arg. 23. The fact that respondents did not raise a claim under §20507(b)(1), however, is wholly irrelevant to our assessment of whether, as a matter of statutory interpretation, the Supplemental Process removes voters “by reason of the person’s failure to vote” in violation of §20507(b)(2). Contrary to the majority’s view, ante, at 20–21, the NVRA’s express findings and purpose are highly relevant to that interpretive analysis because they represent “the assumed facts and the purposes that the majority of the enacting legislature . . . had in mind, and these can shed light on the meaning of the operative provisions that follow.” A. Scalia & B. Garner, Reading Law 218 (2012). Respondents need not demonstrate discriminatory intent to establish that Ohio’s interpretation of the NVRA is contrary to the statutory text and purpose.

In concluding that the Supplemental Process does not violate the NVRA, the majority does more than just misconstrue the statutory text. It entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate. States, though, need not choose to be so unwise. Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote. The majority of States have found ways to maintain accurate voter rolls without initiating removal processes based solely on an individual’s failure to vote. See App. to Brief for League of Women Voters of the United States et al. as Amici Curiae 1a–9a; Brief for State of New York et al. as Amici Curiae 22–28. Communities that are disproportionately affected by unnecessarily harsh registration laws should not tolerate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by. Today’s decision forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.

Notes

1  The majority characterizes these objectives as ones to “remov[e] ineligible persons from the States’ voter registration rolls,” ante, at 2, but maintaining “accurate” rolls and “protecting the integrity of the electoral process” surely encompass more than just removing ineligible voters. An accurate voter roll and fair electoral process should also reflect the continued enrollment of eligible voters. In this way, the NVRA’s enhanced-participation and accuracy-maintenance goals are to be achieved simultaneously, and are mutually reinforcing.
December 2, 2016 Application (16A556) to extend the time to file a petition for a writ of certiorari from December 22, 2016 to February 6, 2017, submitted to Justice Kagan.
December 6, 2016 Application (16A556) granted by Justice Kagan extending the time to file until February 6, 2017.
February 3, 2017 Petition for a writ of certiorari filed. (Response due March 10, 2017)
February 3, 2017 Appendix of Jon Husted, Ohio Secretary of State filed.
February 27, 2017 Order extending time to file response to petition to and including March 31, 2017.
March 9, 2017 Brief amici curiae of Former Attorneys of the Civil Rights Division of the United States Department of Justice filed.
March 10, 2017 Brief amicus curiae of Landmark Legal Foundation filed.
March 10, 2017 Brief amicus curiae of Judicial Watch, Inc. filed.
March 10, 2017 Brief amici curiae of Georgia and 14 other States filed.
March 31, 2017 Brief of respondents A. Philip Randolph Institute, et al. in opposition filed.
April 17, 2017 Reply of petitioner Jon Husted, Ohio Secretary of State filed.
April 19, 2017 DISTRIBUTED for Conference of May 11, 2017.
May 10, 2017 Rescheduled.
May 15, 2017 DISTRIBUTED for Conference of May 18, 2017.
May 22, 2017 DISTRIBUTED for Conference of May 25, 2017.
May 30, 2017 Petition GRANTED.
June 7, 2017 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the Petitioner.
June 7, 2017 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the Respondents.
June 22, 2017 The time to file the joint appendix and petitioner's brief on the merits is extended to and including July 31, 2017.
June 22, 2017 The time to file respondents' brief on the merits is extended to and including September 15, 2017.
June 29, 2017 Motion to dispense with printing the joint appendix filed by the parties.
July 31, 2017 Brief of petitioner Husted, Ohio Secretary of State filed.
August 7, 2017 Brief amicus curiae of United States filed.
August 7, 2017 Brief amicus curiae of Buckeye Institute filed.
August 7, 2017 Brief amicus curiae of Eagle Forum Education & Legal Defense Fund filed.
August 7, 2017 Brief amici curiae of Georgia and 16 Other States filed.
August 7, 2017 Brief amicus curiae of Judicial Watch, Inc. filed.
August 7, 2017 Brief amicus curiae of American Civil Rights Union filed.
August 7, 2017 Brief amici curiae of Former Attorneys of the Civil Rights Division of the United States Department of Justice filed.
August 7, 2017 Brief amici curiae of Landmark Legal Foundation, et al. filed.
August 7, 2017 Brief amici curiae of National Conference of State Legislatures, et al. filed.
August 22, 2017 Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
August 25, 2017 Motion to dispense with printing the joint appendix filed by the parties GRANTED.
August 31, 2017 SET FOR ARGUMENT on Wednesday November 8, 2017
September 7, 2017 CIRCULATED
September 12, 2017 Record requested from the U.S.C.A. 6th Circuit.
September 15, 2017 Brief of respondents A. Philip Randolph Institute, et al. filed. (Distributed)
September 19, 2017 Brief amici curiae of Libertarian Party of Ohio, et al. filed. (Distributed)
September 22, 2017 Brief amici curiae of Constitutional Accountability Center filed. (Distributed)
September 22, 2017 Brief amicus curiae of American History Professors filed. (Distributed)
September 22, 2017 Brief amicus curiae of Libertarian National Committee filed. (Distributed)
September 22, 2017 Brief amici curiae of the League of Women Voters of the United States, et al. filed. (Distributed)
September 22, 2017 Brief amici curiae of National Association for the Advancement of Colored People, et al. filed. (Distributed)
September 22, 2017 Brief amicus curiae of Senator Sherrod Brown filed. (Distributed)
September 22, 2017 Brief amici curiae of Certain Members of the Congressional Black Caucus filed. (Distributed)
September 22, 2017 Brief amici curiae of National Disability Rights Network, et al. filed. (Distributed)
September 22, 2017 Brief amicus curiae of Common Cause filed. (Distributed)
September 22, 2017 Brief amici curiae of Eric H. Holder, Jr., et al. filed. (Distributed)
September 22, 2017 Brief amici curiae of the States of New York, et al. filed. (Distributed)
September 22, 2017 Brief amici curiae of Asian Americans Advancing Justice | AAJC, et al. filed. (Distributed)
September 22, 2017 Brief amicus curiae of Public Citizen, Inc. filed. (Distributed)
September 22, 2017 Brief amici curiae of Current and Former Ohio Elections Officials filed. (Distributed)
September 22, 2017 Brief amicus curiae of VoteVets Action Fund filed. (Distributed)
September 22, 2017 Brief amici curiae of Lawyers' Committee for Civil Rights Under Law, et al. filed. (Distributed)
September 22, 2017 Brief amici curiae of NAACP Legal Defense and Educational Fund, Inc., et al. filed. (Distributed)
October 10, 2017 Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
October 16, 2017 Reply of petitioner Jon Husted, Ohio Secretary of State filed. (Distributed)
October 27, 2017 Letter from counsel for respondents relating to oral argument filed.
October 27, 2017 This case is removed from the oral argument calendar for November 8, 2017.
November 17, 2017 SET FOR ARGUMENT ON Wednesday, January 10, 2018
November 22, 2017 CIRCULATED.
December 18, 2017 Record received from the U.S.C.A. 6th Circuit is electronic.
January 10, 2018 Argued. For petitioner: Eric E. Murphy, State Solicitor for State of Ohio, Columbus, Ohio; and Noel J. Francisco, Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: Paul M. Smith, Washington, D. C.
June 11, 2018 Judgment REVERSED. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Gorsuch, JJ., joined. Thomas, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion.
July 13, 2018 JUDGMENT ISSUED.
Prior History
  • A. Philip Randolph Inst. v. Husted, No. 16-3746 (6th Cir. Sep. 23, 2016)
  • In addition to removing the names of the deceased, adjudicated incompetents, and felons from its voter rolls, Ohio removess voters who are no longer eligible to vote because they have moved outside their county of registration, Ohio Rev. Code 3503.21.1 The “NCOA Process” mirrors the National Voter Registration Act, 52 U.S.C. 20507(c), description of ways in which states “may” comply with their obligation to remove voters who are no longer eligible. The Secretary of State’s office compares names and addresses from Ohio’s Statewide Voter Registration Database to the U.S. Postal Service’s National Change of Address database, then provides each county’s Board of Elections (BOE) with a list of voters who appear to have moved. The BOEs send a confirmation notice. Recipients are removed if they do not respond or update their registration and do not subsequently vote during four consecutive years, including two federal elections. Ohio’s “Supplemental Process” begins with each BOE's list of registered voters who have not engaged in “voter activity” for two years, followed by a mailed notice: a voter is removed after six years of inactivity. During the litigation, the Secretary revised the confirmation notice, so that voters can confirm their address by signing and returning a postage-prepaid form, without including extensive personal information previously required. The Sixth Circuit concluded that claims regarding Ohio’s confirmation notice are not moot, and that the court erred by concluding that Ohio need not provide out-of-state movers with information on how they can continue to be eligible to vote.

  • A. Philip Randolph Institute et al v. Husted, No. 2:2016cv00303 (S.D. Ohio Jun. 29, 2016)
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