NOTICE: This opinion is subject to
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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 §48 A.
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. See 52 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.