Husted v. A. Philip Randolph Inst.

• Decision Date: 11 June 2018
• Docket Number: No. 16–980.,16–980.
• Citation: 138 S.Ct. 1833,201 L.Ed.2d 141
• Parties: Jon HUSTED, Ohio Secretary of State, Petitioner v. A. PHILIP RANDOLPH INSTITUTE, et al.
• Court: U.S. Supreme Court

138 S.Ct. 1833

201 L.Ed.2d 141

Jon HUSTED, Ohio Secretary of State, Petitioner

v.A. PHILIP RANDOLPH INSTITUTE, et al.

No. 16–980.

Supreme Court of the United States

Argued Jan. 10, 2018.

Decided June 11, 2018.

Eric E. Murphy, Columbus, OH, for Petitioner.

Noel J. Francisco, Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the petitioner.

Paul M. Smith, for Respondents.

Michael Dewine, Attorney General of Ohio, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, Steven T. Voigt, Principal Assistant Attorney General, Columbus, OH, for Petitioner Jon Husted, Ohio Secretary of State.

Stuart C. Naifeh, Naila S. Awan, Cameron A. Bell, Demos, Dale E. Ho, Sophia Lin Lakin, Theresa J. Lee, Cecillia D. Wang, Julie A. Ebenstein, T. Alora Thomas, Rachel Wainer Apter, American Civil Liberties Union Foundation, New York, NY, Brenda Wright, Demos, Newton, MA, Freda Levenson, Daniel P. Tokaji, Paul Moke, Richard Saphire, ACLU of Ohio, Cleveland, OH, David D. Cole, American Civil Liberties Union Foundation, Washington, DC, for Respondents.

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 Noncitizens (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, 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013). The Act has two main objectives: increasing voter registration and removing ineligible persons from the States' voter registration rolls. See § 2, 107 Stat. 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), 116 Stat. 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...