Husted v. A. Philip Randolph Institute (2018)
Larry Harmon was a fifty-nine-year-old U.S. Navy veteran, who lived at the same residence in Ohio for approximately fifteen years prior to this cause of action. Mr. Harmon voted in 2004 and 2008, but did not vote in 2009 or 2011. His failure to vote for two consecutive elections, triggered Ohio’s change-of-address law for voter registration.1 Ohio’s secretary of state mailed him a confirmation notice asking him to confirm his continued residency in Portage County, Ohio. Since Mr. Harmon did not return the confirmation notice, Ohio law permitted the secretary of state to remove him from the voter registration rolls after four years of voting inactivity from 2011 to 2015 and his failure to reregister. In 2015, Mr. Harmon went to the polls to vote, but his name had been removed from the County’s registration rolls. The A. Philip Randolph Institute, a voting rights advocacy group, filed this cause on his behalf against Ohio’s Republican secretary of state, Jon Husted.
Mr. Harmon’s case highlighted the flaws in Ohio’s voter registration law. According to the plaintiffs, thousands of Ohio residents like Mr. Harmon were purged from the voter rolls by the secretary of state. In four counties alone (Cuyahoga, Greene, Hamilton, and Medina), approximately 70,000 voters were purged from Ohio’s rolls in 2015, without a shred of evidence that any of them actually changed their residence.
Justice Alito’s majority opinion conspicuously left out the facts of Mr. Harmon’s case and that of thousands of disenfranchised voters.2 Those facts were highlighted by the lower District Court opinion,3 but instead of focusing on the victims, the majority chose to rubber-stamp Ohio’s voter suppression law. This case was part of a larger pattern of Republican-led voter suppression efforts. Similar to voter ID laws, purging voter registration rolls was intended to suppress the votes of lower-income and minority voters. Under the guise of rooting out voter fraud, which studies showed was rare to nonexistent, the Republican Party made voter suppression a key part of its election strategy, and the Supreme Court was an aider and abettor to these efforts.
Justice Alito acknowledged at the beginning of his opinion that, “Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved . . . .”4 The problem is that this method of identifying voters was expressly prohibited by the National Voter Registration Act of 1993 (NVRA).5 The NVRA required states to make a reasonable effort to remove the names of voters from their registration rolls who had either died or moved outside of the district. The Act required states to either send a “return card” to these individuals or receive written confirmation of a change of address before removing them from the registration rolls.6 If the card was not returned or written confirmation was not received, the state had to keep the voter on the rolls for two more general federal elections (i.e., four years). After that, the voter’s name could be removed from the rolls. The wording of the NVRA suggested states send the cards to individuals who submitted change-of-address forms to the U.S. Postal Service. Instead, the state of Ohio sent the cards to individuals who had not engaged in voting activity for two consecutive years, which led to this lawsuit. The outcome of this case depended on the correct interpretation of the provisions of the NVRA and how they fit together. Consequently, Justice Alito spent the largest portion of his opinion (16.1 percent) discussing the NVRA, as indicated by table 12.1 below.
Table 12.1 Justice Alito’s Majority Opinion, Husted v. A. Philip Randolph Institute (2018)
|
Content |
Number of lines |
Percentage of opinion |
|
National Voter Registration Act (NVRA) (1993) |
35 |
16.13 |
|
Ohio’s voter registration law |
25 |
11.52 |
|
Voter advocacy group’s arguments (A. Philip Randolph Institute) |
22 |
10.14 |
|
Criticism of dissent |
22 |
10.14 |
|
Discussion of causation under the NVRA’s “failure to vote” clause |
19 |
8.76 |
|
NVRA prohibits using “failure to vote” as the “sole criterion” for removal from rolls (with citation) |
7 |
3.23 |
|
Majority rejects the argument that the notices are sent without any reliable indicator the voter has moved (with citation) |
7 |
3.23 |
|
Respondent’s argument makes new language in the Help America Vote Act (HAVA) (2002) superfluous(w/o citation) |
6 |
2.76 |
|
Sixth Circuit’s decision in favor of voter advocacy group |
5 |
2.30 |
|
Majority rejects the argument that people hardly ever return the change-of-address notice cards(w/o citation) |
5 |
2.30 |
|
Majority rejects the argument that Ohio has violated other provisions of the NVRA and HAVA(w/o citation) |
5 |
2.30 |
|
Supreme Court majority rules for Ohio |
5 |
2.30 |
Notes: N = 217. This table presents data for content that appeared at least five times in the opinion.
Source: Table created by author based on data from Husted v. A. Philip Randolph Institute, 138 S. Ct. 1833 (2018).
The NVRA included a “failure to vote” clause that explicitly forbade states from using a “failure to vote” as a reason for removal. Justice Alito argued that the Help America Vote Act of 2002 (HAVA) amended the NVRA to prohibit a “failure to vote” from being the sole criterion for removal.7 Since Ohio only removed individuals after they failed to return the prepaid notice card, Justice Alito contended that a “failure to vote” was not the sole criterion.
It is clear, however, that Ohio selected its pool of individuals for removal based solely on their failure to vote. When an Ohio resident refrained from voting activity for six years, like Mr. Harmon, the secretary of state removed them from the registration roll. The only way to prevent this from happening was to timely return the prepaid notice card. Thus, the prepaid notice card was not a criterion for getting on the removal list, but rather, a way to get off the list. The presumption was that the voter had moved out of the district if he/she refrained from voting for six consecutive years.
The respondents provided a narrow interpretation of the statutory language—one that would prevent thousands of voters from mistakenly being purged from the registration rolls. There were three relevant sections of the NVRA and HAVA the justices had to piece together. First, NVRA § 20507(b) read as follows:
Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office—
shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote, except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters.8
This section prohibited a state from using a failure to vote as the reason for a person’s removal from the registration rolls. However, the end of the section says a state may still use the procedures in subsection (d) to remove an individual. The relevant part of subsection (d) said:
A State shall not remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence unless the registrant—
(i) has failed to respond to a notice described in paragraph (2); and
(ii) has not voted or appeared to vote (and, if necessary, correct the registrar’s record of the registrant’s address) in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice.9
This subsection indicated that failure to return a confirmation notice card and then failure to vote in two consecutive federal general elections would result in removal. Importantly, in subsection (d), the failure to return the notice card is the trigger and the failure to vote provision follows.
Finally, there was this supplemental section of the HAVA added in 2002:
Registrants 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.10
Once again, the failure to respond to the notice card was the trigger in the HAVA. Taken together, these sections indicated that the failure to vote followed the failure to return the notice card. This was the interpretation the Sixth Circuit applied in ruling for the respondents.11
In overturning the Sixth Circuit, the Supreme Court permitted Ohio to use the failure to vote as the trigger for removal. The problem with this interpretation was that it rendered the failure to vote prohibition meaningless. Before a state could remove an individual from the registration roll, it had to follow the procedures under subsection (d), which required sending a notice card and then waiting four consecutive years to see if there was any voting activity. Subsection (d) provided the final procedural steps for removal once a potential change in residence had been identified. Hence, Congress intended for states to use reliable indicators, beyond a failure to vote, to identify voters who had moved out of a district. Once those voters were identified, the state was required to send a confirmation notice under subsection (d). If a registrant failed to return the confirmation notice, the state could remove the registrant after four consecutive years of no voting activity.
This interpretation was supported by the fact that NVRA § 20507(a) listed five potential grounds for removal: (1) at the request of the registrant; (2) criminal conviction; (3) mental incapacity; (4) death; or (5) a change in residence.12 Nowhere was the failure to return a confirmation notice listed as a ground for removal, and a failure to vote was expressly prohibited as a criterion by the statute. The specific wording of § 20507 indicated that Congress expected the Postal Service to provide change of address information.13 This was the most straightforward reading of the statute, yet the majority erroneously concluded that Ohio could use the procedural requirements under subsection (d) as evidence of a change in residence.
The end result was the purging of thousands of voters from Ohio’s registration rolls, while the Supreme Court turned a blind eye. Toward the end of his opinion, Justice Alito criticized the dissent for failing to provide any evidence in the record of discriminatory intent. Historically, though, these types of laws have the effect of suppressing the votes of low-income and minority voters. Demanding proof of discriminatory intent ignores this reality. Unfortunately, this has become the court’s default position. As long as states use the magic words “voter fraud,” the court will not stand in the way of their voter suppression efforts.
Ironically, Congress enacted the NVRA in order to increase the number of registered voters while ensuring states maintained accurate and current registration rolls. In the view of the dissent, Ohio’s law failed to meet both of these goals. Justice Breyer described the NVRA as a two-step process. First, subsection (a) required states to make a reasonable effort to remove ineligible voters from their rolls due to a change of address,14 and subsection (b) prohibited states from removing a voter from the rolls based on the registrant’s failure to vote.15 Second, subsection (c) stipulated the method for states to comply with subsection (a) without violating subsection (b): they could remove a registrant based on change-of-address information supplied by the Postal Service, and if it appeared the registrant had moved, the state was required to use the notice procedure in subsection (d) to confirm the change of address.16 The notice under subsection (d) informed the registrant that his/her name would be removed from the voter rolls unless the registrant returned the attached card or voted during the period covering the next two federal elections.17 Congress intended the notice to give registrants one last chance to correct the record before their name was removed.
Conversely, Ohio’s statute permitted its eighty-eight board of elections to send the confirmation notice to individuals based on a lack of voter activity without any actual evidence of a change of address. If the registrant voted at any point in the process, they would remain on the list, but otherwise, they were at risk of being removed. This was a direct violation of subsection (b). The express language of the NVRA required states to make a reasonable effort to remove ineligible voters based on a change of address, and failure to vote was not considered a reliable method for determining this. What happened to Mr. Harmon and thousands of other Ohio voters was entirely predictable.
The dissent pointed to Ohio’s own statistics that showed that a high percentage of registered voters failed to vote or return the confirmation notice, yet only a small percentage actually moved out of their county of residence. “Consider the following facts. First, Ohio tells us that a small number of Americans—about 4% of all Americans—move outside of their county each year . . . The record shows that in 2012 Ohio identified about 1.5 million registered voters—nearly 20% of its 8 million registered voters—as likely ineligible to remain on the federal voter roll because they changed their residences.”18 Over one million of the confirmation notices sent out by the state were not returned. This led Justice Breyer to ask: Is there any reason to believe those 1 million registered voters moved, other than their failure to vote? The answer is no.
According to the dissent, the majority’s interpretation of the NVRA made the Failure to Vote Clause superfluous. It basically shielded the state from subsection (b). As long as the state complied with subsection (d), it could remove a registrant for failing to vote in two consecutive federal elections. “To repeat the point, under the majority’s view, the Failure to Vote Clause is superfluous in respect to change-of-address programs: subsection (d) already accomplishes everything the majority says is required of a State’s removal program—namely, the sending of a notice.”19 Since the state was required to send a notice in every instance, there was no need for Congress to add the language of subsection (b).
NOTES
1. Ohio Revised Code, Title 35 § 3503.21.
2. Husted v. A. Philip Randolph Institute, 138 S. Ct. 1833 (2018).
3. A. Philip Randolph Institute v. Husted, U.S. Dist. LEXIS 84519 (S.D. Ohio 2016).
4. Husted, 138 S. Ct. at 1838.
5. National Voter Registration Act of 1993, 52 U.S.C. § 20507.
6. Husted, 138 S. Ct. at 1839.
7. Help America Vote Act of 2002, 52 U.S.C. § 21083(a)(4)(A)).
8. National Voter Registration Act of 1993, 52 U.S.C. § 20507(b)(2)).
9. Id. at § 20507(d)).
10. Help America Vote Act of 2002, 52 U.S.C. § 21083(a)(4)(A)).
11. A. Philip Randolph Institute v. Husted, 838 F.3d 699 (6th Cir. 2016).
12. National Voter Registration Act of 1993, 52 U.S.C. § 20507(a)(3)(4)).
13. Id. at § 20507(c)(1)(A)(B)).
14. Id. at (a)(4)(B).
15. Id. at (b)(2).
16. Id. at (c)(1)(A)(ii).
17. Id. at (d)(B).
18. Husted, 138 S. Ct. at 1856.
19. Id. at 1858.