June 11, 2018

Supreme Court Decides Jon Husted, Ohio Secretary of State v. A Philip Randolph Institute, et al.

On June 11, 2018, the United States Supreme Court decided Jon Husted, Ohio Secretary of State v. A. Philip Randolph Institute, et al., No. 16-980, holding that Ohio’s procedures for removing voters from its voter registration rolls does not violate the National Voter Registration Act (NVRA) as amended by the Help America Vote Act (HAVA) of 2002.

Ohio keeps its 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. The state sends a preaddressed, postage prepaid card to such 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.

A pair of advocacy groups and an Ohio resident sued Ohio’s Secretary of State seeking to enjoin Ohio’s process as violating the NVRA. The District Court entered judgment for the Ohio Secretary of State, but a divided panel of the Court of Appeals for the Sixth Circuit reversed, focusing on the plaintiffs’ second argument, holding that Ohio violates the NVRA because it sends change-of-residence notices “based ‘solely’ on a person’s failure to vote.”

The Supreme Court reversed. 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. 52 U.S.C. §20507(a)(4). The Act also prescribes requirements that a State must meet in order to remove a name on change-of-residence grounds. The most important of these requirements is a prior notice obligation. Under §20507(d)(1) of the NVRA, 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. If no return card is mailed back, the voter’s name is kept on the list for a period covering two general elections for federal office (usually about four years).

In addition to these specific change-of-residence requirements, the NVRA contains a so-called “Failure-to-Vote Clause” in §20507(b)(2). The first part of this clause provides that a state pro-gram “shall not result in the removal of the name of any person . . . by reason of the person’s failure to vote.” Id. The second part of the clause, added by HAVA, says that nothing in the prohibition may be construed to prohibit a State from using the procedures that allow for the removal of registrants who either submitted change-of-address information to the Postal Service or did not mail back a return card and did not vote during a period covering two general federal elections.

The Court held that the Failure-to-Vote Clause simply forbids the use of nonvoting as the sole criterion for removing a registrant, and that Ohio does not use it that way. Instead, as permitted by subsection (d) of the NVRA, Ohio removes registrants only if they have failed to vote and have failed to respond to a notice.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts, and Justices Kennedy, Thomas, and Gorsuch joined. Justice Thomas filed a separate concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Sotomayor also filed a separate dissenting opinion.

Download Opinion of the Court.

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