Husted v. Randolph Institute

AUTHORIZATION UNDER NVRA OR VIOLATION OF NVRA

Husted contends that Ohio’s Supplemental Process is permitted under the NVRA. Husted points to § 20507(b)(2)’s text and previous Supreme Court interpretations of the words “by reason of” to argue that the statute merely prohibits using non-voting as the proximate-cause of removing voters from voter-registration lists. Husted asserts that, while § 20507(d)(1) makes nonvoting an actual cause of removal, it should not be interpreted as violating § 20507(b)(2) because the Court is required to interpret all provisions of a law as being compatible when possible. Instead, Husted maintains that § 20507(d)(1)’s notice requirement reconciles these provisions. A voter’s failure to respond to the confirmation notice, not his earlier failure to vote, should be considered the only proximate cause of removal.

Husted argues that the practice of using nonvoting to issue warnings to voters about potential removal not only complies with the NVRA, but was a common practice among the States when the NVRA was enacted and its use is supported by legislative history. Absent explicit prohibition of this practice, Husted contends that the Court should not interpret the NVRA as implicitly prohibiting a practice that was widespread at the time of its enactment. Husted asserts that the Sixth Circuit erred by interpreting § 20507(b)(2) as requiring an actual-cause connection, applying § 20507(b)(2) to the notice sent to nonvoters, and misinterpreting the connection between § 20507(b)(2) and § 20507(d)(1).

Randolph counters that Ohio’s Supplemental Process violates the NVRA. Randolph argues that removal of voters under the NVRA is limited to five specified instances. Because Ohio’s Supplemental Process does not remove voters based on any of these circumstances, Randolph maintains that it violates the NVRA. Randolph contends that the NVRA should be interpreted broadly as prohibiting list-maintenance programs that directly or indirectly base removal on nonvoting. Randolph asserts that, because Ohio’s Supplemental Process identifies voters to send notices to by their failure to vote, it results in removal based on nonvoting.

Randolph argues that the failure to vote does not have to be the proximate cause of removal in order for the NVRA to be violated—the cases cited by Husted involved tort statutes or explicitly included tort or criminal law principles that are inapplicable here. Randolph contends that the failure to vote under Ohio’s Supplemental Process meets this requirement anyway because notices are sent based on nonvoting, and it is foreseeable that people may not respond to a notice when their circumstances have not changed.

Randolph maintains that Ohio’s Supplemental Process uses nonvoting in ways not authorized by the NVRA. Randolph asserts that the NVRA allows nonvoting to be used to confirm a change of address after first receiving evidence from the Postal Service of an address change and sending the voter a confirmation notice. Randolph contends that Ohio’s Supplemental Procedure uses § 20507(d)(1) as a removal program in violation of the NVRA.

HELP AMERICA VOTE ACT AMENDMENTS

Husted argues that the Help America Vote Act (“HAVA”) clarifies any ambiguity about whether § 20507(b)(2) barred sending notices to nonvoters. Husted asserts that Congress amended § 20507(b)(2) to settle a dispute between the Department of Justice (“DOJ”) and the States regarding whether § 20507(b)(2) regulates who notices can be sent to when voters are removed under § 20507(d)(1). Husted maintains that Congress sided with the States by adding a provision stating that § 20507(b)(2) could not be viewed as restricting a State from using § 20507(d)(1) to remove voters from voter-registration lists. Husted claims that using a voters’ failure to respond to a notice as the basis for removal from the list eliminates any causal connection between their failure to vote and subsequent removal. Husted contends that holding otherwise would allow § 20507(b)(2) to restrict a State’s ability to remove individuals under § 20507(d)(1) in certain circumstances in direct contradiction to HAVA.

Husted asserts that another HAVA section supports his position—this section requires that States maintain statewide registration lists, removing voters who do not respond to a notice after not voting in two consecutive general election cycles. But voters cannot be removed only for failing to vote, which, according to Husted, limits the reach of § 20507(b)(2). Husted argues that under Ohio’s Supplemental Process, voters are removed only after both failing to vote and failing to respond to a notice—in accordance with the NVRA and its requirements. Husted maintains that the Sixth Circuit erred by incorrectly interpreting HAVA’s text and purpose, misconstruing HAVA’s clarification as an exception, and finding that sending notices based on nonvoting violated the NVRA.

Randolph counters that HAVA confirms that Ohio’s Supplemental Process violates the NVRA. Randolph asserts that HAVA clarified that nonvoting after a notice was sent should be considered but that HAVA did not otherwise alter the NVRA’s prohibition against removing voters because of nonvoting because there is no evidence of Congressional intent to significantly change the NVRA. Randolph further argues that HAVA § 303 confirms that § 20507(d)(1) cannot be invoked by if a voter has changed addresses based on their failure to vote because § 303 uses the same language as § 20507(b)(2). Randolph contends that Husted’s interpretation creates several problems with other provisions in the NVRA. The more cohesive interpretation is that a failure to vote cannot trigger § 20507(d)(1)’s notice procedure used to remove voters.

Randolph maintains that Husted’s interpretation is not supported by HAVA’s legislative history, citing a Federal Election Commission report on NVRA. Randolph contends that this report indicated that voter-registration lists should be verified by checking the list against the Postal Service’s records or mailing non-forwardable notices to everyone on the list and using returned mail as an indication of a change of address. Randolph argues that the DOJ has regularly interpreted processes like the Supplemental Process as violating the NVRA until recently when it changed its position. Randolph claims that there is no evidence that Congress changed the DOJ’s consistent interpretation in favor of allowing the States to use § 20507(d)(1) based on nonvoting.

CONSTITUTIONAL CANONS OF CONSTRUCTION

Husted asserts that two canons of interpretation support the validity of Ohio’s Supplemental Process. First, Husted argues that the canon of constitutional avoidance applies because interpreting the NVRA as striking down Ohio’s Supplemental Process creates constitutional concerns with the NVRA. Congress has the power under the Federal Constitution to regulate the time, place, and manner of Congressional elections, while the States have the power to determine the voting qualifications for federal elections. Husted contends that Ohio’s Supplemental Process involves the States’ power because it enforces Ohio’s powers under the Constitution to create voting qualifications—in this case, the requirement to have registered voters respond to a notice to verify their eligibility. If Ohio’s Supplemental Process was struck down under the NVRA, it would create constitutional questions as to how far Congressional power extends in this area and the meaning of “qualification,” questions previously avoided by the Court. This would also raise a constitutional question as to what extent Congress can regulate presidential elections when it has no constitutional power to do so.

Second, Husted maintains that the clear-statement rule requires that the Court decide any ambiguity in the NVRA in favor of Ohio’s Supplemental Process. Husted argues that while the Court has previously stated that the clear-statement rule does not apply to federal laws passed under the Elections Clause, the Court should adopt a narrower view that aligns with federalism and the Court’s broader principles of interpreting Congressional actions under the Elections Clause as not unnecessarily infringing on State actions.

Randolph counters that the canons of construction cited by Husted do not allow the Court to defer to Ohio’s interpretation of the NVRA. Randolph argues that the canon of constitutional avoidance does not apply here because no serious constitutional problems are created by holding that Ohio’s Supplemental Process violates the NVRA. Randolph maintains that Congress has the power to regulate voter registration under the Elections Clause and that this power has been previously upheld by the Court, contrary to Husted’s assertion that the Court avoided this question. Randolph further asserts that rejecting Ohio’s Supplemental Process would not prevent Ohio from exercising its Constitutional authority to enforce its voter qualifications or require voters to verify their eligibility. Randolph also contends that no questions arise surrounding whether “qualification” includes registration because the voters who were improperly removed here were qualified and registered to vote in Ohio. Finally, Randolph argues that no question arises related to Congressional power to regulate presidential elections because this case focuses on Ohio’s Supplemental Process in the context of congressional elections.

Randolph argues that the clear-statement rule does not apply here because Congress, under the Elections Clause, has more power than the States to regulate federal elections. Thus, Randolph maintains that there is no preemption of State authority to protect against when federal legislation is created under the Elections Clause. Randolph asserts that there are no federalism concerns because the NVRA gives States the flexibility to determine how they will maintain accurate voting lists within certain parameters.