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Husted v. Randolph Institute

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Supreme Court of the United States
Husted v. Randolph Institute
Term: 2017
Important Dates
Argument: January 10, 2018
Decided: June 11, 2018
Outcome
Sixth Circuit reversed
Vote
5 - 4
Majority
Chief Justice John G. Roberts • Anthony Kennedy • Clarence Thomas • Samuel Alito • Neil Gorsuch
Concurring
Clarence Thomas
Dissenting
Ruth Bader Ginsburg • Stephen Breyer • Sonia Sotomayor • Elena Kagan


Husted v. Randolph Institute was argued during the October 2017 term of the U.S. Supreme Court. Argument in the case was scheduled for November 8, 2017, but the court delayed arguments in the case upon a request for a delay from new counsel in the case. On November 17, 2017, the court announced that the case would be argued on January 10, 2018. The case came on a writ of certiorari to the United States Court of Appeals for the 6th Circuit.

This case presented an important question about how states can maintain their eligible voter rolls. In a statement, Ohio Secretary of State Jon Husted said, "Voter rolls with deceased voters and people who've moved out-of-state have long contributed to the problems of electoral fraud, long lines and discarded ballots . . . In 2011, there were several Ohio counties with more registered voters than eligible voters." According to a report in The Hill, Husted's office had removed "nearly 340,000 deceased voters and 1.3 million duplicate registrations." However, the American Civil Liberties Union stated that "in 2015, hundreds of thousands of Ohioans who had not voted since 2008 were purged through the Supplemental Process, with over 40,000 removed in Cuyahoga County alone. Many went to the polls in November 2015 and March 2016 only to learn that their names no longer appeared on the lists and were barred from casting a ballot."[1][2]

HIGHLIGHTS
  • The case: Ohio created a process, called the Supplemental Process, to identify and deregister voters from its voter rolls who were no longer eligible to vote due to a change of residence. Under this process, the board of elections in each Ohio county compiled a list of registered voters that had not had any defined voter activity for a period of two years. Two years of inactivity triggered the county board of elections to send a confirmation of address notice to the voter. Voters were removed from the voter rolls if they failed to vote within the subsequent four-year period and if they failed to either re-register to vote or respond to the notice from the county board of elections. A federal district court upheld the process, but a three-judge panel of the Sixth Circuit reversed, holding that the process violated Section 8(b)(2) of the National Voter Registration Act (NVRA).
  • The issue: Does Ohio's Supplemental Process for deregistering inactive voters from its eligible voter rolls violate the National Voter Registration Act?
  • The outcome: On a vote of 5 - 4, the Supreme Court reversed the Sixth Circuit, holding that Ohio's Supplemental Process did not violate the NVRA.[3] Following the court's ruling, Ohio Secretary of State Jon Husted instructed Ohio county boards of election not to purge voters before the November 2018 election.[4]


    • You can review the lower court's opinion here.[5]

    Background

    At issue in this case was a challenge to what was referred to in the case as Ohio's Supplemental Process, a process the state said was designed to identify and remove voters who were no longer eligible to vote due to a change of residence. Under this process, the board of elections in each Ohio county compiled a list of registered voters that had not had any voter activity for a period of two years. Voter activity included filing a change of address with a state agency, filing a voter registration card, voting in person on Election Day, voting provisionally, or voting absentee.[6] A two-year period of voter inactivity triggered the county board of elections to send a confirmation of address notice to the voter in question. Once the notice was sent, voters were removed from the voter rolls if they failed to vote within the subsequent four-year period and if they failed to either re-register to vote or respond to the notice from the county board of elections.[5]

    The A. Philip Randolph Institute, the Northeast Ohio Coalition for the Homeless, and Larry Harmon, an Ohio resident who failed to respond to the notice and was removed from the voter rolls via the Supplemental Process, filed a complaint in federal district court, alleging that Ohio's Supplemental Process violated Section 8 of the National Voter Registration Act (NVRA). The NVRA prohibits a state from removing otherwise eligible voters from the state's voter rolls based on a voter's failure to vote. They argued that the confirmation notices sent to voters failed to meet the NVRA's standards because the notices did not provide information to those who moved to a different state on how to register to vote in their new state. The plaintiffs sought a preliminary injunction ordering Ohio's secretary of state, Jon Husted, to reinstate voters who had been removed from the voter rolls via the Supplemental Process.[5][7]

    On June 29, 2016, Judge George Smith of the United States District Court for the Southern District of Ohio denied the plaintiffs' motions for a preliminary injunction. Judge Smith held that the Supplemental Process neither violated the NVRA nor the Help America Vote Act (HAVA) because a voter was not removed solely by the voter's failure to vote but also for their failure to respond to the confirmation notice. Smith further ruled that the argument that Ohio's confirmation notice was required to provide voters with information on how to register in another state "failed on the merits ... because it 'defies logic' that the NVRA would require local registrars to 'coach' voters on how to register in a different state." The plaintiffs appealed to the United States Court of Appeals for the 6th Circuit.[5]

    Panel opinion

    In an opinion for a three-judge panel of the Sixth Circuit composed of Judges Eric Clay, Eugene Siler, and Julia Gibbons, the court reversed and remanded the district court's decision. The court held that the two-year voter inactivity provision triggering the process for sending a confirmation notice to the voter violated the NVRA.

    The court held that Ohio's Supplemental Process violated the NVRA by removing voters based on inactivity. Judge Clay wrote:

    “ The only reasonable reading of the NVRA is that any part of a state’s roll maintenance process that does not mimic the expressly permitted procedures outlined in subsections (c) or (d)—in this case, the Supplemental Process’ two-year 'trigger' provision—is subject to subsection (b)(2)’s prohibition clause . . . In this case, the Supplemental Process’ trigger provision explicitly uses a person’s failure to engage in any 'voter activity'—which includes voting—for two years as the 'trigger' for sending a confirmation notice. Under the ordinary meaning of 'result,' the Supplemental Process would violate the prohibition clause because removal of a voter 'proceed[s] or arise[s] as a consequence' of his or her failure to vote . . . Regardless of whether 'trigger' provisions are required, and regardless of what forms such 'triggers' can or cannot take, it is clear that the Supplemental Process does include a trigger, and that that trigger constitutes perhaps the plainest possible example of a process that 'result[s] in' removal of a voter from the rolls by reason of his or her failure to vote. 52 U.S.C. § 20507(d)(2). We therefore hold that Ohio’s Supplemental Process violates Section 8, subsection (b)(2) of the NVRA.[5][8] ”


    Ohio appealed to the Supreme Court.

    Petitioner's challenge

    Jon Husted, the petitioner, challenged the holding of the Sixth Circuit. Husted argued that the trigger mechanism initiating the removal process was consistent with the requirements of both the National Voter Registration Act and the Help America Vote Act.

    Certiorari granted

    On February 3, 2017, Jon Husted, the petitioner, initiated proceedings in the Supreme Court of the United States in filing a petition for a writ of certiorari to the United States Court of Appeals for the 6th Circuit. The U.S. Supreme Court granted Husted's certiorari request on May 30, 2017. Argument in the case was scheduled for November 8, 2017, but the court delayed arguments in the case upon a request for a delay from new counsel in the case. On November 17, 2017, the court announced that the case would be argued on January 10, 2018.[9]

    Question presented

    Question presented:

    "Whether 52 U.S.C. § 20507 permits Ohio's list-maintenance process, which uses a registered voter's voter inactivity as a reason to send a confirmation notice to that voter under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002."[9]

    Audio

    • Audio of oral argument:[10]



    Transcript

    • Transcript of oral argument:[11]

    Outcome

    Decision

    On a vote of 5 - 4, the Supreme Court reversed the Sixth Circuit, holding that Ohio's Supplemental Process does not violate the NVRA.[3]

    Majority opinion

    Justice Samuel Alito authored the court's majority opinion, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch.[3]

    Alito wrote that Ohio's process complied with the NVRA's provisions for removing voters who failed to mail back a return card and did not vote "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." He rejected the respondents' argument that Ohio's process violated the NVRA's Failure-to-Vote provision. He wrote that the Failure-to-Vote provision "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."[12]

    “ 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.' And 'by reason of' is a quite formal way of saying '[b]ecause of.' Thus, a State violates the Failure-to-Vote Clause only if it removes registrants for no reason other than their failure to vote . . . Ohio’s Supplemental Process 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.[3][13][8] ”


    Alito rejected the arguments of the dissenting justices. He concluded, "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."[3]

    Concurrence by Justice Thomas

    Justice Clarence Thomas joined the court's judgment and majority opinion in full and also wrote separately. Thomas argued, "Respondents’ reading of the NVRA would seriously interfere with the States’ constitutional authority to set and enforce voter qualifications."[3]

    Dissent by Justice Breyer

    Justice Stephen Breyer dissented from the court's judgment, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Breyer wrote, "The question is whether the Supplemental Process violates §8, which prohibits a State from removing registrants from the federal voter roll 'by reason of the person’s failure to vote.' §20507(b)(2). In my view, Ohio’s program does just that." Breyer argued that Ohio's reliance on the change of address form did not save the process from violating the NVRA because mailing the change of address form was triggered solely by the person's failure to vote.

    “ Ohio, of course, says that it has a ground for believing that those persons they remove from the rolls have, in fact, changed their address, but the ground is the fact that the person did not vote—the very thing that the Failure-to-Vote Clause forbids Ohio to use as a basis for removing a registered voter from the registration roll . . . What about those registered voters—more than 1 million strong—who did not send back their return cards? Is there any reason at all (other than their failure to vote) to think they moved? The answer to this question must be no. There is no reason at all . . . To put the matter in the present statutory context: When a State relies upon a registrant’s failure to vote to initiate the Confirmation Procedure, it violates the Failureto-Vote Clause, and a State’s subsequent use of the Confirmation Procedure cannot save the State’s program from that defect."[3][8] ”


    Dissent by Justice Sotomayor

    Justice Sonia Sotomayor dissented from the court majority's opinion, joining Justice Breyer's dissent and also writing separately. She wrote, "I join the principal dissent in full because I agree that the statutory text plainly supports respondents’ interpretation. I write separately to emphasize how that reading is bolstered by the essential purposes stated explicitly in the National Voter Registration Act of 1993 (NVRA) to increase the registration and enhance."

    “ Congress enacted the NVRA against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections. The Court errs in ignoring this history and distorting the statutory text to arrive at a conclusion that not only is contrary to the plain language of the NVRA but also contradicts the essential purposes of the statute, ultimately sanctioning the very purging that Congress expressly sought to protect against.[3][8] ”


    Text of the opinion

    Aftermath

    On October 10, 2018, Judge George Smith, of the United States District Court for the Southern District of Ohio, ruled against the Randolph Institute, which had alleged that the notices sent to voters as part of the state's voter registration maintenance process did not comply with the National Voter Registration Act. Smith ruled that the most recent forms used by the secretary of state's office fully complied with federal law, though prior forms did not. Smith ordered the secretary of state's office to continue using the current forms and to add information on registering to vote in another state to its website. Smith's full ruling can be accessed here.[14]

    See also

    Footnotes

    1. ↑ The Hill, "Groups sue Ohio over voter registration process," April 6, 2016
    2. ↑ American Civil Liberties Union, "The Right to Decide When to Vote: Husted v. A. Philip Randolph Institute," September 13, 2017
    3. ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 3.7 United States Supreme Court, "Husted v. Randolph Institute Opinion," June 11, 2018
    4. ↑ The Columbus Dispatch, "Husted: No voter registrations will be canceled before Nov. 6 election," June 12, 2018
    5. ↑ 5.0 5.1 5.2 5.3 5.4 U.S. Court of Appeals for the Sixth Circuit, A. Philip Randolph Institute, Northeast Ohio Coalition for the Homeless, and Larry Harmon v. Jon Husted, September 23, 2016
    6. ↑ According to Husted, county boards of election had the discretion to consider whether signing a local option, issue, or candidate petition qualified as voter activity.
    7. ↑ The plaintiffs initially moved also for a temporary restraining order prohibiting Husted from removing eligible voters via the Supplemental Process. The plaintiffs later withdrew this request after Husted agreed to postpone use of the Supplemental Process.
    8. ↑ 8.0 8.1 8.2 8.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    9. ↑ 9.0 9.1 Supreme Court of the United States, Husted v. A. Philip Randolph Institute, May 30, 2017
    10. ↑ Supreme Court of the United States, Byrd v. United States, argued January 9, 2018
    11. ↑ Supreme Court of the United States, Byrd v. United States, argued January 9, 2018
    12. ↑ Emphasis in original.
    13. ↑ Internal citations and quotations omitted.
    14. ↑ Cleveland.com, "Federal judge deals another blow to group challenging Ohio's voter roll purge," October 10, 2018
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