Supreme Court Rules Ohio Voter Roll Law Comports with National Voter Registration Act
Legal Sidebari
Supreme Court Rules Ohio Voter Roll Law
Comports with National Voter Registration
Act
July 24, 2018
In a 5-4 decision, the Supreme Court recently ruled in Husted v. A. Philip Randolph Institute that an Ohio
process for removing the names of registrants from its official federal voter registration rolls comports
with the National Voter Registration Act (NVRA). The case turned on the interpretation of the NVRA’s
so-called “Failure-to-Vote Clause,” which provides that any state program or activity to maintain accurate
and current federal voter registration rolls “shall not result in the removal of [any registrant] . . . by reason
of the person’s failure to vote.” The Court held that Ohio’s use of voter inactivity to initiate a process to
remove registrants from its rolls does not violate the NVRA because the registrant’s failure to vote is not
the sole determinant of removal. Although the Supreme Court’s ruling upholds Ohio’s voter roll
maintenance process, Ohio Secretary of State Jon Husted reportedly has indicated that names of
registrants will not be removed from the voter rolls prior to the November 2018 federal midterm
elections.
National Voter Registration Act (NVRA)
Congress enacted the NVRA in 1993 to, among other things, establish procedures to increase the number
of eligible citizens who register to vote in federal elections while also ensuring that states maintain
accurate and current official voter registration rolls, subject to certain constraints. The NVRA was
amended, in part, by the Help America Vote Act of 2002 (HAVA).
In its current form, the NVRA contains both requirements and restrictions relating to the removal of
registrants from federal election voter rolls. First, the NVRA prohibits states from removing individual
registrants except in five circumstances, including “by reason of” the registrant’s change in residence.
Second, the NVRA requires states to “conduct a general program that makes a reasonable effort to
remove . . . ineligible voters . . . by reason of” change in residence. And third, the NVRA prescribes the
procedures by which a state may remove a registrant due to a change in residence. Three subsections of
the law that contain or refer to these procedures, and the interplay among them, presented the greatest
interpretive challenges for the courts in Husted:
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Subsection (c) provides a way for a state to satisfy the “general program” requirement by
establishing a program that uses information from the U.S. Postal Service to identify registrants
whose addresses may have changed and either verify a change of address within the voting
jurisdiction, or use the notice procedure set forth in subsection (d) to confirm the change of
address.
Subsection (d) prohibits a state from removing a registrant from its federal voter rolls due to a
change in residence unless the registrant either: (1) confirms in writing that the registrant has
moved outside of the voting jurisdiction; or (2) has not responded to the state’s “notice” in the
form of a prepaid return card seeking verification of the registrant’s address and fails to vote in an
election during the period beginning on the date of the notice and ending after the second federal
general election that occurs after the notice date.
Subsection (b) applies broadly to “any state program or activity to protect the integrity of
the electoral process by ensuring the maintenance of an accurate and current [federal]
voter registration roll,” and thus is not limited to programs or activities based on change-
in-residence. In addition to requiring a uniform and nondiscriminatory program that
complies with the Voting Rights Act, this subsection contains a provision, which the
Supreme Court referred to as the “Failure-to-Vote Clause,” that reads:
[The program or activity] shall not result in the removal of the name of any person from the
official list of voters . . . 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 if the
individual—
(A) has not either notified the applicable registrar (in person or in writing) or responded during
the period described in subparagraph (B) to the notice sent by the applicable registrar; and then
(B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal
office.
Ohio Law
Under the Ohio law at issue in Husted, known as the “Supplemental Process” for voter roll maintenance,
the Ohio secretary of state’s office removes a registered voter’s name from the state’s federal voter rolls if
the individual—after a two-year period of voter inactivity—does not vote for four more years (including
two general federal elections), and does not either (1) respond to a mailed confirmation notice or (2)
reregister to vote. (Not at issue in Husted, Ohio also has a primary process for voter roll maintenance that
utilizes the postal service’s change-of-address system.)
Lower Court Rulings
In 2016, a group of civil rights organizations filed suit alleging that Ohio’s Supplemental Process violates
the NVRA’s prohibition against removing names from voter rolls due to failure to vote because the
confirmation notice that Ohio initially sends to a registrant is based on the registrant having not engaged
in voter activity, which includes nonvoting. Ohio countered that the Supplemental Process comports with
the NVRA because a registrant is merely sent a confirmation notice on the basis of not engaging in voter
activity, but the registrant’s name is not removed from the rolls on that basis. In other words, the state
argued, in order for a registrant’s name to be removed, the registrant must fail to respond to the notice and
fail to vote. Agreeing with the state, a lower court dismissed the lawsuit in 2016. However, later that year,
a divided Sixth Circuit reversed and ruled that the Supplemental Process violates the “Failure-to-Vote
Clause” of the NVRA because it explicitly uses a person’s voting inactivity for two years as the “trigger”
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for sending the person a confirmation notice. In October 2016, a federal district court ordered the State of
Ohio to allow voters who were illegally removed from the official voter rolls to cast a provisional ballot
during the November 8, 2016 election, in accordance with procedures set forth by the court. The State of
Ohio appealed the ruling of the Sixth Circuit to the Supreme Court.
Supreme Court Ruling
In Husted v. A. Philip Randolph Institute, the Supreme Court held that the “Failure-to-Vote Clause” in the
NVRA merely forbids a state from using failure to vote as the sole criterion for removing a registrant’s
name from the rolls. Accordingly, the Court rejected the respondents’ arguments that the Ohio law
violates the “Failure-to-Vote Clause” by using a person’s failure to vote twice—once as the trigger for
sending confirmation notices and again as one of the two requirements for removal. As the Ohio
Supplemental Process does not remove a registrant unless the registrant first, fails to return a confirmation
notice, and then second, fails to vote for an additional four years, the Court held that the Ohio law does
not remove a registrant’s name from the voter rolls solely because of nonvoting and thus does not violate
the “Failure-to-Vote Clause.”
Writing for the Court, Justice Alito engaged in an extensive analysis of the statutory language, focusing
on two provisions of law. First, the Court referenced the HAVA amendment to the “Failure-to-Vote
Clause” in the NVRA, providing that the prohibition on removing names from the voter rolls for
nonvoting shall not be construed to prevent a state from using the procedures described in subsections (c)
and (d). Because one of the requirements for removal under subsection (d) is the failure to vote, the Court
reasoned that the HAVA amendment “makes it clear” that the phrase “by reason of the person’s failure to
vote” in the “Failure-to-Vote Clause” does not prohibit a state from using nonvoting as a portion of a test
for deciding when to remove a voter’s name from the rolls. To interpret the statute otherwise, the Court
concluded, would render the implausible result that a state that comports with the confirmation notice
procedure in subsection (d), which allows for removal after a period of voter inactivity, could also violate
the “Failure-to-Vote Clause.” In addition, the Court opined that the phrase “by reason of” denotes some
form of causation, and that in this context, it is more likely that Congress meant to prohibit using one’s
failure to vote as the “sole” criterion for removal than as one of the steps that eventually causes removal.
Second, the Court characterized another provision of HAVA as supporting its interpretation in a more
straightforward manner. That is, 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,” another provision
of HAVA expressly provides that “no registrant may be removed solely by reason of a failure to vote.”
Moreover, the Court rejected the argument by the respondents and the dissent that large numbers of
registrants often simply discard the mailed confirmation notices and, consequently, the failure to send
back the confirmation notice does not prove that a registrant has moved residences. Characterizing this
argument as being based on a “dubious empirical conclusion,” the Court reasoned that it conflicts with
Congress’ determination that the failure to return a confirmation notice provides some evidence of a
registrant having moved residences. Congress evidenced this judgment, the Court observed, by expressly
providing that the failure to return a confirmation notice is one of the two requirements for a registrant’s
removal from the voter rolls under subsection (d).
In a concurrence, Justice Thomas further argued that the respondents’ proposed interpretation of the
NVRA—as preventing the states from using failure to vote as evidence of when their voting
qualifications have been satisfied—would significantly interfere with the states’ constitutional authority to
establish and enforce voter qualifications. According to Justice Thomas, referencing his dissent in Arizona
v. Inter Tribal Council of Arizona, Inc., under the Constitution, the states retain the authority to decide
voter qualifications in federal elections so long as they do not “establish special requirements” for
congressional elections that are inapplicable to state legislative elections.
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Writing for the four dissenting justices, Justice Breyer argued that the Husted Court misinterpreted the
NVRA as merely forbidding a state from using the failure to vote as the sole criterion for removing a
registrant’s name from the rolls. According to the dissent, the Ohio law violates the “Failure-to-Vote
Clause” because, among other reasons, a state using a registrant’s failure to vote in order to even initiate
the confirmation notice procedure violates the prohibition on removing registrants from the federal voter
rolls because a person failed to vote. The words, “by reason of the person’s failure to vote,” the dissent
argued, “are most naturally read” to prohibit states from even taking into account a registrant’s nonvoting
as part of the process of removing names from the voter rolls. Further, the dissent criticized the Court for
overreliance on the significance of the term “solely,” which is contained within another provision of
HAVA, emphasizing that the “Failure-to-Vote Clause” itself does not contain that term. In addition, the
dissent argued that the failure of registrants to respond to mailed confirmation notices does not contribute
to a state’s knowledge of whether a voter has in fact moved. Observing “the human tendency not to send
back cards received in the mail,” and citing nationwide statistics indicating the percentage of Americans
on average who move per year, the dissent reasoned that one cannot reasonably conclude that the more
than one million Ohio voters who failed to respond to the notices had actually moved.
In a separate dissent, Justice Sotomayor argued that the Court’s decision ignores Congress’ intent in
enacting the NVRA, which was to increase voter registration. Justice Sotomayor further argued that the
Court’s decision disregards the history of voter suppression against which the NVRA was enacted by
upholding a state law “that appears to further the very disenfranchisement of minority and low-income
voters that Congress set out to eradicate.”
Implications
The Supreme Court’s decision in Husted upholding the Ohio Supplemental Process for removing names
from the federal voter rolls increases the likelihood that similar laws in other states will likewise be
determined to be in compliance with the federal law. Further, one commentator has opined that Husted
may prompt additional states to enact similar laws, using the Ohio law as a model.
As this case resolved a question of statutory interpretation, Congress could decide to amend the
NVRA in order to clarify further the circumstances under which states may remove the names of
registrants from their voter rolls for federal elections, if it so chooses. For example, a bill
introduced in the 115th Congress before Husted was decided, H.R. 3091, would amend the
NVRA to limit states’ authority to remove the names of registrants from the federal voter
registration rolls on the basis of interstate cross-checks. Further, should Congress decide to
respond directly to the Court’s interpretation of the NVRA in Husted, it could enact legislation
that would, for example, amend the law in such a manner to prohibit a voter roll maintenance
program in which the failure to vote is a factor in initiating the process for removing a
registrant’s name from the voter rolls. More broadly, Congress could enact legislation with the
goal of increasing voter registration rates overall by establishing an automatic voter registration
program for federal elections. For example, S. 2106 would amend the NVRA to require states to
automatically register eligible voters for federal elections at the time they turn 18 years of age.
On the other hand, Congress may choose to maintain the status quo and consequently, let stand
the Court’s interpretation that the Ohio process for federal voter roll maintenance, and similar
state processes, comport with the NVRA.
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Author Information
L. Paige Whitaker
Legislative Attorney
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