Husted v. A. Philip Randolph Institute
138 S.Ct. 1833 (2018)
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Rule of Law:
A state's process for removing voters from registration rolls does not violate the National Voter Registration Act's (NVRA) Failure-to-Vote Clause if it uses a registered voter's failure to vote as a trigger to send a confirmation notice, and then removes that voter only if they fail to respond to the notice and also fail to vote for an additional, statutorily defined period. The NVRA only prohibits removing a voter solely for their failure to vote.
Facts:
- Ohio law requires that voters must reside in the district in which they are registered to vote.
- To maintain accurate voter rolls, Ohio implemented a "Supplemental Process" to identify registered voters who may have moved out of their district.
- Under this process, if a registered voter does not engage in any "voter activity," such as casting a ballot or signing a petition, for a two-year period, Ohio sends them a preaddressed, postage-prepaid return card.
- This card asks the voter to confirm their current address.
- If the voter does not return the card and also fails to vote in any election for an additional four-year period (which includes two federal general elections), Ohio removes their name from the voter registration list.
Procedural Posture:
- The A. Philip Randolph Institute and other plaintiffs sued Jon Husted, Ohio's Secretary of State, in the U.S. District Court, seeking to enjoin Ohio's Supplemental Process.
- The District Court, a federal trial court, granted judgment for the Secretary of State, holding the process was lawful under the NVRA.
- The plaintiffs, as appellants, appealed to the U.S. Court of Appeals for the Sixth Circuit, an intermediate federal appellate court.
- A divided panel of the Sixth Circuit reversed the District Court's decision, finding that Ohio's process violated the NVRA's Failure-to-Vote Clause.
- Jon Husted, the petitioner, successfully sought a writ of certiorari from the U.S. Supreme Court, the nation's highest court.
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Issue:
Does Ohio's voter-roll maintenance process, which uses a registrant's failure to vote for two years as a trigger to send a confirmation notice and then removes them if they fail to respond to the notice and fail to vote for four more years, violate the National Voter Registration Act's prohibition on removing voters "by reason of the person's failure to vote"?
Opinions:
Majority - Justice Alito
No. Ohio's process does not violate the National Voter Registration Act's (NVRA) Failure-to-Vote Clause because it does not remove registrants solely for their failure to vote. The Court interpreted the phrase "by reason of the person’s failure to vote" to prohibit removal only when non-voting is the sole cause. This interpretation is reinforced by the Help America Vote Act (HAVA), which explicitly states that "no registrant may be removed solely by reason of a failure to vote." Ohio's process requires two conditions for removal: (1) the failure to respond to the confirmation notice and (2) the failure to vote during the subsequent four-year period. Since failure to vote is not the sole criterion, but rather one of two factors, the process is permissible under the NVRA. Using an initial period of non-voting as a trigger to send the confirmation notice is not prohibited by the statute.
Concurring - Justice Thomas
No. The Court's interpretation is correct, and an alternative reading that would prohibit Ohio's process would raise serious constitutional doubts. The Constitution grants states the authority to set voter qualifications, including residency, and to enforce them. To interpret the NVRA as preventing states from using a voter's record of non-voting as evidence of a change in residence would unconstitutionally interfere with this core state power. The Court's reading properly avoids this constitutional conflict.
Dissenting - Justice Breyer
Yes. Ohio’s process violates the NVRA because a registrant's failure to vote is the sole trigger that initiates the removal process. The subsequent failure to return a mailed notice is not an independent, meaningful cause for removal, as it is a common human tendency to discard such mailings, whether one has moved or not. Therefore, the non-voting is the true "reason" for removal, which the Failure-to-Vote Clause expressly forbids. The majority's interpretation effectively renders the Failure-to-Vote Clause superfluous, as another provision of the NVRA already allows removal for failing to respond to a notice combined with not voting.
Dissenting - Justice Sotomayor
Yes. Ohio's process is illegal, and the majority's decision ignores the historical context of voter suppression that the NVRA was enacted to combat. Congress passed the NVRA specifically to counteract state practices, like voter purges based on non-voting, that were used to disenfranchise low-income and minority voters. Ohio’s process disproportionately impacts these same communities and undermines the statute’s essential purpose of enhancing voter participation. The Court's interpretation sanctions the very type of purging system Congress sought to eliminate.
Analysis:
This decision significantly clarifies the scope of the NVRA's "Failure-to-Vote Clause," validating state list-maintenance programs that use non-voting as an initial trigger for inquiry. It interprets the statutory prohibition narrowly, affording states considerable latitude to clean their voter rolls so long as non-voting is not the sole factor for removal. The ruling empowers states to use more aggressive methods to identify and remove voters suspected of having moved, which supporters argue improves election integrity but which critics contend risks disenfranchising eligible but infrequent voters.
