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Fifteen states have filed an amicus curiae (“friend of the court”) brief in the U.S. Supreme Court asking it to hear a case in order to clarify if and how states may use evidence of non-voting as a factor in removing voters from the rolls.
The question stems from an Ohio case I wrote about last April. There, plaintiffs challenged the state’s “supplemental process” for list maintenance, which uses failure to vote over a two-year period as a trigger for mailings seeking confirmation that the voter still wishes to vote. The allegation is that the use of non-voting as a trigger violates the National Voter Registration Act (NVRA), which expressly prohibits the removal of voters simply for failure to vote.
That argument failed to persuade the trial court to block the law, but last September a panel of the federal Sixth Circuit Court of Appeals voted 2-1 to direct the lower court to hear the case, finding that the use of non-voting as a trigger should be understood as “resulting” in a voter’s removal for failure to vote. Ohio has petitioned the U.S. Supreme Court to hear the case.
The amicus brief – filed last Friday by the state of Georgia and 14 other states (Alaska, Idaho, Kansas, Louisiana, Michigan, Missouri, Montana, Nevada, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and West Virginia) asks the Court to hear the case and clarify whether use of non-voting data as a trigger violates the NVRA. First, amici argue that prohibiting the practice exposes the states to more litigation:
[T]he question presented will tax the States until the Court answers it. In the last five years, advocacy groups have sued at least nine separate governmental entities for failing to adequately maintain their voter-registration lists. But in just the last two years, other advocacy groups have sued Ohio and Georgia for employing list-maintenance programs that allegedly use failure-to-vote data to trigger [list maintenance] , and have threatened to sue other States that employ similar procedures. These suits—and their conflicting allegations of voter fraud and voter removal—have taxed the States. They have presented real dollar costs to the States, which have been forced to defend themselves from attacks on two fronts. And they have received substantial media coverage, which has undermined the public’s confidence in our electoral process.
Moreover, the States face a real threat of additional litigation. Those States that fail to adequately maintain their voter-registration lists will eventually be embroiled in litigation. But those States that use failure-to-vote data to trigger [list maintenance] face a more immediate threat: The court of appeals’ decision will now be used against them. [pp. 5-6, footnotes/citations omitted]
They also argue that the Court of Appeals’ opinion is wrong with respect to failure to vote data and the NVRA because it misapplies the word “result”:
Ohio’s list-maintenance process does not “result in” (i.e., cause or produce) the removal of a person’s name from the official list of voters “by reason of ” (i.e., as a proximate cause of ) that person’s failure to vote. Removal is not, for instance, directly related to a person’s failure to vote, because it is more closely related to and purely contingent upon a person’s failure to respond to the address-confirmation notice sent as part of the Confirmation Procedure. A person’s failure to respond to the address-confirmation notice is, in other words, the immediate and nearest antecedent of removal, and a person’s failure to vote is in any event not the sole proximate cause of removal. [pp. 13-14][emphasis in original]
While it’s worth noting that all 15 state amici, like Ohio, have Republican chief state election officials – and thus a point of view on voter list maintenance that may be in conflict with others, including their Democratic counterparts – this is still an important issue needing clarification. Plaintiffs, and some other states, agree with the appeals court that using non-voting data to trigger confirmation mailings as part of list maintenance programs violates the law – but having clarity from the Supreme Court would likely go a long way in helping states nationwide structure their processes. Either way, what the Court decides (or lets stand by not deciding) is likely to have significant impact on states’ voter roll maintenance.
There are more briefs to be filed in this case, and it’s far from certain that the Court will take it, let alone what it might decide. But it’s definitely an issue worth watching as we move further into 2017 and closer to another federal election year in 2018. Stay tuned …