Academic journal article Harvard Law Review

National Voter Registration Act - Statutory Interpretation - Election Law - Husted V. A. Philip Randolph Institute

Academic journal article Harvard Law Review

National Voter Registration Act - Statutory Interpretation - Election Law - Husted V. A. Philip Randolph Institute

Article excerpt

Voter suppression is as American as apple pie. (1) Between the 2012 and 2016 elections, for example, fourteen states enacted laws making it harder for citizens to vote. (2) These laws affect minority voters with particular intensity. (3) Last Term, in Husted v. A. Philip Randolph Institute, (4) the Court upheld an Ohio law that could ultimately allow the state to remove from its voter rolls close to one million registered voters. (5) While cast as a dry exercise in statutory interpretation, Husted is best understood through the lens of the nation's history of race-based voter suppression.

Husted concerned four interlocking provisions of the National Voter Registration Act of 1993 (6) (NVRA). First, section 20507(a) ("subsection (a)") requires states to take "reasonable effort[s] to remove the names of ineligible voters" who have moved, "in accordance with subsections (b), (c), and (d)." (7) Second, section 20507(b) ("subsection (b)," or, the "Failure-to-Vote Clause") imposes two requirements for any system meant to maintain voter lists: the program must be "uniform, nondiscriminatory, and in compliance with the Voting Rights Act," and must not remove any voter "by reason of the person's failure to vote." (8)

Third, section 20507(c) ("subsection (c)") sets forth one way a state may fulfill these obligations. The state may use change-of-address information from the Postal Service to identify voters who may have moved. (9) Once it has this information, the state can use the final provision, section 20507(d) ("subsection (d)"), to send those voters notices requesting they return a pre-addressed, postage-prepaid card on which they can affirm or correct their change of address. (10) If they do not return the card and do not vote in two consecutive general federal elections, they may be removed from the rolls. (11)

Congress amended the NVRA in 2002 with the Help America Vote Act (12) (HAVA). HAVA added the following italicized language to subsection (b), the Failure-to-Vote Clause: no person may be removed from the rolls "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)." (13) HAVA also mandated that states have a system to keep registration rolls updated, and provided that the system, "consistent with the [NVRA]," could remove voters who failed to respond to a notice and did not vote in two consecutive general federal elections--"except that no registrant may be removed solely by reason of a failure to vote." (14)

Since 1994, Ohio has maintained its voter registration rolls using two systems. In addition to the Postal Service method provided in subsection (c), Ohio also uses what it calls the "Supplemental Process." (15) Instead of starting with an indication from the Postal Service that a resident has moved, the Supplemental Process is triggered for anyone who fails to "engage in any voter activity" for two years. (16) Ohio then sends those registered voters notices requiring them to respond with their name, address, and date of birth, as well as a driver's license number or other document confirming identity and address. (17) If recipients do not return the notices and do not vote for the next four years, they are removed from the rolls. (18)

Larry Harmon has lived at the same Ohio address for over fifteen years. (19) He voted in 2004 and 2008 but cast no votes between 2009 and 2014. (20) On Election Day 2015, he returned to the polls, only to find that his registration had been canceled via the Supplemental Process. (21) Harmon, the A. Philip Randolph Institute, and the Northeast Ohio Coalition for the Homeless sued to enjoin the Supplemental Process. (22)

In the District Court, plaintiffs made four claims. First, they argued that the process violated the NVRA because it "remov[ed] voters based on a failure to vote." (23) The court rejected this argument, explaining that voters were removed only if they failed to vote and failed to respond to a notice. …

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