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Husted Files Brief in Ohio A. Phillip Randolph Institute Appellate Case

COLUMBUS – Ohio Secretary of State Jon Husted today filed an appellate brief in Case Number 16-3746, Ohio A. Phillip Randolph Institute v. Jon Husted in his official capacity as the Ohio Secretary of State.  

Plaintiffs are seeking to overturn a recent ruling by U.S. District Court Judge George Smith that upheld Ohio’s decades-long process used for maintaining the voter rolls that is also part of a settlement agreement in the same district court. You can read Judge Smith’s decision here and you can read the settlement agreement here.

“The law is clear and the recent ruling by a federal judge is clear. The way Ohio has maintained its voter rolls for more than 20 years is constitutional and fully complies with state and federal laws,” Secretary Husted said. “While plaintiffs seem bent on pursuing this wasteful lawsuit, I remain focused on the important work of running elections.”

The following are excerpts from today’s filing:

Appellate Brief, Page 2:
“Ohio follows two general processes…One process, explicitly referenced in the National Voter Registration Act, uses Postal Service data to query those who may have changed addresses…The second—the “Supplemental Process”—queries registrants who have not voted for two years and asks them to confirm their addresses.  It then cancels those registrations if the registrant both does not respond to the query and does not vote (or update a registration) for four years.  This process complies with the National Voter Registration Act, which requires both of those non-actions (not just non-voting alone) before any cancellation.”

Appellate Brief, Page 2:
“The district court agreed, concluding that Ohio’s Supplemental Process “does not violate the [Act],” and “that in fact, the unambiguous text of the [Act] specifically permits it.””

Appellate Brief, Page 3:
“The court’s conclusion is also validated by the Help America Vote Act’s language, which authorizes Ohio’s processes, and reiterates that States may cancel voter registration records so long as they do not do so “solely” for not voting.”

Appellate Brief, Page 3:
“Despite this plain statutory language, the Plaintiffs here (two advocacy groups and one Ohioan) themselves claim the mantle of plain text without bearing the corresponding burden to give that text its ordinary meaning.  They say that, under the National Voter Registration Act, “[f]ailure to vote may not be considered as the basis for initiating the confirmation-and-cancellation process.”…That limitation is nowhere in the Act.  As the district court said, Plaintiffs’ argument “read[s] requirements and language into the [Act] that simply are not there.””

Appellate Brief, Page 38:
“Plaintiffs’ core argument requires adding words or phrases to the Act.  They say that a State must “identify with reasonable accuracy those voters who have changed residence”; “obtain[] objective and reliable evidence, independent of the voter’s failure to vote, that indicates the voter may have moved”; and consider “failure to vote only after independent information indicates a voter may have changed residence”… Or, as they say elsewhere, the Act “requires [use of] government information reliably indicating that a voter has moved.””

Appellate Brief, Page 38:
“None of these phrases is in the Act, meaning that Plaintiff’s cut against the established grain that courts “refrain from reading a phrase into the statute when Congress has left it out,”… and “resist reading words or elements into a statute that do not appear on its face.””

Appellate Brief, Pages 44-45:
“Plaintiffs also point to the position the U.S. Department of Justice has taken in a recent statement of interest…Of course, the plain text makes the Department’s position irrelevant…(“Plaintiffs’ reliance on the Department[‘s] interpretations of the [Act] is misplaced because the Court need not consider those interpretations where the [Act] is clear on its face.”).  Regardless, the Department’s position is entitled to no weight because the Department is not tasked with interpreting the Act.”

Appellate Brief, Page 45:
“Beyond that, the Department has earlier settled a case while allowing a practice that they now say violates the Act.  In 2007, the Department settled litigation with Philadelphia that involved, among other issues, the city’s failure to properly maintain its voter rolls.  The settlement agreement obligated the city to use a process triggered by a registrant “not vot[ing] nor appear[ing] to vote.””

Additional Information:
7/20/16 Secretary of State Appellate Brief
6/29/16 Judge Smith Decision
1/10/14 Judicial Watch Settlement

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