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U.S. Department of Justice, Former U.S. Department of Justice Civil Rights Division Attorneys, 17 States and Advocacy Groups Stand with Secretary Husted in Defense of Ohio’s Voter Roll Maintenance Process

COLUMBUS - The U.S. Department of Justice, former U.S. Department of Justice Civil Rights Division attorneys, attorneys general from 17 different states, and advocacy groups today joined Ohio Secretary of State Jon Husted in urging the U.S. Supreme Court to uphold each state’s authority to maintain an accurate and up-to-date statewide database of registered voters.

“This case is about maintaining the integrity of our elections, something that will be harder to do if elections officials are not able to properly maintain the voter rolls,” Secretary Husted said. “I welcome the support of these federal officials, state officials, and advocacy groups who filed with the U.S. Supreme Court to uphold Ohio’s process – a process that has been in place for more than two decades and administered the same way by both Republican and Democrat secretaries of state.”

In their amicus brief with the U.S. Supreme Court in support of Secretary Husted’s recent appeal of a Sixth Circuit Court of Appeals’ decision in Husted v. A. Phillip Randolph Institute, the U.S. Department of Justice stated: 

“In the 15 years since HAVA’s enactment, the Department of Justice has not taken enforcement action against Ohio or the other States that send Section 20507(d)(2) notices based on nonvoting. But the Department argued that the NVRA forbids that practice in a guidance document first issued in 2010 and in two recent amicus filings, including a brief filed in the court of appeals in this case. After this Court’s grant of review and the change in Administrations, the Department reconsidered the question. It has now concluded that the NVRA does not prohibit a State from using nonvoting as the basis for sending a Section 20507(d)(2) notice. That conclusion is supported by the NVRA’s text, context, and history. It is also faithful to the careful balance that Congress struck in the NVRA and clarified in HAVA.” (Pages 13-14)

Also filing an amicus brief were former U.S. Department of Justice Civil Rights Division attorneys. An excerpt from their brief states:

“The Sixth Circuit erred, and its error warrants this Court’s correction. The text, structure, and history of the NVRA all point in the same direction: the NVRA requires the states to send notices before removing voters for changing residences. But it does not regulate the “triggers” for those notices. In fact, amici helped the Justice Department negotiate settlements with localities in Pennsylvania, Indiana, and Arkansas that required a notice procedure indistinguishable from Ohio’s Supplemental Process. The decision below directly contradicts this history of federal enforcement. And it deprives the states of an important tool in combatting bloated voter rolls.” (Page 5)

The 17 state attorneys general that filed a joint amicus brief today include Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Michigan, Missouri, Montana, Nevada, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia. Their brief stated in part:

“States with finite resources need targeted, efficient ways to remove ineligible voters while ensuring that they keep eligible voters on the list. Relying on change-of-address data from the U.S. Postal Service is one way, but using that data alone certainly will leave many ineligible voters on states’ lists; after all, a great many people do not notify the Postal Service when they move. States could hypothetically send mass mailings to all voters, but this approach could be prohibitively expensive. Thus, many states require or permit list-maintenance processes similar to Ohio’s, which begins an address confirmation procedure the NVRA expressly permits by sending confirmation notices only to voters who have had no contact with elections officers for some time. The amici States believe this process and others like it are accurate, cost-effective, and permissible means of carrying out their list-maintenance obligations under the NVRA.” (Pages 1-2)

In addition to the U.S. Department of Justice, former U.S. Department of Justice Civil Rights Division attorneys and 17 state attorneys general, several advocacy organizations also joined Ohio in the appeal, which include the American Civil Rights Union, Buckeye Institute, Landmark Legal Foundation, and Eagle Forum Education & Legal Defense Fund. In general, they argue in their amicus briefs that in order to preserve the integrity of elections in Ohio and throughout the country, each state must ensure voter rolls are accurate and updated.

American Civil Rights Union Brief: “Ohio does not remove any registrants “solely by reason of a failure to vote.” Rather, registrants are removed only if they “(1) do not respond to the confirmation notice or update their registration; and (2) do not subsequently vote during a period of four consecutive years that includes two federal elections.” In other words, Ohio’s Supplemental Process expressly tracks what is permissible under the NVRA.” (Pages 5-6)

Judicial Watch Brief: “Reversing the Sixth Circuit’s decision will restore the meaning and efficacy of the NVRA. The correct interpretation of Section 8 of that statute has significant consequences for the State and people of Ohio, for the states whose current or contemplated statutes are placed at risk by the Sixth Circuit’s decision, for Judicial Watch, and for the people of the United States, who share a common interest in electoral integrity.” (Page 18)

Buckeye Institute Brief: “If the NVRA is construed to prohibit Ohio’s practice of sending confirmation notices to verify the residency of inactive voters, then the state’s ability to enforce its residency requirement will be severely impaired. For example, it would be quite ineffective for the state to rely on the confirmation process that the plaintiffs have proposed here. Under that process, the state would send an initial round of mailings to all registered voters, and would then send confirmation notices only to the addresses of mailings that “bounced back.” This method is highly unreliable because in many cases, new residents who receive mail addressed to a prior occupant will simply discard it instead of taking the trouble to “return to sender.”” (Pages 8-9)

Landmark Legal Foundation Brief: “What is at issue in this appeal is Ohio’s second method of verifying whether or not voters have moved from their voting district of registration. This is referred to as the “supplemental method.” It is used because it is known that some persons, including some voters, move without notifying the Postal Service and other official sources of address information. It is folly to assume that all voters notify official agencies when they move. By the supplemental method, Ohio addresses this situation by using a voter’s lack of voting activity in the county where he is registered as the impetus for initiating the procedure to determine whether that voter should remain on a particular voter roll. Exactly like the “safe harbor method,” the “supplemental method” includes a notice and opportunity for the voter to respond. Amici respectfully contend that the “supplemental method” is equally compliant with the NVRA and HAVA.” (Page 7)

Eagle Forum Education & Legal Defense Fund Brief: “In context, it appears that Congress was aware of the states’ roll- maintenance procedures and prohibited only the no-notice culling practiced by a small minority of states, rather than the notice-based culling required by NVRA (and practiced by a majority of states)[.]” (Pages 17-18)

Copies of the briefs, which were filed Monday, are available via the links below.

U.S. Department of Justice Amicus Brief
State Attorneys Generals Amicus Brief
Former Attorneys of the Civil Rights Division of the U.S. Department of Justice Amicus Brief
American Civil Rights Union Amicus Brief
Judicial Watch Amicus Brief
Buckeye Institute Amicus Brief
Landmark Legal Amicus Brief
Eagle Forum Education & Legal Defense Fund Amicus Brief

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