[EL] Questions about Husted decision - longish email (ignore if not interested)

Lorraine Minnite lminnite at gmail.com
Wed Jun 13 12:26:30 PDT 2018 

Seeking clarification and the thoughts of the eminent legal thinkers on
this list:

1. The majority in *Husted *argues, essentially, that a "lack of voter
activity" can be interpreted by state elections officials as evidence of
moving out of the jurisdiction in which one is registered to vote.  Once
the "lack of voter activity" is magically transformed into potential
evidence of a move out of the jurisdiction, Ohio, the Court notes, follows
federal law (the NVRA and HAVA) in its "Supplemental Process" for
confirming the evidence of a move:

A. "...Ohio sends notices to registrants who have 'not engage[d] in any
voter activity for a period of two consecutive years.' Id., at 1509." (p. 6)

B. "After sending these notices, Ohio removes registrants form the rolls
only if they 'fai[l] to respond' and 'continu[e] to be inactive for an
additional period of four consecutive years, including two federal general
elections." (p. 7)

I want to focus not on what I understand to be the main issue in this case
- whether a failure to vote can trigger a residency confirmation process -
but on a different issue, the confirmation postcard mailing itself.

*Question 1: How is Ohio's Supplemental Process for identifying movers for
purposes of purging them from its voter rolls "uniform, nondiscriminatory
and in compliance with the Voting Rights Act," as required by the NVRA, if
the confirmation mailings are sent not to all registered voters (meeting a
clear definition of what constitutes uniform and nondiscrimantory), but
only to people who demonstrate a "lack of voter activity," or meet one of
three other specific conditions (NCOA suggests a move; an 'Acknowledgment'
mailing is returned undeliverable; and matching to SSA records fail; see p.
3-3,
https://www.sos.state.oh.us/globalassets/elections/directives/2017/dir2017-12_eom_ch_03.pdf
<https://www.sos.state.oh.us/globalassets/elections/directives/2017/dir2017-12_eom_ch_03.pdf>)?*

Isn't Ohio discriminating against eligible and registered non-movers - who
are not compelled by the NVRA to confirm their address after an election in
which they did not vote - when it erroneously interprets their non-return
of its Confirmation Notice (see here for Form 10-S-1:
https://www.sos.state.oh.us/globalassets/elections/forms/10-S-1.pdf) as
evidence that such registered voters have likely moved?  That is to say,
through its list maintenance/voter purge procedures, Ohio appears to treat
eligible registered voters differently depending on whether they voted or
not in a recent election.  Non-voters trigger a list maintenance procedure
that can result in a heavy loss of civil rights - possible disfranchisement
- for reasons having nothing to do with voter eligibility, whereas voters
are left alone.  One could argue that given the multitude of reasons why a
legally registered voter in Ohio might not return a mailing from the
Secretary of State, interpreting the non-return as evidence of move when
the stakes are so high is an irrational exercise of state authority.

*Question 2: In its efforts to comply with the NVRA's requirement that
change-of-residency must be verified by the voter, why does Ohio or any
other state require NON-movers to confirm that they have not moved?*  I
don't see anything in the language of the law that requires a State to ever
require non-movers to confirm their residency, nor do I see where the law
compels a State to interpret the non-return of a residency confirmation
mailing as evidence that a non-mover has moved.  It seems to me that the
relevant language in the NVRA, what the Court in *Husted* refers to as
Subsection (d), would allow for non-return of the confirmation mailing or
postcard sent to suspect "lack of voter activity" movers - who as I
understand Ohio's Supplemental Process, are the only registered voters
subject to the Supplemental Process - to serve as evidence of a move by
people who actually moved, but does not require that the non-return be
interpreted as evidence of a move by people who did not move.

In other words - would Ohio meet the letter of the NVRA law if through its
Supplemental Process the postcards it sends out to suspect movers simply
required only actual movers to confirm their move?  Couldn't the potential
harm to eligible voters be avoided if only movers were required to confirm
their move, and non-movers were held harmless and not required to confirm
that they did not move?  The federal law requires these mailings be sent
"by forwardable mail," which suggests lawmakers intended them to reach
movers, which is consistent with one of the reasons why voters may be
purged under the NVRA - because they have confirmed in writing that they
have moved.

For support for my theory, I point to two sections of the NVRA's Subsection
(d), which begins, "Removal of Names From Voting Rolls.-(1) A State shall
not remove the name of a registrant from the official list of eligible
voters in elections for Federal office on the ground that the registrant
has changed residence unless the registrant - (A) confirms in writing that
the registrant has changed residence to a place outside the registrar's
jurisdiction in which the registrant is registered..." And here it seems
clear that the registrant to which this rule applies is one who has changed
residence.  "...or (B)(i) has failed to respond to a notice described in
paragraph (2)..."  I think it is reasonable to deduce that because the NVRA
explicitly articulates a limited number of reasons why a name may be purged
from state voting rolls, only movers should be required to confirm their
move; non-movers are not required to confirm a non-move because non-moving
is not one of the reasons why a voter can be removed from the rolls - more
on this idea below.

Paragraph (2) describes the confirmation notice this way: "A notice is
described in this paragraph if it is a postage prepaid and pre-addressed
return card, sent by forwardable mail, on which the registrant MAY (my
emphasis) state his or her current address, together with a notice to the
following effect: (A) If the registrant DID NOT change his or her residence
[my emphasis] but remained in the registrar's jurisdiction, the registrant
SHOULD [note: should, not 'must'] return the card not later than the time
provided for mail registration under subsection (a)(1)(B).  If the card is
not returned, affirmation or confirmation of the registrant's address MAY
BE [again, my emphasis] required before the registrant is permitted to vote
in a Federal election beginning on the date of the notice and ending on the
day after the second general election for Federal office that occurs after
the date of the notice..."

I note that this section goes on state that, "if the registrant does not
vote in an election during that period the registrant's name WILL BE
removed from the list of eligible voters."  I assume this mandate applies
to the category of people discussed in the paragraph - the non-movers who
SHOULD return their confirmation postcards, where they MAY state their
current address, and MAY BE required to affirm or confirm their address the
next time they vote during the inactive window of two subsequent federal
elections.  However, the definitive 'will be removed' stands in contrast to
apparently optional behavior and treatment of non-movers who should have
returned their confirmation postcards but didn't. I think there is enough
optional behavior allowed for an alternative interpretation of how
non-movers get funneled into 'inactive' status to suggest that the 'will be
removed' condition applies to those who are truly inactive because they
actually have moved but have not confirmed their move - not necessarily to
those who have not moved and also not confirmed that they have not moved.

*It seems to me a State could meet the letter of the NVRA if it only
required only movers to return the postcard since 1) the law requires the
mailing be forwardable (meaning lawmakers wanted it to go to movers), and
2) non-movers only SHOULD and not MUST return the card.*  Moreover, the
NVRA's Subsection (e) Procedure for Voting Following Failure to Return
Card, (3) suggests that Congress did not want the failure to return a
confirmation notice by NON-MOVERS to be grounds for disfranchisement.  It
states, "If the registration records indicate that a registrant has moved
from an address in the area covered by a polling place, the registrant
shall, upon oral or written affirmation by the registrant before an
election official at that polling place that the registrant continues to
reside at the address previously made known to the registrar, be permitted
to vote at that polling place."

Any thoughts?  Couldn't Ohio demonstrate a good faith effort to avoid
causing eligible registered voters who have not moved harm by requiring
only those voters suspected of moving (due to non-voting), WHO ACTUALLY
MOVED, to return the confirmation postcard?  I don't see where the NVRA
requires states to interpret non-return of the confirmation postcard as
enough evidence of a move such that the removal process provided for in the
law is triggered.  In fact, my proposal to require only movers to confirm
that they moved out of their voting jurisdictions conforms to the plain
language of the NVRA (Subsection (d)(A) allowing for removal of names from
the voter rolls for those voters who "confir[m] in writing that the
registrant has changed residence to a place outside the registrar's
jurisdiction in which the registrant is registered...")  Non-return would
not be interpreted at all - it would mean voters may or may not have gotten
the mailing.  At the same time, the data generated by the postcard
confirmation process would be much more accurate, if still incomplete.
Requiring only movers to return the postcards would mean that returned
postcards confidently serve as evidence of ineligibility.  Non-movers are
protected and movers who fail to return the card are the ones who
potentially are harmed if their failure (alone) results in them remaining
on the voting rolls at the wrong address.  For example, in Ohio, if they
remain on the rolls while exercising voting rights in another state, they
lose their residency status in Ohio (3503.02(H) states, "If a person goes
into another state and while there exercises the right of a citizen by
voting, the person shall be considered to have lost the person's residence
in this state.").  There could be other penalties.

Please, save for later the issue of the potential for voter fraud if a
mover remains on the rolls  - I'm exhausted!!

Lori Minnite


>
> Ohio’s Voter Purge Law Has Been in Place for 24 Years
> <http://electionlawblog.org/?p=99500>
>
> Posted on June 12, 2018 2:46 pm <http://electionlawblog.org/?p=99500> by *Richard
> Pildes* <http://electionlawblog.org/?author=7>
>
> Surprised to learn that?  I know I was.  I discovered that from Justin
> Levitt’s blog post, here
> <https://acslaw.org/acsblog/voter-registration%E2%80%99s-disappointing-day-at-the-court>,
> which says:
>
> *This is not a new piece of voter suppression devised by current elections
> officials: Ohio put the process in place 24 years ago, and it has been
> implemented by both Rs and Ds.*
>
> That sent me back to the plaintiff’s brief, which indeed complains about
> Ohio “retaining” this system, not about Ohio’s adoption of this system. Nor
> is there any claim I could see that Ohio has suddenly started enforcing
> this system more aggressively.  Indeed, Justin’s criticism is that in the
> last 24 years, more effective means of maintaining accurate lists have been
> developed.
>
> None of this affects the issue of what the proper interpretation of the
> statute is.  But if the media coverage of this case has left you with the
> impression this was a recently enacted law, that’s wrong.
>
> [image: Share]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99500&title=Ohio%E2%80%99s%20Voter%20Purge%20Law%20Has%20Been%20in%20Place%20for%2024%20Years>
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
>
>
>
> “Voter Registration’s Disappointing Day at the Court”
> <http://electionlawblog.org/?p=99498>
>
> Posted on June 12, 2018 11:38 am <http://electionlawblog.org/?p=99498> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Justin Levitt for ACS
> <https://acslaw.org/acsblog/voter-registration%E2%80%99s-disappointing-day-at-the-court> on
> the Husted decision.
>
> [image: Share]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99498&title=%E2%80%9CVoter%20Registration%E2%80%99s%20Disappointing%20Day%20at%20the%20Court%E2%80%9D>
>
> Posted in NVRA (motor voter) <http://electionlawblog.org/?cat=33>, Supreme
> Court <http://electionlawblog.org/?cat=29>
>
>
>
>
> “Republicans show they don’t trust the voters”
> <http://electionlawblog.org/?p=99492>
>
> Posted on June 12, 2018 10:32 am <http://electionlawblog.org/?p=99492> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Jennifer Rubin column
> <https://www.washingtonpost.com/blogs/right-turn/wp/2018/06/12/republicans-show-they-dont-trust-the-voters/?utm_term=.07a0fdb626e2> for
> WaPo:
>
> *President Trump tweeted triumphantly on Monday, “Just won big Supreme
> Court decision on Voting! Great News!” The great news in his book is a 5-4
> decision allowing Ohio to remove people from the voting rolls who haven’t
> voted in every election. Specifically, if they haven’t voted in two years,
> they get a postcard in the mail, and if they don’t respond, they have four
> more years to vote. Then they are taken off the rolls.*
>
> *What if they throw away the postcard thinking it is junk mail? Too bad.
> What if for six years they cannot find someone worth voting for? Too bad.
> Off they go. You would think the Trump administration and the five
> conservative justices didn’t want just anyone who wishes to vote to be
> allowed to do so.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99492&title=%E2%80%9CRepublicans%20show%20they%20don%E2%80%99t%20trust%20the%20voters%E2%80%9D>
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
>
>
>
>
> Ron Klain on President Trump’s Celebration of “Victory” in Ohio Voter
> Purge Case <http://electionlawblog.org/?p=99486>
>
> Posted on June 12, 2018 7:55 am <http://electionlawblog.org/?p=99486> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> View image on Twitter
> <https://twitter.com/RonaldKlain/status/1006376230399152128/photo/1>
>
> [image: View image on Twitter]
> <https://twitter.com/RonaldKlain/status/1006376230399152128/photo/1>
>
> [image:
> https://pbs.twimg.com/profile_images/467404554493894656/6GSI0IXc_bigger.jpeg]
> <https://twitter.com/RonaldKlain>
>
> <https://twitter.com/RonaldKlain>
>
> *Ronald Klain <https://twitter.com/RonaldKlain>*
>
> *✔@RonaldKlain <https://twitter.com/RonaldKlain>*
>
>
>
> <https://twitter.com/RonaldKlain/status/1006376230399152128>
>
>
>
> Our is the only democracy in the world that celebrates, as clever tactics,
> excluding people from voting. We don't even pretend that the choice of the
> people should win: we accept that a candidate can win by denying the vote
> to millions.
>
> 8:22 PM - Jun 11, 2018
> <https://twitter.com/RonaldKlain/status/1006376230399152128>
>
> ·         <https://twitter.com/intent/like?tweet_id=1006376230399152128>
>
> 1,313 <https://twitter.com/intent/like?tweet_id=1006376230399152128>
>
> ·         <https://twitter.com/RonaldKlain/status/1006376230399152128>
>
> 889 people are talking about this
> <https://twitter.com/RonaldKlain/status/1006376230399152128>
>
> Twitter Ads info and privacy
> <https://support.twitter.com/articles/20175256>
>
>
>
> [image: Share]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99486&title=Ron%20Klain%20on%20President%20Trump%E2%80%99s%20Celebration%20of%20%E2%80%9CVictory%E2%80%9D%20in%20Ohio%20Voter%20Purge%20Case>
>
> Posted in fraudulent fraud squad <http://electionlawblog.org/?cat=8>
>
>
>
>
> “Fraud Fiction Becomes Purge Reality”
> <http://electionlawblog.org/?p=99484>
>
> Posted on June 12, 2018 7:49 am <http://electionlawblog.org/?p=99484> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Dahlia Lithwick
> <https://slate.com/news-and-politics/2018/06/supreme-court-husted-decision-will-disenfranchise-minority-and-low-income-voters.html> for
> Slate.
>
> [image: Share]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99484&title=%E2%80%9CFraud%20Fiction%20Becomes%20Purge%20Reality%E2%80%9D>
>
> Posted in NVRA (motor voter) <http://electionlawblog.org/?cat=33>, The
> Voting Wars <http://electionlawblog.org/?cat=60>
>
>
>
>
> “The Supreme Court Blesses Voter Purges”
> <http://electionlawblog.org/?p=99482>
>
> Posted on June 12, 2018 7:47 am <http://electionlawblog.org/?p=99482> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Smart Garrett Epps
> <https://www.theatlantic.com/politics/archive/2018/06/the-supreme-court-blesses-voter-purges/562589/>in
> the Atlantic.
>
> [image: Share]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D99482&title=%E2%80%9CThe%20Supreme%20Court%20Blesses%20Voter%20Purges%E2%80%9D>
>
> Posted in NVRA (motor voter) <http://electionlawblog.org/?cat=33>, Supreme
> Court <http://electionlawblog.org/?cat=29>
>
>
>
>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
>
>
>
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> d in NVRA (motor voter) <http://electionlawblog.org/?cat=33>, The Voting
> Wars <http://electionlawblog.org/?cat=60>
>
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