Johnson v. Seaboard Coastline Railroad Company Brief and Appendix for Appellants

    No. 16-980

I n  T h e

rnpreme Court of tfje fHmteb i£>tate£

J o n  H u s t e d , O h io  S e c r e t a r y  o f  S t a t e ,

Petitioner,
v.

A. P h il ip  R a n d o l p h  I n s t it u t e , N o r t h e a s t  O h io  
C o a l it io n  f o r  t h e  H o m e l e s s , a n d  L a r r y  H a r m o n ,

Respondents.

O n  W r it  O f  C e r t io r a r i T o  T h e  U n it e d  S t a t e s  
C o u r t  O f  Ap p e a l s  F o r  T h e  S ix t h  C ir c u it

BRIEF OF NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AND 

THE LEADERSHIP CONFERENCE ON CIVIL AND 
HUMAN RIGHTS AS AMICI CURIAE IN SUPPORT 

OF RESPONDENTS

S h e r r il y n  A. I f il l
Director-Counsel

J a n a i S. N e l s o n  
Sa m u e l  S p it a l  
L e a h  C. Ad e n  
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street, FI. 5

T h o m a s  M . B o n d y  
Counsel of Record 

Orrick, Herrington & 
Sutcliffe LLP 

1152 15th Street, NW 
Washington, DC 20005 
(202) 339-8400 
tbondy@orrick.com

New York, NY 10006
Counsel for Amici Curiae 

(Additional Counsel Listed on Inside Cover)

mailto:tbondy@orrick.com


Additional Counsel for Amici Curiae 

J o h n  P a u l  S c h n a p p e r - K h a i  L e Q u a n g

Casteras
NAACP Legal Defense & 

Educational Fund, Inc. 
1444 I Street, NW 
Washington, DC 20005

Melanie D. Phillips 
Emily K. Brown 
Ethan M. Scapellati 
Orrick, Herrington & 

Sutcliffe LLP 
2050 Main Street, 

Suite 1100 
Irvine, CA 92614

Kristina P ieper 
Trautmann 

Daniel Robertson 
Orrick, Herrington & 

Sutcliffe LLP 
51 West 52nd Street 
New York, NY 10019



1

TABLE OF CONTENTS

P age
TABLE OF AUTHORITIES......................................... ii

INTEREST OF AMICI CURIAE ...................   1
INTRODUCTION AND SUMMARY OF

ARGUMENT ............   3
ARGUMENT...................................... ...........................7

I. The Court Should Embrace The
Departm ent Of Justice’s Longstanding 
Prior Position That Voter Inactivity 
Cannot Permissibly Trigger The 
Removal Of A Voter Under The NVRA 
And HAVA.........................................................7
A. The Departm ent’s Original 

Position In This Case Has 
Prevailed For More Than Two 
Decades And Comports With 
The Letter And Spirit Of The
NVRA And HAVA................................. 8

B. The Departm ent Offers No 
Meaningful Basis For Its
Reversal In Position...........................13

C. The Departm ent’s New 
Ideologically Motivated Position 
Should Carry No Weight With
This Court...........................................  19

CONCLUSION.............................................................. 26



TABLE OF AU TH ORITIES
Page(s)

F e d e ra l C ases

Ala. Legis. Black Caucus v. Alabama,
135 S. Ct. 1257 (2015)................................................1

Allen v. State Bd. of Elections,
393 U.S. 544 (1969)...................... ...........................19

Arizona v. Inter Tribal Council of 
Ariz., Inc.,
133 S. Ct. 2247 (2013)............................................... 1

Bates v. Dow Agrosciences LLC,
544 U.S. 431 (2005).................................................. 21

Beer v. United States,
425 U.S. 130 (1976).................................................... 2

Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204 (1988).................................................. 21

Bush v. Vera,
517 U.S. 952 (1996).....................................   1

Chisom v. Roemer,
501 U.S. 380 (1991).................................................... 2

Dunn v. Blumstein,
405 U.S. 330 (1972)...................... .................... 11, 16

Easley v. Cromartie,
532 U.S. 234 (2001).................................................... 1

ii



iii

Evenwel v. Abbott,
136 S. Ct. 1120 (2016).... ...........................................1

Georgia v. Ashcroft,
539 U.S. 461 (2003)......................... ....... .................. 1

Gomillion v. Lightfoot,
364 U.S. 339 (I960)......................................... ......... 2

Good Samaritan Hosp. v. Shalala,
508 U.S. 402 (1993)........................................... 13, 21

Hous. Lawyers’A ss’n u. Attorney 
Gen. of Tex.,
501 U.S. 419 (1991).................. .................................2

I.N.S. v. Cardoza-Fonseca,
480 U.S. 421 (1987).......................... .......................21

Kirksey v. Bd. of Supervisors of Hinds Cty.,
554 F.2d 139 (5th Cir. 1977).................................... 2

League of United Latin Am..
Citizens v. Clements,
999 F.2d 831 (5th Cir. 1993).................................... 2

League of United Latin Am.
Citizens v. Perry,
548 U.S. 399 (2006)..................................................1

Levin v. United States,
568 U.S. 503 (2013)...........................................20, 21

Morse v. Republican Party of Va.,
517 U.S. 186 (1996).................................... ......... ...19



IV

Nw. Austin  Mun. Util. Dist. No.
One v. Holder,
557 U.S. 193 (2009)................... .................................1

Obergefell v. Hodges,
135 S. Ct. 2584 (2015).......................................13, 14

Sandifer v. U.S. Steel Corp.,
678 F.3d 590 (7th Cir. 2012)........................ ....14, 22

Schnell u. Davis,
336 U.S. 933 (1949).................................................... 2

Scott v. Schedler,
771 F.3d 831 (5th Cir. 2014).................................... 2

Shaw v. Hunt,
517 U.S. 899 (1996)......................... ..........................1

Shelby Cty. v. Holder,
133 S. Ct. 2612 (2013)............................................... 1

Sm ith v. Allwright,
321 U.S. 649 (1944)..........................   2

Terry v. Adams,
345 U.S. 461 (1953).................................................... 2

Thornburg v. Gingles,
478 U.S. 30 (1986).......................................................2

U.S. Student A ss’n Found, v. Land,
546 F.3d 373 (6th Cir. 2008).............................. ....10

United States v. Hays,
515 U.S. 737 (1995).................................................... 2



United States v. Smith,
499 U.S. 160 (1991)..................................................21

Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016).................................. 24

Veasey u. Abbott,
No. 2:13-cv-193, 2017 U.S. Dist. LEXIS 
54253, (S.D. Tex. Apr. 10, 2017).......................... 24

Watt v. Alaska,
451 U.S. 259 (1981).................................................. 21

Welker v. Clarke,
239 F.3d 596 (3d Cir. 2001)................................... 12

White v. Regester,
422 U.S. 935 (1975).................................................... 2

Yick Wo v. Hopkins,
118 U.S. 356 (1886)..............  1

Zimmer u. McKeithen,
485 F.2d 1297 (5th Cir. 1973)......................... ........ 2

F e d e ra l S ta tu te s

52 U.S.C. § 20501(b)(1)................................................ 14

52 U.S.C. § 20501(b)(2)................................................ 14

52 U.S.C. § 20501(b)(3)................................................ 15

52 U.S.C. § 20501(b)(4).................................................15

52 U.S.C. § 20510............................................................ 7

V



VI

52 U.S.C. § 21083(a)(2)(A)(i)..........................................4

52 U.S.C. § 21111.......... ............................ ......................7

Help America Vote Act of 2002, Pub. L. No.
107-252, 116 Stat. 1666 (52 U.S.C.
20901 (Supp. I ll  2015))........... ...................... passim

National Voter Registration Act of 1993,
Pub. Law No. 103-31, 107 Stat. 77 (52
U.S.C. 20501 (Supp. I ll 2015)) ....................passim

R eg u la tio n s

Establishm ent of the Civil Rights Division 
in the Departm ent of Justice, 22 Fed.
Reg. 10,310-02 (Dec. 9, 1957)...................................7

Notice of Public Comment Period on 
Advancing Forensic Science, 82 Fed.
Reg. 17,879 (Apr. 13, 2017)....................................23

O th e r A u th o ritie s

Amended Joint Stipulation, United States 
v. Cibola Cty.,
No. 93-1134 (D.N.M. Jan. 31, 2007)........................9

Becker, David, Just the Facts on Fraud,
Center for Election Innovation and 
Research, May 1, 2017, 
https://www.electioninnovation.org/news 
/2017/5/1/just-the-facts-on-fraud........................... 17

https://www.electioninnovation.org/news


Blackman, Josh, Presidential
M aladministration, U. 111. L. Rev. 2018, 
https://ssrn.com/abstract =2888172..........8, 16, 22

Brief for the United States as Amicus Cu­
riae, Zarda v. A ltitude Express, Inc., No.
15-3775 (2d Cir. July 26, 2017), ECF No.
417 .............................................................................. 22

Brief for the United States as Amicus Cu­
riae Supporting Petitioner, Husted v. A.
Philip Randolph Inst., No. 16-980 (U.S.
Aug. 7, 2017),
2017 WL 3485554...............................5, 6, 15, 18,22

Brief for the United States as Amicus Cu­
riae Supporting Petitioners in Nos. 16- 
285 and 16-1300 and Supporting Re­
spondents in No. 16-1307, N LRB  v. M ur­
phy Oil USA, Inc., Nos. 16-285, 16-300, 
and 16-307 (U.S. June 16, 2017).......................... 23

Brief for the United States as Amicus Cu­
riae Supporting Plaintiffs-Appellants 
and Urging Reversal, A. Philip R an­
dolph Inst. v. Husted, 838 F.3d 699 (6th 
Cir. 2016) (No. 16-3746)............ 4, 6, 10, 11, 15, 18

Cavanaugh, M. L., I  Fight for Your Right to 
Vote. But I  Won’t Do It Myself, N.Y.
Times, Oct. 19, 2016

vii

13

https://ssrn.com/abstract


V l l l

Complaint, Ind. State Conf. of NAACP v.
Lawson,
No. l:17-cv-02897 (S.D. Ind. Aug. 23,
2017)....................................................................   26

Complaint, NAACP Legal Defense &
Educational Fund, Inc. v. Trump,
No. l:17-cv-5427, 2017 WL 3046985
(S.D.N.Y. July 18, 2017).........................................17

Consent Decree, United States u. Police 
Dept of Balt. City, l:17-cv-00Q99-JKB 
(D. Md. Apr. 3, 2017) ............................................. 24

Corrected Brief for Appelles, Chamber of 
Commerce of U.S. v. Dep’t of Labor,
No. 17-10238 (5th Cir. July 3, 2017).................... 23

Ennis, Bruce J., Effective Amicus Briefs, 33
Cath. U. L. Rev. 603 (1984)....................................20

Exhibit 1 of Motion for Continuance of Pub­
lic Fairness Hearing, United States v.
Police Dep’t of Balt. City, l:17-cv-00099-
JKB (D. Md. Apr. 3, 2017) .....................................23

Gressman, Eugene, Supreme Court Practice
(9th ed. 2007)............................................................ 20

H.R. Rep. No. 9, 103d Cong., 1st Sess.
(1993)..................................................................... 4, 12

H.R. Rep. No. 107-329, 107th Cong., 1st
Sess. (2001)................................................................. 4



IX

Letter from Deval Patrick, Asst. A tt’y Gen.
(USDOJ), to Dennis R. Dunn, Sr. Asst.
A tt’y Gen. (Ga.) (Oct. 24, 1994)...............................9

Letter from Isabelle Katz Pinzler, Acting 
Asst. A tt’y Gen. (USDOJ), to Bruce 
Botelho, A tt’y Gen. (Alaska) (Feb. 11,
1997)..................................... ............................... ...... .9

Letter from Isabelle Katz Pinzler, Acting 
Asst. A tt’y Gen. (USDOJ), to Mark 
Barnett, A tt’y Gen. (S.D.) (Feb. 11, 1997)............. 9

Letter from T. Christian Herren, Jr., Chief,
Voting Section, U.S. Dep’t of Justice to 
the Honorable Kim Westbrook Strach,
Executive Director, State Board of 
Elections, North Carolina 
(June 28, 2017),
https://www.documentcloud.org/docume 
nts/3881855-Correspondence-DO J- 
Letter-06282017.html.............................................25

Levitt, Justin, A Comprehensive
Investigation of Voter Impersonation 
Finds 31 Credible Incidents Out of One 
Billion Ballots Cast, Wash. Post, Aug. 6,
2014,
https://www.washingtonpost.com/news/ 
wonk/wp/2014/08/06/ a-comprehensive- 
investigation-of-voter-impersonation- 
finds-31-credible-incidents-out-of-one- 
billion-ballots-cast 17

https://www.documentcloud.org/docume
https://www.washingtonpost.com/news/


X

Levy, Pema, These Three Lawyers Are 
Quietly Purging Voter Rolls Across the 
Country, Mother Jones, July 7, 2014...................26

Memorandum from Jefferson B. Sessions,
III, Attorney General, Washington, D.C. 
on Supporting Federal, State, Local, and 
Tribal Law Enforcement (Mar. 31, 2017)........... 23

Memorandum from Jefferson B. Session,
III, Attorney General, Washington, D.C. 
on Rescission of Memorandum on the 
Use of Private Prisons (Feb. 21, 2017), 
http s ://w w w .b op. go v/re sources/news/p dfs
/ 20170224__doj_memo.pdf......................................23

Motion for Further Relief,
Wilson v. United States,
Nos. 95-20042, 94-20860 (N.D. Cal.
Oct. 23, 1997)....................................................... 9, 12

M yth of Voter Fraud, Brennan Center for 
Justice,
https://www.brennancenter.org/issues/vo
ter-fraud ...................... .................. ...... ....................17

Order, United States v. Police Dep’t of Balt.
City, l:17-cv-00099-JKB (D. Md. Apr. 3,
2017) ..........................................................................24

Order Granting in part and Denying in part 
Plaintiffs Voting Rights Coalition and 
United States’ Motion for Further Relief, 
Wilson v. United States, Nos. 95-20042, 
94-20860 (N.D. Cal. Nov. 2, 1995)............ 12

https://www.brennancenter.org/issues/vo


XI

Reply Brief for Appellants, Nevada v. U.S.
Dep’t of Labor, No. 16-41606 (5th Cir.
June 30, 2017)...........................................................23

S. Rep. No. 6, 103d Cong., 1st Sess. (1993)..........4, 12

Statem ent of Interest of the United States,
Common Cause v. Kemp,
No. l:16-cv-452-TCB, 2017 WL 2628543
(N.D. Ga. Mar. 17, 2017).............................9, 11, 15

Stern, Mark Joseph, Kobach Email
Confirms Trump Adm inistration’s Goal 
to Gut Vital Voting Rights Law, Slate,
July 18, 2017....................................................... .....18

U.S. Dep’t of Justice, Civil Rights Division,
Sum mary of Selected Federal Protections
for Eligible Voters
(updated Sept. 5, 2016),
http s: //www. j ustice. gov/crt/summ ary-
selected-federal-protections-eligible-
voters............................................................................ 7

U.S. Dep’t of Justice, The National Voter 
Registration Act of 1993 (NVRA):
Questions and Answer (updated 
Sept. 1, 2016),
https://web.archive.org/web/2017070409
4837/https:/
www. j ustice. go v/crt/national-voter- 
registration-act-1993-nvra..... ...............................11

https://web.archive.org/web/2017070409


U.S. Departm ent of Justice, Voting Rights 
Policy and Guidance,
https://www.justice.gov/crt/voting-rights-

xii

policy-and-guidance................................................. 20

United States Motion for Summary 
Judgment, United States v.
Pennsylvania, Nos. CIV. A. 95-382, CIV.
A. 94-7671, 1996 WL 729813 (E.D. Pa.
Dec. 19, 1996).................................... .................. 9, 14

United States Motion for Voluntary Dismis­
sal, Veasey v. Abbott, No. 2:13-cv-193,
2017. U.S. Dist. LEXIS 54253 (S.D. Tex.
Apr. 10, 2017)...........................................  24

Unopposed Motion for Voluntary Dismissal,
Texas v. United States,
No. 16-11534 (5th Cir. Mar. 2, 2017).................. 22

Wines, Michael & Rachel Shorey, Inside the 
Uproar Over a Government-Led Search 
for Voter Fraud, N.Y. Times, July 8,
2017................................................................ 25

https://www.justice.gov/crt/voting-rights-


IN TER EST OF AMICI CURIAE i
The NAACP Legal Defense and Educational Fund, 

Inc. (“LDF”) is a non-profit, non-partisan law organi­
zation, founded in 1940 under the leadership of Thur- 
good M arshall to achieve racial justice and ensure the 
full, fair, and free exercise of constitutional and s ta t­
utory rights for Black people and other communities 
of color.

Because equality of political representation is foun­
dational to our democracy, and the franchise is “a fun­
dam ental political r ig h t . . . preservative of all rights,” 
Yick Wo u. Hopkins, 118 U.S. 356, 370 (1886), LDF 
has worked for nearly a century to combat th reats to 
equal political participation. Indeed, LDF has been in­
volved in numerous precedent-setting cases relating 
to minority political representation and voting rights 
before federal and state courts. See, e.g., Evenwel v. 
Abbott, 136 S. Ct. 1120 (2016); Ala. Legis. Black Cau­
cus v. Alabama, 135 S. Ct. 1257 (2015); Shelby Cty. v. 
Holder, 133 S. Ct. 2612 (2013); Arizona, v. Inter Tribal 
Council of Ariz., Inc., 133 S. Ct. 2247 (2013); Nw. A us­
tin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 
(2009); League of United Latin Am. Citizens u. Perry, 
548 U.S. 399 (2006); Georgia v. Ashcroft, 539 U.S. 461 
(2003); Easley v. Cromartie, 532 U.S. 234 (2001); Bush 
v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S.

1 P u rsu an t to Suprem e Court Rule 37.3, counsel for amici cu­
riae certify th a t all p arties  have consented to the filing of this 
brief th rough  le tte rs  from the parties  on file w ith  the  Court. P u r­
su an t to Suprem e Court Rule 37.6, counsel for amici curiae sta te  
th a t  no counsel for a p a rty  au thored  th is b rief in  whole or in  part, 
and th a t no person other th a n  amici curiae, its  m em bers, or its  
counsel m ade a m onetary contribution to the p repara tion  or sub­
m ission of th is brief.



2

899 (1996); United States v. Hays, 515 U.S. 737 
(1995); League of United Latin Am. Citizens v. Clem­
ents, 999 F.2d 831 (5th Cir. 1993) (en banc); Chisom 
v. Roemer, 501 U.S. 380 (1991); Hous. Lawyers’ A ss’n 
v. Attorney Gen. of Tex., 501 U.S. 419 (1991); Thorn­
burg v. Gingles, 478 U.S. 30 (1986); Beer v. United 
States, 425 U.S. 130 (1976); White v. Regester, 422 
U.S. 935 (1975) (per curiam); Gomillion v. Lightfoot, 
364 U.S. 339 (1960); Terry v. Adams, 345 U.S. 461 
(1953); Schnell v. Davis, 336 U.S. 933 (1949) (per cu­
riam); Sm ith v. Allwright, 321 U.S. 649 (1944); Scott 
v. Schedler, 771 F.3d 831 (5th Cir. 2014); Kirksey v. 
Bd. of Supervisors of Hinds Cty., 554 F.2d 139 (5th 
Cir. 1977); Zimmer v. McKeithen, 485 F.2d 1297 (5th 
Cir. 1973).

The Leadership Conference on Civil and Human 
Rights (“The Leadership Conference”) is a diverse co­
alition of more than  200 national organizations 
charged with promoting and protecting the civil and 
hum an rights of all persons in the United States. It is 
the nation’s largest and most diverse civil and hum an 
rights coalition. For more than  half a century, The 
Leadership Conference, based in Washington, D.C., 
has led the fight for civil and hum an rights by advo­
cating for federal legislation and policy, and by help­
ing to secure passage of every major civil rights 
statu te  since the Civil Rights Act of 1957. The Lead­
ership Conference works to build an America th a t is 
inclusive and as good as its ideals. Towards th a t end, 
it has participated as amicus in cases of great public 
importance tha t affect the interests of many individ­
uals other than  the parties before the Court and, in 
particular, the interests of constituencies in The 
Leadership Conference’s coalition.



3

Consequently, amici have a significant interest in 
ensuring the full, proper, and continued enforcement 
of federal statu tes guaranteeing full political partici­
pation, including the National Voter Registration Act 
of 1993 (“NVRA”), Pub. Law No. 103-31, 107 Stat. 77 
(52 U.S.C. 20501 et seq. (Supp. I ll 2015)), and the 
Help America Vote Act of 2002 (“HAVA”), Pub. L. No. 
107-252, 116 Stat. 1666 (52 U.S.C. 20901 et seq. 
(Supp. I ll  2015)).

INTRODUCTION AND 
SUMMARY OF ARGUMENT

The right to vote is foundational to our system of 
government and essential to all other rights of citizen­
ship. It is so foundational tha t it cannot be forfeited 
simply by a failure to exercise it. Indeed, citizens can 
choose not to vote without losing their right to vote 
again later. While this Court regularly examines 
questions about the affirmative exercise of the vote, 
this case involves the equally im portant issue of when 
a citizen does not or cannot vote for a certain period 
and whether such inactivity can justify purges of the 
voter rolls. In practice, non-voting can happen for any 
number of reasons, including, but not limited to: mil­
itary service; workplace or family obligations on Elec­
tion Day; the costs of obtaining voter identification; 
relocation; lack of confidence th a t existing voting sys­
tems provide an equal opportunity to participate in 
the political process and to elect candidates of one’s 
choice; or dissatisfaction with the options on the bal­
lot. Indeed, senior national security and intelligence 
officials regularly choose not to vote as an expression 
of non-partisanship.



4

Consistent with these principles, and with the 
plain text of the statutes, the United States Depart­
ment of Justice (“Departm ent” or “DOJ”) has long rec­
ognized th a t HAVA and the NVRA prohibit laws tha t 
purge voter rolls based on the fact tha t a person has 
not voted. And, just fourteen months ago, in this very 
case, the Departm ent of Justice represented to the 
Sixth Circuit that:

Congress designed the NVRA to “ensure that 
once a citizen is registered to vote, he or she 
should rem ain on the voting list so long as 
he or she rem ains eligible to vote in th a t ju ­
risdiction,” recognizing th a t “while voting is 
a right, people have an equal right not to 
vote, for whatever reason.”

Brief for the United States as Amicus Curiae Support­
ing Plaintiffs-Appellants and Urging Reversal a t 28,
A. Philip Randolph Inst. v. Husted, 838 F.3d 699 (6th 
Cir. 2016) (No. 16-3746) (hereinafter “U.S. Sixth Cir­
cuit Amicus Brief’) (quoting S. Rep. No. 6, 103d Cong., 
1st Sess., a t 17 (1993) and H.R. Rep. No. 9, 103d 
Cong., 1st Sess., a t 18 (1993)). Congress passed HAVA 
to further “improve our country’s election system” by 
“assisting state and local government in modernizing 
their election systems.” H.R. Rep. No. 107-329, 107th 
Cong., 1st Sess., a t 32 (2001). The Departm ent of Ju s­
tice recognized th a t HAVA “does not alter the NVRA’s 
basic requirem ents,” and, more specifically, “HAVA 
provides tha t if an individual is to be removed from a 
State’s voter registration list, the voter ‘shall be re­
moved in accordance w ith’ the NVRA.” U.S. Sixth Cir­
cuit Amicus Brief at 14 (quoting 52 U.S.C. 
21083(a)(2)(A)(i)) and n.4 (noting one exception “not 
applicable here”).



Accordingly, the Departm ent explained th a t Ohio’s 
Supplemental Process for inquiring into a voter’s 
change in address, which is triggered by the person’s 
voting inactivity, violates the NVRA and HAVA. Trig­
gering the address confirmation process based “solely 
on voter inactivity,” the Departm ent stressed, “inevi­
tably results in the removal of voters based on non­
voting, which violates the NVRA and HAVA.” Id. a t 8. 
This conclusion was compelled by the NVRA’s “text, 
structure, purpose, and history.” Id. Infra § LA.

One year later, in a startling volte-face, the Depart­
m ent of Justice now argues in the same case th a t “the 
NVRA does not,” in fact, “prohibit a State from using 
nonvoting” as the trigger for its voter removal process. 
Brief for the United States as Amicus Curiae Support­
ing Petitioner at 14, Husted v. A. Philip Randolph 
Inst., No. 16-980 (U.S. Aug. 7, 2017), 2017 WL 
3485554, at *14 (hereinafter “U.S. Supreme Court 
Amicus Brief’). It now contends th a t this position, not 
the opposite one it espoused for more than two dec­
ades, including in this very case until August 7, 2017, 
is “supported by the NVRA’s text, context, and his­
tory.” Id. Infra  § I.B.

The Court should give no weight to the Depart­
m ent’s revisionist construction of the NVRA and 
HAVA. The Department offers no meaningful expla­
nation for why it now reads the same words of those 
Acts to mean the converse of what it has said for more 
than  twenty years. To be sure, there is nothing inher­
ently improper about the Departm ent changing its po­
sition on a given issue. It might appropriately do so 
when the law has changed or when, in the course of 
administering or enforcing the law, the Department



6

finds th a t its prior position is no longer feasible or jus­
tifiable. Or, in some cases, the Departm ent may find 
it prudent to adapt to evolving societal understand­
ings or respond to new scientific developments.

But here, the law has not changed. And the D epart­
m ent of Justice has not cited any findings or other 
data to justify the 180-degree reversal of its 
longstanding interpretation of the NVRA and HAVA, 
which it memorialized years ago in guidelines given 
to States, local governments, and the public to aid 
their understanding of the Acts’ requirements. See 
U.S. Sixth Circuit Amicus Brief at 15-16 (describing 
the Departm ent’s 2010 guidelines).

Nor has the Departm ent advanced any reasoned 
analysis, based on its enforcement of these laws, that 
would justify its change in position. The Departm ent 
professes an abstract concern about “voter fraud,” but 
th a t only highlights th a t there is no principled basis 
for the D epartm ent’s change of position in this case. 
See U.S. Supreme Court Amicus Brief at 3, 32. The 
Departm ent offers no evidence to suggest th a t voter 
inactivity is evidence of a change in residence, much 
less an indication of improper voting. And voter fraud 
is, by all reputable accounts, virtually nonexistent in 
this country. Nonetheless, it has unfortunately be­
come a fashionable m antra in certain quarters, often 
invoked as a pretext to limit or contort voter protec­
tion laws, like the NVRA and HAVA. Infra  § I.C.

Ultimately, this case is about more than  Ohio’s par­
ticular electoral processes, and it will have broad im­
plications. It arises amidst a nationwide push to make 
it more difficult and costly to vote—including by reg­
ularly removing registered voters from the active



7

voter rolls. If Ohio’s position, newly endorsed by this 
Administration, is embraced by this Court, it is likely 
to unleash a wave of new state and local laws th a t are 
aimed at or will result in unnecessarily purging and 
shrinking the voting rolls. The Court should foreclose 
the m anipulation of such a critical aspect of voter reg­
istration and affirm the decision of the Sixth Circuit.

ARGUMENT
I. T he C o u rt S hou ld  E m b race  The D e p a rtm en t 

O f J u s tic e ’s L o n g stan d in g  P r io r  P o s itio n  
T h a t V o ter In a c tiv ity  C an n o t P e rm iss ib ly  
T rig g e r T he R em oval O f A V o ter U n d er The 
NVRA A nd HAVA.

The United States has an enduring and substantial 
in terest in protecting citizens’ right to vote. Since the 
1957 establishm ent of the Civil Rights Division of the 
Departm ent of Justice, in particular, ensuring “full 
and fair access to the political process for all eligible 
Americans”2 has been a param ount federal duty. Con­
gress therefore gave the Attorney General broad au­
thority to enforce the NVRA and HAVA on behalf of 
the United States. 52 U.S.C. §§ 20510, 21111.

For more than  two decades, spanning the term s of 
Republican and Democratic presidents alike, the De­
partm ent of Justice has consistently asserted to

2 U.S. Dep’t  of Justice, Civil R ights Division, Summ ary of Se­
lected Federal Protections for Eligible Voters (updated Sept. 5, 
2016), https://www .justice.gov/crt/sum m ary-selected-federal- 
protections-eligible-voters; see also E stab lishm ent of the Civil 
R ights Division in  the D epartm ent of Justice, 22 Fed. Reg. 
10,310-02 (Dec. 9, 1957) (establishing and charging the Civil 
R ights Division w ith  enforcing “all Federal s ta tu tes  affecting 
civil righ ts”).

https://www.justice.gov/crt/summary-selected-federal-protections-eligible-voters
https://www.justice.gov/crt/summary-selected-federal-protections-eligible-voters


8

States, courts, and the public th a t the NVRA and 
HAVA prohibit laws like Ohio’s Supplemental Pro­
cess tha t trigger the ultim ate removal of a person 
from a voter registration list based solely on the per­
son’s voting inactivity. Infra  n.3. This is the position 
th a t the Departm ent took in its amicus brief below, 
and it is the position th a t the Court should adopt here.

The Department, however, now asks this Court to 
reach exactly the opposite conclusion, offering no ex­
planation for its “legal U -turn” other than  tha t the 
new Adm inistration reconsidered the issue. This is by 
no means the only flip-flop th a t the Departm ent has 
taken with respect to civil rights enforcement in the 
past eight months. See, e.g., Josh Blackman, Presi­
dential M aladministration, U. 111. L. Rev. 2018 (forth­
coming), available at https://ssrn.com/abstract 
=2888172 (describing the Adm inistration’s changes in 
position on numerous legal issues); see also infra 22- 
23. Where, as here, the D epartm ent’s about-face is 
prompted solely by a change in Administration and is 
unaccompanied by any other change in circumstance, 
its “reconsideration” of an issue implies no more than 
a naked political decision. This Court should accord 
no weight to the Departm ent’s interpretation du jour 
and should rem ain mindful of the Departm ent’s long- 
held previous construction of the NVRA and HAVA.

A. The D e p a rtm e n t’s O rig in a l P o s itio n  In  
T his Case H as P re v a ile d  F o r M ore T h an  
Two D ecades A nd C om ports  W ith  The 
L e tte r  A nd S p ir it  O f T he NVRA A nd 
HAVA.

For more than  two decades, spanning adm inistra­
tions of both major political parties, the Department

https://ssrn.com/abstract


9

of Justice explicitly rejected and consistently opposed 
the interpretation of the NVRA and HAVA th a t it now 
advances.3 For example, in a case involving Georgia’s 
proposed voter purge procedures, the Departm ent 
previously explained th a t “[b]oth the NVRA and 
HAVA clearly state th a t once registered, an eligible 
voter’s decision not to vote (e.g., based on dissatisfac­
tion with the candidates on offer in particular elec­
tions) cannot suffice to place his or her constitutional 
right to vote in jeopardy.” Statem ent of Interest of the 
United States at 13, Common Cause v. Kemp, No. 
l:16-cv-452-TCB, 2017 WL 2628543 (N.D. Ga. Mar. 
17, 2017) (hereinafter “Kemp Statem ent of In terest”);

3 See, e.g., L etter from Deval Patrick, Asst. A tt’y Gen. 
(USDOJ), to Dennis R. Dunn, Sr. Asst. A tt’y Gen. (Ga.) (Oct. 24, 
1994) (objecting to Georgia’s proposed voter purge procedure be­
cause the ‘“no contact’ ru le  for triggering the m ailing of a regis­
tra tio n  confirm ation notice” is “directly contrary  to the  language 
and  purpose of the NVRA, and Q likely to have a disproportion­
ate adverse effect on m inority  voters in  the s ta te”); L etter from 
Isabelle K atz Pinzler, Acting Asst. A tt’y Gen. (USDOJ), to M ark 
B arnett, A tt’y Gen. (S.D.) (Feb. 11, 1997) (notifying South D a­
kota of in ten t to sue because “reg istered  voters who fail to vote 
w ith in  a four year period are specifically targe ted  for inclusion 
in  the s ta te ’s voter rem oval program ” and “these procedures vio­
late  the NVRA”); L etter from Isabelle K atz Pinzler, Acting Asst. 
A tt’y Gen. (USDOJ), to Bruce Botelho, A tt’y Gen. (Alaska) (Feb. 
11, 1997) (same); U nited  S ta tes Motion for Sum m ary Judgm en t 
a t 14-18, United States v. Pennsylvania, Nos. CIV. A. 95-382, 
CIV. A. 94-7671, 1996 WL 729813 (E.D. Pa. Dec. 19, 1996) (liti­
gation aga inst Pennsylvania); Motion for F u rth e r Relief a t 5-9, 
Wilson v. United States, Nos. 95-20042, 94-20860 (N.D. Cal. Oct. 
23, 1997) (litigation aga inst California); and Am ended Jo in t 
S tipu lation  a t 1[ 13, United States v. Cibola Cty., No. 93-1134 
(D.N.M. Jan . 31, 2007) (litigation aga inst Cibola County, New 
Mexico for violation of the NVRA, including rem oval of reg is tra ­
tions based on failure to vote).



10

id. (contrasting “declining to participate [in a given 
election]” w ith “independent, objective, and reliable 
evidence of a changed residence”).

Likewise, the Departm ent took the same position 
just one year ago in this very case. It explained th a t 
the “NVRA perm its States to remove voters only for a 
reason enum erated [in the statute]: ‘at the regis­
tra n t’s request, due to criminal conviction or m ental 
incapacity as provided by state law, the death of the 
registrant, or due to a change of the registrant s resi­
dence.”’ U.S. Sixth Circuit Amicus Brief at 16 (quoting 
U.S. Student A ss’n Found, v. Land, 546 F.3d 373, 376 
(6th Cir. 2008)).

To remove a person because of a change in address 
under Section 8(d) of the NVRA, a State m ust have 
evidence th a t the voter has moved. See U.S. Sixth Cir­
cuit Amicus Brief at 8. Furthermore, th a t evidence 
m ust be sufficiently reliable to trigger a process in ­
tended to “confirm” the change in address. Id. a t 18. 
Examples of reliable evidence may be found in the 
statu te itself (e.g., the Postal Service’s “change of ad­
dress” program) and the D epartm ent’s prior NVRA 
guidance document (describing an alternative “uni­
form mailing of a voter registration card, sample bal­
lot, or other election mailing to all voters in a 
jurisdiction” and then “us[ing] the information ob­
tained from returned non-deliverable mail” to trigger 
the confirmation process). Id. a t 19. Indeed, until the 
day it filed its amicus brief with this Court, the De­
partm ent’s official website displayed the D epart­
m ent’s 2010 formal guidance on the NVRA 
“stress[ing]” the need for reliable second-hand infor­
mation indicating a change in residence outside the 
jurisdiction. See United States Dep’t of Justice, The



11

National Voter Registration Act of 1993 (NVRA): 
Questions and Answer (updated Sept. 1, 2016) (here­
inafter “Departm ent’s 2010 formal guidance”), 
https://web.archive.Org/web/20170704094837/https:/ 
www.justice.gov/crt/national-voter-registration-act- 
1993-nvra.4

“It is unreasonable to infer th a t a voter may have 
changed residences solely because she has not voted 
in the last two years.” U.S. Sixth Circuit Amicus Brief 
at 9. That is because “[a] voter’s decision not to vote 
or otherwise interact w ith the political process or elec­
tion officials says nothing reliable about whether a 
voter has become ineligible by having moved away.” 
Kemp Statem ent of Interest at 17.

Applying these principles—and the plain language 
of the sta tu te—the Departm ent has, until very re­
cently, m aintained that Ohio’s Supplemental Process 
violates the NVRA and HAVA because it improperly 
“assumes th a t voters who have not cast a ballot in two 
years have moved,” U.S. Sixth Circuit Amicus Brief at 
10, and therefore is “grossly overinclusive” and “can­
not constitute a ‘reasonable effort’ to remove individ­
uals who actually have moved.” Id. at 19-20; cf. Dunn 
v. Blumstein, 405 U.S. 330, 346, 351 (1972) (rejecting 
Tennessee voting procedure where “the record is to­
tally devoid of any evidence th a t durational residence

4 See also Kemp S ta tem en t of In te re s t a t  15 n. 7 (“The D epart­
m ent of Justice  guidance stresses th a t  a general program  under 
Section 8 to purge voters who m ay have moved away should be 
triggered by reliable second-hand inform ation indicating a 
change of address outside of the jurisdiction, from a source such 
as the NCOA program , or a general m ailing to all voters.”) (citing 
the D epartm ent’s 2010 form al guidance).

https://web.archive.Org/web/20170704094837/https:/
http://www.justice.gov/crt/national-voter-registration-act-1993-nvra.4
http://www.justice.gov/crt/national-voter-registration-act-1993-nvra.4


12

requirem ents are in fact necessary to identify bona 
fide residents,” and finding the S tate’s practice over- 
inclusive and “all too imprecise”).

This conclusion, the Departm ent showed, is sup­
ported by the text, purpose, and legislative history of 
both the NVRA and HAVA, and by case law. See 
Welker v. Clarke, 239 F.3d 596, 598-599 (3d Cir. 2001); 
Order Granting in part and Denying in part Plaintiffs 
Voting Rights Coalition and United S tates’ Motion for 
Further Relief, Wilson v. United States, Nos. 95- 
20042, 94-20860 (N.D. Cal. Nov. 2, 1995). Indeed, 
Congress was keenly aware th a t purging the voter 
rolls had the effect, and in some cases the purpose, of 
reducing registration rates and, consequently, partic­
ipation in federal elections. See, e.g., H.R. Rep. No. 
103-9, a t 2 (1993) (identifying “annual reregistration 
requirem ents” as among “the techniques developed to 
discourage participation” around the tu rn  of the twen­
tieth  century); S. Rep. No. 103-6, a t 3 (1993) (same).5

The D epartm ent’s former interpretation is also en­
tirely logical, since, as other amicus briefs in support

5 See also S. Rep. No. 103-6, a t 2 (1993) (NVRA aim s to “as­
su re th a t voters’ nam es are m ain ta ined  on the rolls so long as 
they  rem ain  eligible to vote in  th e ir cu rren t jurisdiction and  to 
assure th a t voters are not requ ired  to re-reg ister except upon a 
change of voting address to one outside th e ir cu rren t reg istra tion  
jurisdiction.”); id. a t 18 (“[Pjurging for non-voting tends to be 
highly inefficient and  costly. I t  not only requires eligible citizens 
to re -reg ister w hen they  have chosen not to exercise th e ir vote, 
b u t it  also unnecessarily  places additional burdens on the  reg is­
tra tio n  system  because persons who are legitim ately registered 
m ust be processed all over again.”); H.R. Rep. No. 103-9, a t 15 
(expressing concern th a t s ta te  list-m ain tenance program s “m ay 
re su lt in  the elim ination of nam es of voters from the rolls solely 
due to th e ir failure to respond to a m ailing”).



13

of Respondents detail, people sometimes cannot or do 
not vote for a panoply of legitimate reasons, including: 
service in the armed forces, outright barriers or bur­
dens to voting like costly voter IDs, lack of transpor­
tation, and work-place and family obligations on 
Election Day; voting methods or redistricting plans 
th a t contribute to voters’ belief th a t they lack an 
equal opportunity to participate in the political pro­
cess and to elect candidates of their choice; or lack of 
compelling or competitive candidates th a t motivate 
voters to participate. See also M. L. Cavanaugh, I  
Fight for Your Right to Vote. But I  Won’t Do It Myself, 
N.Y. Times, Oct. 19, 2016 (“George C. Marshall, 
Dwight D. Eisenhower and Patton . . . didn’t vote 
while in uniform, and those of the modern era Q tread 
the same path  — [including General] David H. Pet- 
raeus [and former Chairm an of the Joint Chiefs of 
Staff] M artin Dempsey.”).

B. The D e p a rtm e n t O ffers No M ean ingfu l 
B asis F o r I ts  R ev ersa l In  P osition .

This Court has recognized tha t there may be situa­
tions when a change in an agency’s position is appro­
priate. See, e.g., Good Samaritan Hosp. v. Shalala, 
508 U.S. 402, 417 (1993) (observing th a t the Secretary 
of Health and Human Services is “not estopped from 
changing a view”). For example, “new insights and so­
cietal understandings can reveal unjustified inequal­
ity within our most fundam ental institutions that 
once passed unnoticed and unchallenged,” requiring 
new analysis—and with it potentially new interpreta­
tions—of the law. Obergefell v. Hodges, 135 S. Ct. 
2584, 2603 (2015). Or, where “an enhanced under­
standing of the issue” emerges based on “referenda, 
legislative debates, and grassroots campaigns”—or



14

“studies, papers, books, and other popular and schol­
arly writing”—an agency may reasonably adapt to 
these emerging views and understandings. Id.

Here, however, the Departm ent has not offered any 
new insights or understandings th a t inform its 
change in position. Nowhere in its new brief is there 
a reference to any recently gained “institutional 
knowledge” or much of “anything indeed” to explain 
its new position. Sandifer v. U.S. Steel Corp., 678 F.3d 
590, 599 (7th Cir. 2012); see also id. (describing as 
“crass” the account th a t after the change in Admin­
istration, the Departm ent reconsidered a legal ques­
tion).

Instead, without any principled explanation, the 
Departm ent has markedly shifted its focus in constru­
ing the NVRA and HAVA. For more than  two decades, 
it analyzed this issue w ith the NVRA’s first two stated 
goals in mind—to “increase the num ber of eligible cit­
izens who register to vote,” and to “enhance!] the par­
ticipation of eligible citizens as voters,” 52 U.S.C. 
§ 20501(b)(1) & (2). See, e.g., United States Motion for 
Summary Judgm ent at 39, United States v. Pennsyl­
vania, Nos. CIV. A. 95-382, CIV. A. 94-7671, 1996 WL 
729813 (E.D. Pa. Dec. 19, 1996) (“Pennsylvania has 
not assumed its responsibility ‘to implement [the 
NVRA] in a m anner th a t enhances the participation 
of eligible citizens as voters in elections for federal of­
fice.’”) (citation omitted). Today, however, it ignores 
those objectives and looks myopically at whether 
Ohio’s Supplemental Process purportedly advances 
the latter two goals of the NVRA—to “‘protect the in­
tegrity of the electoral process’ and ensure th a t States 
m aintain ‘accurate and current’ voter rolls,” 52 U.S.C.



15

§ 20501(b)(3) & (4). See U.S. Supreme Court Amicus 
Brief at 3.

The D epartm ent’s new emphasis on electoral integ­
rity and m aintaining accurate voter rolls, however, 
overlooks the fact tha t practices like Ohio’s Supple­
m ental Process thw art those goals as well. By purging 
eligible voters, Ohio’s Supplemental Process produces 
inaccurate registration rolls and undermines the in­
tegrity of the electoral process. See U.S. Sixth Circuit 
Amicus Brief at 20 (“W ithout reliable evidence up­
front to suggest th a t a voter may have moved, the Sec­
tion 8(d) process by itself is not a reasonable way to 
identify persons who have changed residence because 
it will inevitably lead to the removal of individuals 
who are eligible to vote and who have not in fact 
changed residence.”).

Instead, the Departm ent conjures up the specter of 
“voter fraud” as the basis for its new perspective on 
the NVRA and HAVA. U.S. Supreme Court Amicus 
Brief at 3. As a threshold m atter, the Departm ent’s 
newly posited interest in the illusory phenomenon of 
voter fraud cannot justify departing from the plain 
text of the NVRA and HAVA. And, as the Department 
has persuasively shown in the 2010 guidance and its 
numerous prior briefs on this subject, the plain text of 
those statu tes does not permit voter inactivity to trig­
ger voter purges. See, e.g,, Kemp Statem ent of In ter­
est a t 16 n.8 (“[T]he NVRA’s plain text prohibits using 
non-voting to trigger the purging process . . . .”); U.S. 
Sixth Circuit Amicus Brief at 8, 16 & n.8, 29-30. The 
text of the Acts remains fixed, as it has not been 
amended or superseded, and it is not susceptible to 
the Departm ent’s newfound “fluid construction.”



16

Blackman, supra, a t 1 (“[W]here an incoming adm in­
istration reverses a previous adm inistration’s in ter­
pretation of a statute, simply because a new sheriff is 
in town, courts should verify if the statu te  bears such 
a fluid construction.”).6

Moreover, nowhere does the Departm ent provide 
any evidence of voter fraud—much less voter fraud 
specifically in Ohio.7 Nor does it offer any data sug­
gesting tha t voter inactivity, let alone voter inactivity 
for just two years, indicates either th a t fraudulent 
voting is occurring or th a t the Ohio Supplemental 
Process prevents or reduces voter fraud in any m ean­
ingful way. Indeed, the evidence could not be clearer 
th a t voter fraud, the rationale purportedly buttress­
ing these efforts, is virtually nonexistent and, thus, 
an unreasonable basis for seeking to purge voters 
from voter rolls. An exhaustive study by an expert at 
Loyola Law School found only 31 credible incidents of 
voter fraud out of more than  1 billion votes cast from

6 Indeed, “[a]s tim e elapses, changes in  the in te rp re ta tio n  of 
a fixed s ta tu te  are less likely to reflect the  original u n d ers tan d ­
ing and in ten t of the  drafters, and  more likely to rep resen t the 
vicissitudes of p resent-day politics.” Id. a t  10.

7 Nor does the D epartm ent acknowledge th a t Ohio “h as a t its 
disposal a varie ty  of crim inal law s th a t are more th a n  adequate 
to detect and  deter w hatever fraud  m ay be feared.” Dunn, 405 
U.S. a t 351 (rejecting a s ta te ’s du ra tiona l residence req u ire ­
m ents as over-inclusive and “all too im precise,” and  pointing to 
s ta te ’s crim inal law s as more appropriately  addressing voter 
fraud  concerns).



17

2000 to 2014: a statistically insignificant figure to say 
the least.8

The Departm ent’s about-face here—which it ad­
m itted was prompted only by a change in Adm inistra­
tion—should be seen for what it is: an attem pt to 
hyperextend the limited provisions of the NVRA and 
HAVA to advance a broader agenda. That agenda is 
starkly illustrated by the Adm inistration’s creation of 
the President’s Advisory Commission on Election In­
tegrity, which appears to date to reflect a transparent 
effort to m anufacture evidence supporting President 
Trump’s false claims th a t widespread voter fraud cost 
him the popular vote in the 2016 Presidential elec­
tion. See generally Complaint a t 3, 15, NAACP Legal 
Defense & Educational Fund, Inc. v. Trump, No. 1:17- 
cv-5427, 2017 WL 3046985 (S.D.N.Y. July 18, 2017). 
The Vice-Chair of th a t Commission has made clear

8 Ju s tin  Levitt, A Comprelieiisive Investigation of Voter Im ­
personation Finds 31 Credible Incidents Out of One Billion Bal­
lots Cast, W ash. Post, Aug. 6, 2014, available at
https://www.washingtonpost.com/news/wonk/wp/2014/08/06/ 
a-com prehensive-investigation-of-voter-im personation-finds-31- 
credible-incidents-out-of-one-billion-ballots-cast; see also Myth 
of Voter Fraud, B rennan  C enter for Justice, available at 
https://w w w .brennancenter.org/issues/voter-fraud (“exam ina­
tion afte r exam ination of voter fraud  claim s reveal fraud  is very 
ra re , voter im personation is nearly  non-existent, and  m uch of 
the problem s associated w ith  alleged fraud  re la tes to u n in ten ­
tional m istakes by voters or election adm in istra to rs”); David 
Becker, Just the Facts on Fraud, C enter for Election Innovation 
and Research, M ay 1, 2017, available at https://www.electionin- 
novation.org/new s/2017/5/l/just-the-facts-on-fraud  (finding ju s t 
324 po ten tia l (unverified) fraud  cases, out of more th an  29 m il­
lion ballots cast—a ra te  of one-thousandth  of 1 percen t in  review 
of 2016 election in  California, N orth  Carolina, Ohio and  T ennes­
see).

https://www.washingtonpost.com/news/wonk/wp/2014/08/06/
https://www.brennancenter.org/issues/voter-fraud
https://www.electionin-novation.org/news/2017/5/l/just-the-facts-on-fraud
https://www.electionin-novation.org/news/2017/5/l/just-the-facts-on-fraud


18

th a t it is anim ated by hostility to the NVRA, and one 
of its goals is “putting together information on legis­
lation drafts for submission to Congress early in the 
[A]dministration . . . regarding amendments to the 
NVRA . . . .”9

Unable, as yet, to amend the NVRA, the Admin­
istration is instead m isinterpreting it. Lest there be 
any doubt regarding the relevant sequence of events, 
the Court need only look at the timeline leading up to 
the reversal in position here:

J u ly  18, 2016 -  The Departm ent of Justice 
submits an amicus brief to the Sixth Circuit 
in this case arguing the Ohio Supplemental 
Process “inevitably results in the removal of 
voters based on non-voting, which violates 
the NVRA and HAVA.” U.S. Sixth Circuit 
Amicus Brief at 8.
186 D ays L a te r  -  The President assumes 
office on January  20, 2017.
385 D ays L a te r  -  The Departm ent of Ju s­
tice submits an amicus brief to this Court in 
this case on August 7,2017, arguing tha t the 
Ohio Supplemental Process “does not violate 
the NVRA.” U.S. Supreme Court Amicus 
Brief at 10. The Departm ent simultaneously 
revises its 2010 formal guidance on the 
NVRA to reflect its new view. See id. a t 14 
n.4 (“The Departm ent has updated its NVRA 9

9 M ark Joseph  S tern, Kobach Em ail Confirms Trump A dm in­
istration’s Goal to Gut Vital Voting Rights Law, S late, Ju ly  18, 
2017.



19

guidance to reflect the interpretation set 
forth in this brief.”).10

The capriciousness displayed by the Departm ent 
m ust not and should not dictate this Court’s in terpre­
tation and enforcement of fundam ental federal laws 
seeking “uniform” and “nondiscriminatory” voter 
m aintenance programs. The plain text, structure, and 
history of the NVRA and HAVA themselves should 
determine whether Ohio’s Supplemental Process is 
lawful and properly achieves the Acts’ goals.

C. T he D e p a r tm e n t’s New Ideo log ica lly  
M o tiva ted  P o s itio n  S hou ld  C a rry  No 
W eight W ith  T his C ourt.

The Departm ent of Justice often duly enjoys this 
Court’s respect when it lends its voice to an issue in­
volving laws it is charged with enforcing. See Morse v. 
Republican Party of Va., 517 U.S. 186, 231-32 (1996) 
(noting tha t in other litigation interpreting the Voting 
Rights Act, this Court “attached significance to the 
fact th a t the Attorney General [in an amicus brief] 
had urged [the Court] to find tha t private litigants 
may enforce the Act” and noting it had again taken 
tha t position in the current case) (citing Allen v. State 
Bd. of Elections, 393 U.S. 544, 557 n.23 (1969) (“It is 
significant th a t the United States [in its amicus brief] 
has urged th a t private litigants have standing to seek 
declaratory and injunctive relief in these suits.”)). In ­

10 The D epartm ent’s p rior guidance was still available the day 
before it filed its  am icus b rief w ith  th is Court, based on in te rn e t 
archives. https://web.archive.Org/web/20170806122814/https:// 
www .justice.gov/crt/national-voter-registration-act-1993-nvra 
(last accessed Sept. 18, 2017).

https://web.archive.Org/web/20170806122814/https://
http://www.justice.gov/crt/national-voter-registration-act-1993-nvra


20

deed, the government has an open invitation to sub­
m it amicus briefs, pursuant to Supreme Court Rule 
37.4, because the Court assumes it “almost always 
will be better able to reflect the public interest.” E u­
gene Gressman, Supreme Court Practice, a t 737 (9th 
ed. 2007) (citing Bruce J. Ennis, Effective Amicus 
Briefs, 33 Cath. U. L. Rev. 603, 608 (1984) (“Govern­
m ental entities are uniquely situated to define and as­
sert the public interest,’ and their views as amicus 
will, therefore, carry substantial weight.”)). Citizens, 
States, local governments, public interest organiza­
tions, and private businesses are all guided by the De­
partm ent’s position in determining the propriety of 
their own conduct.11

But such respect is not beyond question. It is based 
on the premise tha t the Departm ent will represent 
the public interest, not simply parrot the ideological 
views of a new Administration. As such, the Depart­
m ent m ust provide a principled basis for any change 
in its prior interpretation of federal law. Otherwise, 
tha t position deserves no weight.

This Court has rejected the government’s change in 
position where it was in conflict with an earlier posi­
tion. In Levin v. United States, 568 U.S. 503 (2013), 
for example, this Court rejected the Departm ent’s 
“most unnatural” interpretation of a federal tort s ta t­
ute, which contradicted its historical position on the

11 See U.S. Dep’t  of Justice, Voting R ights Policy and  Guid­
ance, available at https://www.justice.gov/crt/voting-rights-pol- 
icy-and-guidance (“The Voting Section has published a series of 
Q uestions and  Answ ers to the N ational V oter R egistration Act 
as [an] aid to guide jurisdictions and  to inform  in terested  m em ­
bers of the public about the  Act’s requ irem ents.”).

https://www.justice.gov/crt/voting-rights-pol-icy-and-guidance
https://www.justice.gov/crt/voting-rights-pol-icy-and-guidance


21

issue. 568 U.S. a t 514. The Court observed that, in 
prior litigation, it “was . . . informed” by the Depart­
m ent’s position at the time, and it adopted tha t posi­
tion. Id. a t 517 (citing United States v. Smith, 499 
U.S. 160, 166 (1991)). Faced with the Departm ent’s 
awkward “disavow[al]” in Levin of its prior in terpre­
tation and its efforts “to inject ambiguity into [the 
statute] notw ithstanding [the sta tu te ’s] direction tha t 
‘[the pertinent section] . . . shall not apply,”’ the Court 
agreed with “the Government’s earlier view,” and re­
jected its “freshly minted revision.” Id. a t 518; see 
also, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 
431, 449 (2005) (finding the Departm ent’s position 
“particularly dubious given th a t just five years ago 
the United States advocated the interpretation tha t 
we adopt today”).12

12 The Court h as  regularly  expressed skepticism  of the De­
p a rtm en t’s change of position, across various A dm inistrations, 
in  o ther contexts as well. See, e.g., Watt u. Alaska, 451 U.S. 259, 
273 (1981) (rejecting as “wholly unpersuasive” a new agency in ­
te rp re ta tio n  a t odds w ith  a position the  agency had tak en  for 
years, noting th a t  “[t]he D epartm ent’s cu rren t in terp retation , 
being in  conflict w ith  its  in itia l position, is en titled  to considera­
bly less deference”); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 
n.30 (1987) (“An agency in terp re ta tio n  of a re levan t provision 
which conflicts w ith the agency’s earlier in te rp re ta tion  is ‘en ti­
tled  to considerably less deference’ th an  a consistently held 
agency view.”) (citation omitted); Bowen u. Georgetown Univ. 
Hosp., 488 U.S. 204, 212-13 (1988) (“Deference to w hat appears 
to be nothing more th an  an  agency’s convenient litigating posi­
tion would be en tirely  inappropria te”—the D epartm ent’s change 
in  position was “contrary  to the  narrow  view of th a t  provision 
advocated in  p a s t cases.”); Good Samaritan Hosp. v. Shalala, 
508 U.S. 402, 417 (1993) (“[T]he consistency of an  agency’s posi­
tion is a factor in  assessing the w eight th a t  position is due.”).



22

The Court should take the same approach here and 
decline to ratify the Departm ent’s casting aside of a 
previous longstanding position without a t least some 
reasonable explanation. The Departm ent, having “re­
considered” its position in light of nothing other than  
a change in presidential Administrations, brings 
nothing new to the table. U.S. Supreme Court Amicus 
Brief, a t 14. All it has contributed, “though it is not 
quite nothing, is [to] letQ [the Court] know,” Sandifer, 
678 F.3d at 599, th a t it disagrees w ith the position 
taken by the last three Administrations. Indeed, 
“[t]his approach [of viewing departures from consist­
ently held positions with skepticism] is faithful to the 
technocratic vision of agencies, and more importantly, 
it eliminates the perverse incentive of rewarding 
Presidents who read statu tes in ways unthinkable to 
their drafters.” Blackman, supra, a t 19.

In fact, the Departm ent’s change of course here re­
flects its ongoing and active abandonment of what is 
supposed to be an essential mission regardless of who 
occupies the White House: protecting and enforcing 
the civil rights of all Americans. In just the last eight 
months, the Departm ent has signaled retreats and re­
versals on issues ranging from Title VII employment 
discrimination, to transgender rights in schools, to 
class action and arbitration waivers in employment 
contracts.13

13 See, e.g., B rief for the U nited  S ta tes as Amicus Curiae, 
Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. Ju ly  26, 
2017), ECF No. 417 (D epartm ent of Justice tak ing  the position 
th a t Title VII does not apply to discrim ination based on sexual 
orien ta tion  and  indicating th a t the EEOC w as “not speaking for 
the U nited  S ta tes” in  tak ing  a contrary  position); Unopposed Mo­
tion for V oluntary Dism issal, Texas v. United States, No. 16-



23

The Departm ent of Justice also recently has ended 
a major initiative to strengthen the reliability of fo­
rensic science,14 reversed course regarding a prior 
m andate against the continued use of private pris­
ons,15 and ordered a review of consent decrees and re­
form agreements with local police departm ents.16

11534 (5th Cir. M ar. 2, 2017) (D epartm ent of Justice  voluntarily  
dism issing a pending appeal and  effectively ending a challenge 
to a d istric t court’s injunction ag a in st the federal guidance on 
tran sg en d er students); B rief for the  U nited  S ta tes as Amicus Cu­
riae Supporting P etitioners in  Nos. 16-285 and  16-1300 and  Sup­
porting R espondents in  No. 16-1307, N LRB v. M urphy Oil USA, 
Inc., Nos. 16-285, 16-300, and 16-307 (U.S. Ju n e  16, 2017) (De­
p a rtm en t of Justice  reversing position on class action w aivers in  
a rb itra tio n  agreem ents); Corrected B rief for Appellees a t 2-3, 
Chamber of Commerce of U.S. v. Dep’t o f Labor, No. 17-10238 
(5th Cir. Ju ly  3, 2017) (D epartm ent of Justice  “no longer defend­
ing” prior position on arb itra tio n  waivers); Reply B rief for Appel­
lan ts  a t 22-23, Nevada v. U.S. Dep’t of Labor, No. 16-41606 (5th 
Cir. Ju n e  30, 2017) (D epartm ent of Justice  declining to defend 
the position on D epartm ent of Labor overtim e rules, as it had  in 
the  d istric t court and its  opening appellate brief)-

14 Notice of Public Com ment Period on Advancing Forensic 
Science, 82 Fed. Reg. 17,879 (Apr. 13, 2017).

15 M em orandum  from Jefferson B. Session, III, A ttorney Gen­
eral, W ashington, D.C. on Rescission of M em orandum  on the 
Use of P rivate Prisons (Feb. 21, 2017), available at
https://www.bop.gov/resources/news/pdfs/ 
20170224_doj_memo.pdf.

16 M em orandum  from Jefferson B. Sessions, III, A ttorney 
General, W ashington, D.C. on Supporting Federal, S tate, Local, 
and Tribal Law Enforcem ent (Mar. 31, 2017). This m em orandum  
was issued shortly before lawyers for the D epartm ent of Justice 
moved a federal court to postpone a hearing  on a potential con­
sen t decree w ith  the Baltim ore Police D epartm ent arising  out of 
alleged civil righ ts abuses. See Exhibit 1 of M otion for C ontinu­
ance of Public F airness H earing, United States v. Police Dep’t of 
Balt. City, l:17-cv-00099-JKB (D. Md. Apr. 3, 2017). The motion

https://www.bop.gov/resources/news/pdfs/


24

Perhaps most relevant to the voting context here, the 
Departm ent also withdrew its opposition to Texas’s 
voter photo ID law,17 which it previously and success­
fully challenged for more than  six years as intention­
ally discriminatory. It did so even though the Fifth 
Circuit held en banc th a t the record “contained evi­
dence th a t could support a finding of discriminatory 
intent,” Veasey v. Abbott, 830 F.3d 216, 234-35 (5th 
Cir. 2016) (en banc), and the district court, on re­
mand, recently found th a t the Texas law at issue was, 
in fact, enacted with a discriminatory intent, see Ve­
asey v. Abbott, No. 2:13-cv-193, 2017 U.S. Dist. LEXIS 
54253, at *7 (S.D. Tex. Apr. 10, 2017). While Texas 
has consistently argued th a t its voter photo ID law is 
necessary to combat voter fraud, the Fifth Circuit and 
the district court expressly rejected th a t rationale, ob­
serving tha t out of 20 million votes cast in the 10 
years before the law was passed, Texas had convicted 
only two people for in-person voter fraud. Id. a t *14; 
Veasey, 830 F.3d at 238-39.

Considering this apparent abandonment of civil 
rights enforcement together with the “most unnatu ­
ral” reading of the NVRA and HAVA advanced here, 
this Court should give no weight to the Departm ent’s 
new interpretive approach and should reject it on its 
merits.

was denied, Order, Police Dep’t of Balt. City, l:17-cv-00099-JKB 
(D. Md. Apr. 5, 2017), and  the D istrict Court la te r  approved a 
consent decree, Consent Decree, Police Dep’t o f Balt. City, 1:17- 
cv-00099-JKB (D. Md. Apr. 7, 2017).

17 U nited  S ta tes M otion for V oluntary Dism issal, Veasey v. 
Abbott, No. 2:13-cv-193, 2017. U.S. Dist. LEXIS 54253 (S.D. Tex. 
Apr. 10, 2017).



25

•k k  k

In the end, the Court’s decision here will reverber­
ate well beyond the Ohio voters directly impacted by 
Ohio’s Supplemental Process. A holding tha t States 
may initiate the removal of a person from a voter reg­
istration list because the individual did not vote in 
previous elections has the potential to spawn a host of 
new laws imposing burdens on voters to rem ain eligi­
ble to vote, contrary to a principal purpose of the 
NVRA and HAVA. These new provisions would likely 
launch a new round litigation to protect eligible voters 
from burdens imposed by federal, state, and local gov­
ernm ents misguidedly aimed at wiping them from the 
voter rolls and the political process. Indeed, the De­
partm ent of Justice,18 the President’s Advisory Com­
mission on Election Integrity,19 other States,20 and

18 In  late Ju n e  2017, the D epartm ent of Justice, outside of any
custom ary practice, sen t le tte rs  to s ta te  boards of elections offi­
cials seeking inform ation about th e ir lis t m ain tenance proce­
dures under the NVRA. See, e.g., L etter from T. C hristian  
H erren, Jr., Chief, Voting Section, U.S. Dep’t  of Justice to the 
Honorable Kim W estbrook Strach, Executive Director, S tate 
Board of Elections, N orth  Carolina (June 28, 2017),
https://www.docum entcloud.org/docum ents/3881855-Corre- 
spondence-DO J-L etter-06282017.html.

19 The Commission h as  sen t le tte rs  to all fifty S ta tes asking 
them  to provide detailed inform ation about voters. M ichael 
W ines & Rachel Shorey, Inside the Uproar Over a Government- 
Led Search for Voter Fraud, N.Y. Times, Ju ly  8, 2017, a t A4. The 
Commission has indicated  th a t it in tends to ru n  th is d ata  
aga inst o ther available databases to determ ine “areas where 
voter rolls could be streng thened .” Id.

20 For example, Ind ian a  recently enacted a voter rem oval p ro­
vision th a t goes even fu rth e r th a n  Ohio’s Supplem ental Process 
a t issue here and has already been challenged under the NVRA.

https://www.documentcloud.org/documents/3881855-Corre-spondence-DO
https://www.documentcloud.org/documents/3881855-Corre-spondence-DO


26

private organizations21 are already systematically ex­
ploring new ways to purge voters from the rolls.

For these reasons, this Court should be especially 
careful in formulating its decision here, particularly 
in light of the Departm ent of Justice’s extraordinary 
one-hundred and eighty degree tu rn  and the broader 
drive to purge the rolls and undermine the franchise.

CONCLUSION
For more than  two decades, the Departm ent of Ju s­

tice has advocated tha t the NVRA and HAVA prohibit 
state laws that, like Ohio’s Supplemental Process, 
trigger a voter removal process based solely on a 
voter’s inactivity. The D epartm ent’s sudden reversal 
in this case was prompted by nothing other than  a 
change in Adm inistration and arises amid broader ef­
forts to disenfranchise millions of American voters, 
including in increasingly Black and Brown communi­
ties th a t have made historic strides in accessing the 
voting booth. The D epartm ent’s new position, reflect­
ing no justifiable change in law or fact, should be re­
jected by and carry no weight w ith this Court.

The Sixth Circuit correctly held, consistent with 
the Departm ent’s longstanding position, tha t Ohio’s

Complaint, Ind. State Conf. of NAACP v. Lawson, No. l:17-cv- 
02897 (S.D. Ind. Aug. 23, 2017).

21 Pem a Levy, These Three Lawyers Are Quietly Purging Voter 
Rolls Across the Country, M other Jones, Ju ly  7, 2014 (describing 
how an  organization has in itia ted  inquiries in  a t  least 141 coun­
ties in  21 s ta tes  questioning the accuracy of voter rolls, filing 
law suits in  instances w here counties have refused to accede to 
certain  dem ands, and  often ta rg e tin g  counties w ith  significant 
Black com m unities and  o ther com m unities of color, including in 
ru ra l M ississippi and Texas).



27

Supplemental Process violates the NVRA and HAVA, 
and this Court should affirm tha t judgment.

S h e r r il y n  A. I f il l  
Director-Counsel 

J a n a i  S. N e l s o n  
S a m u e l  S p it a l  
L e a h  C . A d e n  
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street, FI. 5 
New York, NY 10006

J o h n  P a u l  S c h n a p p e r - 
C a s t e r a s

NAACP Legal Defense & 
Educational Fund, Inc. 

1444 I Street NW 
Washington, DC 20005

Respectfully submitted,

T h o m a s  M . B o n d y  
Counsel of Record 

Orrick, Herrington & 
Sutcliffe LLP 

1152 15th Street, NW 
Washington, DC 20005 
(202) 339-8400 
tbondy@orrick.com

KHAI L e Q u a n g  
M e l a n ie  D . P h il l i p s  
E m il y  K . B r o w n  
E t h a n  M . S c a p e l l a t i  
Orrick, Herrington & 

Sutcliffe LLP 
2050 Main Street, 

Suite 1100 
Irvine, CA 92614

K r is t in a  P i e p e r  
T r a u t m a n n  

D a n ie l  R o b e r t s o n  
Orrick, Herrington & 

Sutcliffe LLP 
51 West 52nd Street 
New York, NY 10019

Dated September 22, 2017

mailto:tbondy@orrick.com