Husted v. A. Philip Randolph Institute

Oral argument transcript · No. 16-980 · October Term 2017 · argued January 10, 2018 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Eric E. Murphy, Columbus, Ohio, for the petitioner
• Noel J. Francisco, Solicitor General of the United States, amicus curiae supporting the petitioner
• Paul M. Smith, Washington, D.C., for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument this morning in Case 16-980, Husted versus the A. Philip Randolph Institute. Mr. Murphy. ORAL ARGUMENT OF ERIC E. MURPHY ON BEHALF OF THE PETITIONER

Eric E. Murphy: Mr. Chief Justice, and may it please the Court: Congress passed the NVRA to serve competing goals, increasing the number of eligible registered voters but decreasing the number of ineligible ones, and this congressional compromise is evident in the statute's conflicting mandates. It both requires states to undertake general programs to remove ineligible individuals but at the same time places limits on those federally mandated removal programs, including that states may not remove individuals for changed residence unless they fail to respond to a notice and to vote over two federal elections.

Justice Kennedy: I -- I know you have the -- the exceptions clause in -- in (b)(2). Official 1 Would your case have been stronger without the enactment of section (b)?

Eric E. Murphy: Without the -­

Justice Kennedy: In other words, could you rely just on (a) and (d)?

Eric E. Murphy: If -- if there was no what I call the failure to vote -­

Justice Kennedy: Whether -- if there were no (b) at all?

Eric E. Murphy: I -- I -- I think -­ certainly, I think, that if there is no failure to vote clause, that's one of the main prohibitions on which they are relying, but I think you have to interpret (b) in light of (d), of course.

Justice Kennedy: Yes.

Eric E. Murphy: And (d) clearly indicates that we -- if we -- so long as we send individuals a notice and so long as we wait two federal elections before we remove them, that that is acceptable.

Justice Sotomayor: So why bother -­

Justice Kennedy: Because of -­ because of the except clause?

Eric E. Murphy: Well, because you have to Official 1 interpret the -- the -- the substantive provision in (b)(2), the failure-to-vote clause -­

Justice Kennedy: Right.

Eric E. Murphy: -- in a way that reconciles it with the use of failure to vote. And only our position interprets (b) in a way that -- that allows the back-end use of non-voting in (d) because -­

Justice Ginsburg: Mr. Murphy, the -­ the Act itself gives a safe harbor provision that triggers the confirmation -- the notice. And that safe harbor provision doesn't rely at all on failure to vote. It relies on a post office change of address form. So isn't that some clue, the safe harbor, that Congress didn't want failure to vote to be a trigger for this procedure?

Eric E. Murphy: I don't think so, Your Honor, because I think that is a safe harbor for something completely different. They treat it as a safe harbor for meeting an implicit element in (d) that a state have objective evidence that an individual has moved, but that element is not there. Official 1 In fact, the Postal Service provision is a safe harbor for on the other side of the balance between removing ineligible voters and keeping eligible voters on the roll. It's -­

Justice Sotomayor: This is a very complicated system for a very simple position. If you have any reason to believe someone has changed address, just send them a notice and, after two election cycles, disqualify them. Why have the Post Office provision at all? Why have any other provision? As it is, I understand Ohio now is not waiting for people to miss two election cycles; they're waiting -­ every year they're purging, right?

Eric E. Murphy: No. We -- we -- we run the notices every year -­

Justice Sotomayor: Every year.

Eric E. Murphy: -- but we still wait the -- we still wait until -­

Justice Sotomayor: Now, you have taken the position in your brief that you really don't need anything; you need -- you could send out a notice any time, any place, and if someone fails to respond to it, you can purge them. Isn't that your position? Official

Eric E. Murphy: No. No. Our position is the notice gets sent out. If they respond, then obviously you can't honor -­

Justice Sotomayor: But my point is you don't even need the failure to vote two years to use the notice -­

Eric E. Murphy: That's right. Because a statewide canvass would not be based on failure to vote whatsoever. And so that's why they have to read into (d) an element that they just make up from whole cloth, which is that they have objective evidence of a move.

Justice Sotomayor: Well, let -- let's --

Eric E. Murphy: For sending the notice.

Justice Sotomayor: The Senate report that supported the NVRA explicitly says that what they wanted to avoid was a mailing that is unresponded to being a cause for removing someone. So if that was its purpose, why wouldn't it make sense that the only reason that you can change -- send the notice is if you have some reasonable basis to believe someone has moved? Official

Eric E. Murphy: Well -­

Justice Sotomayor: Failure to vote can't it be it because the Senate report says that they believe the failure to vote was a constitutional right. You have a right not to vote.

Eric E. Murphy: So there's a -- there's a couple points there. The first was what if people do not respond to the notice. I agree that there is a Senate report suggesting that they were concerned that people would be removed merely for failing to respond, but Congress did not put an objective evidence element into the (d) procedure in response to that concern. They put in the safe harbor, what -­ what they called the fail-safe voting on the back end. So if an individual doesn't respond, they still have two federal elections in which they can show up to vote. So that's how they dealt with that provision. With respect to failure to vote, I think the legislative history is quite clear that the concern was removing individuals merely for failing to vote in a recent Official 1 election. That's what the report says at page 17. And that's not what Ohio does.

Justice Sotomayor: So why have the three provisions having to do with the Post Office notice?

Eric E. Murphy: Because that -­

Justice Sotomayor: That seems like a very reasonable -- why -- why do you need it at all under your interpretation?

Eric E. Murphy: Because that is the minimal effort on the other side of the balance. As I was trying to -- mentioned to Justice Ginsburg, I think that is a safe harbor for the state's obligation to engage in maintenance efforts. (a)(4) says that the states have a duty to remove ineligible voters, and (c) says -- begins by saying you can meet your obligation to remove ineligible voters by going through this process. It's the minimum on the one side of the balance -­

Justice Kagan: But, General, if I can take you back to Justice Ginsburg's question because it seems as though you are effectively turning 8(d)(1) into a kind of safe harbor in Official 1 this sense: 8(d)(1) says that these confirmation procedures are a permissible part of the program, even though part of the confirmation procedures are about not voting. So that's clear that 8(d)(1) says that. But you are trying to take that and convert it into something bigger and broader, essentially saying if you use these confirmation procedures, your entire program is going to be insulated from criticism, even though there's another part of your program that explicitly relies on non-voting. And I don't see that as in any way being the point of 8(d)(1). You're trying to take 8(d)(1), which says, sure, you can have a part of the program that does this, and turn it into a much bigger and broader safe harbor for everything that you do.

Eric E. Murphy: So my response there would be you have to interpret the words of 8(b)(2), the failure-to-vote clause, in a way that would not prohibit what 8(d) requires. And it affirmatively requires the use of non-voting over two federal elections. We have the proximate cause argument Official 1 for why the failure to respond to the notice breaks the causal link. And there was this debate in the 1990s between the states -­

Justice Kagan: I -- I must say I don't understand the -- I think this is a little bit of a different question, but since you've raised it, the proximate cause argument, I don't understand, because essentially what the Ohio program does is it says non-voting, failure to respond, non-voting. And you're trying to pick out the middle piece of that and say that's the only proximate cause. That's just not the way we think of proximate cause in any area.

Eric E. Murphy: So I think clearly the "by reason of" adopts a proximate cause test. This Court has repeatedly said it's a flexible test.

Justice Kagan: No -- no argument on that. Sure, there's a proximate cause test, but there's more -- you know, there's more -­ there can be more than one proximate cause in the world.

Eric E. Murphy: Well, exactly, and the Court has said that you have to pick the Official 1 proximate cause test that fits the statute. And this statute, the last cause undoubtedly is failure to vote. That's why I think the best way to reconcile (b) and (d) is to say that a failure to respond to the notice breaks any causal prohibition between failure to vote and removal.

Justice Alito: Why do you need the -­

Eric E. Murphy: And I think there was this debate -­

Justice Alito: Why do you need the proximate cause argument at all? What the statute says is that you -- someone may not be removed from the list by reason of the person's failure to vote. It can't mean but-for cause because then it would run -- because the -- the statute itself takes failure to vote into account in (d). That's one of the things that is necessary in order for someone to be removed from the list under (d). So it can't be but-for. And in the HAVA, Congress used the term "solely." So why isn't the best Official 1 interpretation of this that one cannot be removed from the list solely because of failure to vote?

Eric E. Murphy: That's absolutely correct. In CSX, the Court said one -- one component of a proximate cause test, it was a malleable phrase, was the sole proximate cause.

Justice Kagan: Well, isn't that just adding a word into the statute that Congress wrote? The statute -- Congress said by reason to vote. There are multiple places in the U.S. Code where Congress wants to say sole -- you know, solely by reason, and Congress says it. It means something different because there are lots of situations in which two components together cause something. And so to add that word "solely" is to change the meaning of the statute. And that word is not in this provision.

Eric E. Murphy: Well, we think it's the best reading to reconcile the two provisions. And there was this -­

Justice Kagan: Which -- which two? The -­

Eric E. Murphy: The -- the solely, Official 1 because the -- the failure to respond -­

Justice Kagan: The HAVA and the NFRA -- NVRA provision?

Eric E. Murphy: No, the (b) and (d) -­

Justice Kagan: Okay.

Eric E. Murphy: -- to reconcile the two provisions. And, remember, the solely clause from HAVA was not the only provision that was adopted in HAVA. In addition, HAVA, when it added that solely clause, also added the clarifying amendment to the failure to vote.

Justice Kagan: General, everybody is looking here for a way to reconcile these two provisions. I mean, you're right, these two provisions are like, okay, what do we do with these? But why isn't the obvious way to reconcile the two provisions just to say, look, you got this failure-to-vote clause, but don't think that this failure-to-vote clause bars a state from using the confirmation procedures. It doesn't bar a state from using the confirmation procedures. That can be a permissible part of the state program. Official 1 So that's your way to reconcile the two things. Taken on its own, the failure-to-vote clause looks as though it might bar confirmation procedures. The confirmation procedure says, no, not these.

Eric E. Murphy: So, look, I think that may have been one reconcile -- one way to reconcile it. Our way may have been one way to reconcile it. The states debated the federal government on this precise issue throughout the 1990s, and then Congress intervened and reconciled it with the addition of the solely clause and the HAVA provision.

Justice Kagan: But the solely clause in HAVA -­

Justice Alito: And I'm looking at -­ I'm listening -­

Justice Kagan: -- is a completely independent provision in a completely independent statute. I mean, it's not the clarifying amendment, which we can talk about, and the solely clause is -- it's a part of a -­ a different provision in a different statute dealing with a related but different subject matter. Official 1 So there would be no reason to take one provision that says solely, and says because that provision says solely, we're going to treat this provision as also saying solely when this provision does not say solely. In fact, we have a rule against that in statutory interpretation. Usually, we say, look, Congress knows how to do a solely provision. It didn't do it here.

Eric E. Murphy: But what it did add in the same law, in the HAVA law that -- in the computerized list maintenance for statewide programs that uses solely, and then with respect to the failure-to-vote clause in the NVRA, it adopted a clarification amendment that said except that nothing in this provision shall be construed to prohibit the state from using the procedures in (c) and (d). So I think you have to interpret the clarification amendment with the solely clause because it was in the same law.

Justice Kagan: Well, that's exactly what the clarifying amendment says. You're exactly right. It says don't -- don't interpret the failure-to-vote clause as Official 1 preventing use of the confirmation procedures. And that's my point about how these two things are reconcilable. The clarifying amendment says how they're reconcilable.

Justice Alito: And I'm missing -- I'm sorry.

Justice Kagan: Don't -- don't interpret the failure-to-vote clause as barring the confirmation procedures. States can use the confirmation procedures, but that doesn't mean that they can do anything else that they want to on top of the confirmation procedures.

Eric E. Murphy: So -- so you still -­ it's a -- it's a rule of clarification. So it says you have to construe (b)(2). And I think that with that, combined with the solely clause, makes quite clear that you have to interpret the "by reason of" language in some way to break the causal link between voting and removal that is required in (d). I think interpreting it to be the sole cause is the way to accomplish that feat. I think that's why there was a clarification amendment on the one hand in (b) and -- and the solely clause. Official

Justice Sotomayor: Counsel, can you --

Eric E. Murphy: I also think the public context is really important here. The public --

Justice Sotomayor: Can we get to the essence of this case? It appears as if what you're -- you're reading is that the failure to vote is enough evidence to suggest that someone has moved. That seems to be your position because it can be the only one. But is that a reasonable effort to draw that conclusion when you do results in disenfranchising, disproportionately, certain cities where large groups of minorities live, where large groups of homeless people live, and across the country they're the group that votes the least, in -- in large measure because many of them work very long hours. And without the golden week that Ohio rescinded, many of them can't vote because the polls are not open while they're not working. Places like Cleveland have very, very, very long lines of -- of voter -- of voters Official 1 trying to vote. All of these impediments result in large numbers of people not voting in certain spots in the state. So if the word "reasonable effort" has any meaning with a Congress who said that the failure to vote is a constitutional right, how can we read this statute to permit you to begin a process of disenfranchising solely on the basis of that with no independent evidence whatsoever that the person has moved? You can use the Post Office. They tell you that. You can use Certified Mail. You could use juror change of addresses. You can use driver license, motor vehicle change of addresses. There are dozens of other ways that you could verify a change of address, yet you're suggesting that using a failure to appear at an election or elections as evidence of moving when people have a right not to vote if they choose. Many have. And others like the veteran who's a plaintiff in this case explains the reasons why he failed to vote in two elections. I have to give the meaning, the words that Congress said, don't use the failure to vote as a result -­ Official 1 that results in someone being disenfranchised. I don't understand how you can say that the failure to vote can be used as the sole basis for sending out notices.

Eric E. Murphy: We don't say -­

Justice Sotomayor: It's not a reasonable inference, so how could it be a reasonable effort?

Eric E. Murphy: So the failure-to-vote clause says that failure to vote cannot be the sole basis for removal, not sending a notice, it says nothing about sending a notice. I would also add that subsection (d) -- within subsection (d), Congress identified the minimum evidence that it thought was sufficient for states to remove individuals for failure to respond -- or for -­

Justice Sotomayor: So if that's minimum, don't you think that maximum should say something a little bit more than the failure to vote?

Eric E. Murphy: Well, it does because the --

Justice Sotomayor: I mean, you know, a change in the residence in accordance with Official 1 (b), (c), and (d), and (b) has you using the Post Office, correct?

Eric E. Murphy: (c).

Justice Sotomayor: (c) has you using the Post Office. (b) says shall not be removed -- shall not result in the removal of the name of a person from any official list registered to vote in election for federal office by reason of the person's failure to vote. So -­

Eric E. Murphy: That's correct. And if you interpret that to be a sole proximate cause test, then ours does not satisfy it because -­

Justice Sotomayor: Well -­

Eric E. Murphy: -- nobody is removed solely by reason of their failure to vote.

Justice Sotomayor: Exactly. We're saying it's not a sole -­

Eric E. Murphy: They're -- they're removed -- they're removed if they fail to respond to a notice and fail to vote over six years, which is more than the minimum protections -­

Justice Sotomayor: So please explain to me why a change of address is reasonable. What -- what are the statistics that show that Official 1 the vast majority of people that you disenfranchise from voting, that you strike from the election rolls have actually moved?

Eric E. Murphy: So -- so there is no statistical evidence that is necessary because Congress made the determination of what evidence is necessary. And that determination is in (d) -­

Justice Sotomayor: No, when it gave you an example, it gave you an example of an independent trigger.

Eric E. Murphy: But that was an example from meeting our minimum duty on the other side to -- so there's a minimum duty, a minimum amount of protections for eligible voters and a minimum requirement on the states to undertake a minimum effort to -­

Justice Sotomayor: So there's a minimum requirement on the voter who gets your notice to respond.

Eric E. Murphy: Absolutely, the statute places a requirement on the voter to respond.

Justice Sotomayor: But that's after you have evidence that they've actually moved?

Eric E. Murphy: No, there's no -- there's Official 1 nothing in the statute that sects -- suggests that there's limitations on the trigger. With respect to -- to minorities, I would add, by the way, that our position is not at all -- (b)(1) -- Congress responded to that concern, suggesting that the process must be uniform, non-discriminatory, and in compliance with the Voting Rights Act -­

Justice Sotomayor: Well, that's the problem, is -­

Eric E. Murphy: -- but that -­

Justice Sotomayor: -- that there's a strong argument this is -- that at least in impact, this is discriminatory. I understand that some don't believe in impact, but you have to look at it to determine -­

Eric E. Murphy: But they didn't raise a (b)(1) claim.

Justice Sotomayor: -- whether something is reasonable.

Eric E. Murphy: They didn't raise a (b)(1) claim. There -- we're only here today under the failure-to-vote clause. And if I could reserve the rest of -­

Chief Justice Roberts: I'll give you Official 1 a couple more minutes so you can get more of your argument out.

Eric E. Murphy: Okay. Thank you, Your Honor. So I really would like to get back to the public context in which the HAVA provisions were enacted because I think that public context is quite powerful. On the one hand, you had states, from 1994 all the way up to the HAVA amendment, debating the Department of Justice, whether the processes just like Ohio's were permissible. On the other hand, you had nobody. There was nobody who made the argument that (b) could somehow be read to actually make (d) inoperative. Under our view, the clarification in HAVA was designed specifically to address the -- the long-standing debate that started even before -- before -- before the statute became effective, states were suggesting that they should engage in approaches like Ohio's, all the way to the final FEC report, where South Dakota suggested clarifying the NVRA in a way that's quite helpful to the states here. And HAVA was passed and it had two provisions. Official 1 It had the clarifying amendment, expressly a clarifying amendment, on the one hand, and then it had the related provision dealing with statewide list maintenance, which is effectively a comparable -- comparable decision.

Justice Ginsburg: How -- how many states -­

Eric E. Murphy: I think if you read both of those together -­

Justice Ginsburg: How many states do it this way? That is, you get the notice, as I understand it, if you've missed just one election.

Eric E. Murphy: That's incorrect. If you missed -- if you have no voter activity over a two-year period, which would include one general election and then one off-year election and any primary elections as well.

Justice Ginsburg: Yeah. Are there other states who do it just like Ohio?

Eric E. Murphy: There are several -- many states who -- I think around eight that use failure to vote as the trigger for the notice. I don't -- some -- some use two, some use three Official 1 years, some use four years. But the problem with my -- my friend's position on the other side is it would not only outlaw all of those states, those who use failure to vote as the trigger for sending the notice; it would outlaw any state that takes into account failure to vote on the front end. And that includes many states that target individuals who have not voted recently with a non-forwardable mailing and then respond to that non-forwardable mailing with a confirmation notice for any -- any individuals who the non-forwardable mailing is bounced back to. That would be equally prohibited under the logic of their argument here today because they are saying any front-end use of non-voting would be illegal.

Chief Justice Roberts: Thank -- thank you, counsel.

Eric E. Murphy: Thank you.

Chief Justice Roberts: You'll have a couple minutes for rebuttal. General Francisco. Official 1 ORAL ARGUMENT OF GEN. NOEL J. FRANCISCO ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Noel J. Francisco: Mr. Chief Justice, and may it please the Court: If I could begin with Justice Kennedy's question. Justice Kennedy, we think that Ohio's process was permissible before Congress enacted the clarification amendment in 2002, but the clarification amendment made it even clearer for two basic reasons. First, sections 8(c) and 8(d), that's the Postal Service process and the notice process, require that non-voting be the immediate cause for removal. The only way you can -- you can construe 8(b)(2) as not prohibiting that is if 8(b)(2) is limited to removing people only solely by reason of their failure to vote. And, second, this reflected a significant shift in the federal/state balance at the time. Prior to the NVRA, many states removed people solely for failure to vote. Others had notice processes that were far less protective than Ohio's notice process. None of Official 1 them had a four-year waiting period. What the NVRA did was it required everybody to improve their processes well beyond what they were before the NVRA was passed, but beyond that, left the states with flexibility. And there's nothing in the statute that says that, within that range of flexibility, states are barred from using a non-voting trigger in conjunction with 8(d)'s protective notice process.

Justice Sotomayor: General, could you tell me, there's a 24-year history of solicitor generals of both political parties under both -- presidents of both political parties who have taken a position contrary to yours. Before the amendment and after the amendment. In fact, the Federal Election Commission, when it wrote to Congress with respect to the Help America Vote Act, took the position the old solicitor generals were taking. Everybody but you today come in and say the Act before the clarification said something different. Seems quite unusual that your office would change its position so dramatically. I Official 1 might accept it if you thought that the Help America Vote Act, in fact, clarified something that was ambiguous, but you're taking a very different position. You're saying even before that Act, it was clear you could do it this way.

Noel J. Francisco: Your Honor, what I'm saying is I think that the Help America Vote Act and the clarification amendment made it even clearer and after that clarification amendment -­

Justice Sotomayor: Well, so please explain the change of position.

Noel J. Francisco: Sure.

Justice Sotomayor: After that many presidents, that many solicitor generals, this many years -- the vast majority of states, over 35 -- over 40, actually, who read it the way your opponents read it, most people read it that way -- how did the solicitor general change its mind? Do you believe this doesn't have an impact, a negative impact on certain groups in this society?

Noel J. Francisco: Well, Your Honor, I believe that after Congress passed the Official 1 clarification amendment, it clarified what was at the time an ongoing debate between the Department of Justice and the states. And the only plausible way to read that public context -- and with respect to some members of this Court, public context is not legislative history, it's -­

Justice Sotomayor: So point me where in the legislative history people say that with absolute clarity.

Noel J. Francisco: Well -- yeah.

Justice Sotomayor: As I understand the legislative history, both sides are saying, in its history, this helps us.

Noel J. Francisco: And, Your Honor -­

Justice Sotomayor: So it's as ambiguous as the language may be.

Noel J. Francisco: Public context is not legislative history. Even the most diehard textualists look to the public context in which a law was enacted. I refer you to Justice Scalia's opinion in Branch versus Smith and Professor Manning's article in What Divides Textualists From Purposivists? And that public context makes clear that the only thing that Official 1 was in need of clarification at the time the clarification amendment was passed was precisely this question, whether states like Ohio's could use a non-voting trigger in conjunction with the 8(d) process. And there's nothing in this statute that bars that. I think it reflects the balance that Congress was trying to strike in the NVRA between, on the one hand, dramatically increasing the number of voters on the voter rolls but, on the other, giving states the flexibility they need to manage the issues that arise when you have overinflated voter rolls.

Justice Ginsburg: Was it the position of the United States -- I thought it was, but you correct me if I'm wrong -- I thought that -- that the United States was taking the position, consistently, that non-voting was not a reliable indicator of residence change.

Noel J. Francisco: Your Honor, that's partly correct. Our prior position was based on an understanding of the statute that read into it a reliable evidence requirement, and we said that non-voting was not that kind of reliable evidence. Official 1 Our current position is that when you look at the statute, there's simply no way to read into it a reliable evidence requirement that's found nowhere in the text and that Congress, in fact, rejected. And, again, it reflects this federal/state balance where 8(b)(2) and 8(d) set a very protective floor, required everybody to be far more protective of voters than they were before the Act was passed, but beyond that floor, left the states with flexibility over the management of their list-maintenance programs precisely so they could address the other side of the compromise, which was giving states the flexibility they need to address the issues that arise when you have bloated voter rolls.

Justice Kagan: General, it would be right, isn't it -- I think you acknowledge this -- that if your position is correct, that the failure to vote clause simply doesn't apply to removal programs for change of residence. Is that correct?

Noel J. Francisco: Your Honor -­

Justice Kagan: Because, of course, all those programs have to use the confirmation Official 1 procedures, and your position -­

Noel J. Francisco: Yeah.

Justice Kagan: -- is that if you use the confirmation procedures, that's a -­ basically, that's an out for everything?

Noel J. Francisco: That's correct, but it does have much broader application. If they -­

Justice Kagan: Not much broader application, because how could you possibly use failure to vote to -- for, you know, mental incapacity or criminal convictions. What broader application does it have?

Noel J. Francisco: Well, what I think it is -- it does a couple of things. One of the principal things -- issues at the time the NVRA was passed was what you put your finger on. This practice among some states of having a kind of use-it-or-lose-it mentality to the right to vote, you either exercise it or you lose it. And they definitely wanted to take that off the table. The other thing they wanted to do was make sure that you could never use failure to vote to conclusively presume that any other Official 1 basis for removal was met.

Justice Kagan: Right. But I guess what I'm asking, General, is sort of two related questions. Number 1, if the effect of your position is to say, look, we don't mean for this failure-to-vote clause to apply to programs about change of residence, why didn't Congress just say that? That's Number 1. And, Number 2, I mean, I -- I can see the point that it's not -- it doesn't make the failure-to-vote clause completely meaningless, but I'm still looking for the place where it has some real impact on anybody's -­

Noel J. Francisco: Sure.

Justice Kagan: -- voting programs.

Noel J. Francisco: And I think it's because, and this comes out in some of the legislative history, prior to the NVRA, states simply used failure to vote as a proxy for the whole panoply of grounds for removal. They didn't necessarily tie it to this basis or that basis. And Congress was very concerned about simply relying on the failure to vote. So they wanted to take it completely Official 1 off the board. And (b)(2) is the only provision in this statute that takes it completely off the board and says nobody can ever be -- be removed merely for their failure to vote. But when you combine non-voting with the 8(d) process, the very protective process that Congress set that required everybody to improve their procedures, there's simply nothing in the statute that prohibits that, and the clarification amendment makes that even clearer.

Justice Kagan: But with respect, General, I don't think you answered either of the two questions that I asked you, so I'll try again. Why wouldn't they just have said the failure-to-vote clause doesn't apply to -- to -- to -- to where a state uses the confirmation procedures?

Noel J. Francisco: Well, Your Honor, I -- I don't know the answer to that. And I would say that the NVRA is not one of these statutes that I would hold up as a paradigm for legislative draftsmanship, but -­ Official

Justice Kagan: Okay. So the second question is what is left of the failure-to-vote clause, practically speaking?

Noel J. Francisco: It takes completely off the table using failure to vote as a conclusive presumption for any other ground for removal.

Justice Kagan: Well, what other ground are we talking about?

Noel J. Francisco: Well, prior to the NVRA -­

Justice Kagan: I mean, it's not -­ nobody used it as a presumption for mental incapacity.

Noel J. Francisco: Well, Your Honor, actually, the legislative history makes clear that prior to the NVRA, they used it as a presumption for meeting the whole panoply of different bases for removal.

Justice Alito: Well, wasn't it -­ wasn't it itself considered to be a ground for being removed? It wasn't necessarily -- these states didn't regard it necessarily as a proxy for anything else. They just took the position that it was use it or lose it. If you didn't Official 1 vote for a certain period of time, that was grounds for taking your name off the eligibility list.

Noel J. Francisco: That's absolutely correct, and that's why it meant to address both of those issues, those states that had a use-it-or-lose-it mentality, you can never do that, and those states that used it to conclusively presume that some other basis for removal has been met. But here Ohio joins the initial failure to vote with the very process that Congress established for determining whether somebody has been removed from the voter rolls. And with respect to the notion that somehow 8(d)(1)(B) does not set forth a separate process apart from the 8(c) Postal Service process, it clearly does. If you look at Section 8(d), there are two provisions. There's 8(d)(1)(A) which allows you to remove somebody if they've notified you that they've moved, clearly a standalone process. 8(d)(1)(B) is simply the corollary to that. If you haven't notified us that you've moved, here is another process that states can use to make Official 1 that determination.

Chief Justice Roberts: Thank you, General.

Noel J. Francisco: Thank you, Mr. Chief Justice.

Chief Justice Roberts: Mr. Smith. ORAL ARGUMENT OF PAUL M. SMITH ON BEHALF OF THE RESPONDENTS

Paul M. Smith: Mr. Chief Justice, and may it please the Court: I think it's important to recognize that the Supplemental Process violates Section 8 of the NVRA in two distinct ways. Of course, it violates the failure-to-vote clause, as we've been discussing, but it also violates 8(a) because 8(a) sets out an exclusive list of four bases that can be used for purging people from the rolls, and bars states from doing it under any other circumstances. And the Supplemental Process, the way it is designed, it assures that many, indeed probably most of the people who are purged, have not moved, let alone moved to a different county or state, which is the only moves that can justify a purge under the plain terms of Official 1 the NVRA. It simply doesn't provide adequate evidence to come to the conclusion that the person has moved at all.

Justice Alito: Well, your argument is that failure to vote is not one of the listed grounds for being removed, right? That's -­ that's the argument you just made.

Paul M. Smith: Yes, Your Honor.

Justice Alito: But is that what Ohio does? Does it say the failure to vote is a ground for removal, or does it say that moving out of the district is a ground for removal, and failure to vote plays a part in the determination of whether a person has moved out of the district? It's evidentiary. It's not the -- the ground for removal in and of itself.

Paul M. Smith: Well, of course, they do say that they are -- they're using the change of residency provision of 8(a) and that that's what they're trying to -- to justify the Supplemental Process with. But if, in fact, it does not do that, then it becomes illegal. And the reality is that the -- the failure to vote for two years tells you almost Official 1 nothing about whether or not anybody has moved. Fifty or 60 percent of the voters in Ohio routinely don't vote over a two-year period.

Justice Alito: Yeah, I understand that. My -- I wonder what your answer would be to this: Suppose the state statute said that if you have not voted for 20 years, then we're going to send out the notice. Would you say that that violates this Act?

Paul M. Smith: Well, it plainly violates the Act, Your Honor, because the Act says you can't use failure to vote as the reason for purging somebody from the rolls. And what the Supplemental Process does is it says we -- the reason we think this person has moved is because they haven't voted. It is the only piece of evidence that they have when they purge somebody that they have moved. Only -­

Justice Alito: You think that if somebody hasn't voted for 20 years, that doesn't raise an inference that the person has moved or died?

Paul M. Smith: Your Honor, in the legislative history, they rejected amendments precisely like that. They even rejected a Official 1 100-year rule. They said we don't want failure to vote to be the basis for which people are purged.

Justice Alito: In and of itself, but, I mean, that isn't enough even to spark an inquiry by sending a -- a postcard saying if, in fact, you've just decided you didn't want to vote for 20 years, but you really want to keep your name on the list, and you're still in the district, send this back. That would be illegal?

Paul M. Smith: Your -- Your Honor, we're talking about the people who don't send it back, which, by the way, is the large majority of people. And when you don't get the notice back, what that tells you is absolutely nothing about whether the person has moved. And so, when you get to the end of the three stages of the process, two years of non-voting, not getting the notice back, you have no idea why or where, and four more years of non-voting, the only evidence that they have that the person has moved is they're not voting. So it is, in fact, the sole reason that they're being purged. Official

Justice Alito: But if not getting the notice back tells you nothing, why did Congress make that part of the determination?

Paul M. Smith: It is a safeguard, Your Honor. It is a notice provision. It is a warning to the voter that their -- that their registration status is at risk, and it gives them two options. They can send it back if they want -­ if they haven't moved and they want to tell them here's -- I'm still there, or it says you don't have to send it back. You can just vote sometime in the next four years. But what reality is, most people don't send it back. And these statistics are in the record, Your Honor. We have Exhibit I to the State's initial brief in the district court are statistics Ohio provided. They do this every two years to the Election Assistance Commission, at page 63, and they say: Here's what happens to these confirmation notices. And what it shows is in 19 -- in -- in 2011, they sent out 1.5 million of these confirmation notices. Official

Justice Breyer: What are -- what are they supposed to do? That is, every year a certain number of people die and every year a certain number move to California. All right. We don't want them on the voter roll. That used to be a big problem, voting dead people. Okay? What should the state do?

Paul M. Smith: Well, the dead -- the dead people aren't a problem, Your Honor. There are authoritative lists at both states and the federal government level.

Justice Breyer: They went and died in Hawaii, I don't know, they went and died in Alaska. They went and died in Tasmania. Is -- is Rhode Island supposed to look at the Tasmanian voting records or hospital records or what are -- what -- it's a serious question. I don't think there's no answer to it.

Paul M. Smith: But I don't think there's any -­

Justice Breyer: And I want to know your opinion.

Paul M. Smith: -- any realistic concern Official 1 about the death issue, Your Honor. There are ways that people are informed about deaths.

Justice Breyer: What?

Paul M. Smith: There are lists that are maintained by the federal government and the states. And they don't even defend this as a -- as a way to address that.

Justice Breyer: You know, I want to know what they are. I -- I am very ignorant in this field.

Paul M. Smith: Well, I'm -- I'm -­

Justice Breyer: I'm in Rhode Island. I see the statute. I know some people have died, maybe in Rhode Island, maybe outside. Maybe they've moved to California. I don't want them voting in my state or people pretending to be them voting in my state. What do I do?

Paul M. Smith: I do not have a detailed understanding of this since it wasn't really part of the issue for this case, but I understand that there is a national database maintained by the federal government with information provided by all the states that lists who's died in the past year, and you can Official 1 compare it.

Chief Justice Roberts: Well, what about people -- Justice Breyer's question also included people who moved. What about them?

Paul M. Smith: People who move, there are a variety of ways that you -- you find them. If they move within the state, the first thing that happens is the Bureau of Motor Vehicles has a change-of-address process, and under the NVRA and under Ohio process, if you change your driver's license address, your -- your registration is automatically updated. You're registered. If you move from Cincinnati to Cleveland, you are fine.

Chief Justice Roberts: What about Justice -­

Justice Kennedy: Well, how often do you change your driver's license?

Paul M. Smith: Well, when people move to a different place in Ohio, they're required to do -- to notify them within 10 days. That's the law. Whether people do that, I don't know. But then you have the NCOA process. When people move to another county or state, the odds are they posted a forwarding address with Official 1 the post office. That address then, on an annual basis, gets -- gets -- those addresses get compared to the -- the statewide database, and those people get taken care of long before the Supplemental Process.

Justice Kennedy: But are there -- are there statistics or -- is that just a commonsense argument, or are there statistics that show that?

Paul M. Smith: Show what, Your Honor?

Justice Kennedy: That when you -­ that when you move, you always notify -- notify the post office?

Paul M. Smith: No, Your Honor. It is just common experience. I don't think there are statistics. Certainly, the state does not have any statistics they've ever suggested for why they -­

Justice Sotomayor: I'm sorry, Mr. Smith. I thought I read it was 40 or 50 percent.

Paul M. Smith: No, Your Honor. The statistic in -- in the record is that 40 percent of the mail that gets returned for -­ as undeliverable is -- is because people have Official 1 not posted a forward address. It's a much -­ likely to be a much smaller percentage of people who don't actually forward -- do that when they move to a different county or state.

Justice Kennedy: Under -- under your interpretation, could -- under your interpretation, could Ohio send address verification notices to the entire electorate and -- and then do what it's doing?

Paul M. Smith: The confirmation -- the forwardable ones that they do under the confirmation process, if they did that to the entire electorate, it would not violate 8(b)(2), but it would most assuredly violate 8(a) because -­

Justice Kennedy: Right. So the fact that they use a general mail -- mail to everybody wouldn't affect the outcome in your view?

Paul M. Smith: No, it wouldn't, Your Honor, because what happens is if 70 percent of the people don't return them -- that's what the statistics show about the notices in 2011: 10 percent were returned as undeliverable, 20 percent were returned, and 1.2 million Official 1 people just threw them in the circular file.

Justice Breyer: What about sending a card? Look, the reason I'm asking these questions is because I don't believe Congress would have passed a statute that would prevent a state from purging a voting roll of people who have died or have moved out of the state. So I'm trying to reconcile the two. And, therefore, I ask you what the state's supposed to do for that latter objective. And suppose they send a card which says no forwarding. Don't forward. And their theory of that is that if the person has moved, and they wait long enough, and they send it a couple of times, the post office will send it back and then they'll know the person has moved.

Paul M. Smith: Your Honor, that is the precise system that 14 or so states use to identify people who have moved, and the key feature of it is that it's not forwardable because then it comes back if they have moved.

Justice Breyer: Yes, that's right. And you think that's okay?

Paul M. Smith: The Justice Department for Official 1 20 years said that was okay.

Justice Breyer: I'm asking you if you think that's -­

Paul M. Smith: I think it's okay too.

Justice Breyer: Okay. Now -­

Paul M. Smith: But you then have to go into the confirmation process.

Justice Breyer: All right. Fine, fine. Okay. I got my answer.

Paul M. Smith: Yes.

Justice Breyer: Can I add one thing to it? I -- I'd like to add that because they don't want to send non-forwardable cards to everyone since it's expensive -- in a state like California, it might cost several -- tens of millions of dollars -- what they do is they send those non-forwardable cards to people who haven't voted for three or four years. Okay? Now is it okay?

Paul M. Smith: If they only proceed to purge people when it comes back and says no longer at this dress -- address, undeliverable, I think it's fine, Your Honor, because it's not based on non-voting at that point. It's based Official 1 on concrete, reliable evidence -­

Chief Justice Roberts: So -- so the triggering event can be the failure to vote? I would have thought that's inconsistent with the rest of your argument, which says what's wrong with this case is that they used failure to vote to trigger the sending of the notice.

Paul M. Smith: Well, Your Honor, I -- I think that -- that you could differ -­ reasonable people could differ about this, whether that is -- that is illegal, but I -- I think when you have an intervening cause that very clearly says this person has moved, just as when they return the confirmation notice and they say they've moved, then it's okay even if they -- the reason they got the notice was non-voting. You have then some concrete information that says this person has moved.

Chief Justice Roberts: But -- but, I mean, then I would -- the response is really the -- the substance of your argument, which is it's still triggered by the failure to vote, and the law says you cannot use failure to vote in -- in one of these processes.

Paul M. Smith: Well, Your Honor, I think Official 1 that -- what the law says is failure to vote can't be the reason you're purging them. And when you -- when -- when the only evidence you have at all that they have moved is not voting, then that's clearly the reason that you are purging them. And that's what the Supplemental Process does. For the people that don't return the card -­

Justice Kennedy: The reason they're purging them is they want to protect the voter rolls from people that have not -- that -- that have moved and they're voting in the wrong district. That's the reason. What we're talking about are the -- the best tools to -­ to implement that reason, to implement that purpose.

Paul M. Smith: And Congress thought the worst thing you could do to try to find people who have moved is just look at who isn't voting because there were two problems with it. Congress knew there were vast numbers of people who simply choose not to vote and that that was therefore a terribly inaccurate way to identify people who have moved, and it also said very specifically people -- it's unfortunate that Official 1 people don't vote, but they have a right not to vote. This is the Senate report. Many states -- "the Committee recognizes that while voting is a right, people have an equal right not to vote."

Chief Justice Roberts: Is that -- is that true? I mean, you think there is a constitutional right not to vote?

Paul M. Smith: This is a statutory right here, Your Honor, but I actually do think it's the -- the -­

Chief Justice Roberts: I understand it's a statutory. But there are many democracies that require you to vote, right? Australia, it's -- you get a fine if you don't vote. And other places. And I have certainly seen it proposed that it would be a good idea, given the low voter turnouts in our country, that we adopt something like that as well. Now, you think that would be unconstitutional?

Paul M. Smith: Well, I think there's a pretty persuasive argument to that effect in the National Libertarian brief that was filed in this case, filed by Wilmer. I think, basically, they said it's a First Amendment Official 1 act. And, just as you have a right to vote protected by the First Amendment, a right not to vote because you don't want to vote for any of those candidates would be protected as well, I would think. In any event, it -­

Justice Ginsburg: Mr. Smith, in -- in your view, you know, we have what's been called the safe harbor; that is, you use the post office notice of change of address. What else could be the trigger?

Paul M. Smith: There's the -- the non- -­ the non-forwardable mail, the national change of address. There are the -- the DMV records, which come into play. They operate continuously. People -- people are reregistered on -- that's required by Section 5 of the NVRA. And Ohio does that before it even gets to the NCOA process. There are statewide -- there are interstate databases. The ERIC system is the sort of state-of-the-art interstate database that lists everybody who goes somewhere else and registers or gets a driver's license in some other state. All of that stuff is available to the State of Ohio. And I think it's important as well to Official 1 understand the small number of people that they say they're looking for with this Supplemental Process.

Justice Alito: I mean, this is a very -- it's a very important subject. It's a sensitive subject. There are -- as a policy matter, there are strong arguments on both sides. Congress had struck a compromise. What we have before us is a question of statutory interpretation, not a question of what we think would be the ideal system for achieving the result of removing people who have moved from the voter lists. And you haven't said very much about the language of the statute.

Paul M. Smith: Yes, Your Honor.

Justice Alito: How do you get -- if "by reason of a person's failure to vote" is not but-for cause, how do you get around the language of (b)(2)?

Paul M. Smith: Well, Your Honor, the -­ the language of (b)(2), I think, strongly supports our position because what it says is you can't have a system that uses non-voting as Official 1 the reason for purging somebody, except you can use (c) and (d), which is to say you can use the confirmation process. And so non-voting can come into play at the end of the process, not at the beginning of the process.

Justice Alito: But that actually isn't what (b)(2) says. It does not say you can't use failure to vote as a reason for removing someone, except that you can do what is set out in --- in (c) and (d). What it says is that the principle that you can't use failure to vote as a reason for removing someone may not be construed to prohibit. So the -- it -- it tells you how to interpret the first part of (b)(2). It is not an exception to the first part of (b)(2).

Paul M. Smith: Right, but it is -- it is an explanation that the one kind of consideration of non-voting that -- that it -­ that it should not be construed to prohibit is the part that comes in at the end of the process. And then they went on to emphasize that -- the sequence. They say (a), they have not responded to the notice and, then, they have not voted for two -- two consecutive Official 1 elections. That is very clearly what Congress was trying to preserve and to eliminate the tension, perceived tension, between (b) and (d) in the old version.

Justice Alito: It says -- it says that -- that it's all right if you followed either (c) or (d). And what -­

Paul M. Smith: (c) and (d), Your Honor, with respect.

Justice Alito: Well, it says -- you think you have to follow (c) and (d)?

Paul M. Smith: Well, I think you need to follow -­

Justice Alito: That's not what it says.

Paul M. Smith: You need to follow something like (c) because clearly Congress anticipated that there would be something that would tell you that they have moved before you go into the confirmation process, because the confirmation process consists, if they don't get the notice back, of no evidence at all about whether they've moved from the notice. And four more years of non-voting, precisely the thing Congress said should not be the Official 1 reason that you purge somebody. So the whole system only makes sense if you assume there's something like the NCOA process or some other indication that they have moved before you put them into the process, and if you don't have that, you're going to vastly over-purge people. That's precisely what Ohio does because so many people don't vote for two years and they get put into this process where 70 percent of them don't send back the notice and in four -- four more years of non-voting, you're going to end up with -­

Justice Alito: You just told me that it doesn't matter how many years is required by the trigger. It could be 10. It could be 20.

Paul M. Smith: Yes, Your Honor, because that's what the statute says. And that's -­ that -­

Justice Alito: Well, where does the -- where does the statute say that?

Paul M. Smith: The statute -- well, it says two things: It says A, don't purge people unless you have good reason to think they've moved. That's (a).

Justice Alito: And -­ Official

Paul M. Smith: And in (b), don't purge -­

Justice Alito: -- and not voting for 20 years isn't good reason to think that they've moved?

Paul M. Smith: Well, it -- it -- they -­ they might be. I don't believe so. I mean, lots of people probably stay registered much longer than 20 years and don't move for 20 years. It's not an unusual thing in -- in our country, I would believe. In any event, the -- the -- the statute that we're dealing with here says that the -- the reason you're purging them cannot be their non-voting. And when they get to the end of the Supplemental Process, that is the only evidence they have that anybody has moved. Weak as it is, it's six years of non-voting, and -- and a notice that doesn't get returned, which tells them nothing. And so the -­

Chief Justice Roberts: Well, it doesn't -­

Paul M. Smith: -- entire process is -­

Chief Justice Roberts: -- it doesn't tell them nothing. It tells them that they did Official 1 not respond to a notice that says you're going to lose the registration if you don't vote through the two years, two elections. So it tells them something.

Paul M. Smith: Well -­

Chief Justice Roberts: They have more evidence than just that they haven't voted. And you've indicated that under some circumstances, the method of the notification as we have in the states that you reference in pages 14 to 15, that that is okay, even though it's triggered solely by the failure to vote. So I -- I don't think you can maintain in a principled way the acceptance of the validity of those states' positions and -- and your argument against the position here. Now, you may say: Well, it makes a difference because of the -- the -- the -- the quality of the information you get from one notice or another, but you can't just attack this on the basis that it's triggered by the failure to vote. You have to say failure to vote, plus a method of notification that you think is not sufficient, because you do think in other cases Official 1 failure to vote plus a different method of notification would be okay.

Paul M. Smith: But -­

Chief Justice Roberts: Now, maybe your position still is the same, but it can't just base on the fact of failure to vote being the trigger.

Paul M. Smith: We're -- we're talking about the people who don't return the notice. And I think it's clear that nobody would claim, and Ohio doesn't claim, that when they don't get anything back from the person, that that tells them anything about whether they're still living in the same place where they sent the notice or whether they moved to some other place. They're forwardable. They have no idea which trash can it was thrown in, at the original address or some other address. It simply doesn't give them any information. Now the alternative -­

Chief Justice Roberts: Well, but they say they get more information. It's not just that it's not -- you know, that it's not returned, but that they've gotten the notice Official 1 and they haven't voted in the subsequent elections.

Paul M. Smith: Right, right. So the -­ the -- in the end of the day, they have six years of non-voting that tells them -- they say that's some evidence that they've moved. It is some evidence. It's pretty weak evidence, but it's some evidence. But it -- the -- the statute says you need a lot better evidence than that. And the one thing we don't want you to do is -- is use non-voting because people have a right not to vote. And we don't want them punish -- punished for it.

Chief Justice Roberts: Well, maybe I'm just repeating myself, but -­

Paul M. Smith: Maybe I am too, Your Honor.

Chief Justice Roberts: -- you don't just have the failure -- maybe we're both just repeating. (Laughter.)

Chief Justice Roberts: We -- we don't -- you don't just have the failure to vote. You have the failure to vote, plus the notification that you need to do something Official 1 because you haven't voted. Now, in some situations, you think the notification is sufficient, so you would say in those, it's not just the failure to vote. But in this case, you say the notification is not sufficient, so it is just the failure to vote.

Paul M. Smith: It's a fundamental difference between when you get back something the post office -- from the post office that is undeliverable, no longer at this address, and when you get nothing back.

Chief Justice Roberts: Yeah, I understand that, but the point is that your argument then really turns on the adequacy of the notice and not simply the fact that the notice is triggered by a failure to vote.

Paul M. Smith: Well, I think, Your Honor, the -- the notice that's in the statute, the forwardable notice that Congress specifies has to be forwardable, was not designed to be a test of whether people have moved. It was designed to be a safeguard, a notice process telling people their rights were at risk, and they either have -- have to return it or they need to vote sometime pretty soon or Official 1 they're going to lose their registration status. To turn it into the test, the -- the state says we can give this to everybody and -­ and then purge people when they don't return the notice on the assumption that that means they haven't voted -- haven't -- they've moved, if they don't return the notice and they -­ they don't vote for four years, it's -- the thing about that kind of notice is when it -­ when 70 percent of the people don't return it, which is what happened in 2011 in Ohio, the ones who don't return it, you have no more idea whether they've moved or not moved, it's no more likely -­

Justice Breyer: Is there any stat on that? I mean, this does seem at the moment to boil down to an empirical question. You think that sending a notice, which is forwardable, is not going to tell you not much when it comes back because so many people just don't return notices.

Paul M. Smith: It's not going to tell you much when it doesn't come back.

Justice Breyer: Yeah, when it doesn't Official 1 --

Paul M. Smith: That's the problem.

Justice Breyer: Exactly. Sorry, I misspoke. You think that returning a notice that's forwardable, when it doesn't come back tells you virtually nothing because people just throw things in the wastebasket or -­

Paul M. Smith: Well, it doesn't tell you --

Justice Breyer: -- or it tells you next to nothing.

Paul M. Smith: It doesn't tell you whether they -- it's been forwarded to the new address or whether they're -­

Justice Breyer: You don't know where -- you don't know if they just got it at the old address or they had to forward it. You don't know. But if it wasn't forwardable, you get it from the post office, that tells you quite a lot.

Paul M. Smith: Yes, Your Honor.

Justice Breyer: Okay. Got it. Got it.

Paul M. Smith: Good, good. Official

Justice Breyer: Now, that's what you've just said. And if you're right on the first, then we have nothing left here or next to nothing left but the not voting. That's your point.

Paul M. Smith: Right.

Justice Breyer: His point is we have something else. We do have the fact that that notice didn't come back, and that means more than you think it means. Okay? That's their point, I think.

Paul M. Smith: They -- they don't actually claim -­

Justice Breyer: Now, if that's so, all I'm asking is, is there any place in this record that I can look for some numbers or surveys or something hard that will either support you or will support them?

Paul M. Smith: Your Honor, there is no evidence about whether or not people who failed to return the notice have moved, because they have never claimed it was evidence that they have moved. Their only claim in this case is that we're -- we're -- we're targeting these people because -­ Official

Justice Breyer: But there might be surveys about how many people throw everything in the wastebasket. I confess to doing that sometimes. And -- and -­

Paul M. Smith: Most people do.

Justice Breyer: I know that's what your opinion is. And all I'm asking is, is there any hard evidence of that one way or the other?

Paul M. Smith: The evidence we have in the record is that most people throw it in the wastebasket, 70 percent. Excuse me?

Justice Breyer: Page?

Paul M. Smith: That's Exhibit I to their brief in the trial court. Their -- their report to the Election Assistance Commission on their 2011 -- 1.5 million confirmation notices, 1.2 million were simply ignored, 10 percent were returned undeliverable, 20 percent were -­ were returned. That's the data on this. Now I think the other important -­

Justice Sotomayor: Mr. Smith, there is one thing about -- and I maybe should have asked this of -- of Ohio -- of the state. But, Official 1 once you don't return the notice, you get put on the inactive list, correct?

Paul M. Smith: Right.

Justice Sotomayor: That means that you no longer -- does it mean you no longer get mailings about elections?

Paul M. Smith: Yes, Your Honor. It means you can still vote, but you can't -- you're not notified of where your polling place is and you don't get the -­

Justice Sotomayor: You're not sent any more reminders about -­

Paul M. Smith: That's my understanding. I -- I may -­

Justice Sotomayor: It's one notice in four -- six years.

Paul M. Smith: You disappear for purposes of mailing.

Justice Sotomayor: And -- and -- and you disappear from any further mailings.

Paul M. Smith: That's my understanding. I couldn't necessarily swear to it, Your Honor, but it's my understanding, that that's the -­

Justice Sotomayor: I'm sure Mr. Murphy will -­ Official

Paul M. Smith: -- the consequence of the inactive status.

Justice Sotomayor: -- correct it if it's wrong.

Paul M. Smith: Yes. Now, let -- let me talk, if I could, about this concept of proximate cause that's -- that's been brought up here. I think it's -- it's a misplaced concept here because the -- the term that the Congress used multiple times was "reason." And I think the reason has to be something that is causally linked to the underlying reason, which is that they think you've moved to a different county or state. And the only evidence they have at the end of the Supplemental Process of that is the non-voting. They don't even claim that the people -- the 70 percent of people who don't return the notice, that that's evidence of anything. It is a hoop they have to go through. It is a -- it is a safeguard, it is a requirement that Congress imposed, but it's not the reason that anybody is being purged in terms of the underlying issue of whether Official 1 they've -- they've moved. But even if you want to do this proximate cause concept, as Justice Kagan pointed out, there are three things that have to happen: Two years of non-voting, the failure to return the notice, and four more years of non-voting. And calling the non-return of the notice the proximate cause is like saying when you strike out, the only proximate cause is strike two. It just doesn't -- it doesn't really make sense.

Justice Alito: So what is your standard of causation? It's not -- it's not solely, it's not proximate cause. The only thing I can think of that's left is but-for.

Paul M. Smith: I think that the -- the analysis ought to use the -- be based on the term "reason," not "cause," Your Honor. It's not a -- this is not a tort law.

Justice Alito: What's the difference -­

Justice Kagan: I don't understand why it's just -- it's proximate cause, but both -­ strike one, strike two, strike three. They're Official 1 all proximate causes of the strikeout.

Paul M. Smith: Well, I agree with that, Your Honor, as well, Your Honor. I just think that that's not -- that's not the right way to phrase -- way to think about it here. The reason that they're being identified as having moved is because they're not voting. That's the point.

Justice Alito: Well, in HAVA, Congress used the term "solely." Could you say something about -- about that provision of -­ of HAVA? That says that states shall include provisions. It's mandatory. To have a system of file maintenance that makes a reasonable effort to remove ineligible voters, and goes on to say, under this system, "registrants who have not responded to a notice and who have not voted in two consecutive general elections for Federal office shall be removed from the official list of eligible voters." By itself, that seems pretty clear. How do you get around that?

Paul M. Smith: Well, Your Honor, I think the except clause is a reference to the same Official 1 principle that's set forth in -- in (b)(2) -­ (b)(2), which is to say the reason that you're getting put into the -- into the purge can't be simply not voting.

Justice Alito: Except -- but it -- it goes on to say: "except that no registrant may be removed solely by reason of failure to vote."

Paul M. Smith: Right.

Justice Alito: Now, under Ohio's system, is someone removed solely because of failure to vote?

Paul M. Smith: Yes, Your Honor. Absolutely.

Justice Alito: So the notices -­ there's no requirement -- if somebody doesn't vote forever but returns that notice, the person would be removed from the list?

Paul M. Smith: We're talking about people who don't return the notice. The case is only about people who don't return the notice.

Justice Alito: No, I understand that, but I don't see how that -- how that's solely.

Paul M. Smith: Well, because the only evidence that they have that you have moved, Official 1 which is the permissible category, is your non-voting. And so Congress, when it -- when it -- when it wrote that would have thought that the -- the Supplemental Process removes people solely for non-voting. It didn't think of the confirmation process as a reason to remove people. And it certainly didn't think non-return of the notice was a reason to remove people. It was looking at -­

Justice Alito: If somebody returns the notice, they never vote, but they return the notice, are they removed from the list?

Paul M. Smith: The notice -- when they return the notice, the question is, what do they say? Do they say I'm still living on Main Street like I always have? Then they -- they stay on the list. If they say I have moved to Oklahoma, then they get purged. That -- that -- but in either event, the state then has direct information about where they live and can take whatever action it should. The -- the problem we have here is that this kind of notice, which, by the way, Official 1 says you don't have to return it, you can just choose to vote sometime in the next four years, most of the time isn't going to get returned. And so it doesn't provide you any evidence at all on which to decide that these people should be purged. And you end up with a system which looks an awful lot like the old Ohio use-it-or­ lose-it system, which is some period of non-voting, one notice that most people don't return, and we're going to -- we're going to throw you off the rolls. Now, the other thing -- the other -­ other fact that's in the record is the small number of people that were -- that the Supplemental Process supposedly is trying to find. We have in the record evidence about how many people moved to a different county or state in each year. This is evidence the State put in the record, Exhibit E to their main brief in the district court. And it shows that about 3 percent of people in this country move to a different county or state outside of the registrar's jurisdiction, to use the term -­ terminology in the -- in the statute. Three percent a year. Official 1 That's a small number by itself. But then the Supplemental Process only is triggered with -- to try to find that -- some sliver of those people who have not already been identified because they changed their address with the Bureau of Motor Vehicles or because they posted a forwarding address with the Post Office. And so what -­

Justice Sotomayor: Mr. Smith, could you give me concrete numbers? How many voters have been purged as a result of this system?

Paul M. Smith: Well, Your Honor, I can't give you exact numbers, but I -- I would refer you to the biennial Election Assistance Commission reports that -- that look in detail at all the states' processes with respect to registration and perjury -- purge. I -- I -- I do know that -- two things I can tell you, Your Honor. It's certainly in the hundreds of thousands in -- in many years. It was something like several hundred thousand in 2015, according to the more recent report that's not in the record. Official 1 And I can also tell you that the evidence shows -­

Justice Sotomayor: But you gave me 3 percent of people nationally move.

Paul M. Smith: Move to a different county or state.

Justice Sotomayor: I -- I guess what I'm trying to get to is about how many people in Michigan actually move?

Paul M. Smith: Well, the -- the Ohio, the statistics that were put in were national. But those -­

Justice Sotomayor: I'm sorry, I misspoke. In Ohio.

Paul M. Smith: Ohio apparently thinks it's pretty -- the -- the -- the national statistics -- statistics represent Ohio because that's the statistics they put in. I don't think the Census does these mobility statistics by state, or at least that's not in the record. But 3 percent is roughly the right amount. But then you'd have to reduce that -­

Justice Sotomayor: I don't know. Three percent of what?

Paul M. Smith: People move in each year. Official

Justice Sotomayor: I -- I understand that. But what's the -- 3 percent of what greater number?

Paul M. Smith: Of all people in the country.

Justice Sotomayor: Of all people in the country.

Paul M. Smith: Yes.

Justice Sotomayor: So we have to divide it up and do that math.

Paul M. Smith: Well, it is -- it is -- in other words, only -- 97 percent of people do not move to another county or state in any given year. That's -- that's what the statistic is. And then, you know, there's -- most of those 3 percent are going to be located presumably in some -- in one of the other ways. So we're talking about a relatively tiny group of people which they then -- the process that they then use begins with 50 or 60 percent of people who don't vote for two years. Thank you, Your Honor.

Chief Justice Roberts: You can have a couple of minutes as well. Official

Paul M. Smith: And so, you know, the process is vastly overbroad in its design to try to find this relatively small group of people, starting with 50 or 60 percent in an -­ in an -- in an off-year election don't vote; 70 percent don't return the notice. You're just going to end up with a lot of false positives in the end, and that is, in fact, how the system is -- is operating. It -- it finds a lot of people that supposedly have moved who simply haven't moved. I think I'll leave it at that, Your Honor.

Chief Justice Roberts: Okay. Thank you, counsel. Two minutes, Mr. Murphy. REBUTTAL ARGUMENT OF ERIC E. MURPHY ON BEHALF OF THE PETITIONER

Eric E. Murphy: Thank you, Mr. Chief Justice: The first question I'd like to answer is about the statistics of the number of people who move without notifying the Post Office. That is in the record. There's an Inspector General report that suggests that 40 percent of individuals don't notify the Post Office. Official 1 That's Doc 38-6, page ID number 395 in the district court's docket. I think this is significant because it shows why the Postal Service provision is a safe harbor for meeting the state's obligation to remove individuals, because it's going to be woefully insufficient for that task. States are going to have to do other efforts if they actually want to maintain adequate rolls rather than just worry about the threat of getting sued on the other side of the compromise that is -- that is at issue here. And I think this goes to that this, in the end, was a -- a -- a statute that was balancing competing purposes: On the one hand trying to remove ineligible voters, on the other hand trying to ensure protections for eligible voters. And it came up with a compromise. And that compromise let a lot of room for states in our federal system to adopt the procedures that are best in that state. And with respect to sending information, I would say that my friend on the other side mentioned the ERIC program. Ahead Official 1 of the 2016 election, Ohio sent something like 1.6 million letters to potentially eligible yet unregistered voters, many of those if they were removed under our process could have received this notice from ERIC ahead of the registration deadline encouraging them to register. I'd also note that -­

Justice Sotomayor: I'm sorry, they don't get -- people don't get notice that they have been struck. They get one notice, they're put on the inactive list. Was I correct about that?

Eric E. Murphy: Under the NVRA, you're only -- the minimum requirement is -­

Justice Sotomayor: I'm not asking -­

Eric E. Murphy: Yeah.

Justice Sotomayor: Under Ohio's law, do they get only one notice?

Eric E. Murphy: Only one notice, but -­

Justice Sotomayor: They don't get a notice when they're purged. So they don't know they've been purged. They have to go to the polls to find that out.

Eric E. Murphy: That's why I was mentioning the ERIC program -­ Official

Justice Sotomayor: Well, that -­ that's -­

Eric E. Murphy: -- because we just sent 1.6 million letters to all potentially eligible voters who -- who were not registered.

Justice Sotomayor: Would you answer my question? Are they ever sent, anyone who's sent a notice and put on the inactive list, are they ever again sent any voting information outside of this ERIC program?

Eric E. Murphy: So Matt Damschroder's declaration at Doc 38-2 suggested that the state ahead of the 2016 election sent absentee ballot applications, so you could vote because we have no excuse voting. That would have gone to many of these individuals. Not everybody. It would have gone to any of the individuals who had been sent this notice and had voted in the previous election, 2012.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:10 a.m., the case was submitted.)