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The National Voter Registration Act's Failure-to-Vote Clause, 52 U.S.C.S. § 20507(b)(2), as originally enacted, referred to sole causation. When Congress enacted the Help America Vote Act of 2002 (HAVA), it made this point explicit. It added to the Failure-to-Vote Clause itself an explanation of how it is to be read, i.e., in a way that does not contradict 52 U.S.C.S. § 20507(d). In language that cannot be misunderstood, it reiterated what the clause means: 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, except that no registrant may be removed solely by reason of a failure to vote. 52 U.S.C.S. § 21083(a)(4)(A). In this way, HAVA dispelled any doubt that a state removal program may use the failure to vote as a factor (but not the sole factor) in removing names from the list of registered voters.
The National Voter Registration Act (“NVRA” or the “Act”) prescribed requirements that a State must meet in order to remove a name on change-of-residence grounds. According to the Act, a State may not remove a name on change-of-residence grounds unless the registrant either confirmed in writing that he or she has moved or failed to return a pre-addressed, postage prepaid “return card” containing statutorily prescribed content and then failed to vote in any election during the period covering the next two general federal elections. Respondents contended that Ohio's process for removing voters on change-of-residence grounds violated the Act’s Failure-to-Vote-Clause. The Ohio process at issue relied on the failure to vote for two years as a rough way of identifying voters who may have moved. Ohio would send the nonvoters a pre-addressed, postage prepaid return card, asking them to verify that they still reside at the same address. Voters who did not return the card and failed to vote in any election for four more years were presumed to have moved and were removed from the rolls. The district court ruled in favor of Ohio’s Secretary of State, holding that Ohio’s process mirrored the procedures established by the NVRA for removing people on change-of-residence grounds and did not violate the Failure-to-Vote Clause because it did not remove anyone solely for their failure to vote. The Court of Appeals for the Sixth Circuit reversed, holding that Ohio violated the Failure-to-Vote Clause because it would send change-of-residence notices based solely on a person’s failure to vote. The U.S. Supreme Court granted certiorari.
Was the process used by Ohio to remove voters on change-of-residence grounds violative of the Failure-to-Vote Clause?
The Court held that the U.S. Court of Appeals for the Sixth Circuit erred when it found that the process the State of Ohio adopted in Ohio Rev. Code Ann. § 3503.21(B)(2) for removing individuals who had not voted in recent elections from the rolls of voters violated 52 U.S.C.S. § 20507(b)(2). According to the Court, Ohio's procedure of sending voters who had not voted for two years a pre-addressed, postage prepaid card asking them to verify that they resided at the address on the card and removing them from the rolls of voters only if they failed to return the card and failed to vote in any election for four more years did not strike any registrant solely by reason of their failure to vote, was permitted by § 20507(d), and did not violate the National Voter Registration Act or the Help America Vote Act of 2002.