tv Husted v. Randolph Institute Oral Argument CSPAN January 13, 2018 5:52am-7:00am EST
who does not respond is removed from the rolls. this argument is just over one hour. your argument in this morning -- we will hear the argument this morning versus the randolph institute. mr. murphy? >> may it please the court. congress passed to serve competing goals. increasing the number of registered voters but decreasing the number of in notable ones. this congressional compromise is evident in the mandates. it requires states to undertake programs to remove ineligible individuals but place limits on those federally mandated removal programs, including the states
not removing individuals who changed residence unless they failed to respond to change notice. >> i know you have the exceptions clause. would your case have been stronger without the enactment of section be? in other words, can you rely just on a and d. ? if there were no b at all. certainly, if there was no clause, that's one of the main prohibitions on which they are lying. but you have to interpret in light of the, d clearly indicates, so long as we send notice and so long as we went to federal elections, that is acceptable. >> so why bother? >> because of the except clause.
>> because you have to interpret the provision in a way that reconciles with the use of failure to vote and only our position interprets b in a way that allows the back and use of nonvoting and d. >> the act itself is a safe harbor position. that triggers confirmation. that safe harbor provision doesn't rely on at all on failure to vote. it relies on post office change of address form. so isn't that some clue that safe harbor that congress didn't want them to vote to be a trigger for these proceedings? >> i don't think so because i think that's a safe harbor for something completely different. they treated as a safe harbor as d, they have objective evidence.
that element is not there. in fact, the postal service provision is a safe harbor for the other side of the balance between removing an eligible voters and keeping voters on the role. >> this is a complicated system for a simple position. if you have any reason to believe somebody has changed address, just send them a notice and after two election cycles, disqualify them. why have the post office division at all? why have any other provision? as it is, i understand ohio now is not waiting for people to list two election cycles. they are waiting every year to purge it, right? >> no. >> you can send out a notice
anytime and anyplace, isn't that your position? >> no. if it's sent out and they respond -- >> my point is, you don't need the failure to vote two years -- >> that's right because the state right canvas would not be based on the right to vote whatsoever. that's why they have to read into d and elements they make up from whole cloth, meaning the have objective evidence. >> the senate report that supported this explicitly says that what they wanted to avoid was a mailing that was an responded to being a cause for removing someone. its purpose, why would it it makes sense -- wouldn't it make sense that the only reason you can't send the notice is if you have reasonable basis to believe someone has moved?
failure to vote can't be it because the set report says they believe the failure to vote was a constitutional right. you have a right not to vote. >> there is a couple points here. the first is, what if people don't respond to the notice? >i am i agree there is a senate report. not put ins did objective evidence into the procedures in response to that concern. they put in the failsafe voting on the back end, so if an individual doesn't respond, they still have to federal elections they can show up to vote. that's how they dealt with that provision. vote,espect to failure to the history is quite clear that the concern was removing vote,duals for failing to that's what the report says, that's not what ohio does -- >> having to do with the post office notice.
>> because that's -->> why do you need -- >> because that's a minimal effort on the other side of the balance as i was trying to mention to justice ginsburg. stash safesais harbor for state obligation to engage in maintenance effort is. it has a duty to remove ineligible voters and it begins by saying, you can meet your obligations to remove in eligible voters by going through this rss. it's the minimal -- this process. toif i can take you back justice ginsburg's position. it seems like you are effectively turning it into a safe harbor in this sense. -- says that these confirmation procedures are a permissible heart of the -- permissible part of the program even though part of the procedures are about not
voting. so that's clear. you are trying to take that and converted 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 is another part of your program that exquisitely relies on nonvoting. and i don't see that as, in any way, being the point of it. , sure youying to take can have a part of a program that does this and turn it into a much bigger, broader safe harbor for everything you do. >> my response there would be, you have to interpret the words in a way that would not prohibit what it requires. it requires nonvoting over to federal elections. we have the argument for why the failure to response to the notice breaks the length. there was a debate in the 1990's -- >> i think this is a different
question, since you raised it, i don't understand. essentially, what the audio program does -- the ohio program does, nonvoting, failure to respond, nonvoting. you are trying to take the middle piece and saying that's not proximate cause. that's not what we think of proximate cause in any area. >> this court has appeal he said it is a possible -- >> no argument on that. sure there is a proximate cause test, but there can be more than one accident cause. >> but the court said you have to pick the proximate cause and this statute, the last cause undoubtedly is failure to vote. the best way to reconcile b and d is that failure to respond to the notice breaks any prohibition between failure to vote and removal.
i think there was this debate -- >> why do you need the proximate cause argument at all? with the statute says is that somebody may not be removed from the list by reason of the persons failure to vote. cause't mean but for itself then the statute 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 the hav a congress used the term solely, so why isn't the best interpretation of this that one can't he removed solely because of failure to vote? >> that's absolutely correct and the courts have one component about parchment cause test, a malleable phrase --
>> isn't that just adding a word into the statute congress wrote? congress said reason to vote. there are multiple places where congress once to say -- wants to say solely by reason and congress says it because there are lots of situations in which two components together causes something. so to add that word solely is to change the word meeting of the statute and that word is not in this provision. best think it's the reading to reconcile the two provisions. the solely. and d to reconcile the two provisions. theddition, hava added clause and the terrifying amendments. >> everybody is looking at a way to reconcile the eminence.
you are right, what do we do with these -- reconcile the amendments. you are right, what to do with these?\ you have these failure to vote clause, but don't think this failure to vote clause bars the state from using the confirmation procedures. it doesn't bar the state from using the confirmation procedures. that can be a permissible part of the state program. that's your way to reconcile the two things. taken on its own, it looks like it might our confirmation procedures. the procedures say no, not these. >> that may have been one way to reconcile it. our weight might have been one way. on thises debate precise issue threat the 1990's and congress intervenes and reconcile it with the solely clause and the hobbit -- hava provision. >> it's a completely independent
provision and statute. it's not the clarified amendment and the clause is a part of the different provision in a different statute dealing with a related but different subject matter. there are be no reason to take one provision and say because that provision says soli, we will treat -- solely, we will treat this position as solely. in fact, we have a rule against that. usually we say, congress knows how to do a solely provision and we didn't do it here. >> but what it did have in the same law, maintenance that uses solely, and with respect to the failure to vote clause, it adopted a clarification amendment that said, nothing in this provision shall be construed to prohibit the states from using the procedures in c and d.
>> that's exactly what the clarifying amendment says. don't interpret the failure to vote clause as preventing use of the confirmation procedures. and that's my point about how these two things are reconcilable of it -- reconcilable. don't interpret the failure to vote clause as barring the confirmation procedures. states can use the procedures that it doesn't mean they can do everything else they want to do on top of the confirmation procedures. >> it's a rule of clarification. it's as you have to construe b-2. with that, combined with the clause makes it clear that you have to interpret by reason of link which to break the causal link between voting and her mobile required in d. interpreting it to be a part of the soul clause is why you have
a clarification amendment in b and the solely clause. it appears as if what you are reading is that the failure to 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 s in disenfranchising disproportionately certain cities where large groups of minorities live, where large groups of homeless people live and across the country, they are the groups that vote the least.
in large measure because many of them work very long hours and -- ohiothe golden rescinded, many of them can't vote because the polls are not open while they are not working. places like cleveland have very, very, very long lines of voters 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 the 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. change ofuse juror addresses. you can use drivers license, motor vehicle change of addresses. there are dozens of other ways that you could verify a change of address. yet you are suggesting that using a failure to appear at 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 whose of plaintiff in this case, explains the reasons why he failed to vote in two elections. meeting ofive the
the words that congress said, don't use the failure to vote as a result that results in someone being disenfranchised. i don't understand how you could say that the failure to vote can be used as the sole basis for sending out notices. it's not a reasonable inference, so how could it eat a reasonable effort? >> the failure to vote clause says it can't be that sole basis for removal, not setting a notice says nothing about sending a notice. subsection d, congress identified a minimum that they thought was sufficient for state to remove individuals for failure to respond. >> that's minimal. that you think the maximum should be something more than the failure to vote? >> it does because -- >> a change in the residence in d,ordance with b, c, and
and d has you using the post office. >> c. >> c has you using the post office. d says it shall not result in the name of the removal of the person in any election i reason of the persons failure -- by reason of the person's failure to vote. >> that's correct if you interview that to be a soul proxim it contest, then ours proximate- sole contest, then ours does not qualify. failure to vote over six years, which is more than -- >> so please ask plain to me why a change of address is reasonable to read -- explain to me why a change of address is reasonable. the vast majority that people
you just disenfranchised from voting, that you strike from the election rolls have actually moved. >> so, there is no statistical evidence necessary because congress made the determination of what evidence is necessary -- >> know, when it give you an example -- >> that was an example of meeting our duty on the other side of it there was -- other side. there was a minimum requirement in the states -- >> so there was a minimum requirement on the voter who gets your notice to respond? >> absolutely it places the requirement on voters -- >> after you have evidence that they moved. > no, with respect to minorities, i would add, our response is not that the process
must be nondiscriminatory and everything -- >> that's the problem. there is a strong argument that this is discriminatory. i understand that they don't believe in impact, you have to look at it -- >> but they didn't raise a b-1 claim. we are only here -- >> i will give you a couple of minutes so you give your argument out. >> i would like to get back to the public contest where it is quite powerful. on one hand, you have states from 1994 all the way up to the hava amendment debating the department of justice just like where ohio was permissible. on the other hand, you had nobody that made the argument as made ind be read operative.
in our narrative, it was designed to address the long-standing debate that started even before the statute became effective. states suggested they should engage in approaches like ohio's. all the way up where south dakota suggested clarifying in a way that is helpful to the was passed and hava and it had two provisions. then it had the related provisions dealing with statewide maintenance, which is effectively a comparable decision. i think you need -- >> other states do it this way. you get the notice if you missed just one election. >> that's incorrect. if you have no voter activity over a two-year period, which includes one general election and an off year election. >> other states do it like ohio? >> there are many states, i
think around eight, the use failure to vote as a trigger for the notice. some use two, some use three, some use four years. they would not only outlaw all those states, those who use failure to vote, it would allow outlaw any state would take people to vote on the front end. peoplecludes people with refusing to vote recently. they get a notice for any individuals through the mailing is bounced back to. and that would be equally prohibitive under the argument today because they are saying any fun and use of nonvoting would be illegal. >> thank you, counsel. you have a couple minutes for rebuttal.
>> mr. chief justice, if i can begin with justice kennedy's question. justice kennedy, we think ohio's process was permissible before they enacted the amendment in 2002, but the amendment made it clear for two reasons. 8d, theections 8c and postal service process and the notice process, require that nonvoting be the immediate cause of removal. the only way you can construe 8 b2 in removing that is removing people solely by reason for failure to vote. second, this affected a shift in the state balance at the time. prior, many states removed people solely for failure to vote. others had processes far less protective than ohio's. none of them had a four-year
waiting period. it required everybody to improve their processes well beyond they were before it was passed. beyond that, left the states with flex ability to read there is nothing -- ability -- flex ability. states are barred from using a trigger with a notice process. >> you tell me there is a 24 year history of solicitor general's of both political parties under both presidents of both medical parties who have taken a position -- of presidents of both clinical parties who have taken a position that when they wrote to congress with respect to the help america vote act, took the position the old solicitor generals were taking. everybody but you today have come in and say the act before the clarification says something
different. that youre unusual office would change its position so dramatically. i might accept it if you thought the help america vote act in fact clarified something that was ambiguous, the are taking a very different position. even before that act, it was clear you could do it this way. >> what i'm saying is that i think the act and the amendment made it clearer and after the clarification -- >> please explain the change of position after that many presidents, that many solicitor generals, this many years, the vast majority of states, 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 believe this doesn't have in
impact, a negative impact on certain groups in the society? >> i believe after congress passed the clarification amendment, it clarified what was an ongoing debate between the department of justice and the state. the only plausible way to read that public context and in response to the -- >> point me where in the legislative history people say that with actual -- absolute clarity. both sides are saying it helps us. it's as ambiguous as the link which may be. >> public context is not legislative history. even contact list look to the text. look at justice's opinion and professor mannings article. that public contest makes clear the only thing need of
verification was precisely this question, whether states like ohio can use a nonvoting trigger in conjunction with the process. there is nothing that bars that. i think it reflects the balance congress was trying to strike between on the one hand, dramatically increasing the number of voters and on the other, giving states the flex ability they need to manage the issues they need to rely on overinflated roles. >> was it the position of the united states, i thought that the united states were taking a position consistently that nonvoting was not a reliable indicator of residence change? >> that's partly correct. our prior position was based on an understanding of the statute that read into the reliable evidence requirement.
nonvoting was not that kind of reliable evidence. our current position is when you look at the statute, there is no way to read into it for reliable evidence requirement in the text and congress rejected. it reflects a state balance 8d set a and protective floor. they are far more protected passed, but a was left the states with flexibility over the list maintenance programs precisely so they could address the other side of the compromise, which was giving states the flexibility they need to address issues that arise when you have loaded voter rolls. >> i think you acknowledgment. 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?
because all those programs have to use the confirmation procedures and you are -- your position is if you use the confirmation procedures, that's an out for everything. >> that's correct, but it has broader applications -- >> not much broader applications because how can you use failure to vote for mental incapacity and criminal convictions. what broader implications does it have? >> one of the issues at the time was what you put your finger on. this practice among states of having a use it or lose it mentality, you either exercise it or you lose it they definitely want to take that off the table. the other thing was that you could never use failure to vote to presume -- >> what i'm asking is to related questions. number one, is the effect of your position to say look, we don't mean for this clause to apply to programs about change of residence, why didn't
congress just say that? that's number one. number two, i can see the failure to vote clause completely meaningless, that i am looking for a place where it has some real impact on anybody. >> this comes out in some of the legislators history. states simply use failure to vote as a proxy for grounds for removal. congress was very concerned about simply relying on the pharaoh -- the failure to vote. they wanted to take it off the board. provision that completely takes it off the board. it says no one can be removed merely for failure to vote. thereen you combine it,
is simply nothing in the statute that prohibits that. >> but with respect general, i don't think you answered either of the two questions. i will try again. they have just said the failure to vote clause doesn't apply to states that use confirmation procedures? >> your honor, i do not know the answer to that. this is not a statute i would hold up as a paradigm for legislative drafts. >> the second question is what is left of the failure to vote clause, practically speaking? >> it takes completely off the table failure to vote as a conclusive presumption for grounds of removal. >> what other grounds are we talking about? no one used it as a presumption for mental capacity. >> prior to the end the ra, they used it as a presumption for meeting the --
>> was in its self a grounds for being removed? the states didn't regard it as a proxy for anything else? they took it as use it or lose it. if you didn't vote for a certain parrot of time, that was grounds for eligibility list. >> and that's why it was meant to address both of those issues. you cannot do that. those states that used it to .resume some other basis ohio joins failure to vote with the process. with respect to the notion that b does not set a separate process, it clearly does. there are two visit -- two provisions. you can remove someone if they
have notified that you they have moved. the other is the corollary. if you have not notified us, here is another process takes can use to make that determination. >> thank you general. >> thank you mr. chief justice. mr. smith. >> mr. chief justice, may it please the court. tohink it is important recognize it violates into separate ways. it violates the failure to vote clause but it also violates 8a because it has for specific processes. in the supplemental process, the way it is designed it is assured that many or most people are purged have not moved let alone moved to a different county or
state. that is the only move that can justify a purge under the plain -- the nvra.npr a >> your argument is that failure to vote is not one of the listed grounds for being removed some are right? >> yes your honor. >> but is that what ohio does? or does it say that moving out of the district is a grounds for removal and failure to vote thes a part in determination of whether a person has moved out of the district. it is evidentiary, not grounds for removal of itself? >> of course they do say they are using the change of rep -- change of residency and that's what they are trying to justify this with. in fact it does not do that. it becomes illegal. the failure to
vote for two years tells you nothing about whether or not anyone has moved. 50 to 60% of voters routinely do not vote over a two-year. understand that. suppose the state says that if you have not voted for 20 years, then we will send out a notice. would you say that that violates this act? >> it plainly violates the act. it says you cannot use failure to vote as the reason for purging someone from the rolls. it says the reason we think this person has moved is because they have not voted. it is the only piece of evidence they have. voted if someone hasn't for 20 years, that doesn't raise an inference that the person has moved? >> in the legislative history, they have rejected amendments for cicely like that. they even rejected a hundred year rule. to benot want people
purged because of failure to vote. >> but that is not even enough to spark an inquiry? if in fact you decided you didn't want to vote for 20 years, but you want to keep your name on the list, then send this back, that would be illegal? >> we are talking about the people who do not send it back. when you don't get the notice back, that tells you is absolutely nothing about whether the person has moved. when you get to the end of the three stages of the process, two years of nonvoting, not getting the notice back, and you have no idea why, and four more years of nonvoting, the only evidence they have if they are not voting. it is in fact the sole reason there being purged. >> if not getting the notice back tells you nothing, why did congress make it part of the provision? >> it is a safeguard. it is a warning to the voters that registration status is at risk.
it gives in two options. they can send it back, or it says you don't have to send it back, you can just vote sometime in the next four years. peoplelity is, most don't send it back. these statistics are in the record. i, these areit statistics ohio provided. here is what happens to these confirmation notices. out 1.5 they sent million of these confirmation notices. >> what are they supposed to do? every year a certain number of people die. every year a certain number of the california. we don't want them on the voter roll. that used to be a big problem, voting dead people. what should the state do? >> the dead people are not a problem. there are authoritative list spirit. >> maybe they went and died in
hawaii, or alaska, or tasmania -- is rose up -- is rhode island supposed to look at tasmanian records? it's a serious question. i don't think there is no interest. >> i don't think there is a realistic concern. there are lists maintained by the federal governments and states. they do not even defend this as a way. >> are want to know what they are. i'm very ignorant in this state. i am in rhode island. i see the statute. i know some people have died. a.b. in rhode island, maybe outside. maybe they have moved to california. i do not want them floating in my state, or people pretending to be them voting in my state. what do i do? >> i do not have a detailed understanding of this. because that is not part of this case. there is a national database that has listed who has died. >> what about people who have
moved? >> there are a variety of ways that we find them. if they move within the state, addresshas a change of process. if you change your driver license address, your registration is automatically updated. if you move from cincinnati to they are required to notify within 10 days. ahen you have the nco process. they provide an address to the post office. on an annual basis, those addresses get compared to the statewide database. those people get taken care of long before the supplemental process. >> or other or is that a commonsense argument? >> show what? , youat when you move
notify someone. i thought i read it was 40 to 50%. >> the statistic in the record is that 40% of mail that gets returned to us as undeliverable is because people have not posted a forward address. it is likely to be a much smaller percent who do not do that when they moved to a different county or state. interpretation, could ohio send address verification notices to the entire electorate? >> if they did that to the entire electorate it would not violate 8b2 >> so the fact that they use a general mail to everyone wouldn't affect the outcome in your view? 70% ofyour honor because the people do not return them. that is what statistics show. 10% were undeliverable.
1.2 million just threw them away. >> the reason i am asking you these questions is because i don't believe congress would have passed a statute that would prevent a state from purging a voting role of people who have died or moved out of the state. i am trying to reconcile the two. therefore i ask you what the state is supposed to do with the latter objective and suppose noy send a card which says forwarding, don't forward and their theory is 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. they will know the person has moved. >> that is the precise system that 14 or so states use. the key feature is that it is not forward double.
-- not forward double. you then have to go into the confirmation process. >> ok i got my answer. can i add one thing to it? i would like to add, that because they don't want to send nonforfeitable cards to everyone because it is expensive in a , what theycalifornia rdablesend those non-forwa cards to people who have not voted in three or four years. now is it ok? >> if they only proceed to purge people when it says no longer at this address, undeliverable here it i think it is fine. because it is not based on nonvoting at that point. >> so the triggering event can beat the failure to vote? i would have thought that is inconsistent with the rest of your argument. think reasonable people
could differ about this whether that is illegal, but when you have an intervening cause that clearly says this person has moved, just as when they return a confirmation notice, then it is ok even if the reason was nonvoting. you have some concrete information. >> but the response is really the substance of your argument. which is it is still triggered by the failure to vote. the law says you cannot use failure to vote in one of these processes. failure to vote cannot be the reason you are purging them. when the only evidence you have is nonvoting come up and that is clearly the reason you are purging them. that is what the supplemental process does. >> the reason they are purging them is because they want to protect the voter rolls from people who have moved and are voting in the wrong district. but what we are talking about our he best tools to implement
that reason. to implement that purpose. >> congress thought the worst thing you could do to find people who move is to look at people who were not voting. congress knew there were vast numbers of people who choose not to vote. that is a terribly inaccurate way to identify people who have moved. thatys very specifically people do have a right not to vote. the committee recognizes that while voting is a right, people have an equal right not to vote. >> this is a statutory right here. i understand that but there are many democracies that require you to vote. seen itertainly proposed, would it be a good idea given a low voter turnout? do you think that would be unconstitutional? >> there's a pretty persuasive
argument to that in the national libertarian brief. in the first amendment act says you have a right to vote, and it right not to vote because you don't want to vote for those candidates -- >> in your view we have the safe harbor, you use the safe -- the post office change of address. what else could be the trigger? >> non-forwardable mail, national change of address, the dmv records which come into play. people are continually reregistered. that is required by section five. there are statewide -- interstate databases. it lists everybody who go somewhere else and registers or gets a drivers license in some others state. all of that is available to the state of ohio.
to understandt the small number of people they are looking for with this process. it is an important subject. as a policy matter, there are strong arguments on both sides. congress has struck a compromise. a -- not the ideal system. achieving the result of people who have moved from voter lists. you have not said very much about the language of the statute. -- if by reason of a person's daily to vote is aroundse, how do you get b2? language of >> what it says is you can't
have a system that uses the nonvoting as the reason for purging somebody. you can use c and d. nonvoting can come into play at the end of the process, not the beginning. >> but that is not what be to says. except that you can do what it is set out. you can do c and d. what it says is the principal that you cannot use failure to vote as a reason for removing someone may not be construed to prohibit. it tells you how to interpret the first part of the two. it is not an exception. that thean explanation one kind is the part that comes in at the end of the process. they went on to emphasize the sequence. a, they have not responded with
nottice and then they have voted. that is clearly what congress was trying to preserve. says that it is all right if you followed either c or d. >> c and d, your honor. >> you think you have to follow c and d? >> you need to follow something like c. clearly congress anticipated there would be something that would tell you they have moved. if they don't get the notice back, but no evidence at all if they have moved from the notice? and then four more years of nonvoting. precisely the thing that congress said you should not be purged for. indication that they have moved before you put them into the process. if you do not have that, you people.tly overpurge
because so many people don't vote for two years. 70% of them do not send back the notice. >> you just told me that it doesn't matter how many years is required by the trigger. it could be 10, 20. >> yes because that is what the statute said. >> where does it say that? >> it says do not purge people unless you have a good reason to think they have moved. a not voting for 20 years is good indicator? >> i don't think so. loss of people don't move for 20 years. it is not an thing in our country i believe. the statute we are dealing with the reason you are purging them cannot be there non-voting. when they get to the end of the
supplemental process, that is the only evidence they have. it is, it is six years of nonvoting and a notice that doesn't get return which tells them nothing. nothing,sn't tell them it tells them they did not respond to a notice that says you are going to use your registration if you don't vote through the two years to elections. more evidence than just that they have not voted. you have indicated that under some circumstances, the method of notification as we have in states that you reference on pages 14 and 15, that is ok. even though it is triggered solely on failure to vote. i don't think you can maintain the existence of the validity of those states positions and your argument against the position here. you may say it makes a difference because of the quality of the information you get from one notice or another. but you cannot attack this on the basis that it is 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, tell you to vote plus a different method is ok. it cannot based just on effect of failure to vote being the trigger. >> where talking about the people who don't return the notice. will claim that when they don't get anything back that that tells them anything about whether they are living in the same place her. when their forwardable, they have no idea which place they were thrown in the trash. is not not just that it returned, but they've gotten the notice and have not voted. >> so at the end of the day, they have six years of nonvoting and they say that is some evidence that have moved. it is weak evidence, but some
evidence. the statute says you need that are evidence than that. the one thing we don't want you to do is use nonvoting. >> maybe i'm just repeating myself -- maybe we are both just repeating ourselves. you don't just have the failure to vote, you have the failure to vote plus the notification that you need to do something. in some situations, you think the notification is sufficient. you would say in those it is not just the failure to vote. in this case you say the notification is not sufficient. so it is the failure to vote. >> is the fundamental difference between when you get something back from the post office and you get nothing back. >> but the point is your notice andrns on the not the fact that it is triggered by a failure to vote. notice thatrdable congress specifies have to be forwardable, it was designed to
be a safeguard telling people their rights were at risk. to turn it into the test, the state says we could give this to everybody. and then purge people when they don't return the notice on the assumption that means they haven't for -- that they have moved. the thing about that kind of notice is when 70% of the people don't return it, which happened you have nohio, more idea whether they have moved or not moved. >> this does seem at the moment an empiricalto question. you think that sending a notice which is forwardable is not going to tell you not much when it comes back. >> it will not tell you much
when it doesn't come back. >> sorry, i misspoke. you think returning a notice forwardable when it doesn't come back tells you virtually nothing has people just throw things in the wastebasket. it tells you next to nothing. >> it doesn't tell you whether it's been forwarded. >> you don't know if they got it at the old address, or they forwarded, but if it wasn't forwardable, and you get a from the post office that tells you a lot. got it. if you are right on the first, then we have nothing left here or next to nothing them not voting. his point is we have something else. we do have the fact that that notice did not come back. that means more than you think it means. that is their point. if that is so, all i'm asking is is there any place in this for someat i can look numbers or surveys or something
hard that will support you or will support them? >> your honor, there is no evidence about whether or not people who fail to return the notice have moved because they have never claimed it was evidence that they have moved. there only claim in this case is that we are targeting these people -- >> there might be surveys about how many people throw everything in the waste basket. i confess to doing that at sometimes. >> i most people do. that is your opinion. is there any hard evidence one way or another? have is thatce we most people throw it in the wastebasket. 70%. >> page. >> exhibit i. 1.5 million confirmation notices . 1.2 million were ignored. 10% were undeliverable.
20% were returned. the other important -- >> mr. smith, there is one thing -- maybe i should have asked this of the state, but once you don't return the notice, you could put on the inactive list. that means that you no longer get mailings? >> it means you can still vote, but you cannot -- you are not notified of your polling place. >> you are not sent any more reminders? it is one notice in six years and you disappear from any further mailing? >> that is my understanding. i couldn't swear to it. >> i'm sure they will corrected if it is wrong. >> let me talk if i could about this concept of a commit cause -- of proximate cause.
the reason has to be something that is causally linked to the underlying reason. they think you have moved to a different county or state and the only evidence they have at the end of the supplemental process is nonvoting. they don't claim the 70% of the of anything.dence it is a hoop they go through. it is a safeguard. it is not the reason that anyone is being purged of the theylying issue of whether have moved. even if you want to do a as it hascause, and been pointed out, there are three things that have to happen. nonvoting, of nonreturn of the modus -- of the notice, >> -- what is your standard of causation. it is not solely, it is not proximate cause?
>> the analysis ought to be used based on reason not cause. >> i don't understand why it is proximate cause, but it is strike one, strike two, strike three. they are all rocks and it causes. >> i agree as well. but i don't think it's the right way to think about it. >the reason they are being identified is because they have not responded. that states shall include provisions. it is mandatory. to have a system of file maintenance that makes a reasonable effort to remove ineligible voters. under this system, registers who have not responded to a notice and who have not voted in two consecutive general elections or federal office shall be removed from the official list. i itself, that seems pretty
clear. how do you get around that? >> i think the except clause is b2 which set forth in is to say the reason you're getting into the purge cannot be nonvoting. >> except that no registrant may be removed solely by gilliard to vote. under ohio's provisions it are they removed solely on failure to vote? >> soap the notices -- so the don't returnf they -- i don't see how that is solely. >> the only evidence they have that you have moved is your nonvoting. it wrote thaten would have thought that the supplemental process removes people solely for nonvoting, it
did not think of the confirmation as a reason to remove people. if somebody returns the notice, they never vote, but they return the notice, >> it depends on what they say. if they stay on the list. event, the state has direct information about where they live and can take whatever action it should your the problem we have here is this kind of notice, which says you do not have to return it. most of the time it will not get returned. it does not provide any evidence at all on which to decide these people should be purged. like the old ohio use it or lose it. . the other thing -- the other fact in the record is the small
number of people the supplemental process supposedly is trying to find. what we have in the record is how many people moved to a different county or state in each year. exhibit e to their main brief. 3% moved to a different county or state outside of the registrars jurisdiction. 3% per year. that is a small number by itself, but the supplemental process is only triggered to trying to find that sliver of people. so, >> mr. smith could you give me concrete numbers? how many voters have been purged as a result of this system? >> i can't give you exact numbers. i can refer you to reports that
look in detail of all of the processes with respect to registration and purge. two things i can tell you, it is in the hundreds of thousands. in many years, it was something ine several hundred thousand 2015 according to a more recent report. i can also tell you -- >> but you gave me 3% of people nationally move. that is what i'm trying to get to. how many people in michigan? >> the statistics that were put in our national. in ohio, thinks that national statistics represent ohio. i don't think the census does these by state or at least it is not in the record. >> i don't know 3% of what? >> people who move. >> 3% of what greater number? >> of all people in the country?
>> so we have to divide it up? people do not move in any given year. most of those 3% are going to be located in one of the other ways. we are talking about a relatively tiny group of people the gensy then use with 50 or 60% of people. the process is vastly overbroad in its design. to try to find a relatively small group of people. starting with up to 60% in off year, 70% don't return the notice. you just end up with a lot of false positives. that is how this system is operating. it finds a lot of people that have moved who have not moved. i think i will leave it at that. >> thank you, counsel.
two minutes mr. murphy. >> thank you. the first question i would like to answer is the statistics of people who move without relying on the post office. 40% of individuals do not notify the post office. number 395. 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. it will be woefully insufficient. states will have to do other efforts if they want to maintain adequate roles. i think this goes to in the end, a statute that was balancing competing purposes. trying to remove ineligible voters and ensure protections for eligible voters.
it came up with a compromise. the compromise left a lot of room for states to adopt procedures that are best in that state. with respect to sending information, my friend on the other side mention the eric program, head of the 2016 sent letters to eligible yet unregistered voters many of those could have received this ahead of registration deadlines, encouraging them to register. >> i'm sorry, people don't get notice that they have been struck. they get one notice and are put on the inactive list? nvra, the minimum requirement is -- they onlyhio's law get one notice? was mentioning
the eric program. 1.6 million letters were sent. >> would you answer my question. any votinger sent information outside of this eric program? stategesting that the sent absentee ballot applications. that would have gone to many of these individuals. >> cases, a c-span history series about the supreme court returns in february. join us as we here at the human stories of constitutional drama between 12 cited cases heard by the high court.
live on c-span, beginning in february. c-spanng up on "washington journal" is next, lively give phone calls and a look at the headlines. earlier this week, the house act, whichhe fisa allows the intelligence information collect outside of the u.s. and mccarthy and hoyer discussing the upcoming agenda in congress, which includes a government funding deadline by this friday. coming up on "washington journal," the president against citizens of waste thomas schatz on the possibility of congress reviving your marks, and christa case bryant shares with the city of st. louis is doing to improve race relations.