Husted v. A. Philip Randolph Institute, 138 S. Ct. 1833

Background

Ohio’s “Supplemental Process” identifies registrants who have not engaged in voter activity for ~2 years (including failing to vote), sends a preaddressed, postage-prepaid return card by forwardable mail, and removes those who do not return the card and then fail to vote for an additional four years.
The National Voter Registration Act (NVRA) requires states to make a reasonable effort to remove registrants who are ineligible due to a change of residence and prescribes a confirmation procedure in 52 U.S.C. §20507(d) (send return card; removal only if registrant fails to respond and then fails to vote in the period covering the next two general federal elections).
The NVRA also contains a “Failure-to-Vote Clause” in §20507(b)(2) forbidding removal “by reason of the person’s failure to vote”; HAVA (2002) amended/clarified that nothing in that clause should be read to prohibit using subsections (c) and (d).
Plaintiffs (A. Philip Randolph Institute et al.) sued, arguing Ohio’s process violates the Failure-to-Vote Clause and other NVRA/HAVA provisions because it uses nonvoting both to trigger notices and as part of the removal test, and because many recipients discard the cards making the notice unreliable.
District Court upheld Ohio’s program; Sixth Circuit reversed, holding Ohio impermissibly uses failure to vote as the sole basis for sending notices. The Supreme Court granted certiorari and reversed the Sixth Circuit.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ohio’s Supplemental Process violates NVRA’s Failure-to-Vote Clause by using nonvoting to trigger mailings and later removal	Failure to vote is used to start the purge (trigger notices) and then to remove; that use is barred—only the uses expressly in (c)/(d) are allowed	Ohio follows §20507(d): removal occurs only after failure to respond to notice and subsequent failure to vote; the Failure-to-Vote Clause bars only sole-cause removal	Court: No violation — the Clause forbids removal solely because of nonvoting; subsection (d) contemplates nonvoting as one of multiple required conditions and HAVA clarified this
Whether NVRA requires a particular reliability threshold before a state may send confirmation notices (i.e., Ohio must have a “reliable indicator” before mailing)	States must have reliable information before initiating confirmation; using mere nonvoting is not a sufficiently reliable trigger	NVRA does not impose a minimum-quantum or particular-source requirement; triggers may be any uniform, nondiscriminatory method	Court: No textual requirement; states may choose lawful, uniform triggers (including nonvoting)
Whether Ohio’s use of failure-to-respond to the return card is irrelevant (too many people discard card) so removal is effectively solely for nonvoting	Empirical evidence shows most recipients do not return cards; a nonresponse is not probative and makes removals functionally solely for nonvoting	Congress expressly treated nonresponse + subsequent nonvoting as sufficient evidence in §20507(d); courts should not substitute their judgment for Congress/State	Court: Rejected plaintiffs’ empirical critique; Congress authorized the combined test and courts may not second-guess that legislative judgment
Whether Ohio’s program violates NVRA’s “reasonable effort” requirement (§20507(a)(4))	Program is not a reasonable effort because it relies on unreliable indicators and risks purging eligible voters	Program uses procedures authorized by subsection (d) and thus meets the statutory framework for reasonable effort	Court: Ohio’s program is lawful under NVRA; using subsection (d) evidence satisfies the statutory requirements

Key Cases Cited

United States v. Detroit Timber & Lumber Co., 200 U.S. 321 (court may issue syllabus that is not part of opinion)
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (interpretation of "by reason of" as causation informs statutory reading)
Ricci v. DeStefano, 557 U.S. 557 (statutory provisions must be read to give effect to both where possible)
Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (use of context to determine meaning of causation terms)
Burrage v. United States, 571 U.S. 204 (but-for causation analysis)
Paroline v. United States, 572 U.S. 434 (proximate-cause principles)
Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (foreseeability and causation concepts)
Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 (scope of NVRA and congressional role in regulating voter registration)
Ex parte Siebold, 100 U.S. 371 (Congress’s broad power under Elections Clause)
Smiley v. Holm, 285 U.S. 355 (Congress may provide comprehensive rules for congressional elections)