Under the Constitution, the state legislatures have the duty to control the “times, places, and manner of holding” federal elections, but Congress may alter or preempt those regulations. (See Arizona v. Inter Tribal Council of Arizona, Inc., 2013.) Historically, states have exerted significant control over the registration of voters. However, the National Voter Registration Act (NVRA), passed by Congress in 1993, went beyond antidiscrimination measures and aimed to increase the voter participation while protecting the integrity of the voting process and the accuracy of voting rolls. The recent decision of Husted v. A Philip Randolph Institute, delivered on June 11, 2018, illustrates how leaving a gap between state and federal control of voting regulation can frustrate the purposes of the statute.

To increase the accuracy of voting rolls, the NVRA requires states to “conduct a general program that makes a reasonable effort” to remove the names of ineligible voters, and it prescribes requirements for removing a name on change of residence grounds, including a prior notice obligation. A state cannot remove a registered voter unless the voter confirms the move in writing, or if the voter fails to return a statutorily-prescribed, preaddressed, postage-prepaid postcard. The NVRA suggests that one way in which states can meet this “reasonable effort” requirement is to send the postcard to everyone who submits a change of address to the U.S. Postal Service.

If the postcard is not returned, the voter can be removed only if they also do not vote during the next two federal elections. Importantly, voters cannot be removed “by reason of the person’s failure to vote,” but the provision is not to be “construed” to prohibit the state from using the change of address procedure outlined in the NVRA (as amended by the Help America Vote Act of 2002). 

Ohio sent the postcards prescribed by the NVRA not only when someone submitted a change of address to the Postal Service, but in other situations that it contended suggested a possible change of address. Controversially, one of those situations was when the voter had not voted for two years. The respondents argued this violated the NVRA because failure to vote triggered the postcard, contrary to the failure-to-vote clause in the NVRA. The Supreme Court, over a long dissenting opinion by Justice Breyer (and an additional dissent by Justice Sotomayor), rejected these arguments and upheld Ohio’s procedure 5-4.

The decision is less sexy than the headlines might make this out to be. Ohio is not arbitrarily removing voters from the rolls; the NVRA requires it to. And they are not accused of removing voters in a discriminatory manner. Rather, the case primarily turns on language in the NVRA that was not as explicit as it needed to be in order to effect the desired increase in registered voters in the face of a conservative court inclined to put more weight on the “accuracy” purpose of the statute.

Because the statute expressly prohibits using failure to vote as the basis for removal, it seems a bit facile to argue that just sending a postcard after the first two years of nonvoting cures that defect. This still looks like removal for failure to vote, not removal for change of address.

But, perhaps in an effort to respect the states’ historical role in voter regulation, the NVRA did not specify what the triggering mechanism for sending the change of address postcard must be. It suggests a “safe harbor” of using the Postal Service change of address as a trigger, but it does not prohibit a state from using additional triggers. And (although there was much argument between the majority and dissent about the precise import of the word “construe” in the failure-to-vote clause), it arguably does not specify the type or quantum of evidence that a state can use to establish the trigger. Because this was a decision interpreting the text of the NVRA, the statutory language could be amended to make the language more clear. However, the question is whether Congress can be persuaded to act at all.

—Sarah Shalf, professor of practice