2018 NJSBA Annual Meeting

What Does Voter Suppression Look Like Today: A Conversation on the Voting Rights Act, Gerrymandering and Civil Rights in 2018 Co-Sponsored by the Minorities in the Profession Section

Moderator/Speaker: Wilfredo Caraballo, Esq. Gaccione, Pomaco, P.C., Belleville

Speakers: Justice Walter F. Timpone Supreme Court of New Jersey Donita Judge, Esq. Senior Attorney and Co-Program Director, Advancement Project Power and Democracy Program, Washington D.C. Scott Novakowski, Associate Counsel & Debevoise Legal Fellow New Jersey Institute for Social Justice, Newark Matthew Platkin, Chief Counsel New Jersey Governor’s Administration Amol Sinha Executive Director American Civil Liberties Union of New Jersey

We Are 1844 No More: Let Us Vote

Restoring the Right to Vote to People with Criminal Convictions

 www.njisj.org1 |  @NJ_ISJ do social justice. NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE

The Institute’s mission is to empower urban residents to realize and achieve their full potential. Established in 1999 by Alan V. and Amy Lowenstein, the Institute’s dynamic and independent advocacy is aimed at toppling load-bearing walls of structural inequality to create just, vibrant, and healthy urban communities. We employ a broad range of advocacy tools to advance our ambitious urban agenda, including research, analysis and writing, public education, grassroots organizing, the development of pilot programs, legislative strategies, and litigation.

Using a holistic approach to address the unique and critical issues facing New Jersey’s urban communities, the Institute advocates for systemic reform that is at once transformative, achievable in the state, and replicable in communities across the nation.

NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE Ryan P. Haygood, President and CEO Scott Novakowski, Associate Counsel and Debevoise Legal Fellow (primary author)

ACKNOWLEDGEMENTS The Institute gratefully acknowledges the excellent research assistance provided by Institute interns Emily Tu, Emily Deyring, Katherine Petrie, and Ronald Pierce. The Institute is also very grateful to our Communications Director Elizabeth Weill-Greenberg, as well as Senior Counsel Demelza Baer, Associate Counsel Andrea McChristian, Trustee Fellow Princeton Hynes, and Legal Fellow Stephanie Butler for their substantive and editorial assistance.

The Institute gratefully acknowledges The Sentencing Project for its ongoing and meticulous data collection and analysis on the issue of felony disfranchisement as well as mass incarceration more broadly, and would like to thank our external reviewers of previous drafts of this report, including Marc Mauer, Dale Ho and the ACLU Voting Rights Project, Amol Sinha, Alexander Shalom, Portia Allen-Kyle, Dianna Houenou, Myrna Perez, and Jesse Burns.

Finally, the Institute would like to acknowledge those people in New Jersey and around the nation who are currently incarcerated or on parole or probation and who are tirelessly advocating for the right to vote and for the right to be treated with dignity.

THE INSTITUTE IS GRATEFUL TO THE BOARD OF TRUSTEES FOR THEIR LEADERSHIP, VISION, AND STEWARDSHIP Douglas S. Eakeley, Chair; Jerome C. Harris, Jr., Vice Chair; Kenneth Y. Tanji, Treasurer; Patricia Nachtigal, Secretary; Elise Boddie; John J. Farmer, Jr.; Michael Francis; Sandra King; Dr. John H. Lowenstein; James McQueeny; Mark Murphy; B. John Pendleton, Jr.; Oliver Quinn; Darrell K. Terry, Sr.; Nina Mitchell Wells; Dr. Antoinette Ellis-Williams; Gary M. Wingens; Zulima Farber (Emerita); Roger Lowenstein (Emeritus); Theodore V. Wells, Jr. (Emeritus).

Founders Alan V. and Amy Lowenstein*

Founding Board President Nicholas DeB. Katzenbach*

Founding Board Vice President Honorable Dickinson R. Debevoise* THE NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE 60 Park Place, Suite 511, Newark, NJ 07102-5504 *Deceased (973) 624-9400 phone (973) 624-0704 fax www.njisj.org @NJ_ISJ

Cover Design: Mosaic Strategies Group Layout: Kathryn Bowser Graphic Design 2 Today, consistent with the racist era in which it was conceived, New Jersey’s law that denies the right to vote based on a criminal conviction has a devastating impact on Black political power.

Although Black people comprise just 15 percent of New Jersey’s overall population, they represent, incredibly, about half of those who have lost their voting rights as a result of a criminal conviction. Racial disparities in convictions cannot be explained by differing rates of offending.

Overall, 5.28 percent of New Jersey’s Black voting age population is without a voice in the political process.

More Black people in New Jersey are disqualified from voting today than were prohibited from voting prior to the passage of the Fifteenth Amendment in 1870.

3 “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” -Fifteenth Amendment

WE ARE 1844 NO MORE

INTRODUCTION AND OVERVIEW

THE STORY IS OFTEN TOLD of how racist Southern legislatures built democracies that excluded Black people and other people of color and women.1 What is less well known is that this history of exclusion also took root in the North,2 including very deeply in New Jersey. Indeed, New Jersey was the first Northern state to restrict the vote to white men.3 It opposed the Emancipation Proclamation4 and was the last Northern state to abolish slavery.5 And following the Civil War, New Jersey refused to ratify the Reconstruction Amendments.6

It was against this historical backdrop that New Jersey further restricted access to the ballot box by denying the vote to people with criminal convictions. New Jersey first prohibited people with criminal convictions from voting when it ratified a new state Constitution in 1844,7 the same year it constitutionalized its restriction of the right to vote to white men.8

Today, nearly 175 years later, though legal slavery has been abolished and New Jersey no longer explicitly prohibits Black people from voting, New Jersey continues to deny voting rights to people with criminal convictions.

New Jersey’s law disqualifies people from voting when they are in prison, and when they are on parole or probation for a felony.9 Under the law, over 94,300 people10 are denied access to the fundamental right that is the cornerstone of our democracy and “preservative of all rights.”11

1 New Jersey denies the right to vote to more people than the total population of New Jersey’s capital city, Trenton. It denies the right to vote to more people than live in Camden, Hoboken, Montclair, and more than 150 other municipalities in New Jersey.12

New Jersey’s Disfranchised Population New Jersey’s Disfranchised Black Population

12,761

21,360 12,761

46,844 34,709 72,954

Total People Disfranchised: 94,314 Total Number Disfranchised: 94,314 n People on Parole/Probation n Black People on Parole/Probation n People Incarcerated (Prison/Jail) n Black People Incarcerated (Prison/Jail) n Non-Black People Disfranchised

Source: The Sentencing Project Source: The Sentencing Project

Over three-quarters—almost 73,000—of those More People Are Denied the Right to Vote than Live in Trenton denied the right to vote are living in the community on parole or probation.13 No other state in the TOTAL DISFRANCHISED 94,314 Northeast denies voting rights to as many people 14 TRENTON POP. 84,913 living in the community as does New Jersey.

CAMDEN POP. 77,344 Today, consistent with the racist era in which it was

HOBOKEN POP. 50,005 conceived, New Jersey’s law has a devastating impact on Black political power. BLACK DISFRANCHISED 47,400 Although Black people comprise just 15 percent of ATLANTIC CITY POP. 39,558 New Jersey’s overall population,15 they represent, 0 20,000 40,000 60,000 80,000 100,000 incredibly, about half of those who have lost their POPULATION voting rights as a result of a criminal conviction.16

Source: The Sentencing Project; U.S. Census Bureau Overall, 5.28 percent of New Jersey’s Black voting age population is without a voice in the political process.17 And the rate for Black men is considerably higher. 18

2 New Jersey leads the nation in the disparity of Black/white incarceration rates for both adults and youth.

Percent of Black Voting Age Population Denied the Right to Vote by State

NEW JERSEY CONNECTICUT PENNSYLVANIA NEW YORK RHODE ISLAND MASSACHUSETTS

Source: The Sentencing Project

The percentage of the Black voting age population prohibited from voting in New Jersey is more than twice that of New York, Pennsylvania, Rhode Island, and Massachusetts.19 And the total number of Black people disfranchised in New Jersey is higher than the number in New York, despite the fact that New York’s Black voting age population dwarfs that of New Jersey: over 2.2 million compared to 899,227.20

Indeed, owing to population increases, more Black people in New Jersey are disqualified from voting today than were prohibited from voting prior to the passage of the Fifteenth Amendment in 1870.21

Because the New Jersey criminal justice system is infected with pervasive racial discrimination, the state’s law imports that inequality into the political process, accomplishing what now-prohibited poll taxes, grandfather clauses, and literacy tests explicitly sought to do – exclude Black people from voting.22

3 A Leader in Racial Inequality: Importing Racism into the Electorate

Voters Purged Due to a Criminal Conviction The Fifteenth Amendment to the United States Constitution prohibits the denial by County, 2010-2016 of the right to vote “on account of race, color, or previous condition of servitude.” But New Jersey’s law that denies the right to vote to people with criminal convictions undermines the Fifteenth Amendment’s prohibition on explicit racial discrimination by linking the right to vote to a racially discriminatory criminal justice system.

New Jersey leads the nation in having the highest racial disparities in Black/ white incarceration rates for both adults and youth, making the law’s racially discriminatory impact particularly acute.23

With respect to adults, New Jersey has a Black/white incarceration ratio of 12:1.24 In other words, a Black adult is 12 times more likely than a white adult to be incarcerated in New Jersey. This is more than double the national ratio of 5:1.25 A significant proportion of these disparities cannot be explained by differing rates of offending.26

New Jersey also leads the nation in racial disparities in youth incarceration, where the gap is even more staggering: a Black youth is 30 times more likely to be detained or committed to a youth facility than their white counterpart.27 These disparities persist even though Black and white youth commit most offenses at about the same rate.28

These disparities are in significant part a reflection of racially discriminatory policy decisions at every stage of the criminal justice system.29

As one federal appeals court declared:

“Before one who commits a criminal act becomes a felon...numerous other decisions must be made by State actors. Police departments decide where to spend resources, officers decide which individuals to search and arrest, prosecutors decide which individuals to charge (including whether to charge a felony or a misdemeanor), detain, and prosecute. If those decision points are infected with racial bias, resulting in some people becoming felons not just because they have committed a crime, but because of their race, then that felon status cannot...disqualify felons from voting.”30 LEGEND Source: ACLU of New Jersey 0-1,314 The exclusion of a sizeable portion of the Black population from New Jersey’s 1,315-2,628 2,629-3,942 electorate is a direct result of its decision to link voting rights with the criminal 3,943-5,255 justice system.31

4 Credit: Gerry Lauzon

Impact on New Jersey Communities

The impact of New Jersey’s law that denies voting rights based on a criminal conviction is felt most directly by the very communities of color in New Jersey that need greater—not less—access to the ballot box.

Essex and Camden Counties bear a disproportionate and substantial share of lost votes,32 together accounting for almost a quarter of those removed from the rolls because of a criminal conviction despite being home to less than 15 percent of the state’s total population.33

In fact, just five counties—Essex, Camden, Hudson, Monmouth, and Ocean—are home to almost half of those removed from the rolls.34 Those same five counties are home to 46 percent of the state’s Black population.35

New Jersey’s law disproportionately harms these communities by silencing valuable voices from the political process and by reducing the voting strength of the community as a whole.

5 New Jersey first denied the right to vote to people with criminal convictions in 1844, the same year it adopted a constitution that restricted voting to

white men. Credit: Wikimedia/ Salon

New Jersey’s Foundation of Democratic Exclusion

The impact of New Jersey’s current law, particularly on people of color, cannot be properly understood outside of the racist history from which it grew.

By the 1830s, New Jersey was home to more enslaved Africans than all of New England combined.36 Though it formally banned the importation of enslaved Africans in 1786, the state maintained slavery in some form until at least March 27, 1865, two weeks before the Confederacy surrendered.37

While slavery was common, free Black people in New Jersey were initially permitted to vote. Under the state’s first written Constitution of 1776, all “inhabitants...of full age” could vote as long as they met the property and residency qualifications.38

That changed in 1807 when the state passed a law limiting the franchise to white male citizens over 21 years of age.39 New Jersey was the first state in the Northeast to limit the franchise to white residents. At the time, only seven other states explicitly prohibited Black people from voting: Virginia, Georgia, South Carolina, Delaware, Kentucky, Maryland, and Ohio.40

With little debate, 41 New Jersey wrote its restrictions on Black suffrage into its 1844 Constitution, crystalizing racial exclusion in its foundational governing document. New Jersey did not ultimately extend the right to vote to Black people until the Fifteenth Amendment was enacted in 1870. Even then, the state legislature refused to ratify the amendment.42 Ironically, and despite New Jersey’s reticence, the first Black person to vote after the Fifteenth Amendment became the law of the land was Thomas Mundy Peterson in Perth Amboy, New Jersey.43

Credit: Philadelphia Inquirer, Clem Murray

6 Jim Crow By Another Name: Denying the Vote to People with Criminal Convictions and the Rise of Mass Incarceration

Laws that disfranchise people because of a criminal conviction have historically been used to prevent newly-freed Black people from voting.44 Following the Civil War, many states specifically crafted their disfranchisement laws to strip away voting rights for offenses they believed were disproportionately committed by Black people.45 For instance, in Mississippi, a person would lose their voting rights for committing theft, but not for murder. Under this rationale, a person would lose the right to vote for stealing a chicken, but not for killing the chicken’s owner.46

New Jersey enacted its first broad ban on voting by people with criminal convictions as part of its 1844 Constitution,47 at a time when slavery was still legal in the state and free Black people had been denied the right to vote by statute for almost 40 years. The 1844 Constitution banned anyone from voting who had been convicted of a crime that would disqualify them from serving as a witness in court.48 Its purpose was to “maintain the purity” of the state’s elections.49

Under the 1844 law, any person convicted of “blasphemy, treason, murder, piracy, arson, rape, sodomy, or the infamous crime against nature, committed with mankind or with beasts, polygamy, robbery, conspiracy, forgery, or larceny above the value of six dollars” would be denied the right to vote.50 The loss of voting rights in New Jersey was tied to this list of crimes until 1970 when a federal court ruled that the list was “totally irrational.”51

New Jersey responded to the court’s ruling in 1971 by broadening its disfranchisement statute so that it applied to anyone serving a sentence for any indictable crime, just as the country began to embrace a devastating practice of mass incarceration in the era of the War on Drugs.52

Incarceration in New Jersey skyrocketed: between 1950 and 1986, the number of people admitted to state and federal prisons in New Jersey each year increased over three-and-a-half fold.53 Between 1980 and its peak in 1999, New Jersey’s prison population increased over 460 percent.54

The rise of mass incarceration did not impact Black and white people equally. New Jersey’s Black population had grown dramatically throughout the twentieth century55 and was becoming increasingly concentrated in urban areas.56 Beginning in the 1960s, as urban rebellions erupted in cities across the country, law enforcement agencies intentionally focused their efforts in these urban, predominantly Black areas.57 And the War on Drugs, which was launched in the 1970s and gathered steam in the 1980s, introduced mandatory minimum sentences that required much more severe sentences for possession of crack cocaine, more common in low-income urban areas, than powder cocaine.58

7 New Jersey must not condition the most fundamental democratic right on involvement in the criminal justice system, an institution infected with racism. These racially discriminatory policy decisions ensured that Black communities would be disproportionately targeted by the new mass incarceration regime. In New Jersey, the number of Black people entering prisons each year increased over 420 percent between 1950 and 1986, compared to an increase of 127 percent in the number of white people.59

New Jersey’s decision to maintain its disfranchisement law in the face of decades of racially discriminatory criminal justice policies has led to a dramatic increase in the number of Black people who have lost their voting rights and a corresponding reduction in the political power of Black communities.60

Realizing the Promise of the Fifteenth Amendment

Dr. Martin Luther King, Jr. famously remarked that “voting is the foundation stone for political action.”61 Our votes not only affirm the legitimacy of our democracy, but are also the source of the power by which elected officials are held accountable.62 Our collective task in the twenty-first century is to reduce barriers to voting and to encourage more people to participate in the political process.

Rather than strengthen our democracy, however, New Jersey’s decision to deny the right to vote to people with criminal convictions deprives its most vulnerable communities of valuable voices needed to affect systemic change. Decisions are routinely made on important local issues such as school policy, taxes, employment, housing, healthcare, and policing by elected officials who are unaccountable to a wide swath of those living in their districts on parole or probation or who are incarcerated.

New Jersey can no longer condition the most fundamental democratic right on involvement in the criminal justice system, an institution infected with racism.63 The realization of the Fifteenth Amendment, and the integrity and legitimacy of our democracy, demand that New Jersey end its practice of denying the right to vote to people with criminal convictions.

8 TO CREATE A FAIR, OPEN, INCLUSIVE, AND TRUE DEMOCRACY, THE INSTITUTE RECOMMENDS THE FOLLOWING:

1. RESTORE VOTING RIGHTS TO PEOPLE WITH CRIMINAL CONVICTIONS

New Jersey must put an end to the practice of denying voting rights to people with criminal convictions. The legislature should pass, and the governor should sign, legislation to restore voting rights to the almost 100,000 people currently in prison, on parole, or on probation in New Jersey. And disfranchisement must be eliminated altogether as a consequence of a criminal conviction moving forward, as is the practice in Maine, Vermont, and most European democracies.64

2. DESIGNATE STATE CORRECTIONS AGENCIES AS VOTER REGISTRATION AGENCIES

In addition to restoring voting rights to people with criminal convictions, all efforts must be made to ensure that this right is not illusory.

New Jersey should designate agencies such as the Department of Corrections, State Parole Board, and state probation offices as voter registration agencies under state or federal law. As voter registration agencies, they would be required to notify each person of their right to vote, provide the person with a voter registration application, and provide assistance in completing the form and transmitting it to election officials.

3. ENSURE THAT PEOPLE IN PRISON HAVE MEANINGFUL ACCESS TO THE BALLOT

To ensure that all people are able to cast a ballot, New Jersey should enact policies to facilitate access to mail-in ballots for people in prison or other residential facilities.

4. LAUNCH A PUBLIC AWARENESS CAMPAIGN ON VOTING RIGHTS FOR PEOPLE WITH CRIMINAL CONVICTIONS

The New Jersey Division of Elections should launch a broad public awareness campaign to educate New Jersey residents about the voting rights of people with criminal convictions. There is widespread confusion and misinformation, particularly among communities of color, about when a person with a conviction can register and vote. Using traditional and social media, state and local election officials should seek to inform impacted communities of their rights and proactively offer voter registration opportunities.

5. END PRISON-BASED GERRYMANDERING

Under New Jersey’s practice of “prison-based gerrymandering,” incarcerated people are counted as residents of the prison for the purposes of drawing legislative districts, rather than their home addresses.65 The communities surrounding the prison receive disproportionate legislative representation because their districts are padded by “phantom constituents”— incarcerated people who cannot vote in the district,66 cannot access community resources, and to whom elected officials are not accountable.67 Political power, in the form of representation, is therefore transferred away from the communities from which incarcerated people come and will most likely return, and transferred to the communities that host prisons.68

9 [Endnotes]

1 See, e.g., Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 83-93 (rev. ed. 2009); Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy 41-68 (2006). 2 See, e.g., Erika Wood, Liz Budnitz & Garima Malhotra, Brennan Center for Justice, Jim Crow in New York (2009), https://www.brennancenter.org/publication/jim-crow-new- york. 3 Keyssar, supra note 1, at 320 (Table A5). 4 Giles R. Wright, Afro-Americans in New Jersey: A Short History 28 (1989) (hereafter “G. Wright”). 5 James J. Gigantino II, The Ragged Road to Abolition: Slavery and Freedom in New Jersey, 1775-1865 (2015). 6 G. Wright, supra note 4, at 28-29. The Reconstruction Amendments—the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—were enacted following the Civil War to protect the rights of Black residents, including the right to be free from slavery, to equal protection of the law, and the right to vote. 7 Keyssar, supra note 1, at 360 (Table A15). 8 Id. at 320 (Table A5). As discussed below, New Jersey first limited the franchise to white males by statute in 1807. That restriction was written into the state’s Constitution in 1844. 9 Specifically, New Jersey law states, “[n]o person shall have the right of suffrage . . . [w]ho is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense under the laws of this or another state or of the United States.” N.J. Stat. Ann. § 19:4-1(8) (West 2017). An “indictable offense” is defined as a crime of the first through the fourth degree, roughly what other states consider a felony. See N.J. Stat. Ann. §§ 2C:1-4; 2C:43-1 (West 2017). In addition to people disfranchised because of being convicted of an indictable offense, New Jersey’s Elections Code allows a court to impose disfranchisement as an additional punishment on anyone convicted of an elections offense. N.J. Stat. Ann. § 19:34-46 (West 2017). Whether to impose disfranchisement and for how long are in the complete discretion of the court. Id. This statute appears to be seldom, if ever, used and of questionable constitutionality. See In re Evans, 227 N.J. Super. 339, 349-50 (1988). 10 Christopher Uggen, Ryan Larson, & Sarah Shannon, The Sentencing Project, 6 Million Lost Voters: State-level Estimates of Felony Disenfranchisement, 2016 15 (Table 3), (2016), http://www.sentencingproject.org/wp-content/uploads/2016/10/6-Million-Lost-Voters.pdf (hereafter “Sentencing Project, 2016”). 11 Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) 12 See Together We Teach, Populations of New Jersey Cities, http://www.togetherweteach.com/TWTIC/uscityinfo/30nj/njpopr/30njpr.htm (citing 2010 data from the U.S. Census Bureau) (last visited Oct. 16, 2017). 13 Sentencing Project, 2016, supra note 10, at 15 (Table 3). 14 See id. New Jersey is the only state in the Northeast that denies voting rights to people on both parole and probation. Connecticut and New York both disfranchise only people in prison and on parole. Massachusetts, Rhode Island, New Hampshire, and Pennsylvania restore voting rights once a person is released from prison. And, in Vermont and Maine, people with a felony conviction never lose the right to vote. Id. at 4. 15 U.S. Census Bureau, QuickFacts: New Jersey, https://www.census.gov/quickfacts/fact/table/NJ/RHI725216 (last visited Aug. 11, 2017). 16 Sentencing Project, 2016, supra note 10, at 15-16 (Tables 3-4) (analysis by Novakowski.) 17 Id. 18 Jamie Fellner & Marc Mauer, The Sentencing Project & Human Rights Watch, Losing The Vote: The Impact of Felony Disenfranchisement Laws in the United States 9 (Table 2) (1998), https://www.hrw.org/legacy/reports98/vote/usvot98o-01.htm. More recent data specifically on Black men is not currently available. 19 Sentencing Project, 2016, supra note 10, at 16 (Table 4). 20 Id. 21 In 2016, 47,470 Black New Jerseyans were disfranchised because of a criminal conviction. Id. There were 25,336 Black people in New Jersey in 1860 and 30,658 in 1870, all of whom were barred from voting prior to enactment of the Fifteenth Amendment. G. Wright, supra note 4, at 80 (Appendix 2). 22 Data on the number of Latino people in New Jersey denied the right to vote because of a criminal conviction is not available. We do know, however, that Latino adults and juveniles are more likely to be incarcerated in New Jersey than their white peers. In 2016, New Jersey had a Latino/white incarceration disparity of over 2 to 1, the 10th highest in the nation. Ashley Nellis, The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons 17 (Table D) (2016), http://www. sentencingproject.org/wp-content/uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf. Similarly, Latino youth in New Jersey are five times more likely to be incarcerated than white youth. The Sentencing Project, Latino Disparities in Youth Incarceration (2017), http://www.sentencingproject.org/wp- content/uploads/2017/10/Latino-Disparities-in-Youth-Incarceration.pdf. Under New Jersey’s law, these disparities are reproduced in our electorate. 23 Nellis, supra note 22, at 17 (Table C). To its credit, New Jersey is also a national leader in having reduced its prison population by 35 percent since 1999, The Sentencing Project, U.S. Prison Population Trends 1999-2015, http://www.sentencingproject.org/wp-content/uploads/2016/02/US-Prison-Population-Trends-1999-2015.pdf, with the greatest reductions being of people of color. Nellis, supra note 22, at 12 (Table 4). Despite this progress, the disparities described herein nonetheless remain. 24 Nellis, supra note 22, at 17 (Table C). 25 Id. 26 Id. at 9. 27 The Sentencing Project, Black Disparities in Youth Incarceration (2017), http://www.sentencingproject.org/wp-content/uploads/2017/09/Black-Disparities-in-Youth- Incarceration.pdf. 28 See Andrea McChristian, New Jersey Institute for Social Justice, Bring Our Children Home: Ain’t I A Child? 2 (2016), https://d3n8a8pro7vhmx.cloudfront.net/njisj/pages/465/ attachments/original/1482183464/Ain’t_I_A_Child_Final_.pdf?1482183464.

10 29 See Andrea McChristian, How discrimination is sending more black kids to prison, Star-Ledger (Oct. 3, 2017), http://www.nj.com/opinion/index.ssf/2017/10/ how_discrimination_is_sending_more_black_youths_to.html. 30 Farrakhan v. Gregoire, 590 F.3d 989, 1014 (9th Cir. 2010). 31 See Ryan Haygood, Disregarding the Results: Examining the Ninth Circuit’s Heightened Section 2 “Intentional Discrimination” Standard in Farrakhan v. Gregoire, 111 Colum. L. Rev. 51 (2011). 32 Portia Allen-Kyle, ACLU of New Jersey, Missing: 39,527 New Jersey Voters, (June 6, 2017), https://www.aclu-nj.org/news/2017/06/06/missing-39527-new-jersey- voters. The number of voters removed from the rolls does not factor in the extent of disfranchisement among those who were not previously registered. Nevertheless, alternative measures of disfranchisement mirror the same disproportionate impact. For example, over a quarter of people currently in New Jersey prisons come from Essex County and Camden County and those same two counties lead the state in the size of their probation caseloads. See N.J. Dep’t Corr, Offenders in New Jersey Correctional Institutions on January 3, 2017, by County of Commitment, http://www.state.nj.us/corrections/pdf/offender_statistics/2017/By%20County%20of%20 Commitment%202017.pdf; N.J. Admin. Office of the Courts, Court Management Statistics, June 2017, https://www.judiciary.state.nj.us/public/assets/stats/cman1706.pdf. According to a response by the State Parole Board to an Open Public Records Act Request, data on parole by county is not collected and not available. 33 U.S. Census Bureau, Quick Facts: New Jersey, Essex County, and Camden County, Population estimates for July 1, 2016, https://www.census.gov/quickfacts/fact/table/ camdencountynewjersey,essexcountynewjersey,NJ/RHI725216 (last viewed Aug. 8, 2017) (analysis by Novakowski). 34 Allen-Kyle, supra note 32 (analysis by Novakowski). 35 U.S. Census Bureau, Quick Facts: New Jersey, Essex County, Camden County, Hudson County, Monmouth County, Ocean County, Population estimates for July 1, 2016, https://www. census.gov/quickfacts/fact/table/oceancountynewjersey,monmouthcountynewjersey,hudsoncountynewjersey,camdencountynewjersey,essexcountynewjersey,NJ/ RHI725216 (analysis by Novakowski). 36 Gigantino, supra note 5, at 2. There were, of course, pockets of New Jersey residents who opposed slavery and worked toward abolition, including by hosting stops along the Underground Railroad. See id. at 216. 37 Id. at 235. 38 Richard P. McCormick, The History of Voting in New Jersey 69-70 (1953). 39 The statute specifically limited the franchise to free, white male citizens, 21 years of age or older and “worth fifty pounds proclamation money, clear estate, and have resided in the county where he claims a vote for at least twelve months immediately preceding the election.” J.R. Pole, The Suffrage in New Jersey, 1790-1807, 71 Proceedings of the N.J. Historical Soc’y 39, 58 (1953) (citing Laws, 32 sess., 1 sit., pp. 14-15); see also Marion Thompson Wright, Negro Suffrage in New Jersey 175 (1948) (hereafter “M. Wright”); McCormick, supra note 38, at 99-100. Notably, the law was passed several years after enactment of the Act for the Gradual Abolition of Slavery of 1804, which would greatly expand the number of free Black people as children born to enslaved Africans reached adulthood, and thus increase Black political power. See Gigantino, supra note 5, at 95-98. 40 Keyssar, supra note 1, at 320 (Table A5). 41 See McCormick, supra note 38, at 144; Proceedings of the 1844 Constitutional Convention, May 30, p. 163 (“Mr. Stokes presented a petition from certain colored citizens of the State praying that they may not be excluded by the Constitution, from exercising the right of suffrage —...[w]hich was read, and, on motion of Mr. J.R. Thomson, was ordered to lie on the table.”); see also Gigantino, supra note 5, at 230. 42 G. Wright, supra note 4, at 29. 43 Gigantino, supra note 5, at 207-08. Peterson’s name often takes the form of several variations. Gigantino refers to him as “Thomas Peterson-Mundy.” Id. Though the three names were never actually used together contemporaneously, he is now most commonly known as “Thomas Mundy Peterson.” See Gordon Bond, Guest Post: Thomas Mundy Peterson and the Fifteenth Amendment, The Junto (July 11, 2013), https://earlyamericanists.com/2013/07/11/thomas-mundy-peterson-and- the-fifteenth-amendment/ (last visited Dec. 12, 2017). 44 See, e.g., Keyssar, supra note 1, at 83-93; Manza & Uggen, supra note 1, at 41-68. 45 See Manza & Uggen, supra note 1 at 55-58. 46 NAACP Legal Defense and Educational Fund & The Sentencing Project, Free the Vote: Unlocking Democracy in the Cells and on the Streets 2 (Updated 2016), http://www. naacpldf.org/files/about-us/Free%20the%20Vote%202016_0.pdf. 47 The constitutional provision adopted in 1844 was the first time New Jersey codified the denial of voting rights based on conviction of a broad range of crimes. See Keyssar, supra note 1, at 325 (Table A.7); McCormick, supra note 38, at 132. New Jersey had briefly denied voting rights to people convicted of treason during the Revolutionary Era. See McCormick, supra note 38, at 74-76. Those laws were narrowly tailored and short-lived, having been repealed by 1788. Id. 48 Application of Marino, 42 A.2d 469, 471 (N.J. 1945). 49 Id. at 470. 50 See Proceedings of the 1844 Constitutional Convention, May 25, p. 97, https://babel.hathitrust.org/cgi/pt?id=uc1.b4506453;view=1up;seq=7; Proceedings of 1947 Constitutional Convention, Vol. 2, at 1367, http://www.njstatelib.org/research_library/new_jersey_resources/highlights/constitutional_convention/. 51 Stephens v. Yeomans, 327 F. Supp. 1182, 1188 (D. N.J. 1970). In 1947, New Jersey adopted the Constitution that remains in place today which empowers the legislature to “pass laws to deprive persons of the right of suffrage who shall be convicted of such crimes as it may designate.” N.J. Const. art. II, § 1(7). Following the adoption of the new Constitution, the legislature prescribed disfranchisement for the same list of crimes that prevented a person from serving as a witness at the time the 1844 Constitution was adopted. See Stephens, 327 F. Supp. at 1188. 52 Compare N.J. Stat. Ann. § 19:4-1 (“No person shall have the right of suffrage… [w]ho is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense under the laws of this or another state or of the United States.”) (emphasis added) with Stephens, 327 F. Supp. at 1183-84 (quoting 1948 version of the statute). For a general discussion on the explosion in mass incarceration beginning around this time, see, generally, Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (rev. ed. 2010).

11 53 Patrick A. Langan, U.S. Bureau of Justice Statistics, Race of Prisoners Admitted to State and Federal Institutions, 1926-86 (Table 7) (1991), https://www.ncjrs.gov/pdffiles1/ nij/125618.pdf. There are significant gaps in the data available for New Jersey in the BJS report. In 1950, 1,367 people entered New Jersey prisons. Data for New Jersey is not reported again until 1977, at which point the number had almost doubled to 2,474. By 1986, the last year covered the by BJS report, 4,905 people entered state and federal prisons in New Jersey. 54 The Sentencing Project, Criminal Justice Facts – State-by-State Data: New Jersey, http://www.sentencingproject.org/the-facts/#detail?state1Option=New%20 Jersey&state2Option=0 (last visited Aug. 11, 2017). 55 Between 1870 and 1910, New Jersey’s Black population almost tripled. G. Wright, supra note 4, at 45. In all, the state’s Black population increased almost 3,000 percent between 1870 and 1980. Id. at 79 (analysis by Novakowski). 56 By 1980, over 95 percent of New Jersey’s Black population resided in urban areas. Id. at 70-72. 57 See Elizabeth Hinton, From the War on Crime to the War on Poverty: The Making of Mass Incarceration in America 12-25 (2016). 58 Id. at 317. 59 Langan, supra note 53. 60 See Ryan P. Haygood, Juneteenth: Free at Last?, The Black Commentator, June 19, 2008, http://www.blackcommentator.com/282/282_juneteenth_haygood_printer_ friendly.pdf. 61 Martin Luther King, Jr., Civil Right No. 1, N.Y. Times Mag., Mar. 14, 1965, at 27. 62 Ryan P. Haygood, The Past as Prologue: Defending Democracy Against Voter Suppression Tactics on the Eve of the 2012 Elections, 64 Rutgers L. Rev. 1019 (2012). 63 See Haygood, supra note 31. 64 Most European counties allow people to vote while incarcerated and some facilitate voting by setting up polling places in the prison and helping to secure absentee ballots. Jean Chung, The Sentencing Project, Felony Disenfranchisement: A Primer (2016), http://www.sentencingproject.org/publications/felony-disenfranchisement-a- primer/. Furthermore, if disfranchising people in prison makes the U.S. an outlier among Western democracies, its practice of disfranchising people who have completed their prison sentences makes it a truly global outlier: no other nation in the world disfranchises more people who have been released from prison than the U.S. Alexander, supra note 52, at 158. 65 See Prison Policy Initiative, Prison Gerrymandering Project: The Problem, https://www.prisonersofthecensus.org/impact.html (last visited Sept. 5, 2017). 66 People who are in jail but maintain their right to vote do not vote for candidates of the district in which the prison is located. Rather, they maintain their domicile and vote by absentee ballot in their home districts. 67 See Prison Policy Initiative, supra note 65; see also Prison Policy Initiative, Fixing prison-based gerrymandering after the 2010 Census: New Jersey, https://www. prisonersofthecensus.org/50states/NJ.html (last visited Sept. 5, 2017). For a more academic perspective on prison-based gerrymandering and the role of the Census Bureau, see Nathanial Persily, The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them, 32 Cardozo L. Rev. 755 (2011). 68 See Hearing on A2937/S587 Before the Assemb. Judiciary Comm. 2016-2017 Leg., (N.J. 2017) (statement of Aleks Kajstura, Legal Dir., Prison Policy Initiative), https://www.prisonersofthecensus.org/testimony/NJ-A2937-PPI-Testimony-2017.pdf. Ending prison-based gerrymandering is especially important if people in prison are prohibited from voting as their presence pads the district of the prison and they are completely without a vote. If the franchise is extended to people in prison, maintaining a policy of prison-based gerrymandering creates the illogical situation in which they are counted as residents of the prison district but vote in their home district.

12 NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE 60 Park Place, Suite 511 Newark, NJ 07102-5504 973.624.9400

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13 (Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES

Syllabus

SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 12–96. Argued February 27, 2013—Decided June 25, 2013 The Voting Rights Act of 1965 was enacted to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Kat- zenbach, 383 U. S. 301, 309. Section 2 of the Act, which bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color,” 42 U. S. C. §1973(a), applies nationwide, is permanent, and is not at issue in this case. Other sections apply only to some parts of the country. Section 4 of the Act provides the “coverage formula,” de- fining the “covered jurisdictions” as States or political subdivisions that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout, in the 1960s and early 1970s. §1973b(b). In those covered jurisdictions, §5 of the Act provides that no change in voting procedures can take effect until approved by specified federal authorities in Washington, D. C. §1973c(a). Such approval is known as “preclearance.” The coverage formula and preclearance requirement were initially set to expire after five years, but the Act has been reauthorized several times. In 2006, the Act was reauthorized for an additional 25 years, but the coverage formula was not changed. Coverage still turned on whether a jurisdiction had a voting test in the 1960s or 1970s, and had low voter registration or turnout at that time. Short- ly after the 2006 reauthorization, a Texas utility district sought to bail out from the Act’s coverage and, in the alternative, challenged the Act’s constitutionality. This Court resolved the challenge on statutory grounds, but expressed serious doubts about the Act’s con-

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Syllabus

tinued constitutionality. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193. Petitioner Shelby County, in the covered jurisdiction of Alabama, sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court upheld the Act, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing §4(b)’s coverage formula. The D. C. Cir- cuit affirmed. After surveying the evidence in the record, that court accepted Congress’s conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that §5 was therefore still necessary, and that the coverage formula continued to pass constitutional muster. Held: Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. Pp. 9–25. (a) In Northwest Austin, this Court noted that the Voting Rights Act “imposes current burdens and must be justified by current needs” and concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” 557 U. S., at 203. These basic principles guide review of the question presented here. Pp. 9–17. (1) State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment re- serves to the States all powers not specifically granted to the Federal Government, including “the power to regulate elections.” Gregory v. Ashcroft, 501 U. S. 452, 461–462. There is also a “fundamental principle of equal sovereignty” among the States, which is highly pertinent in assessing disparate treatment of States. Northwest Austin, supra, at 203. The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties). That is why, in 1966, this Court described the Act as “stringent” and “potent,” Katzenbach, 383 U. S., at 308, 315, 337. The Court nonetheless upheld the Act, concluding that such an “uncommon exercise of congressional power” could be justified by “exceptional conditions.” Id., at 334. Pp. 9–12. (2) In 1966, these departures were justified by the “blight of ra-

Cite as: 570 U. S. ____ (2013) 3

Syllabus cial discrimination in voting” that had “infected the electoral process in parts of our country for nearly a century,” Katzenbach, 383 U. S., at 308. At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense. The Act was limited to areas where Congress found “evidence of actual voting discrimination,” and the covered jurisdictions shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. The Court explained that “[t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” Ibid. The Court therefore concluded that “the coverage formula [was] rational in both practice and theory.” Ibid. Pp. 12–13. (3) Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatant- ly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5’s restrictions or narrowed the scope of §4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger. Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision. Pp. 13–17. (b) Section 4’s formula is unconstitutional in light of current conditions. Pp. 17–25. (1) In 1966, the coverage formula was “rational in both practice and theory.” Katzenbach, supra, at 330. It looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009, however, the “coverage formula raise[d] serious constitutional questions.” Northwest Austin, supra, at 204. Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically. In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those char-

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Syllabus

acteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Vot- ing Rights Act continues to treat it as if it were. Pp. 17–18. (2) The Government attempts to defend the formula on grounds that it is “reverse-engineered”—Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Kat- zenbach did not sanction such an approach, reasoning instead that the coverage formula was rational because the “formula . . . was relevant to the problem.” 383 U. S., at 329, 330. The Government has a fallback argument—because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States identified in 1965. But this does not look to “current political conditions,” Northwest Austin, supra, at 203, instead relying on a comparison between the States in 1965. But history did not end in 1965. In assessing the “current need[ ]” for a preclearance system treating States differently from one another today, history since 1965 cannot be ignored. The Fifteenth Amendment is not designed to punish for the past; its purpose is to ensure a better future. To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. Pp. 18–21. (3) Respondents also rely heavily on data from the record compiled by Congress before reauthorizing the Act. Regardless of how one looks at that record, no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that clearly distinguished the covered jurisdictions from the rest of the Nation in 1965. Katzenbach, supra, at 308, 315, 331. But a more fundamental problem remains: Congress did not use that record to fashion a coverage formula grounded in current conditions. It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day. Pp. 21–22. 679 F. 3d 848, reversed.

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Cite as: 570 U. S. ____ (2013) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES ______No. 12–96 ______SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [June 25, 2013]

CHIEF JUSTICE ROBERTS delivered the opinion of the Court. The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966). As we explained in upholding the law, “exceptional conditions can justify legislative measures not otherwise appropriate.” Id., at 334. Reflect- ing the unprecedented nature of these measures, they were scheduled to expire after five years. See Voting Rights Act of 1965, §4(a), 79 Stat. 438.

2 SHELBY COUNTY v. HOLDER

Opinion of the Court Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, “the racial gap in voter registration and turnout [was] lower in the States originally covered by §5 than it [was] nationwide.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 203–204 (2009). Since that time, Census Bureau data indicate that African- American voter turnout has come to exceed white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent. See Dept. of Commerce, Census Bureau, Re- ported Voting and Registration, by Sex, Race and His- panic Origin, for States (Nov. 2012) (Table 4b). At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.” North- west Austin, 557 U. S., at 203. I A The Fifteenth Amendment was ratified in 1870, in the wake of the Civil War. It provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” and it gives Congress the “power to enforce this article by appropriate legislation.” “The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure.” Id., at 197. In the 1890s, Alabama, Georgia, Louisiana,

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Opinion of the Court Mississippi, North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration and to employ other methods designed to prevent African- Americans from voting. Katzenbach, 383 U. S., at 310. Congress passed statutes outlawing some of these practices and facilitating litigation against them, but litigation remained slow and expensive, and the States came up with new ways to discriminate as soon as existing ones were struck down. Voter registration of African-Americans barely improved. Id., at 313–314. Inspired to action by the civil rights movement, Con- gress responded in 1965 with the Voting Rights Act. Section 2 was enacted to forbid, in all 50 States, any “standard, practice, or procedure . . . imposed or applied . . . to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 79 Stat. 437. The current version forbids any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U. S. C. §1973(a). Both the Federal Government and individuals have sued to enforce §2, see, e.g., Johnson v. De Grandy, 512 U. S. 997 (1994), and injunctive relief is available in appropriate cases to block voting laws from going into effect, see 42 U. S. C. §1973j(d). Section 2 is permanent, applies nationwide, and is not at issue in this case. Other sections targeted only some parts of the country. At the time of the Act’s passage, these “covered” jurisdictions were those States or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1, 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election. §4(b), 79 Stat. 438. Such tests or devices included literacy and knowledge tests, good moral character requirements, the need for vouchers from registered voters, and the like. §4(c), id., at 438–439. A covered jurisdiction could “bail

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Opinion of the Court out” of coverage if it had not used a test or device in the preceding five years “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” §4(a), id., at 438. In 1965, the covered States included Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. The additional covered subdivisions included 39 counties in North Carolina and one in Arizona. See 28 CFR pt. 51, App. (2012). In those jurisdictions, §4 of the Act banned all such tests or devices. §4(a), 79 Stat. 438. Section 5 provided that no change in voting procedures could take effect until it was approved by federal authorities in Washington, D. C.— either the Attorney General or a court of three judges. Id., at 439. A jurisdiction could obtain such “preclearance” only by proving that the change had neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.” Ibid. Sections 4 and 5 were intended to be temporary; they were set to expire after five years. See §4(a), id., at 438; Northwest Austin, supra, at 199. In South Carolina v. Katzenbach, we upheld the 1965 Act against constitutional challenge, explaining that it was justified to address “voting discrimination where it persists on a pervasive scale.” 383 U. S., at 308. In 1970, Congress reauthorized the Act for another five years, and extended the coverage formula in §4(b) to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1968. Voting Rights Act Amendments of 1970, §§3–4, 84 Stat. 315. That swept in several counties in California, New Hampshire, and New York. See 28 CFR pt. 51, App. Congress also extended the ban in §4(a) on tests and devices nationwide. §6, 84 Stat. 315. In 1975, Congress reauthorized the Act for seven more years, and extended its coverage to jurisdictions that had a voting test and less than 50 percent voter registration or

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Opinion of the Court turnout as of 1972. Voting Rights Act Amendments of 1975, §§101, 202, 89 Stat. 400, 401. Congress also amended the definition of “test or device” to include the practice of providing English-only voting materials in places where over five percent of voting-age citizens spoke a single language other than English. §203, id., at 401–402. As a result of these amendments, the States of Alaska, Arizona, and Texas, as well as several counties in California, Flor- ida, Michigan, New York, North Carolina, and South Da- kota, became covered jurisdictions. See 28 CFR pt. 51, App. Congress correspondingly amended sections 2 and 5 to forbid voting discrimination on the basis of membership in a language minority group, in addition to discrimination on the basis of race or color. §§203, 206, 89 Stat. 401, 402. Finally, Congress made the nationwide ban on tests and devices permanent. §102, id., at 400. In 1982, Congress reauthorized the Act for 25 years, but did not alter its coverage formula. See Voting Rights Act Amendments, 96 Stat. 131. Congress did, however, amend the bailout provisions, allowing political subdivisions of covered jurisdictions to bail out. Among other prerequisites for bailout, jurisdictions and their subdivisions must not have used a forbidden test or device, failed to receive preclearance, or lost a §2 suit, in the ten years prior to seeking bailout. §2, id., at 131–133. We upheld each of these reauthorizations against constitutional challenge. See Georgia v. United States, 411 U. S. 526 (1973); City of Rome v. United States, 446 U. S. 156 (1980); Lopez v. Monterey County, 525 U. S. 266 (1999). In 2006, Congress again reauthorized the Voting Rights Act for 25 years, again without change to its coverage formula. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amend- ments Act, 120 Stat. 577. Congress also amended §5 to prohibit more conduct than before. §5, id., at 580–

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Opinion of the Court 581; see Reno v. Bossier Parish School Bd., 528 U. S. 320, 341 (2000) (Bossier II); Georgia v. Ashcroft, 539 U. S. 461, 479 (2003). Section 5 now forbids voting changes with “any discriminatory purpose” as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, “to elect their preferred candidates of choice.” 42 U. S. C. §§1973c(b)–(d). Shortly after this reauthorization, a Texas utility district brought suit, seeking to bail out from the Act’s coverage and, in the alternative, challenging the Act’s constitutionality. See Northwest Austin, 557 U. S., at 200–201. A three-judge District Court explained that only a State or political subdivision was eligible to seek bailout under the statute, and concluded that the utility district was not a political subdivision, a term that encompassed only “counties, parishes, and voter-registering subunits.” Northwest Austin Municipal Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 232 (DC 2008). The District Court also rejected the constitutional challenge. Id., at 283.

We reversed. We explained that “ ‘normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.’ ” North- west Austin, supra, at 205 (quoting Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam)). Conclud- ing that “underlying constitutional concerns,” among other things, “compel[led] a broader reading of the bailout provision,” we construed the statute to allow the utility district to seek bailout. Northwest Austin, 557 U. S., at 207. In doing so we expressed serious doubts about the Act’s continued constitutionality. We explained that §5 “imposes substantial federalism costs” and “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.” Id., at 202, 203 (internal quotation marks omitted). We also noted that “[t]hings have changed in the South. Voter turnout and registration rates now approach parity.

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Opinion of the Court Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Id., at 202. Finally, we questioned whether the problems that §5 meant to address were still “concentrated in the jurisdictions singled out for preclearance.” Id., at 203. Eight Members of the Court subscribed to these views, and the remaining Member would have held the Act unconstitutional. Ultimately, however, the Court’s construction of the bailout provision left the constitutional issues for another day. B Shelby County is located in Alabama, a covered jurisdiction. It has not sought bailout, as the Attorney General has recently objected to voting changes proposed from within the county. See App. 87a–92a. Instead, in 2010, the county sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 of the Voting Rights Act are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court ruled against the county and upheld the Act. 811 F. Supp. 2d 424, 508 (2011). The court found that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing the §4(b) coverage formula. The Court of Appeals for the D. C. Circuit affirmed. In assessing §5, the D. C. Circuit considered six primary categories of evidence: Attorney General objections to voting changes, Attorney General requests for more information regarding voting changes, successful §2 suits in covered jurisdictions, the dispatching of federal observers to monitor elections in covered jurisdictions, §5 preclearance suits involving covered jurisdictions, and the deterrent effect of §5. See 679 F. 3d 848, 862–863 (2012). After extensive analysis of the record, the court accepted Con-

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Opinion of the Court gress’s conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, and that §5 was therefore still necessary. Id., at 873. Turning to §4, the D. C. Circuit noted that the evidence for singling out the covered jurisdictions was “less robust” and that the issue presented “a close question.” Id., at 879. But the court looked to data comparing the number of successful §2 suits in the different parts of the country. Coupling that evidence with the deterrent effect of §5, the court concluded that the statute continued “to single out the jurisdictions in which discrimination is concentrated,” and thus held that the coverage formula passed constitutional muster. Id., at 883. Judge Williams dissented. He found “no positive correlation between inclusion in §4(b)’s coverage formula and low black registration or turnout.” Id., at 891. Rather, to the extent there was any correlation, it actually went the other way: “condemnation under §4(b) is a marker of higher black registration and turnout.” Ibid. (emphasis added). Judge Williams also found that “[c]overed jurisdictions have far more black officeholders as a proportion of the black population than do uncovered ones.” Id., at 892. As to the evidence of successful §2 suits, Judge Wil- liams disaggregated the reported cases by State, and concluded that “[t]he five worst uncovered jurisdictions . . . have worse records than eight of the covered jurisdictions.” Id., at 897. He also noted that two covered jurisdictions—Arizona and Alaska—had not had any successful reported §2 suit brought against them during the entire 24 years covered by the data. Ibid. Judge Williams would have held the coverage formula of §4(b) “irrational” and unconstitutional. Id., at 885. We granted certiorari. 568 U. S. ___ (2012).

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Opinion of the Court II In Northwest Austin, we stated that “the Act imposes current burdens and must be justified by current needs.” 557 U. S., at 203. And we concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Ibid. These basic principles guide our review of the question before us.1 A The Constitution and laws of the United States are “the supreme Law of the Land.” U. S. Const., Art. VI, cl. 2. State legislation may not contravene federal law. The Federal Government does not, however, have a general right to review and veto state enactments before they go into effect. A proposal to grant such authority to “negative” state laws was considered at the Constitutional Convention, but rejected in favor of allowing state laws to take effect, subject to later challenge under the Supremacy Clause. See 1 Records of the Federal Convention of 1787, pp. 21, 164–168 (M. Farrand ed. 1911); 2 id., at 27–29, 390–392. Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitu- tion provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10. This “allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States.” Bond v. United States, 564 U. S. ___, ___ —————— 1 Both the Fourteenth and Fifteenth Amendments were at issue in Northwest Austin, see Juris. Statement i, and Brief for Federal Appel- lee 29–30, in Northwest Austin Municipal Util. Dist. No. One v. Holder, O. T. 2008, No. 08–322, and accordingly Northwest Austin guides our review under both Amendments in this case.

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Opinion of the Court (2011) (slip op., at 9). But the federal balance “is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” Ibid. (internal quotation marks omitted).

More specifically, “ ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Gregory v. Ashcroft, 501 U. S. 452, 461–462 (1991) (quoting Sugarman v. Dougall, 413 U. S. 634, 647 (1973); some internal quotation marks omitted). Of course, the Federal Government retains significant control over federal elections. For instance, the Constitution authorizes Congress to establish the time and manner for electing Senators and Representatives. Art. I, §4, cl. 1; see also Arizona v. Inter Tribal Council of Ariz., Inc., ante, at 4–6. But States have “broad powers to determine the conditions under which the right of suffrage may be exercised.” Carrington v. Rash, 380 U. S. 89, 91 (1965) (internal quotation marks omitted); see also Arizona, ante, at 13–15. And “[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.” Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892). Drawing lines for congressional districts is likewise “primarily the duty and responsibility of the State.” Perry v. Perez, 565 U. S. ___, ___ (2012) (per curiam) (slip op., at 3) (internal quotation marks omitted). Not only do States retain sovereignty under the Consti- tution, there is also a “fundamental principle of equal sovereignty” among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960); Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911). Indeed, “the constitutional equality of the

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Opinion of the Court States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id., at 580. Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. 383 U. S., at 328–329. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. 557 U. S., at 203. The Voting Rights Act sharply departs from these basic principles. It suspends “all changes to state election law— however innocuous—until they have been precleared by federal authorities in Washington, D. C.” Id., at 202. States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction in a §2 action. The Attorney General has 60 days to object to a preclearance request, longer if he requests more information. See 28 CFR §§51.9, 51.37. If a State seeks preclearance from a three- judge court, the process can take years. And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties). While one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process. Even if a noncovered jurisdiction is sued, there are important differences between those proceedings and preclearance proceedings; the preclearance proceeding “not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those governing the rest of the nation.” 679 F. 3d, at 884 (Williams, J., dissenting) (case below). All this explains why, when we first upheld the Act in 1966, we described it as “stringent” and “potent.” Katzen-

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Opinion of the Court bach, 383 U. S., at 308, 315, 337. We recognized that it “may have been an uncommon exercise of congressional power,” but concluded that “legislative measures not otherwise appropriate” could be justified by “exceptional conditions.” Id., at 334. We have since noted that the Act “authorizes federal intrusion into sensitive areas of state and local policymaking,” Lopez, 525 U. S., at 282, and represents an “extraordinary departure from the traditional course of relations between the States and the Federal Government,” Presley v. Etowah County Comm’n, 502 U. S. 491, 500–501 (1992). As we reiterated in Northwest Austin, the Act constitutes “extraordinary legislation otherwise unfamiliar to our federal system.” 557 U. S., at 211. B In 1966, we found these departures from the basic features of our system of government justified. The “blight of racial discrimination in voting” had “infected the electoral process in parts of our country for nearly a century.” Katzenbach, 383 U. S., at 308. Several States had enacted a variety of requirements and tests “specifically designed to prevent” African-Americans from voting. Id., at 310. Case-by-case litigation had proved inadequate to prevent such racial discrimination in voting, in part because States “merely switched to discriminatory devices not covered by the federal decrees,” “enacted difficult new tests,” or simply “defied and evaded court orders.” Id., at 314. Shortly before enactment of the Voting Rights Act, only 19.4 percent of African-Americans of voting age were registered to vote in Alabama, only 31.8 percent in Louisi- ana, and only 6.4 percent in Mississippi. Id., at 313. Those figures were roughly 50 percentage points or more below the figures for whites. Ibid. In short, we concluded that “[u]nder the compulsion of these unique circumstances, Congress responded in a

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Opinion of the Court permissibly decisive manner.” Id., at 334, 335. We also noted then and have emphasized since that this extraordinary legislation was intended to be temporary, set to expire after five years. Id., at 333; Northwest Austin, supra, at 199. At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense. We found that “Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.” Kat- zenbach, 383 U. S., at 328. The areas where Congress found “evidence of actual voting discrimination” shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. We explained that “[t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” Ibid. We therefore concluded that “the coverage formula [was] rational in both practice and theory.” Ibid. It accurately reflected those jurisdictions uniquely characterized by voting discrimination “on a pervasive scale,” linking coverage to the devices used to effectuate discrimination and to the resulting disenfranchisement. Id., at 308. The formula ensured that the “stringent remedies [were] aimed at areas where voting discrimination ha[d] been most flagrant.” Id., at 315. C Nearly 50 years later, things have changed dramatically. Shelby County contends that the preclearance requirement, even without regard to its disparate coverage, is now unconstitutional. Its arguments have a good deal of force. In the covered jurisdictions, “[v]oter turnout and

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Opinion of the Court registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, 557 U. S., at 202. The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years. See §6, 84 Stat. 315; §102, 89 Stat. 400. Those conclusions are not ours alone. Congress said the same when it reauthorized the Act in 2006, writing that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices.” §2(b)(1), 120 Stat. 577. The House Report elaborated that “the number of African-Americans who are registered and who turn out to cast ballots has increased significantly over the last 40 years, particularly since 1982,” and noted that “[i]n some circumstances, minorities register to vote and cast ballots at levels that surpass those of white voters.” H. R. Rep. No. 109–478, p. 12 (2006). That Report also explained that there have been “significant increases in the number of African-Americans serving in elected offices”; more specifically, there has been approximately a 1,000 percent increase since 1965 in the number of African-American elected officials in the six States originally covered by the Voting Rights Act. Id., at 18. The following chart, compiled from the Senate and House Reports, compares voter registration numbers from 1965 to those from 2004 in the six originally covered States. These are the numbers that were before Congress when it reauthorized the Act in 2006:

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Opinion of the Court

1965 2004 White Black Gap White Black Gap

Alabama 69.2 19.3 49.9 73.8 72.9 0.9

Georgia 62.[6] 27.4 35.2 63.5 64.2 -0.7

Louisiana 80.5 31.6 48.9 75.1 71.1 4.0

Mississippi 69.9 6.7 63.2 72.3 76.1 -3.8

South 75.7 37.3 38.4 74.4 71.1 3.3 Carolina Virginia 61.1 38.3 22.8 68.2 57.4 10.8

See S. Rep. No. 109–295, p. 11 (2006); H. R. Rep. No. 109– 478, at 12. The 2004 figures come from the Census Bu- reau. Census Bureau data from the most recent election indicate that African-American voter turnout exceeded white voter turnout in five of the six States originally covered by §5, with a gap in the sixth State of less than one half of one percent. See Dept. of Commerce, Census Bureau, Reported Voting and Registration, by Sex, Race and Hispanic Origin, for States (Table 4b). The preclearance statistics are also illuminating. In the first decade after enactment of §5, the Attorney General objected to 14.2 percent of proposed voting changes. H. R Rep. No. 109–478, at 22. In the last decade before reenactment, the Attorney General objected to a mere 0.16 percent. S. Rep. No. 109–295, at 13. There is no doubt that these improvements are in large part because of the Voting Rights Act. The Act has proved immensely successful at redressing racial discrimination and integrating the voting process. See §2(b)(1), 120 Stat. 577. During the “Freedom Summer” of 1964, in Philadel- phia, Mississippi, three men were murdered while working in the area to register African-American voters. See United States v. Price, 383 U. S. 787, 790 (1966). On “Bloody Sunday” in 1965, in Selma, Alabama, police beat

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Opinion of the Court and used tear gas against hundreds marching in support of African-American enfranchisement. See Northwest Austin, supra, at 220, n. 3 (THOMAS, J., concurring in judgment in part and dissenting in part). Today both of those towns are governed by African-American mayors. Problems remain in these States and others, but there is no denying that, due to the Voting Rights Act, our Nation has made great strides. Yet the Act has not eased the restrictions in §5 or narrowed the scope of the coverage formula in §4(b) along the way. Those extraordinary and unprecedented features were reauthorized—as if nothing had changed. In fact, the Act’s unusual remedies have grown even stronger. When Congress reauthorized the Act in 2006, it did so for another 25 years on top of the previous 40—a far cry from the initial five-year period. See 42 U. S. C. §1973b(a)(8). Congress also expanded the prohibitions in §5. We had previously interpreted §5 to prohibit only those redistricting plans that would have the purpose or effect of worsen- ing the position of minority groups. See Bossier II, 528 U. S., at 324, 335–336. In 2006, Congress amended §5 to prohibit laws that could have favored such groups but did not do so because of a discriminatory purpose, see 42 U. S. C. §1973c(c), even though we had stated that such broadening of §5 coverage would “exacerbate the substantial federalism costs that the preclearance procedure already exacts, perhaps to the extent of raising concerns about §5’s constitutionality,” Bossier II, supra, at 336 (citation and internal quotation marks omitted). In addition, Congress expanded §5 to prohibit any voting law “that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States,” on account of race, color, or language minority status, “to elect their preferred candidates of choice.” §1973c(b). In light of those two amendments, the bar that covered jurisdictions must clear has been raised even as the conditions

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Opinion of the Court justifying that requirement have dramatically improved. We have also previously highlighted the concern that “the preclearance requirements in one State [might] be unconstitutional in another.” Northwest Austin, 557 U. S., at 203; see Georgia v. Ashcroft, 539 U. S., at 491 (KENNEDY, J., concurring) (“considerations of race that would doom a redistricting plan under the Fourteenth Amendment or §2 [of the Voting Rights Act] seem to be what save it under §5”). Nothing has happened since to alleviate this troubling concern about the current application of §5. Respondents do not deny that there have been improvements on the ground, but argue that much of this can be attributed to the deterrent effect of §5, which dis- suades covered jurisdictions from engaging in discrimination that they would resume should §5 be struck down. Under this theory, however, §5 would be effectively immune from scrutiny; no matter how “clean” the record of covered jurisdictions, the argument could always be made that it was deterrence that accounted for the good behavior. The provisions of §5 apply only to those jurisdictions singled out by §4. We now consider whether that coverage formula is constitutional in light of current conditions. III A When upholding the constitutionality of the coverage formula in 1966, we concluded that it was “rational in both practice and theory.” Katzenbach, 383 U. S., at 330. The formula looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both. By 2009, however, we concluded that the “coverage formula raise[d] serious constitutional questions.” North-

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Opinion of the Court west Austin, 557 U. S., at 204. As we explained, a statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” Id., at 203. The coverage formula met that test in 1965, but no longer does so. Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. §6, 84 Stat. 315; §102, 89 Stat. 400. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. H. R. Rep. No. 109–478, at 12. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. See, e.g., Katzenbach, supra, at 313, 329–330. There is no longer such a disparity. In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. B The Government’s defense of the formula is limited. First, the Government contends that the formula is “reverse-engineered”: Congress identified the jurisdictions to be covered and then came up with criteria to describe them. Brief for Federal Respondent 48–49. Under that reasoning, there need not be any logical relationship between the criteria in the formula and the reason for coverage; all that is necessary is that the formula happen to capture the jurisdictions Congress wanted to single out.

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Opinion of the Court The Government suggests that Katzenbach sanctioned such an approach, but the analysis in Katzenbach was quite different. Katzenbach reasoned that the coverage formula was rational because the “formula . . . was relevant to the problem”: “Tests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” 383 U. S., at 329, 330. Here, by contrast, the Government’s reverse- engineering argument does not even attempt to demonstrate the continued relevance of the formula to the problem it targets. And in the context of a decision as significant as this one—subjecting a disfavored subset of States to “extraordinary legislation otherwise unfamiliar to our federal system,” Northwest Austin, supra, at 211—that failure to establish even relevance is fatal. The Government falls back to the argument that because the formula was relevant in 1965, its continued use is permissible so long as any discrimination remains in the States Congress identified back then—regardless of how that discrimination compares to discrimination in States unburdened by coverage. Brief for Federal Respondent 49–50. This argument does not look to “current political conditions,” Northwest Austin, supra, at 203, but instead relies on a comparison between the States in 1965. That comparison reflected the different histories of the North and South. It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African-Americans the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history—rightly so—in sustaining the disparate coverage of the Voting Rights Act in 1966. See Katzenbach, supra, at 308 (“The constitutional propriety of

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Opinion of the Court the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects.”). But history did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the “current need[ ]” for a preclearance system that treats States differently from one another today, that history cannot be ignored. During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers. And yet the coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs. The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future. See Rice v. Cayetano, 528 U. S. 495, 512 (2000) (“Consistent with the design of the Constitution, the [Fifteenth] Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment.”). To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear in Northwest Austin, and we make it clear again today. C In defending the coverage formula, the Government, the intervenors, and the dissent also rely heavily on data from the record that they claim justify disparate coverage. Congress compiled thousands of pages of evidence before

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Opinion of the Court reauthorizing the Voting Rights Act. The court below and the parties have debated what that record shows—they have gone back and forth about whether to compare covered to noncovered jurisdictions as blocks, how to dis- aggregate the data State by State, how to weigh §2 cases as evidence of ongoing discrimination, and whether to consider evidence not before Congress, among other issues. Compare, e.g., 679 F. 3d, at 873–883 (case below), with id., at 889–902 (Williams, J., dissenting). Regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time. Katzenbach, supra, at 308, 315, 331; Northwest Austin, 557 U. S., at 201. But a more fundamental problem remains: Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day. The dissent relies on “second- generation barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress. Contrary to the dissent’s contention, see post, at 23, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today. The dissent also turns to the record to argue that, in

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Opinion of the Court light of voting discrimination in Shelby County, the county cannot complain about the provisions that subject it to preclearance. Post, at 23–30. But that is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired. Shelby County’s claim is that the coverage formula here is unconstitutional in all its applications, because of how it selects the jurisdictions sub- jected to preclearance. The county was selected based on that formula, and may challenge it in court. D The dissent proceeds from a flawed premise. It quotes the famous sentence from McCulloch v. Maryland, 4 Wheat. 316, 421 (1819), with the following emphasis: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Post, at 9 (emphasis in dissent). But this case is about a part of the sentence that the dissent does not emphasize—the part that asks whether a legislative means is “consist[ent] with the letter and spirit of the constitution.” The dissent states that “[i]t cannot tenably be maintained” that this is an issue with regard to the Voting Rights Act, post, at 9, but four years ago, in an opinion joined by two of today’s dissenters, the Court expressly stated that “[t]he Act’s preclearance requirement and its coverage formula raise serious constitutional questions.” Northwest Austin, supra, at 204. The dissent does not explain how those “serious constitutional questions” became untenable in four short years. The dissent treats the Act as if it were just like any other piece of legislation, but this Court has made clear from the beginning that the Voting Rights Act is far from ordinary. At the risk of repetition, Katzenbach indicated

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Opinion of the Court that the Act was “uncommon” and “not otherwise appropriate,” but was justified by “exceptional” and “unique” conditions. 383 U. S., at 334, 335. Multiple decisions since have reaffirmed the Act’s “extraordinary” nature. See, e.g., Northwest Austin, supra, at 211. Yet the dissent goes so far as to suggest instead that the preclearance requirement and disparate treatment of the States should be upheld into the future “unless there [is] no or almost no evidence of unconstitutional action by States.” Post, at 33. In other ways as well, the dissent analyzes the question presented as if our decision in Northwest Austin never happened. For example, the dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin’s emphasis on its significance. Northwest Austin also emphasized the “dramatic” progress since 1965, 557 U. S., at 201, but the dissent describes current levels of discrimination as “flagrant,” “widespread,” and “pervasive,” post, at 7, 17 (internal quotation marks omitted). Despite the fact that Northwest Austin requires an Act’s “disparate geographic coverage” to be “sufficiently related” to its targeted problems, 557 U. S., at 203, the dissent maintains that an Act’s limited coverage actually eases Congress’s burdens, and suggests that a fortuitous relationship should suffice. Although Northwest Austin stated definitively that “current burdens” must be justified by “current needs,” ibid., the dissent argues that the coverage formula can be justified by history, and that the required showing can be weaker on reenactment than when the law was first passed. There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an

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Opinion of the Court entirely different story. And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done. * * * Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance. Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions. The judgment of the Court of Appeals is reversed.

It is so ordered.

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THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES ______No. 12–96 ______SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [June 25, 2013]

JUSTICE THOMAS, concurring. I join the Court’s opinion in full but write separately to explain that I would find §5 of the Voting Rights Act unconstitutional as well. The Court’s opinion sets forth the reasons. “The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem.” Ante, at 1. In the face of “unremitting and ingenious defiance” of citizens’ constitutionally protected right to vote, §5 was necessary to give effect to the Fifteenth Amendment in particular regions of the country. South Carolina v. Katzen- bach, 383 U. S. 301, 309 (1966). Though §5’s preclearance requirement represented a “shar[p] depart[ure]” from “basic principles” of federalism and the equal sovereignty of the States, ante, at 9, 11, the Court upheld the measure against early constitutional challenges because it was necessary at the time to address “voting discrimination where it persist[ed] on a pervasive scale.” Katzenbach, supra, at 308. Today, our Nation has changed. “[T]he conditions that originally justified [§5] no longer characterize voting in the covered jurisdictions.” Ante, at 2. As the Court explains:

“ ‘[V]oter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal de-

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THOMAS, J., concurring crees are rare. And minority candidates hold office at unprecedented levels.’ ” Ante, at 13–14 (quoting Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 202 (2009)). In spite of these improvements, however, Congress increased the already significant burdens of §5. Following its reenactment in 2006, the Voting Rights Act was amended to “prohibit more conduct than before.” Ante, at 5. “Section 5 now forbids voting changes with ‘any discriminatory purpose’ as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, ‘to elect their preferred candidates of choice.’ ” Ante, at 6. While the pre-2006 version of the Act went well beyond protection guaranteed under the Constitution, see Reno v. Bossier Parish School Bd., 520 U. S. 471, 480–482 (1997), it now goes even further. It is, thus, quite fitting that the Court repeatedly points out that this legislation is “extraordinary” and “unprecedented” and recognizes the significant constitutional problems created by Congress’ decision to raise “the bar that covered jurisdictions must clear,” even as “the conditions justifying that requirement have dramatically improved.” Ante, at 16–17. However one aggregates the data compiled by Congress, it cannot justify the considerable burdens created by §5. As the Court aptly notes: “[N]o one can fairly say that [the record] shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.” Ante, at 21. Indeed, circumstances in the covered jurisdictions can no longer be characterized as “exceptional” or “unique.” “The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists.” Northwest Austin, supra, at 226 (THOMAS, J., concurring in judgment in part and dissenting in part).

Cite as: 570 U. S. ____ (2013) 3

THOMAS, J., concurring Section 5 is, thus, unconstitutional. While the Court claims to “issue no holding on §5 itself,” ante, at 24, its own opinion compellingly demonstrates that Congress has failed to justify “‘current burdens’ ” with a record demonstrating “ ‘current needs.’ ” See ante, at 9 (quoting Northwest Austin, supra, at 203). By leaving the inevitable conclusion unstated, the Court needlessly pro- longs the demise of that provision. For the reasons stated in the Court’s opinion, I would find §5 unconstitutional.

Cite as: 570 U. S. ____ (2013) 1

GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES ______No. 12–96 ______SHELBY COUNTY, ALABAMA, PETITIONER v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [June 25, 2013]

JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting. In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous rec ord, that the scourge of discrimination was not yet extir pated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable,1 this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back sliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation. I “[V]oting discrimination still exists; no one doubts that.” —————— 1 The Court purports to declare unconstitutional only the coverage formula set out in §4(b). See ante, at 24. But without that formula, §5 is immobilized. 2 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting Ante, at 2. But the Court today terminates the remedy that proved to be best suited to block that discrimination. The Voting Rights Act of 1965 (VRA) has worked to com bat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRA’s re quirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights. A century after the Fourteenth and Fifteenth Amend ments guaranteed citizens the right to vote free of dis crimination on the basis of race, the “blight of racial discrimination in voting” continued to “infec[t] the electoral process in parts of our country.” South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable “variety and persistence” of laws disenfranchising minority citizens. Id., at 311. To take just one example, the Court, in 1927, held unconstitutional a Texas law barring black voters from participating in primary elections, Nixon v. Herndon, 273 U. S. 536, 541; in 1944, the Court struck down a “reenacted” and slightly altered version of the same law, Smith v. Allwright, 321 U. S. 649, 658; and in 1953, the Court once again confronted an attempt by Texas to “cir cumven[t]” the Fifteenth Amendment by adopting yet another variant of the all-white primary, Terry v. Adams, 345 U. S. 461, 469. During this era, the Court recognized that discrimina tion against minority voters was a quintessentially politi cal problem requiring a political solution. As Justice Holmes explained: If “the great mass of the white popula tion intends to keep the blacks from voting,” “relief from [that] great political wrong, if done, as alleged, by the Cite as: 570 U. S. ____ (2013) 3

GINSBURG, J., dissenting people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States.” Giles v. Harris, 189 U. S. 475, 488 (1903). Congress learned from experience that laws targeting particular electoral practices or enabling case-by-case litigation were inadequate to the task. In the Civil Rights Acts of 1957, 1960, and 1964, Congress authorized and then expanded the power of “the Attorney General to seek injunctions against public and private interference with the right to vote on racial grounds.” Katzenbach, 383 U. S., at 313. But circumstances reduced the ameliorative potential of these legislative Acts: “Voting suits are unusually onerous to prepare, some times requiring as many as 6,000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceed ings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests de signed to prolong the existing disparity between white and Negro registration. Alternatively, certain local of ficials have defied and evaded court orders or have simply closed their registration offices to freeze the voting rolls.” Id., at 314 (footnote omitted). Patently, a new approach was needed. Answering that need, the Voting Rights Act became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s his tory. Requiring federal preclearance of changes in voting laws in the covered jurisdictions—those States and locali ties where opposition to the Constitution’s commands were 4 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting most virulent—the VRA provided a fit solution for minor ity voters as well as for States. Under the preclearance regime established by §5 of the VRA, covered jurisdictions must submit proposed changes in voting laws or proce dures to the Department of Justice (DOJ), which has 60 days to respond to the changes. 79 Stat. 439, codified at 42 U. S. C. §1973c(a). A change will be approved unless DOJ finds it has “the purpose [or] . . . the effect of denying or abridging the right to vote on account of race or color.” Ibid. In the alternative, the covered jurisdiction may seek approval by a three-judge District Court in the District of Columbia. After a century’s failure to fulfill the promise of the Fourteenth and Fifteenth Amendments, passage of the VRA finally led to signal improvement on this front. “The Justice Department estimated that in the five years after [the VRA’s] passage, almost as many blacks registered [to vote] in Alabama, Mississippi, Georgia, Louisiana, North Carolina, and South Carolina as in the entire century before 1965.” Davidson, The Voting Rights Act: A Brief History, in Controversies in Minority Voting 7, 21 (B. Grofman & C. Davidson eds. 1992). And in assessing the overall effects of the VRA in 2006, Congress found that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, in cluding increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.” Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (hereinafter 2006 Reauthorization), §2(b)(1), 120 Stat. 577. On that matter of cause and effects there can be no genuine doubt. Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, Cite as: 570 U. S. ____ (2013) 5

GINSBURG, J., dissenting surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens. Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to ap prove, auguring that barriers to minority voting would quickly resurface were the preclearance remedy elimi nated. City of Rome v. United States, 446 U. S. 156, 181 (1980). Congress also found that as “registration and voting of minority citizens increas[ed], other measures may be resorted to which would dilute increasing minority voting strength.” Ibid. (quoting H. R. Rep. No. 94–196, p. 10 (1975)). See also Shaw v. Reno, 509 U. S. 630, 640 (1993) (“[I]t soon became apparent that guaranteeing equal access to the polls would not suffice to root out other racially discriminatory voting practices” such as voting dilution). Efforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the bal lot, are aptly described as “second-generation barriers” to minority voting. Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.” Id., at 642. Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switch ing to at-large voting, the overall majority could control the election of each city council member, effectively elimi nating the potency of the minority’s votes. Grofman & Davidson, The Effect of Municipal Election Structure on Black Representation in Eight Southern States, in Quiet Revolution in the South 301, 319 (C. Davidson & B. Grofman eds. 1994) (hereinafter Quiet Revolution). A similar effect could be achieved if the city engaged in discriminatory annexation by incorporating majority white areas into city limits, thereby decreasing the effect 6 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting of VRA-occasioned increases in black voting. Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory pur pose, cuts down the right to vote as certainly as denial of access to the ballot. Shaw, 509 U. S., at 640–641; Allen v. State Bd. of Elections, 393 U. S. 544, 569 (1969); Reynolds v. Sims, 377 U. S. 533, 555 (1964). See also H. R. Rep. No. 109–478, p. 6 (2006) (although “[d]iscrimination today is more subtle than the visible methods used in 1965,” “the effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates”). In response to evidence of these substituted barriers, Congress reauthorized the VRA for five years in 1970, for seven years in 1975, and for 25 years in 1982. Ante, at 4–5. Each time, this Court upheld the reauthorization as a valid exercise of congressional power. Ante, at 5. As the 1982 reauthorization approached its 2007 expiration date, Congress again considered whether the VRA’s preclear ance mechanism remained an appropriate response to the problem of voting discrimination in covered jurisdictions. Congress did not take this task lightly. Quite the oppo site. The 109th Congress that took responsibility for the renewal started early and conscientiously. In October 2005, the House began extensive hearings, which contin ued into November and resumed in March 2006. S. Rep. No. 109–295, p. 2 (2006). In April 2006, the Senate fol lowed suit, with hearings of its own. Ibid. In May 2006, the bills that became the VRA’s reauthorization were introduced in both Houses. Ibid. The House held further hearings of considerable length, as did the Senate, which continued to hold hearings into June and July. H. R. Rep. 109–478, at 5; S. Rep. 109–295, at 3–4. In mid-July, the House considered and rejected four amendments, then passed the reauthorization by a vote of 390 yeas to 33 nays. 152 Cong. Rec. H5207 (July 13, 2006); Persily, The Cite as: 570 U. S. ____ (2013) 7

GINSBURG, J., dissenting Promise and Pitfalls of the New Voting Rights Act, 117 Yale L. J. 174, 182–183 (2007) (hereinafter Persily). The bill was read and debated in the Senate, where it passed by a vote of 98 to 0. 152 Cong. Rec. S8012 (July 20, 2006). President Bush signed it a week later, on July 27, 2006, recognizing the need for “further work . . . in the fight against injustice,” and calling the reauthorization “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 152 Cong. Rec. S8781 (Aug. 3, 2006). In the long course of the legislative process, Congress “amassed a sizable record.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 205 (2009). See also 679 F. 3d 848, 865–873 (CADC 2012) (describing the “extensive record” supporting Congress’ determina tion that “serious and widespread intentional discrimination persisted in covered jurisdictions”). The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimina tion in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages. H. R. Rep. 109–478, at 5, 11–12; S. Rep. 109–295, at 2–4, 15. The compilation presents countless “examples of fla grant racial discrimination” since the last reauthoriza tion; Congress also brought to light systematic evidence that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.” 679 F. 3d, at 866. After considering the full legislative record, Congress made the following findings: The VRA has directly caused significant progress in eliminating first-generation barri ers to ballot access, leading to a marked increase in minor ity voter registration and turnout and the number of minority elected officials. 2006 Reauthorization §2(b)(1). But despite this progress, “second generation barriers 8 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting constructed to prevent minority voters from fully partici pating in the electoral process” continued to exist, as well as racially polarized voting in the covered jurisdictions, which increased the political vulnerability of racial and language minorities in those jurisdictions. §§2(b)(2)–(3), 120 Stat. 577. Extensive “[e]vidence of continued discrim ination,” Congress concluded, “clearly show[ed] the con tinued need for Federal oversight” in covered jurisdictions. §§2(b)(4)–(5), id., at 577–578. The overall record demon strated to the federal lawmakers that, “without the con tinuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” §2(b)(9), id., at 578. Based on these findings, Congress reauthorized pre clearance for another 25 years, while also undertaking to reconsider the extension after 15 years to ensure that the provision was still necessary and effective. 42 U. S. C. §1973b(a)(7), (8) (2006 ed., Supp. V). The question before the Court is whether Congress had the authority under the Constitution to act as it did. II In answering this question, the Court does not write on a clean slate. It is well established that Congress’ judg ment regarding exercise of its power to enforce the Four teenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preserva tive of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886). When confronting the most constitutionally invid ious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height. Cite as: 570 U. S. ____ (2013) 9

GINSBURG, J., dissenting The basis for this deference is firmly rooted in both constitutional text and precedent. The Fifteenth Amend ment, which targets precisely and only racial discrimina tion in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.”2 In choosing this language, the Amendment’s framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Mary- land, 4 Wheat. 316, 421 (1819) (emphasis added). It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Consti tution read in light of the Civil War Amendments. No where in today’s opinion, or in Northwest Austin,3 is there —————— 2 The Constitution uses the words “right to vote” in five separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. Each of these Amendments contains the same broad empowerment of Congress to enact “appropriate legisla tion” to enforce the protected right. The implication is unmistakable: Under our constitutional structure, Congress holds the lead rein in making the right to vote equally real for all U. S. citizens. These Amendments are in line with the special role assigned to Congress in protecting the integrity of the democratic process in federal elections. U. S. Const., Art. I, §4 (“[T]he Congress may at any time by Law make or alter” regulations concerning the “Times, Places and Manner of holding Elections for Senators and Representatives.”); Arizona v. Inter Tribal Council of Ariz., Inc., ante, at 5–6. 3 Acknowledging the existence of “serious constitutional questions,” see ante, at 22 (internal quotation marks omitted), does not suggest how those questions should be answered. 10 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve. Notably, “the Founders’ first successful amendment told Congress that it could ‘make no law’ over a certain domain”; in contrast, the Civil War Amendments used “language [that] authorized trans formative new federal statutes to uproot all vestiges of unfreedom and inequality” and provided “sweeping en forcement powers . . . to enact ‘appropriate’ legislation targeting state abuses.” A. Amar, America’s Constitution: A Biography 361, 363, 399 (2005). See also McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997) (quoting Civil War-era framer that “the remedy for the violation of the fourteenth and fifteenth amendments was expressly not left to the courts. The remedy was legislative.”). The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use “all means which are appropriate, which are plainly adapted” to the constitutional ends declared by these Amendments. McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. “It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.” Katzenbach v. Morgan, 384 U. S. 641, 653 (1966). Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner. South Carolina v. Katzenbach supplies the standard of review: Cite as: 570 U. S. ____ (2013) 11

GINSBURG, J., dissenting “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitu tional prohibition of racial discrimination in voting.” 383 U. S., at 324. Faced with subsequent reauthorizations of the VRA, the Court has reaffirmed this standard. E.g., City of Rome, 446 U. S., at 178. Today’s Court does not purport to alter settled precedent establishing that the dispositive question is whether Congress has employed “rational means.” For three reasons, legislation reauthorizing an existing statute is especially likely to satisfy the minimal require ments of the rational-basis test. First, when reauthorization is at issue, Congress has already assembled a legislative record justifying the initial legislation. Congress is en titled to consider that preexisting record as well as the record before it at the time of the vote on reauthorization. This is especially true where, as here, the Court has re peatedly affirmed the statute’s constitutionality and Con gress has adhered to the very model the Court has upheld. See id., at 174 (“The appellants are asking us to do noth ing less than overrule our decision in South Carolina v. Katzenbach . . . , in which we upheld the constitutionality of the Act.”); Lopez v. Monterey County, 525 U. S. 266, 283 (1999) (similar). Second, the very fact that reauthorization is necessary arises because Congress has built a temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25) and in light of contemporary evidence, the continued need for the VRA. Cf. Grutter v. Bollinger, 539 U. S. 306, 343 (2003) (anticipating, but not guaranteeing, that, in 25 years, “the use of racial prefer ences [in higher education] will no longer be necessary”). Third, a reviewing court should expect the record sup porting reauthorization to be less stark than the record originally made. Demand for a record of violations equiva lent to the one earlier made would expose Congress to a 12 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime. See Persily 193–194. This is not to suggest that congressional power in this area is limitless. It is this Court’s responsibility to ensure that Congress has used appropriate means. The question meet for judicial review is whether the chosen means are “adapted to carry out the objects the amendments have in view.” Ex parte Virginia, 100 U. S. 339, 346 (1880). The Court’s role, then, is not to substitute its judgment for that of Congress, but to determine whether the legislative record sufficed to show that “Congress could rationally have determined that [its chosen] provisions were appro priate methods.” City of Rome, 446 U. S., at 176–177. In summary, the Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statute’s challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from con temporary evidence, to be working to advance the legisla ture’s legitimate objective. III The 2006 reauthorization of the Voting Rights Act fully satisfies the standard stated in McCulloch, 4 Wheat., at 421: Congress may choose any means “appropriate” and “plainly adapted to” a legitimate constitutional end. As we shall see, it is implausible to suggest otherwise. Cite as: 570 U. S. ____ (2013) 13

GINSBURG, J., dissenting A I begin with the evidence on which Congress based its decision to continue the preclearance remedy. The surest way to evaluate whether that remedy remains in order is to see if preclearance is still effectively preventing discrim inatory changes to voting laws. See City of Rome, 446 U. S., at 181 (identifying “information on the number and types of submissions made by covered jurisdictions and the number and nature of objections interposed by the Attorney General” as a primary basis for upholding the 1975 reauthorization). On that score, the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490). 1 Voting Rights Act: Evidence of Continued Need, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 2d Sess., p. 172 (2006) (hereinafter Evidence of Continued Need). All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. H. R. Rep. No. 109–478, at 21. Congress found that the majority of DOJ objections included findings of discriminatory intent, see 679 F. 3d, at 867, and that the changes blocked by preclearance were “calculated decisions to keep minority voters from fully participating in the political process.” H. R. Rep. 109–478, at 21. On top of that, over the same time period the DOJ and private plaintiffs succeeded in more than 100 actions to enforce the §5 preclearance requirements. 1 Evidence of Continued Need 186, 250. In addition to blocking proposed voting changes through preclearance, DOJ may request more information from a jurisdiction proposing a change. In turn, the jurisdiction may modify or withdraw the proposed change. The num ber of such modifications or withdrawals provides an 14 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting indication of how many discriminatory proposals are deterred without need for formal objection. Congress received evidence that more than 800 proposed changes were altered or withdrawn since the last reauthorization in 1982. H. R. Rep. No. 109–478, at 40–41.4 Congress also received empirical studies finding that DOJ’s requests for more information had a significant effect on the degree to which covered jurisdictions “compl[ied] with their obliga tio[n]” to protect minority voting rights. 2 Evidence of Continued Need 2555. Congress also received evidence that litigation under §2 of the VRA was an inadequate substitute for preclearance in the covered jurisdictions. Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency. 1 Evi dence of Continued Need 97. An illegal scheme might be in place for several election cycles before a §2 plaintiff can gather sufficient evidence to challenge it. 1 Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., p. 92 (2005) (hereinafter Section 5 Hearing). And litigation places a heavy financial burden on minority voters. See id., at 84. Congress also received evidence —————— 4 This number includes only changes actually proposed. Congress also received evidence that many covered jurisdictions engaged in an “informal consultation process” with DOJ before formally submitting a proposal, so that the deterrent effect of preclearance was far broader than the formal submissions alone suggest. The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 53–54 (2006). All agree that an unsupported assertion about “deterrence” would not be sufficient to justify keeping a remedy in place in perpetuity. See ante, at 17. But it was certainly reasonable for Congress to consider the testimony of witnesses who had worked with officials in covered jurisdictions and observed a real-world deterrent effect. Cite as: 570 U. S. ____ (2013) 15

GINSBURG, J., dissenting that preclearance lessened the litigation burden on cov ered jurisdictions themselves, because the preclearance process is far less costly than defending against a §2 claim, and clearance by DOJ substantially reduces the likelihood that a §2 claim will be mounted. Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspectives and Views From the Field: Hearing before the Subcommit tee on the Constitution, Civil Rights and Property Rights of the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 13, 120–121 (2006). See also Brief for States of New York, California, Mississippi, and North Carolina as Amici Curiae 8–9 (Section 5 “reduc[es] the likelihood that a jurisdiction will face costly and protracted Section 2 litigation”). The number of discriminatory changes blocked or de terred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy. Sur veying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which §5 con tinues to protect minority voting rights. Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization:  In 1995, Mississippi sought to reenact a dual voter registration system, “which was initially enacted in 1892 to disenfranchise Black voters,” and for that reason, was struck down by a federal court in 1987. H. R. Rep. No. 109–478, at 39.  Following the 2000 census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be “designed with the purpose to limit and retrogress the increased black voting strength . . . in the city as a whole.” Id., at 37 (internal quota tion marks omitted). 16 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting  In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town’s election after “an unprecedented number” of African-American can didates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen. Id., at 36–37.  In 2006, this Court found that Texas’ attempt to re draw a congressional district to reduce the strength of Latino voters bore “the mark of intentional dis crimination that could give rise to an equal protec tion violation,” and ordered the district redrawn in compliance with the VRA. League of United Latin American Citizens v. Perry, 548 U. S. 399, 440 (2006). In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 preclearance requirement. See Order in League of United Latin American Citizens v. Texas, No. 06–cv–1046 (WD Tex.), Doc. 8.  In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, pro posed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board,

was found to be an “ ‘exact replica’” of an earlier voting scheme that, a federal court had determined, violated the VRA. 811 F. Supp. 2d 424, 483 (DDC 2011). See also S. Rep. No. 109–295, at 309. DOJ invoked §5 to block the proposal.  In 1993, the City of Millen, Georgia, proposed to de lay the election in a majority-black district by two Cite as: 570 U. S. ____ (2013) 17

GINSBURG, J., dissenting years, leaving that district without representation on the city council while the neighboring majority white district would have three representatives. 1 Section 5 Hearing 744. DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits. Id., at 816.  In 2004, Waller County, Texas, threatened to prose cute two black students after they announced their intention to run for office. The county then at tempted to reduce the availability of early voting in that election at polling places near a historically black university. 679 F. 3d, at 865–866.  In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disquali fied many citizens from voting “simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.” 1 Section 5 Hearing 356. These examples, and scores more like them, fill the pages of the legislative record. The evidence was indeed sufficient to support Congress’ conclusion that “racial discrimination in voting in covered jurisdictions [re mained] serious and pervasive.” 679 F. 3d, at 865.5 —————— 5 For an illustration postdating the 2006 reauthorization, see South Carolina v. United States, 898 F. Supp. 2d 30 (DC 2012), which in volved a South Carolina voter-identification law enacted in 2011. Concerned that the law would burden minority voters, DOJ brought a §5 enforcement action to block the law’s implementation. In the course of the litigation, South Carolina officials agreed to binding interpreta tions that made it “far easier than some might have expected or feared” for South Carolina citizens to vote. Id., at 37. A three-judge panel 18 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting Congress further received evidence indicating that formal requests of the kind set out above represented only the tip of the iceberg. There was what one commentator described as an “avalanche of case studies of voting rights violations in the covered jurisdictions,” ranging from “outright intimidation and violence against minority voters” to “more subtle forms of voting rights depriva tions.” Persily 202 (footnote omitted). This evidence gave Congress ever more reason to conclude that the time had not yet come for relaxed vigilance against the scourge of race discrimination in voting. True, conditions in the South have impressively im proved since passage of the Voting Rights Act. Congress noted this improvement and found that the VRA was the driving force behind it. 2006 Reauthorization §2(b)(1). But Congress also found that voting discrimination had evolved into subtler second-generation barriers, and that eliminating preclearance would risk loss of the gains that had been made. §§2(b)(2), (9). Concerns of this order, the Court previously found, gave Congress adequate cause to reauthorize the VRA. City of Rome, 446 U. S., at 180–182 (congressional reauthorization of the preclearance re quirement was justified based on “the number and nature of objections interposed by the Attorney General” since the prior reauthorization; extension was “necessary to pre serve the limited and fragile achievements of the Act and to promote further amelioration of voting discrimination”) (internal quotation marks omitted). Facing such evidence then, the Court expressly rejected the argument that disparities in voter turnout and number of elected officials —————— precleared the law after adopting both interpretations as an express “condition of preclearance.” Id., at 37–38. Two of the judges commented that the case demonstrated “the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.” Id., at 54 (opinion of Bates, J.). Cite as: 570 U. S. ____ (2013) 19

GINSBURG, J., dissenting were the only metrics capable of justifying reauthorization of the VRA. Ibid. B I turn next to the evidence on which Congress based its decision to reauthorize the coverage formula in §4(b). Because Congress did not alter the coverage formula, the same jurisdictions previously subject to preclearance continue to be covered by this remedy. The evidence just described, of preclearance’s continuing efficacy in blocking constitutional violations in the covered jurisdictions, itself grounded Congress’ conclusion that the remedy should be retained for those jurisdictions. There is no question, moreover, that the covered juris dictions have a unique history of problems with racial discrimination in voting. Ante, at 12–13. Consideration of this long history, still in living memory, was altogether appropriate. The Court criticizes Congress for failing to recognize that “history did not end in 1965.” Ante, at 20. But the Court ignores that “what’s past is prologue.” W. Shakespeare, The Tempest, act 2, sc. 1. And “[t]hose who cannot remember the past are condemned to repeat it.” 1 G. Santayana, The Life of Reason 284 (1905). Congress was especially mindful of the need to reinforce the gains already made and to prevent backsliding. 2006 Reauthor ization §2(b)(9). Of particular importance, even after 40 years and thou sands of discriminatory changes blocked by preclearance, conditions in the covered jurisdictions demonstrated that the formula was still justified by “current needs.” North- west Austin, 557 U. S., at 203. Congress learned of these conditions through a report, known as the Katz study, that looked at §2 suits between 1982 and 2004. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing before the Subcommit tee on the Constitution of the House Committee on the 20 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting Judiciary, 109th Cong., 1st Sess., pp. 964–1124 (2005) (hereinafter Impact and Effectiveness). Because the pri vate right of action authorized by §2 of the VRA applies nationwide, a comparison of §2 lawsuits in covered and noncovered jurisdictions provides an appropriate yardstick for measuring differences between covered and noncovered jurisdictions. If differences in the risk of voting discrimi nation between covered and noncovered jurisdictions had disappeared, one would expect that the rate of successful §2 lawsuits would be roughly the same in both areas.6 The study’s findings, however, indicated that racial discrimi nation in voting remains “concentrated in the jurisdictions singled out for preclearance.” Northwest Austin, 557 U. S., at 203. Although covered jurisdictions account for less than 25 percent of the country’s population, the Katz study re vealed that they accounted for 56 percent of successful §2 litigation since 1982. Impact and Effectiveness 974. Controlling for population, there were nearly four times as many successful §2 cases in covered jurisdictions as there were in noncovered jurisdictions. 679 F. 3d, at 874. The Katz study further found that §2 lawsuits are more likely to succeed when they are filed in covered jurisdictions than in noncovered jurisdictions. Impact and Effective ness 974. From these findings—ignored by the Court— Congress reasonably concluded that the coverage formula continues to identify the jurisdictions of greatest concern. The evidence before Congress, furthermore, indicated that voting in the covered jurisdictions was more racially polarized than elsewhere in the country. H. R. Rep. No. 109–478, at 34–35. While racially polarized voting alone —————— 6 Because preclearance occurs only in covered jurisdictions and can be expected to stop the most obviously objectionable measures, one would expect a lower rate of successful §2 lawsuits in those jurisdictions if the risk of voting discrimination there were the same as elsewhere in the country. Cite as: 570 U. S. ____ (2013) 21

GINSBURG, J., dissenting does not signal a constitutional violation, it is a factor that increases the vulnerability of racial minorities to dis criminatory changes in voting law. The reason is twofold. First, racial polarization means that racial minorities are at risk of being systematically outvoted and having their interests underrepresented in legislatures. Second, “when political preferences fall along racial lines, the natural inclinations of incumbents and ruling parties to entrench themselves have predictable racial effects. Under circum stances of severe racial polarization, efforts to gain politi cal advantage translate into race-specific disadvantages.” Ansolabehere, Persily, & Stewart, Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act, 126 Harv. L. Rev. Forum 205, 209 (2013). In other words, a governing political coalition has an incentive to prevent changes in the existing balance of voting power. When voting is racially polarized, efforts by the ruling party to pursue that incentive “will inevitably discriminate against a racial group.” Ibid. Just as build ings in California have a greater need to be earthquake proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination. This point was understood by Congress and is well recognized in the academic literature. See 2006 Reauthorization §2(b)(3), 120 Stat. 577 (“The continued evidence of racially polar ized voting in each of the jurisdictions covered by the [preclearance requirement] demonstrates that racial and language minorities remain politically vulnerable”); H. R. Rep. No. 109–478, at 35; Davidson, The Recent Evolution of Voting Rights Law Affecting Racial and Language Minorities, in Quiet Revolution 21, 22. The case for retaining a coverage formula that met needs on the ground was therefore solid. Congress might 22 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting have been charged with rigidity had it afforded covered jurisdictions no way out or ignored jurisdictions that needed superintendence. Congress, however, responded to this concern. Critical components of the congressional design are the statutory provisions allowing jurisdictions to “bail out” of preclearance, and for court-ordered “bail ins.” See Northwest Austin, 557 U. S., at 199. The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of vot ers. 42 U. S. C. §1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the Fourteenth and Fifteenth Amendments have occurred there. §1973a(c) (2006 ed.). Congress was satisfied that the VRA’s bailout mecha nism provided an effective means of adjusting the VRA’s coverage over time. H. R. Rep. No. 109–478, at 25 (the success of bailout “illustrates that: (1) covered status is neither permanent nor over-broad; and (2) covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genu inely clean record and want to terminate coverage have the ability to do so”). Nearly 200 jurisdictions have suc cessfully bailed out of the preclearance requirement, and DOJ has consented to every bailout application filed by an eligible jurisdiction since the current bailout procedure became effective in 1984. Brief for Federal Respondent 54. The bail-in mechanism has also worked. Several jurisdic tions have been subject to federal preclearance by court orders, including the States of New Mexico and Arkansas. App. to Brief for Federal Respondent 1a–3a. This experience exposes the inaccuracy of the Court’s portrayal of the Act as static, unchanged since 1965. Congress designed the VRA to be a dynamic statute, capa ble of adjusting to changing conditions. True, many cov Cite as: 570 U. S. ____ (2013) 23

GINSBURG, J., dissenting ered jurisdictions have not been able to bail out due to recent acts of noncompliance with the VRA, but that truth reinforces the congressional judgment that these jurisdic tions were rightfully subject to preclearance, and ought to remain under that regime. IV Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18–19. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” Ante, at 20–21. One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation. I note the most disturbing lapses. First, by what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA? Second, the Court veers away from controlling precedent regarding the “equal sovereignty” doctrine without even acknowledging that it is doing so. Third, hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments, and as just stressed, the Court does not even deign to grapple with the legislative record. A Shelby County launched a purely facial challenge to the VRA’s 2006 reauthorization. “A facial challenge to a legislative Act,” the Court has other times said, “is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circum 24 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting stances exists under which the Act would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987). “[U]nder our constitutional system[,] courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma, 413 U. S. 601, 610–611 (1973). Instead, the “judicial Power” is limited to deciding particular “Cases” and “Controversies.” U. S. Const., Art. III, §2. “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitution ally to others, in other situations not before the Court.” Broadrick, 413 U. S., at 610. Yet the Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit—Shelby County, Ala bama. The reason for the Court’s silence is apparent, for as applied to Shelby County, the VRA’s preclearance requirement is hardly contestable. Alabama is home to Selma, site of the “Bloody Sunday” beatings of civil-rights demonstrators that served as the catalyst for the VRA’s enactment. Following those events, Martin Luther King, Jr., led a march from Selma to Mont gomery, Alabama’s capital, where he called for passage of the VRA. If the Act passed, he foresaw, progress could be made even in Alabama, but there had to be a steadfast national commitment to see the task through to comple tion. In King’s words, “the arc of the moral universe is long, but it bends toward justice.” G. May, Bending To ward Justice: The Voting Rights Act and the Transfor mation of American Democracy 144 (2013). History has proved King right. Although circumstances in Alabama have changed, serious concerns remain. Between 1982 and 2005, Alabama had one of the highest rates of successful §2 suits, second only to its VRA-covered Cite as: 570 U. S. ____ (2013) 25

GINSBURG, J., dissenting neighbor Mississippi. 679 F. 3d, at 897 (Williams, J., dissenting). In other words, even while subject to the restraining effect of §5, Alabama was found to have “deni[ed] or abridge[d]” voting rights “on account of race or color” more frequently than nearly all other States in the Union. 42 U. S. C. §1973(a). This fact prompted the dissenting judge below to concede that “a more narrowly tailored coverage formula” capturing Alabama and a handful of other jurisdictions with an established track record of racial discrimination in voting “might be defensi ble.” 679 F. 3d, at 897 (opinion of Williams, J.). That is an understatement. Alabama’s sorry history of §2 violations alone provides sufficient justification for Congress’ deter mination in 2006 that the State should remain subject to §5’s preclearance requirement.7 A few examples suffice to demonstrate that, at least in Alabama, the “current burdens” imposed by §5’s preclear ance requirement are “justified by current needs.” North- west Austin, 557 U. S., at 203. In the interim between the VRA’s 1982 and 2006 reauthorizations, this Court twice confronted purposeful racial discrimination in Alabama. In Pleasant Grove v. United States, 479 U. S. 462 (1987), the Court held that Pleasant Grove—a city in Jefferson County, Shelby County’s neighbor—engaged in purposeful discrimination by annexing all-white areas while rejecting the annexation request of an adjacent black neighborhood. The city had “shown unambiguous opposition to racial —————— 7 This lawsuit was filed by Shelby County, a political subdivision of Alabama, rather than by the State itself. Nevertheless, it is appropri ate to judge Shelby County’s constitutional challenge in light of in stances of discrimination statewide because Shelby County is subject to §5’s preclearance requirement by virtue of Alabama’s designation as a covered jurisdiction under §4(b) of the VRA. See ante, at 7. In any event, Shelby County’s recent record of employing an at-large electoral system tainted by intentional racial discrimination is by itself sufficient to justify subjecting the county to §5’s preclearance mandate. See infra, at 26. 26 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting integration, both before and after the passage of the fed eral civil rights laws,” and its strategic annexations appeared to be an attempt “to provide for the growth of a monolithic white voting block” for “the impermissible purpose of minimizing future black voting strength.” Id., at 465, 471–472. Two years before Pleasant Grove, the Court in Hunter v. Underwood, 471 U. S. 222 (1985), struck down a provision of the Alabama Constitution that prohibited individuals convicted of misdemeanor offenses “involving moral turpi tude” from voting. Id., at 223 (internal quotation marks omitted). The provision violated the Fourteenth Amend ment’s Equal Protection Clause, the Court unanimously concluded, because “its original enactment was motivated by a desire to discriminate against blacks on account of race[,] and the [provision] continues to this day to have that effect.” Id., at 233. Pleasant Grove and Hunter were not anomalies. In 1986, a Federal District Judge concluded that the at-large election systems in several Alabama counties violated §2. Dillard v. Crenshaw Cty., 640 F. Supp. 1347, 1354–1363 (MD Ala. 1986). Summarizing its findings, the court stated that “[f ]rom the late 1800’s through the present, [Alabama] has consistently erected barriers to keep black persons from full and equal participation in the social, economic, and political life of the state.” Id., at 1360. The Dillard litigation ultimately expanded to include 183 cities, counties, and school boards employing discrim inatory at-large election systems. Dillard v. Baldwin Cty. Bd. of Ed., 686 F. Supp. 1459, 1461 (MD Ala. 1988). One of those defendants was Shelby County, which eventually signed a consent decree to resolve the claims against it. See Dillard v. Crenshaw Cty., 748 F. Supp. 819 (MD Ala. 1990). Although the Dillard litigation resulted in overhauls of numerous electoral systems tainted by racial discrimina Cite as: 570 U. S. ____ (2013) 27

GINSBURG, J., dissenting tion, concerns about backsliding persist. In 2008, for example, the city of Calera, located in Shelby County, requested preclearance of a redistricting plan that “would have eliminated the city’s sole majority-black district, which had been created pursuant to the consent decree in Dillard.” 811 F. Supp. 2d 424, 443 (DC 2011). Although DOJ objected to the plan, Calera forged ahead with elec tions based on the unprecleared voting changes, resulting in the defeat of the incumbent African-American council man who represented the former majority-black district. Ibid. The city’s defiance required DOJ to bring a §5 en forcement action that ultimately yielded appropriate redress, including restoration of the majority-black dis trict. Ibid.; Brief for Respondent-Intervenors Earl Cun ningham et al. 20. A recent FBI investigation provides a further window into the persistence of racial discrimination in state poli tics. See United States v. McGregor, 824 F. Supp. 2d 1339, 1344–1348 (MD Ala. 2011). Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conver sations are shocking. Members of the state Senate deri sively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout. Id., at 1345–1346 (internal quotation marks omitted). See also id., at 1345 (legislators and their allies expressed concern that if the referendum were placed on the ballot,

“ ‘[e]very black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses’ ”). These conversations oc curred not in the 1870’s, or even in the 1960’s, they took place in 2010. Id., at 1344–1345. The District Judge presiding over the criminal trial at which the recorded conversations were introduced commented that the “re 28 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting cordings represent compelling evidence that political exclusion through racism remains a real and enduring problem” in Alabama. Id., at 1347. Racist sentiments, the judge observed, “remain regrettably entrenched in the high echelons of state government.” Ibid. These recent episodes forcefully demonstrate that §5’s preclearance requirement is constitutional as applied to Alabama and its political subdivisions.8 And under our case law, that conclusion should suffice to resolve this case. See United States v. Raines, 362 U. S. 17, 24–25 (1960) (“[I]f the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality.”). See also Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 743 (2003) (SCALIA, J., dissenting) (where, as here, a state or local government raises a facial challenge to a federal statute on the ground that it exceeds Congress’ enforcement powers under the Civil War Amendments, the challenge fails if the opposing party is able to show that the statute “could constitution ally be applied to some jurisdictions”). This Court has consistently rejected constitutional challenges to legislation enacted pursuant to Congress’ enforcement powers under the Civil War Amendments upon finding that the legislation was constitutional as applied to the particular set of circumstances before the Court. See United States v. Georgia, 546 U. S. 151, 159 (2006) (Title II of the Americans with Disabilities Act of 1990 (ADA) validly abrogates state sovereign immunity “insofar as [it] creates a private cause of action . . . for conduct that actually violates the Fourteenth Amend

—————— 8 Congress continued preclearance over Alabama, including Shelby County, after considering evidence of current barriers there to minority voting clout. Shelby County, thus, is no “redhead” caught up in an arbitrary scheme. See ante, at 22. Cite as: 570 U. S. ____ (2013) 29

GINSBURG, J., dissenting ment”); Tennessee v. Lane, 541 U. S. 509, 530–534 (2004) (Title II of the ADA is constitutional “as it applies to the class of cases implicating the fundamental right of access to the courts”); Raines, 362 U. S., at 24–26 (federal statute proscribing deprivations of the right to vote based on race was constitutional as applied to the state officials before the Court, even if it could not constitutionally be applied to other parties). A similar approach is warranted here.9 The VRA’s exceptionally broad severability provision makes it particularly inappropriate for the Court to allow Shelby County to mount a facial challenge to §§4(b) and 5 of the VRA, even though application of those provisions to the county falls well within the bounds of Congress’ legis lative authority. The severability provision states: “If any provision of [this Act] or the application thereof to any person or circumstances is held invalid, the remainder of [the Act] and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby.” 42 U. S. C. §1973p. In other words, even if the VRA could not constitutionally be applied to certain States—e.g., Arizona and Alaska, see ante, at 8—§1973p calls for those unconstitutional applica tions to be severed, leaving the Act in place for juris dictions as to which its application does not transgress constitutional limits. —————— 9 The Court does not contest that Alabama’s history of racial discrim ination provides a sufficient basis for Congress to require Alabama and its political subdivisions to preclear electoral changes. Nevertheless, the Court asserts that Shelby County may prevail on its facial chal lenge to §4’s coverage formula because it is subject to §5’s preclearance requirement by virtue of that formula. See ante, at 22 (“The county was selected [for preclearance] based on th[e] [coverage] formula.”). This misses the reality that Congress decided to subject Alabama to preclearance based on evidence of continuing constitutional violations in that State. See supra, at 28, n. 8. 30 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting Nevertheless, the Court suggests that limiting the jurisdictional scope of the VRA in an appropriate case would be “to try our hand at updating the statute.” Ante, at 22. Just last Term, however, the Court rejected this very argument when addressing a materially identical severability provision, explaining that such a provision is “Congress’ explicit textual instruction to leave unaffected the remainder of [the Act]” if any particular “application is unconstitutional.” National Federation of Independent Business v. Sebelius, 567 U. S. __, __ (2012) (plurality opinion) (slip op., at 56) (internal quotation marks omit ted); id., at __ (GINSBURG, J., concurring in part, concur ring in judgment in part, and dissenting in part) (slip op., at 60) (agreeing with the plurality’s severability analysis). See also Raines, 362 U. S., at 23 (a statute capable of some constitutional applications may nonetheless be susceptible to a facial challenge only in “that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its legisla tion to stand at all unless it could validly stand in its every application”). Leaping to resolve Shelby County’s facial challenge without considering whether application of the VRA to Shelby County is constitutional, or even address ing the VRA’s severability provision, the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA. B The Court stops any application of §5 by holding that §4(b)’s coverage formula is unconstitutional. It pins this result, in large measure, to “the fundamental principle of equal sovereignty.” Ante, at 10–11, 23. In Katzenbach, however, the Court held, in no uncertain terms, that the principle “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local Cite as: 570 U. S. ____ (2013) 31

GINSBURG, J., dissenting evils which have subsequently appeared.” 383 U. S., at 328–329 (emphasis added). Katzenbach, the Court acknowledges, “rejected the notion that the [equal sovereignty] principle operate[s] as a bar on differential treatment outside [the] context [of the admission of new States].” Ante, at 11 (citing 383 U. S., at 328–329) (emphasis omitted). But the Court clouds that once clear understanding by citing dictum from Northwest Austin to convey that the principle of equal sovereignty “remains highly pertinent in assessing subsequent dispar ate treatment of States.” Ante, at 11 (citing 557 U. S., at 203). See also ante, at 23 (relying on Northwest Austin’s “emphasis on [the] significance” of the equal-sovereignty principle). If the Court is suggesting that dictum in Northwest Austin silently overruled Katzenbach’s limita tion of the equal sovereignty doctrine to “the admission of new States,” the suggestion is untenable. Northwest Austin cited Katzenbach’s holding in the course of declin- ing to decide whether the VRA was constitutional or even what standard of review applied to the question. 557 U. S., at 203–204. In today’s decision, the Court ratchets up what was pure dictum in Northwest Austin, attributing breadth to the equal sovereignty principle in flat contra diction of Katzenbach. The Court does so with nary an explanation of why it finds Katzenbach wrong, let alone any discussion of whether stare decisis nonetheless coun sels adherence to Katzenbach’s ruling on the limited “sig nificance” of the equal sovereignty principle. Today’s unprecedented extension of the equal sover eignty principle outside its proper domain—the admission of new States—is capable of much mischief. Federal statutes that treat States disparately are hardly novelties. See, e.g., 28 U. S. C. §3704 (no State may operate or permit a sports-related gambling scheme, unless that State con ducted such a scheme “at any time during the period beginning January 1, 1976, and ending August 31, 1990”); 32 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting 26 U. S. C. §142(l) (EPA required to locate green building project in a State meeting specified population criteria); 42 U. S. C. §3796bb (at least 50 percent of rural drug en forcement assistance funding must be allocated to States with “a population density of fifty-two or fewer persons per square mile or a State in which the largest county has fewer than one hundred and fifty thousand people, based on the decennial census of 1990 through fiscal year 1997”); §§13925, 13971 (similar population criteria for funding to combat rural domestic violence); §10136 (specifying rules applicable to Nevada’s Yucca Mountain nuclear waste site, and providing that “[n]o State, other than the State of Nevada, may receive financial assistance under this sub section after December 22, 1987”). Do such provisions remain safe given the Court’s expansion of equal sover eignty’s sway? Of gravest concern, Congress relied on our pathmarking Katzenbach decision in each reauthorization of the VRA. It had every reason to believe that the Act’s limited geo graphical scope would weigh in favor of, not against, the Act’s constitutionality. See, e.g., United States v. Morri- son, 529 U. S. 598, 626–627 (2000) (confining preclearance regime to States with a record of discrimination bolstered the VRA’s constitutionality). Congress could hardly have foreseen that the VRA’s limited geographic reach would render the Act constitutionally suspect. See Persily 195 (“[S]upporters of the Act sought to develop an evidentiary record for the principal purpose of explaining why the covered jurisdictions should remain covered, rather than justifying the coverage of certain jurisdictions but not others.”). In the Court’s conception, it appears, defenders of the VRA could not prevail upon showing what the record overwhelmingly bears out, i.e., that there is a need for continuing the preclearance regime in covered States. In addition, the defenders would have to disprove the exist Cite as: 570 U. S. ____ (2013) 33

GINSBURG, J., dissenting ence of a comparable need elsewhere. See Tr. of Oral Arg. 61–62 (suggesting that proof of egregious episodes of racial discrimination in covered jurisdictions would not suffice to carry the day for the VRA, unless such episodes are shown to be absent elsewhere). I am aware of no precedent for imposing such a double burden on defenders of legislation. C The Court has time and again declined to upset legisla tion of this genre unless there was no or almost no evi dence of unconstitutional action by States. See, e.g., City of Boerne v. Flores, 521 U. S. 507, 530 (1997) (legislative record “mention[ed] no episodes [of the kind the legislation aimed to check] occurring in the past 40 years”). No such claim can be made about the congressional record for the 2006 VRA reauthorization. Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick. Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” Ante, at 17. It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. 2006 Reauthorization §2(b)(3), (9). Volumes of evidence supported Congress’ de termination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet. But, the Court insists, the coverage formula is no good; it is based on “decades-old data and eradicated practices.” Ante, at 18. Even if the legislative record shows, as engag ing with it would reveal, that the formula accurately 34 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting identifies the jurisdictions with the worst conditions of voting discrimination, that is of no moment, as the Court sees it. Congress, the Court decrees, must “star[t] from scratch.” Ante, at 23. I do not see why that should be so. Congress’ chore was different in 1965 than it was in 2006. In 1965, there were a “small number of States . . . which in most instances were familiar to Congress by name,” on which Congress fixed its attention. Katzenbach, 383 U. S., at 328. In drafting the coverage formula, “Con gress began work with reliable evidence of actual voting discrimination in a great majority of the States” it sought to target. Id., at 329. “The formula [Congress] eventually evolved to describe these areas” also captured a few States that had not been the subject of congressional factfinding. Ibid. Nevertheless, the Court upheld the formula in its entirety, finding it fair “to infer a significant danger of the evil” in all places the formula covered. Ibid. The situation Congress faced in 2006, when it took up reauthorization of the coverage formula, was not the same. By then, the formula had been in effect for many years, and all of the jurisdictions covered by it were “familiar to Congress by name.” Id., at 328. The question before Congress: Was there still a sufficient basis to support continued application of the preclearance remedy in each of those already-identified places? There was at that point no chance that the formula might inadvertently sweep in new areas that were not the subject of congressional findings. And Congress could determine from the record whether the jurisdictions captured by the coverage for mula still belonged under the preclearance regime. If they did, there was no need to alter the formula. That is why the Court, in addressing prior reauthorizations of the VRA, did not question the continuing “relevance” of the formula. Consider once again the components of the record before Congress in 2006. The coverage provision identified a Cite as: 570 U. S. ____ (2013) 35

GINSBURG, J., dissenting known list of places with an undisputed history of serious problems with racial discrimination in voting. Recent evidence relating to Alabama and its counties was there for all to see. Multiple Supreme Court decisions had upheld the coverage provision, most recently in 1999. There was extensive evidence that, due to the preclear ance mechanism, conditions in the covered jurisdictions had notably improved. And there was evidence that pre clearance was still having a substantial real-world effect, having stopped hundreds of discriminatory voting changes in the covered jurisdictions since the last reauthorization. In addition, there was evidence that racial polarization in voting was higher in covered jurisdictions than elsewhere, increasing the vulnerability of minority citizens in those jurisdictions. And countless witnesses, reports, and case studies documented continuing problems with voting dis crimination in those jurisdictions. In light of this rec ord, Congress had more than a reasonable basis to conclude that the existing coverage formula was not out of sync with conditions on the ground in covered areas. And certainly Shelby County was no candidate for release through the mechanism Congress provided. See supra, at 22–23, 26–28. The Court holds §4(b) invalid on the ground that it is “irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time.” Ante, at 23. But the Court disregards what Con gress set about to do in enacting the VRA. That extraor dinary legislation scarcely stopped at the particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity equal citizen ship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abun dantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as at tempted substitutes for the first-generation barriers that 36 SHELBY COUNTY v. HOLDER

GINSBURG, J., dissenting originally triggered preclearance in those jurisdictions. See supra, at 5–6, 8, 15–17. The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear ance is no longer needed. Ante, at 21–22, 23–24. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrim ination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. Katzenbach, 383 U. S., at 311; supra, at 2. In truth, the evolution of voting discrim ination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclear ance remains vital to protect minority voting rights and prevent backsliding. Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made. The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legisla tion that the United States Congress has dealt with in the 27½ years” he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner). Cite as: 570 U. S. ____ (2013) 37

GINSBURG, J., dissenting After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” 2006 Reauthorization §2(b)(7), 120 Stat. 577. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legis lation” merits this Court’s utmost respect. In my judg ment, the Court errs egregiously by overriding Congress’ decision. * * * For the reasons stated, I would affirm the judgment of the Court of Appeals. Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232

By reason of special relationship of public KeyCite Yellow Flag - Negative Treatment officials in a state to the court of last Not Followed on State Law Grounds State v. Rochon, La., October 25, resort of that state, decision of state supreme 2011 court that state constitutional provision 94 S.Ct. 2655 and implementing statutes denied equal Supreme Court of the United States protection, if left standing, would leave public Viola N. RICHARDSON, as officials permanently bound. U.S.C.A.Const. Amend. 14. County Clerk, etc., Petitioner, v. 3 Cases that cite this headnote Abran RAMIREZ et al.

No. 72—1589. [2] Federal Courts | Elections, voting, and political rights Argued Jan. 15, 1974. Decision of three named county clerks | who had refused to register convicted Decided June 24, 1974. felons as voters not to contest felons' action challenging California constitutional Convicted felons who had completed their sentences provision and implementing statutes and paroles instituted proceeding for writ of mandate disenfranchising convicted felons, and those compelling election officials to register them as voters. The clerks' representations that they would permit California Supreme Court, 9 Cal.3d 199, 107 Cal.Rptr. convicted felons whose terms of incarceration 137, 507 P.2d 1345, held that provision of California and parole had expired to register and vote, Constitution and implementing statutes disenfranchising did not render case moot where action had convicted felons denied equal protection and certiorari been brought on behalf of all convicted felons was granted. The Supreme Court, Mr. Justice Rehnquist, situated similarly to plaintiffs, clerk of another held that decision of county clerks who had refused county had been added as a named defendant to register plaintiffs as voters not to contest the action and relief in the nature of declaratory relief and those clerks' representations that they would permit had been granted by California Supreme convicted felons whose terms of incarceration and parole Court. West's Ann.Cal.Elections Code, §§ 310, had expired to register and vote did not render the case 321, 383 , 389 , 390 , 14240 , 14246; West's moot, and that disenfranchisement of convicted felons Ann.Cal.Const. art. 2, §§ 1, 3; art. 20, § 11; who had completed their sentences and paroles did not U.S.C.A.Const. art. 3, § 1 et seq.; Amend. 14. deny equal protection. 41 Cases that cite this headnote Reversed and remanded.

[3] States Mr. Justice Douglas dissented and filed opinion. Other particular powers Mr. Justice Marshall dissented and filed opinion in which State was at liberty to prescribe its own Mr. Justice Brennan joined and in part of which Mr. rules for class actions, subject only to limits Justice Douglas joined. imposed by the United States Constitution.

Cases that cite this headnote

West Headnotes (9) [4] Federal Courts Case or controversy requirement; [1] Federal Courts justiciability; mootness and ripeness Particular cases Where there is “an actual and acute controversy,” appeal from declaratory

judgment of state court presents a “case or other crime,” and in the historical and controversy” within jurisdiction of the United judicial interpretation of the Amendment's States Supreme Court. U.S.C.A.Const. art. 3, applicability to state laws disenfranchising § 1 et seq.; 28 U.S.C.A. § 1257. felons is of controlling significance in distinguishing such laws from other state 30 Cases that cite this headnote franchise limitations which are invalid under Equal Protection Clause. U.S.C.A.Const. [5] Federal Courts Amends. 14, 14, §§ 1, 2. Particular Cases, Contexts, and 91 Cases that cite this headnote Questions Mere failure of state court to award peremptory relief in a proceeding which it [8] Constitutional Law treats as one for declaratory judgment is not Elections, voting, and political rights an “adequate state ground” which precludes Section of the Fourteenth Amendment review by the United States Supreme Court containing equal protection clause and of the state court's federal constitutional dealing with voting rights could not holding. U.S.C.A.Const. art. 3, § 1 et seq. have been meant to bar outright the disenfranchisement of convicted felons 4 Cases that cite this headnote as such disenfranchisement was expressly exempted from sanction of reduced [6] Constitutional Law congressional representation imposed by Elections, voting, and political rights subsequent section of the Amendment for other forms of disenfranchisement. Election Law U.S.C.A.Const. Amends. 14, 14, §§ 1, 2. Conviction of crime State constitutional provision and 77 Cases that cite this headnote implementing statutes disenfranchising convicted felons who have completed their [9] Constitutional Law sentences and paroles did not deny equal Elections, voting, and political rights protection. West's Ann.Cal.Elections Code, §§ 310, 321, 383, 389, 390, 14240, 14246; West's Even if section of Fourteenth Ann.Pen.Code, §§ 1203.4, 4852.01, 4852.13 , Amendment imposing sanction of 4852.16, 4852.17; West's Ann.Cal.Const. art. reduced congressional representation for 2, §§ 1, 3; art. 20, § 11; U.S.C.A.Const. forms of disenfranchisement other than Amends. 14, 14, §§ 1, 2. disenfranchisement for participation in crime had been made part of Fourteenth 22 Cases that cite this headnote Amendment largely through accident of political exigency rather than for the relation which it bore to other sections of the [7] Constitutional Law Amendment, that section would be looked Voting rights and suffrage in general to for guidance in determining whether Constitutional Law disenfranchisement of felons denied equal Elections, voting, and political rights protection, since the former section was as Understanding of framers of Fourteenth much a part of the Amendment as any of Amendment, as reflected in language of the other sections and how it became part of section of the Amendment exempting the Amendment was less important than what from sanction of reduced congressional it said and what it meant. U.S.C.A.Const. representation resulting from denial of Amends. 14, 14, §§ 1, 2. citizen's right to vote a denial of such right for “participation in rebellion, or

in California similarly situated, and also that the court 34 Cases that cite this headnote regarded petitioner's opponent in the Court of Appeal suit, both as an unnamed member of the class of ex-felons referred to in the complaint and as one of a class actually **2656 Syllabus * seeking to register in petitioner's county, as a party to the Supreme Court action. Pp. 2663—2664. *24 After the three individual respondents, who had been convicted of felonies and had completed their (b) Being rendered in a class action in which relief sentences and paroles, were refused registration to in the nature of declaratory relief was granted, the vote in three different California counties respectively decision below is not only binding on petitioner and because of their felony convictions, they brought a thus dispositive of her other suit, but also decides class petition, on behalf of themselves and all other ex- the federal constitutional question presented for the felons similarly situated, for a writ of mandate in the unnamed members of the classes represented below by California Supreme Court, naming as defendants the petitioner and respondents, whose continuing controversy Secretary of State and the three county election officials in the State Supreme Court still continues in this Court. who had denied them registration ‘individually and as Brockington v. Rhodes, 396 U.S. 41, 90 S.Ct. 206, 24 representatives of the class of all other’ county election L.Ed.2d 209, distinguished. P. 2664. officials in the State, and challenging the constitutionality of respondents' disenfranchisement on the ground, inter 2. California, in disenfranchising convicted felons who alia, that provisions of the California Constitution and have completed their sentences and paroles, does not the implementing statutes that disenfranchised ex-felons violate the Equal Protection Clause, Pp. 2665—2672. denied them equal protection. The three county officials named as defendants decided not to contest the action (a) The understanding of the framers of the Fourteenth and told the court they would henceforth register to Amendment, as reflected in the express language of s 2 vote ex-felons, including respondents, whose sentences of the Amendment, which exempts from the sanction of and paroles had expired. Prior to the return date of the reduced congressional representation resulting from the writ, the court added to the named defendants (instead denial of citizens' right to vote, the denial of such right of allowing her to intervene) another county election for ‘participation in rebellion, or other crime,’ and in the official (petitioner here) who was the defendant in a historical and judicial interpretation of the Amendment's similar action by an ex-felon pending in the State Court applicability to state laws disenfranchising felons, is of of Appeal. After holding that the three **2657 first- controlling significance in distinguishing such laws from named county officials' acquiescence did not render the those other state limitations on the franchise that this case moot, the California Supreme Court went on to Court has held invalid under the Equal Protection Clause. hold that the constitutional and statutory provisions in Pp. 2670—2671. question, as applied to ex-felons whose sentences and paroles had expired, violated the Equal Protection Clause (b) Section 1 of the Fourteenth the Amendment “largely of the Fourteenth Amendment, but did not issue the through the ac-Protection Clause, in dealing with voting peremptory writ. Held: rights as it does, could not have been meant to bar outright a form of disenfranchisement that was expressly exempted 1. In view of its unusual procedural history in the Supreme from the less drastic sanction of reduced representation Court of California, the case is not moot. Pp. 2661—2664. that s 2 imposed for other forms of disenfranchisement. P. 2671. (a) The State Supreme Court's action in adding petitioner as a named defendant after the other named county (c) Even if s 2 was made part of the Amendment “largely officials decided not to contest the action, and at a time through the accident of political exigency rather than when the Secretary of *25 State (who did not join in for the relation which it bore to the other sections of the petition to this Court) was still a party defendant Amendment,” as respondents contend, this does not who had answered the complaint, indicates that the court preclude looking to it for guidance in interpreting s 1, since considered the suit to be not only on behalf of the s 2 is as much a part of the Amendment *26 as any of the three named plaintiffs, but also on behalf of all ex-felons

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 other sections, and how it became part of the Amendment registration, former Art, II, s 1, of the California is less important than what it says and what it means. P. Constitution provided in part that ‘no alien ineligible 2671. to citizenship, no idiot, no insane person, no person convicted of any infamous crime, no person hereafter 9 Cal.3d 199, 107 Cal.Rptr. 137, 507 P.2d 1345, reversed convicted of the embezzlement or misappropriation of and remanded. public money, and no person who shall not be able to read the Constitution in the English language and write his or her name, shall ever exercise the privileges Attorneys and Law Firms of an elector *28 in this State.' 2 Sections 310 and Duncan M. James, Dist. Atty. of Mendocino County, 321 of the California Elections Code provide that an Ukiah, Cal., for petitioner. affidavit of registration shall show whether the affiant has been convicted of ‘a felony which disqualifies (him) George J. Roth, Los Angeles, Cal., for State of California, from voting.' 3 Sections 383, 389, and 390 direct the as amicus curiae, by special leave of Court. county clerk to cancel the registration of all voters who have been convicted of ‘any infamous crime or Martin R. Glick, San Francisco, Cal., for respondents. of the embezzlement or misappropriation of any public Opinion money.' 4 Sections **2659 14240 and *29 14246 permit a voter's qualifications to be challenged on the ground **2658 Mr. Justice REHNQUIST delivered the opinion that he has been convicted of ‘a felony’ or of ‘the of the Court. embezzlement or misappropriation of public money.' 5 The three individual respondents in this case were California provides by statute for restoration of the right convicted of felonies and have completed the service to vote to persons convicted of crime either *30 by of their respective sentences and paroles. They filed a court order after the completion of probation, 6 or, if petition for a writ of mandate in the Supreme Court of a prison term was served, by executive pardon after California to compel California county election officials to completion of rehabilitation proceedings. 7 California 1 register them as voters. They claimed, on behalf of *27 also provides a **2660 procedure by which a person themselves and others similarly situated, that application refused *31 registration may obtain judicial review of his to them of the provisions of the California Constitution disqualification. 8 and implementing statutes which disenfranchised persons convicted of an ‘infamous crime’ denied them the right Each of the individual respondents was convicted of one to equal protection of the laws under the Federal or more felonies, and served some time in jail or prison Constitution. The Supreme Court of California held that followed by a successfully terminated parole. Respondent ‘as applied to all ex-felons whose terms of incarceration Ramirez was convicted in Texas; respondents Lee and Gill and parole have expired, the provisions of article II and were convicted in California. When Ramirez applied to article XX, section 11, of the California Constitution register to vote in San Luis Obispo County, the County denying the right of suffrage to persons convicted of Clerk refused to allow him to register. The Monterey crime, together with the several sections of the Elections County Clerk refused registration to respondent Lee, and Code implementing that disqualification . . . violate the the Stanislaus County Registrar of *32 Voters (hereafter equal protection clause of the Fourteenth Amendment.’ also included in references to clerks) refused registration Ramirez v. Brown, 9 Cal.3d 199, 216—217, 107 Cal.Rptr. to respondent Gill. 137, 149, 507 P.2d 1345, 1357 (1973). We granted All three respondents were refused registration because of certiorari, 414 U.S. 816, 94 S.Ct. 45, 38 L.Ed.2d 49 (1973). their felony convictions. 9 Article XX, s 11, of the California Constitution has In May 1972 respondents filed a petition for a writ of provided since its adoption in 1879 that ‘(l)aws shall mandate in the Supreme Court of California, invoking be made’ to exclude from voting persons convicted 10 11 of bribery, perjury, forgery, malfeasance in office, ‘or its original jurisdiction. They named as defendants other high crimes.’ At the time respondents were refused below the three election officials of San Luis Obispo, *33 Monterey, and Stanislaus Counties who had refused to

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 allow them to register, ‘individually and as representatives validity of election laws.' 9 Cal.3d, at 203, 107 Cal.Rptr., of the class of all other County Clerks and Registrars at 139, 507 P.2d, at 1347. In addition to California cases, of Voters who have the duty of determining for their the court cited Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 respective counties whether any ex-felon will be denied L.Ed.2d 147 (1973), and Goosby v. Osser, 409 U.S. 512, the right to vote.’ The petition for a writ of mandate 93 S.Ct. 854, 35 L.Ed.2d 36 (1973) challenged the constitutionality of respondents' exclusion *35 [1] As a practical matter, there can be no doubt from the voting **2661 rolls on two grounds. First, it that there is a spirited dispute between the parties in was contended that California's denial of the franchise this Court as to the constitutionality of the California to the class of ex-felons could no longer withstand provisions disenfranchising ex-felons. Even though the scrutiny under the Equal Protection Clause of the Supreme Court of California did not in fact issue a Fourteenth Amendment. Relying on the Court's recent permanent writ of mandate, and therefore its judgment is voting-rights cases, respondents argued that a compelling in effect a declaratory judgment, an action for such relief state interest must be found to justify exclusion of may stem from a controversy that is ‘definite and concrete, a class from the franchise, and that California could touching the legal relations of parties having adverse legal assert no such interest with respect to ex-felons. Second, interests.’ **2662 Aetna Life Insurance Co. v. Haworth, respondents contended that application of the challenged 300 U.S. 227, 240—241, 57 S.Ct. 461, 464, 81 L.Ed. 617 California constitutional and statutory provisions by (1937). By reason of the special relationship of the public election officials of the State's 58 counties was so officials in a State to the court of last resort of that lacking in uniformity as to deny them due process and State, the decision of the Supreme Court of California, ‘geographical . . . equal protection.’ They appended a if left standing, leaves them permanently bound by its report by respondent California Secretary of State, and conclusion on a matter of federal constitutional law. Cf. the questionnaries returned by county election officials North Dakota State Board of Pharmacy v. Snyder's Drug on which it was based. The report concluded that Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 there was wide variation in the county election officials' (1973). interpretation of the challenged voting exclusions. 12 The Supreme *34 Court of California upheld the first This case in some respects presents stronger arguments contention and therefore did not reach the second one. for concluding that a live case or controversy remains than in other election cases in which we have addressed I the question of mootness. Unlike Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), in which Before reaching respondents' constitutional challenge, the particular candidacy was not apt to be revived in a the Supreme Court of California considered whether a future election, or Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, decision reached by the three county clerks not to contest 24 L.Ed.2d 214 (1969), in which the voters who had been the action, together with their representation to the court disenfranchised because of a residence requirement would that they would henceforth permit all ex-felons whose not have suffered the same fate under the amended statute, terms of incarceration and parole had expired to register respondents here are indefinitely disenfranchised by the and vote, rendered this case moot. That court decided that provisions of California law which they challenge. While it did not. The acquiescence of the three officials was in no the situation in Moore v. Ogilvie, supra, was described way binding on election officials of the other 55 California as “capable of repetition, yet evading review,” 394 U.S., counties in which respondents might choose to reside, and at 816, 89 S.Ct., at 1494, that involved here can best be it was undisputed that there were many ex-felons among described, in view of the Supreme Court of California's the residents of those counties who had been or would decision against the state officials and their obligation to be refused registration on the ground challenged. Because follow the law as laid down by that court, as ‘incapable of the case posed a question of broad public interest, which repetition,’ and therefore evading review. There are thus was likely to recur and which should receive a statewide the strongest sorts of practical arguments, as well as the resolution, the court exercised its ‘inherent discretion to language *36 of Moore v. Ogilvie, supra, which militate resolve the issue, ‘even though an event occurring during against a conclusion of mootness in this case. its pendency would normally render the matter moot.’ . . . This rule is particularly applicable to challenges to the

qualified to vote,’ or in the alternative to show cause why But purely practical considerations have never been they had not done so upon the return date of the writ. thought to be controlling by themselves on the issue of Thus, while the Supreme Court of California did not in mootness in this Court. While the Supreme Court of so many words say that it was permitting respondents to California may choose to adjudicate a controversy simply proceed by way of a ‘class action,’ the fact that the court's because of its public importance, and the desirability process recited that the named clerks were subject to it of a statewide decision, we are limited by the case-or- ‘individually and as representatives of the class of all other controversy requirement of Art. III to adjudication of County Clerks and Registrars of Voters,’ and the fact that actual disputes between adverse parties. the beneficiaries of that process were not merely the named plaintiffs but ‘all ex-felons whose term of incarceration The mootness problem here arises because, as it noted, and parole (had) expired . . .’ indicates that the court the Supreme Court of California was assured by the three treated the action as one brought for the benefit of the county clerks who were named as defendants that the class described in the petition for the writ of mandate. three named plaintiffs would be allowed to register and vote. The three named plaintiffs resided respectively in the California counties of San Luis Obispo, Monterey, and Petitioner Viola Richardson, the County Clerk of Stanislaus, and the county clerks of those counties who Mendocino County, filed a complaint in intervention in were named as defendants neither defended the action in the action in the Supreme Court of California, alleging the Supreme Court of California nor sought review here. that the suit as framed by the named plaintiffs was Petitioner here is the County Clerk of Mendocino County, collusive, in that neither the three named county clerks who though of course bound by the judgment of the nor the Secretary of State could be expected to contest Supreme Court of California, since she was made a party the claims *38 of plaintiffs. Petitioner Viola Richardson to that action, has no concrete dispute with voters who further alleged in her complaint of intervention that she reside in other counties. Thus if the case were limited to the was a party to a lawsuit brought against her by an ex-felon named parties alone, it could be persuasively argued that (also named Richardson) who had sought to register in there was no present dispute on the issue of the right to Mendocino County, had been denied the right, and whose register between the three named individual respondents suit seeking to establish the right was then pending in the in this Court and the one named petitioner here. State Court of Appeal. [2] We think, however, that the unusual procedural history of the case in the Supreme Court of California The county clerks actually named as defendants in the leads to the conclusion that the litigation before us is mandate action each obeyed the alternative writ issued not moot. The individual named plaintiffs brought their by the Supreme Court of California, and did not contest action in the Supreme Court of California on behalf of the named plaintiffs' legal claim that they had a right themselves and all other ex-felons similarly situated, and to vote secured by the Equal Protection Clause of the not simply *37 those ex-felons residing in the counties in Fourteenth Amendment which overrode the contrary which the named plaintiffs resided. While only the county provisions of the California Constitution. The Secretary clerks of Stainslaus, Monterey and San Luis Obispo of State appeared in the action and generally denied the were named parties defendant, they were designated in named plaintiffs' essential claims. the original complaint filed in the Supreme Court of California ‘as representatives of the class of all other The Supreme Court of California, prior to the return County Clerks.’ The California Secretary of State was date of the writ, issued an order denying petitioner likewise named a party defendant. On the basis of this Richardson's motion to intervene, but instead ordered her complaint, the Supreme Court of California **2663 added to the named defendants in the action along with issued an alternative writ of mandate directed to the three the three other named county clerks and the Secretary named county clerks ‘individually and as representatives of State. This action in the Supreme Court of California, of the class of all other County Clerks and Registrars coming as it did after the acquiescence of the named of Voters,’ directing them to register to vote not simply clerks in the counties in which the named plaintiffs resided, the three named plaintiffs, but ‘all exfelons whose term and yet at a time when the Secretary of State was still a of incarceration and parole have expired and who upon party defendant who had answered the complaint, clearly application demonstrate that they are otherwise fully indicates to us that that court considered the action to be

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 not only on behalf of the three named plaintiffs, but also moot that appellant's ‘suit did not purport to be a class on behalf of all exfelons in California similarly situated. action, and he sought no declaratory relief.’ Id., at 42, 90 We are reinforced in this conclusion by the language S.Ct., at 207. We said: quoted above from the alternative writ of mandate ‘(I)n view of the limited nature of the relief sought, we issued by the Supreme Court of California. Had the think the case is moot because the congressional election Supreme Court of California based its action on petitioner is over. The appellant did not allege that he intended to Richardson's claim that the suit was collusive, and that it run for office in any future election. He did not attempt might become a binding precedent in *39 her litigation to maintain a class action on behalf of himself and other then pending in the State Court of Appeal, it would seem putative independent candidates, present or future. He to have been sufficient to grant the motion to intervene. did not sue for himself and others similarly situated as But the court's action adding petitioner Richardson as a independent voters, as he might have under Ohio law. . . . named defendant would appear to have been based on He did not seek a declaratory judgment, although that its conclusion that at least some members of the class avenue too was open to him. . . .’ Id., at 43, 90 S.Ct., at 208. represented by the plaintiffs in fact resided in Mendocino County, and were there seeking to exercise their right to vote. In reaching such a conclusion, of course, the Here, unlike Brockington, there was a class action, Supreme Court of California had before it petitioner and relief in the nature of declaratory relief was Richardson's allegation that at least her opponent in the granted. The decision below is not only binding on litigation pending in the Court of Appeal was not merely petitioner Richardson, and thus dispositive of her seeking to register to vote in **2664 Mendocino County, other Court of Appeal litigation, but also decides the but had brought a lawsuit to enforce his claim. federal constitutional question presented for the unnamed [3] At the time petitioner Richardson was added as a members of the classes represented below by petitioner party defendant, the three named plaintiffs had obtained and respondents, whose continuing controversy led the the relief which they sought, whereas the remaining Supreme Court of California to conclude that this case members of the class, including petitioner Richardson's was not moot. opponent in the court of appeal litigation, had not. We [4] [5] The briefs of the parties before us indicate that have held that in the federal system one may not represent the adverse alignment in the Supreme Court of California a class of which he is not a part, Bailey v. Patterson, continues in this Court, and we therefore hold the case is 369 U.S. 31, 32—33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d not moot. 13 512 (1962), and if this action had arisen in the federal courts there would be serious doubt as to whether it could have proceeded as a class action on behalf of the class **2665 *41 II of ex-felons denied the right to register after the three named plaintiffs had been granted that right. Indiana Unlike most claims under the Equal Protection Clause, Employment Security Division v. Burney, 409 U.S. 540, for the decision of which we have only the language of 93 S.Ct. 883, 35 L.Ed.2d 62 (1973). But California is at the Clause itself as it is embodied in the Fourteenth *42 liberty to prescribe its own rules for class actions, subject Amendment, respondents' claim implicates not merely the only to whether limits may be imposed by the United language of the Equal Protection Clause of s 1 of the States Constitution, and we interpret its action in adding Fourteenth Amendment, but also the provisions of the less petitioner Richardson as a defendant to mean that it familiar s 2 of the Amendment: regarded her opponent in the Court of Appeal litigation, ‘Representatives shall be apportioned among the several both as an unnamed member of the class of ex-felons States according to their respective numbers, counting the referred to in the mandate complaint, and as one of a class whole number of persons in each State, excluding Indians actually seeking to register in Mendocino County, *40 as not taxed. But when the right to vote at any election for a party to the action in the Supreme Court of California, the choice of electors for President and Vice President albeit an unnamed one. of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male In Brockington v. Rhodes, 396 U.S. 41, 90 S.Ct. 206, 24 inhabitants of such State, being twenty-one years of age, L.Ed.2d 209 (1969), we emphasized in finding the case

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 and citizens of the United States, or in any way abridged, intention or purpose of those who drafted s 2. See B. except for participation in rebellion, or other crime, the Kendrick, Journal of the Joint Committee of Fifteen on basis of representation therein shall be reduced in the Reconstruction 104—120 (1914). proportion which the number *43 of such male citizens shall bear to the whole number of male citizens twenty- We do know that the particular language of s 2 upon which one years of age in such State.’ (Emphasis supplied.) petitioner relies was first proposed by Senator Williams of Oregon to a meeting of the Joint Committee on April 28, 1866. Senator Williams moved to strike out what had been Petitioner contends that the italicized language of s 2 s 3 of the earlier version of the draft, and to insert in place expressly exempts from the sanction of that section thereof the following: disenfranchisement grounded on prior conviction of a ‘Representatives shall be apportioned among the several felony. She goes on to argue that those who framed states which may be included within this Union according and adopted the Fourteenth Amendment could not have to their respective numbers, counting the whole number intended to prohibit outright in s 1 of that Amendment of persons in each State excluding Indians not taxed. that which was expressly exempted from the lesser But whenever in any State the elective franchise shall be sanction of reduced representation imposed by s 2 of the denied to any portion of its male citizens, not less than Amendment. This argument seems to us a persuasive one twenty-one years of age, or in any way abridged, except unless it can be shown that the language of s 2, ‘except for for participation in rebellion or other crime, the basis participation in rebellion, or other crime,’ was intended to of representation in such State shall be reduced in the have a different meaning than would appear from its face. proportion which the number of such male citizens shall bear to the whole number of male citizens not less than **2666 The problem of interpreting the ‘intention’ of a twenty-one years of age.’ Id., at 102. constitutional provision is, as countless cases of this Court recognize, a difficult one. Not only are there deliberations of congressional committees and floor debates in the The Joint Committee approved this proposal by a House and Senate, but an amendment must thereafter be lopsided margin, and the draft Amendment was reported ratified by the necessary number of States. The legislative to the House floor with no change in the language of s 2. history bearing on the meaning of the relevant language of s 2 is scant indeed; the framers of the Amendment *45 Throughout the floor debates in both the House and were primarily concerned with the effect of reduced the Senate, in which numerous changes of language in s representation upon the States, rather than with the two 2 were proposed, the language ‘except for participation in forms of disenfranchisement which were exempted from rebellion, or other crime’ was never altered. The language that consequence by the language with which we are of s 2 attracted a good deal of interest during the debates, concerned here. Nonetheless, what legislative history there but most of the discussion was devoted to its foreseeable is indicates that this language was intended by Congress consequences in both the Northern and Southern States, to mean what it says. and to arguments as to its necessity or wisdom. What little comment there was on the phrase in question here A predecessor of s 2 was contained in an earlier draft supports a plain reading of it. of the proposed amendment, which passed the House of Representatives, but was defeated in the Senate early in Congressman Bingham of Ohio, who was one of the 1866. The Joint Committee of Fifteen of Reconstruction principal architects of the Fourteenth Amendment and *44 then reconvened, and for a short period in April an influential member of the Committee of Fifteen, 1866, revised and redrafted what ultimately became the commented with respect to s 2 as follows during the floor Fourteenth Amendment. The Journal of that Committee's debates in the House: proceedings shows only what motions were made and ‘The second section of the amendment simply provides how the various members of the Committee voted on the for the equalization of representation among all the States motions; it does not indicate the nature or content of any of the Union, North, South, East, and West. It makes of the discussion in the Committee. While the Journal thus no discrimination. **2667 New York has a colored enables us to trace the evolution of the draft language population of fifty thousand. By this section, if that great in the Committee, it throws only indirect light on the State discriminates against her colored population as to

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 8 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 the elective franchise, (except in cases of crime,) she loses reference to these amendments, and have held some four to that extent her representative power in Congress. So or five caucuses on the subject.’ Id., at 2869. also will it be with every other State.’ Cong.Globe, 39th Cong., 1st Sess., 2543 (1866). Nonetheless, the occasional comments of Senators on the language in question indicate an understanding Two other Representatives who spoke to the question similar to that of the House members. Senator Johnson made similar comments. Representative Eliot of of Maryland, one of the principal opponents of the Massachusetts commented in support of the enactment of Fourteenth Amendment, made this argument: s 2 as follows: ‘Now it is proposed to deny the right to be represented ‘Manifestly no State should have its basis of national of a part, simply because they are not permitted to representation enlarged by reason of a portion of citizens exercise the right of voting. You do not put them upon within its borders to which the elective franchise is denied. the footing of aliens, upon the footing of rebels, upon If political power shall be lost because of such denial, the footing of minors, upon the footing of the females, not imposed because of *46 participation in rebellion or upon the footing of those who may have committed other crime, it is to be hoped that political interests may crimes of the most heinous character. Murderers, robbers, work in the line of justice, and that the end will be the houseburners, counterfeiters of the public securities of the impartial enfranchisement of all citizens not disqualified United States, all who may have committed any crime, at by crime.’ Id., at 2511. any time, against the laws of the United States or the laws of a particular State, are to be included within the basis; but the poor black man, unless he is permitted to vote, Representative Eckley of Ohio made this observation: is not to be represented, and is to have no interest in the ‘Under a congressional act persons convicted of a crime Government.’ Id., at 3029. against the laws of the United States, the penalty for which is imprisonment in the penitentiary, are now and always have been disfranchised, and a pardon did not restore Senator Henderson of Missouri, speaking in favor of them unless the warrant of pardon so provided. the version of s 2 which **2668 had been reported by the Joint Committee in April, as opposed to the earlier ‘. . . But suppose the mass of the people of a State provision of the proposal which had been defeated in the are pirates, counterfeiters, or other criminals, would Senate, said this: gentlemen be willing to repeal the laws now in force in ‘The States under the former proposition (the order to give them an opportunity to land their piratical corresponding provision of the original Amendment crafts and come on shore to assist in the election of reported by the Committee of Fifteen, which passed a President or members of Congress because they are the House of Representatives but was defeated in the numerous? And let it be borne in mind that these latter Senate) might have excluded the negroes under *48 an offenses are only crimes committed against property; that educational test and yet retained their power in Congress. of treason is against the nation, against the whole people Under this they cannot. For all practical purposes, under —the highest known to the law.’ Id., at 2535. the former proposition loss of representation followed the disfranchisement of the negro only; under this it follows the disfranchisement of white and black, unless excluded The debates in the Senate did not cover the subject as on account of ‘rebellion or other crime.“ Id., at 3033. exhaustively as did the debates in the House, apparently because many of the critical decisions were made by the Republican Senators in an unreported series of caucuses Further light is shed on the understanding of those who off the floor. Senator Saulsbury of Delaware, a Democrat framed and ratified the Fourteenth Amendment, and thus who was not included in the majority caucus, observed: on the meaning of s 2, by the fact that at the time of ‘It is very well known that the majority of the members of the adoption of the Amendment, 29 States had provisions this body who favor a proposition of this character have in their constitutions which prohibited, or authorized the been in very serious deliberation *47 for several days in legislature to prohibit, exercise of the franchise by persons convicted of felonies or infamous crimes. 14

establishment of military government in the former More impressive than the mere existence of the state Confederate States. Cong.Globe, 39th Cong., 2d Sess., constitutional provisions disenfranchising felons at the 1360—1361 (1867). The legislative history of the time of the adoption of the Fourteenth Amendment is the Reconstruction Act was recounted by Senator Henderson congressional treatment of States readmitted to the Union of Missouri, who ultimately voted for it: following the Civil War. For every State thus readmitted, ‘As the bill originally came from the House it was a affirmative congressional action in the form of an enabling bald and naked proposition to establish without limitation act was taken, and as a part of the *49 readmission of power or the time of its duration a purely military process the State seeking readmission was required to government for the ten States now unrepresented. This, in submit for the approval of the Congress its proposed my judgment, was a most dangerous experiment. . . . state constitution. In March 1867, before any State was readmitted, Congress passed ‘An act to provide for the ‘The Senate, being unwilling to embark on the experiment more efficient Government of the Rebel States,’ the so- of pure military rule, modified the House bill by adopting called Reconstruction Act. Act of Mar. 2, 1867, c. 153, 14 what is known as the Blaine or Sherman amendment. This Stat. 428. Section 5 of the Reconstruction Act established amendment conceded military rule, as asked by the House, conditions on which the former Confederate States would but put some sort of limit to its duration. It provided be readmitted to representation in Congress. It provided: that when the rebel States should adopt universal suffrage, ‘That when the people of any one of said rebel States shall regardless of color or race, excluding none, white or black, have formed a constitution of government in conformity except for treason or such crimes as were felony at the with the Constitution of the United States in all respects, common law, the regulation of exclusion to be left to the framed by a convention of delegates elected by the male States themselves, and should adopt the constitutional citizens of said State, twenty-one years old and upward, amendment proposed at the last session of Congress . . . of whatever race, color, or previous condition, who and so soon as a sufficient number of said States should have been resident in said State for one year previous adopt it to make it a *51 part of the Constitution of to the day of such election, except such as may be the United States, then military law should cease and the disenfranchised for participation in the rebellion or for States should be admitted, provided that Congress even felony at common law, and when such constitution shall then should see fit to receive them.’ Id., at 1641. provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall A series of enabling acts in 1868 and 1870 admitted those be ratified by a majority of the persons voting on the States to representation in Congress. The Act admitting question of ratification who are qualified as electors for Arkansas, the first State to be so admitted, attached a delegates, and when such constitution shall have been condition to its admission. Act of June 22, 1868, c. 69, 15 submitted to Congress for examination and approval, Stat. 72. That Act provided: and Congress shall have approved the same, and when ‘Whereas the people of Arkansas, in pursuance of the said State, by a vote of its legislature elected under said provisions of an act entitled ‘An act for the more constitution, shall have adopted the **2669 amendment efficient government of the rebel States,’ passed March to the Constitution of the United States, proposed by second, eighteen hundred and sixty-seven, and the act the Thirty-ninth Congress, and known as article fourteen, supplementary thereto, have framed and adopted a and when said article shall have become a part of the constitution of State government, which is republican, Constitution *50 of the United States, said State shall and the legislature of said State has duly ratified the be declared entitled to representation in Congress, and amendment to the Constitution of the United States senators and representatives shall be admitted therefrom proposed by the Thirty-ninth Congress, and known as on their taking the oath prescribed by law, and then article fourteen: Therefore, and thereafter the preceding sections of this act shall be inoperative in said State . . ..’ (Emphasis supplied.) ‘Be it enacted . . . That the State of Arkansas is entitled and admitted to representation in Congress as one of the States of the Union upon the following fundamental Section 5 was introduced as a Senate amendment to condition: That the constitution of Arkansas shall never the House bill, which was concerned only with the be so amended or changed as to deprive any citizen

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 10 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 or class of citizens of the United States of the right to whether a State may constitutionally exclude some or all vote who are entitled to vote by the constitution herein convicted felons from the franchise, we have indicated recognized, except as a punishment for such crimes as are approval of such exclusions on a number of occasions. In now felonies at common law, whereof they shall have been two cases decided toward the end of the last century, the duly convicted, under laws equally applicable to all the Court approved exclusions of bigamists and polygamists inhabitants of said State: Provided, That any alteration of from the franchise under territorial laws of Utah and said constitution prospective in its effect may be made in Idaho. Marphy v. Ramsey, 114 U.S. 15, 5 S.Ct. 747, 29 regard to the time and place of residence of voters.’ L.Ed. 47 (1885); Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890). Much more recently we have strongly suggested in dicta that exclusion of convicted *52 The phrase ‘under laws equally applicable to all felons from the franchise violates no constitutional the inhabitants of said State’ was introduced as an provision. In Lassiter v. Northampton County Board of amendment to the House bill by Senator Drake of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 Missouri. Cong.Globe, 40th Cong., 2d Sess., 2600 (1868). (1959), where we upheld North Carolina's imposition of a Senator Drake's explanation of his reason for introducing literacy requirement for voting, the Court said, id., at 51, his **2670 amendment is illuminating. He expressed 79 S.Ct., at 990: concern that without that restriction, Arkansas might ‘Residence requirements, age, previous misuse the exception for felons to disenfranchise Negroes: criminal record (Davis v. Beason, 133 ‘There is still another objection to the condition as U.S. 333, 345—347, 10 S.Ct. 299, expressed in the bill, and that is in the exception as to 301—302, 33 L.Ed. 637) are obvious the punishment for crime. The bill authorizes men to be examples indicating factors which a deprived of the right to vote ‘as a punishment for such State may take into consideration crimes as are now felonies at common law, whereof they in determining the qualifications of shall have been duly convicted.’ There is one fundamental voters.’ defect in that, and that is that there is no requirement that the laws under which men shall be duly convicted of these crimes shall be equally applicable to all the inhabitants of Still more recently, we have summarily affirmed the State. It is a very easy thing in a State to make one set two decisions of three-judge District Courts rejecting of laws applicable to white men, and another set of laws constitutional challenges to state laws disenfranchising applicable to colored men.' Ibid. convicted felons. Fincher v. Scott, 352 F.Supp. 117 (MDNC1972), aff'd, 411 U.S. 961, 93 S.Ct. 2151, 36 The same ‘fundamental condition’ as was imposed by L.Ed.2d 681 (1973); Beacham v. Braterman, 300 F.Supp. the act readmitting Arkansas was also, with only slight 182 (S.D.Fla.), aff'd, 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d variations in language, imposed by the Act readmitting 11 (1969). Both District Courts relied on Green v. Board of North Carolina, South Carolina, Louisiana, Georgia, Elections, 380 F.2d 445 (1967), cert. denied, 389 U.S. 1048, Alabama, and Florida, enacted three days later. Act of 88 S.Ct. 768, 19 L.Ed.2d 840 (1968), where the Court of June 25, 1868, c. 70, 15 Stat. 73. That condition was again Appeals for the *54 Second Circuit held that a challenge imposed by the Acts readmitting Virginia, Mississippi, to New York's exclusion of convicted felons from the vote Texas, and Georgia early in 1870. Act of Jan. 26, 1970, c. did not require the convening of a three-judge district 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63; Act court. of Feb. 23, 1870, c. 19, 16 Stat. 67; Act of Mar. 30, 1870, Despite this settled historical and judicial understanding c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363. of the Fourteenth Amendment's effect on state laws *53 This convincing evidence of the historical disenfranchising convicted felons, respondents argue that understanding of the Fourteenth Amendment is our recent decisions invalidating other state-imposed confirmed by the decisions of this Court which restrictions on the franchise as violative of the Equal have discussed the constitutionality of provisions Protection Clause require us to **2671 invalidate the disenfranchising felons. Although the Court has never disenfranchisement of felons as well. They rely on such given plenary consideration to the precise question of cases as Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995,

31 L.Ed.2d 274 (1972), Bullock v. Carter, 405 U.S. 134, process of rehabilitating the exfelon that he be returned 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), Kramer v. Union to his role in society as a fully participating citizen when Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 he has completed the serving of his term. We would by L.Ed.2d 583 (1969), and Cipriano v. City of Houma, no means discount these arguments if addressed to the 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), legislative forum which may properly weigh and balance to support the conclusions of the Supreme Court of them against those advanced in support of California's California that a State must show a ‘compelling state present constitutional provisions. But it is not for us to interest’ to justify exclusion of ex-felons from the franchise choose one set of values over the other. If respondents are and that California has not done so here. correct, and the view which they advocate is indeed the [6] [7] [8] [9] As we have seen, however, the exclusionmore enlightened and sensible one, presumably the people of felons from the vote has an affirmative sanction in s of the State of California will ultimately come around to 2 of the Fourteenth Amendment, a sanction which was that view. And if they do not do so, their failure is some not present in the case of the other restrictions on the evidence, at least, of the fact that there are two sides to the franchise which were invalidated in the cases on which argument. respondents rely. We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected *56 We therefore hold that the Supreme Court of in the express language of s 2 and in the historical and California erred in concluding that California may no judicial interpretation of the Amendment's applicability longer, consistent with the Equal Protection Clause of to state laws disenfranchising felons, is of controlling the Fourteenth Amendment, exclude from the franchise significance in distinguishing such laws from those other convicted felons who have completed their sentences and state limitations on the franchise which have been held paroles. The California court did not reach respondents' invalid under the Equal Protection Clause by this Court. alternative contention that there was such a total lack We do not think that the Court's refusal to accept Mr. of uniformity in county election officials' enforcement of Justice Harlan's position in his dissents in Reynolds v. the challenged state laws as to work a separate denial Sims, 377 U.S. 533, 589, 84 S.Ct. 1362, 1395, 12 L.Ed.2d of equal protection, and we believe that it should have 506 (1964), and Carrington v. Rash, 380 U.S. 89, 97, an opportunity to consider the claim before we address 85 S.Ct. 775, 780, 13 L.Ed.2d 675 (1965), that s 2 is ourselves to it. **2672 Accordingly, we reverse and the only part of the Amendment *55 dealing with remand for further proceedings not inconsistent with this voting rights, dictates an opposite result. We need not opinion. go nearly so far as Mr. Justice Harlan would to reach It is so ordered. our conclusion, for we may rest on the demonstrably sound proposition that s 1, in dealing with voting rights as it does, could not have been meant to bar outright a Mr. Justice MARSHALL, with whom Mr. Justice form of disenfranchisement which was expressly exempted BRENNAN joins, dissenting. from the less drastic sanction of reduced representation which s 2 imposed for other forms of disenfranchisement. The Court today holds that a State may strip ex- Nor can we accept respondents' argument that because felons who have fully paid their debt to society of s 2 was made part of the Amendment “largely through their fundamental right to vote without running afoul the accident of political exigency rather than through of the Fourteenth Amendment. This result is, in my the relation which it bore to the other sections of the view, based on an unsound historical analysis which Amendment,” we must not look to it for guidance in already has been rejected by this Court. In straining interpreting s 1. It is as much a part of the Amendment as to reach that result, I believe that the Court has also any of the other sections, and how it became a part of the disregarded important limitations on its jurisdiction. For Amendment is less important than what it says and what these reasons, I respectfully dissent. it means. I

Pressed upon us by the respondents, and by amici curia, A brief retracing of the procedural history of this case are contentions that these notions are outmoded, and is necessary to a full understanding of my views. Each that the more modern view is that it is essential to the

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 12 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 of the respondents, the plaintiffs below, 1 had been ordered Richardson added as a named defendant in the convicted *57 of a felony unrelated to voting and had instant action, but did not name the exfelon suing her as a fully served his term of incarceration and parole. Each plaintiff or named class representative herein. applied to register to vote in his respective county— In its opinion, the California Supreme Court found Ramirez in San Luis Obispo County, Lee in Monterey the case not to be moot and took the opportunity to County, and Gill in Stanislaus County. All three were address the merits of the Fourteenth Amendment issue. It refused registration because, under applicable provisions indicated that, in its view, the ex-felon disenfranchisement of the California Constitution, ‘no person convicted of provision of the California Constitution and its any infamous crime . . . shall ever exercise the privileges implementing statutes violated the Equal Protection 2 of an elector.' Clause. The state court did not, however, afford the plaintiffs the relief they sought. The court denied the The three named plaintiffs filed a petition for a writ peremptory writ of mandate. of mandate in the California Supreme Court, invoking its original jurisdiction. Plaintiffs challenged the State's Although the California Supreme Court did not issue a disenfranchisement of exfelons as being violative of the writ ordering Richardson to register either the ex-felon Equal Protection Clause of the Fourteenth Amendment *59 suing her or any other potential elector in her county, and sought issuance of a peremptory writ of mandate she sought review of the state court's decisions by way of to compel their registration. The complaint labeled the writ of certiorari in this Court. The election officials in suit as brought ‘individually and on behalf of all other the named plaintiffs' counties did not seek review and the persons who are ineligible to register to vote in California Secretary of State filed a memorandum opposing review solely by reason of a conviction of a felony other than by this Court. an election code felony’ and who had fully served their terms of incarceration and parole. The complaint named, as defendants, the election officials who had refused to A register them, ‘individually and as representatives of the There are a number of reasons why I do not believe class of all other County Clerks and Registrars of Voters this case is properly before us at this time. First, I am who have the duty of determining for their respective persuaded that the judgment of the California Supreme counties whether any ex-felon will be denied the right to Court rests on an adequate and independent state ground. vote.’ ‘This Court from the time of its foundation has adhered *58 The three named election officials did not contest the to the principle that it will not review judgments of action and represented to the state court that they would state courts that rest on adequate and independent state permit the named plaintiffs and all similarly situated grounds. . . . Our only power over state judgments ex-felons in their counties to register and to vote. The is to correct them to the extent that they incorrectly representative of the Secretary of State of California, also adjudge federal rights. And our power is to correct wrong named as a defendant, has similarly agreed not to contest judgments, not to review opinions. We are not permitted to render an advisory opinion, and if the same judgment the suit. 3 At this point in the litigation all of the named would be rendered by the state court after we corrected its plaintiffs had been voluntarily afforded the relief they views of federal laws, our review could amount to nothing were seeking by the election officials in their respective more than an advisory opinion.’ Herb v. Pitcairn, 324 U.S. counties. 117, 125—126, 65 S.Ct. 459, 463, 89 L.Ed. 789 (1945). Subsequently, the petitioner in this Court, Viola Richardson, as County Clerk of Mendocino County, filed Plaintiffs sought, from the California Supreme Court, a a motion to intervene in the proceedings before **2673 writ of mandate compelling their registration. The state the California Supreme Court. She indicated to the court court denied that relief. The entirety of the judgment of that she was being sued in a separate action in a lower state that court is as follows: court by an ex-felon seeking to register in her county and ‘The alternative writ, having served its purpose, is that the decision in this case would be dispositive of the discharged, and the petition for peremptory writ is legal issue in that controversy. The State Supreme Court

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 13 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 denied.’ Ramirez v. Brown, 9 Cal.3d 199, 217, 107 and prohibition.’ Calif.Const., Art. 6, s 10 (Supp.1974). Cal.Rptr. 137, 149, 507 P.2d 1345, 1357 (1973). 4 Exclusive jurisdiction for suits seeking declaratory relief is vested, by statute, in the State Superior Courts. 6 *60 The accompanying opinion indicates that the California court did not consider the case before it to be This Court's basis for construing the judgment of the court moot and that, in its view, the plaintiffs' assertion that the below as affording declaratory relief is its argument that disenfranchisement provisions were unconstitutional was because the California Supreme Court is the highest court well taken. Since the court nonetheless denied plaintiffs of the State, its observations on the constitutionality of the relief they sought, we can only conclude that it did the challenged disenfranchisement provisions are apt to so on independent state law grounds. Cf. Brockington be heeded by state officials. It is true that the opinion of v. Rhodes, 396 U.S. 41, 44, 90 S.Ct. 206, 208, 24 the California court did indicate a view on the merits of L.Ed.2d 209 (1969). For example, a writ of mandate, the plaintiffs' constitutional claim. But this Court's power being discretionary, the state court may have declined its ‘is to correct wrong judgments, not to revise opinions.’ issuance simply because the named plaintiffs had already Herb v. Pitcairn, supra, at 126, 65 S.Ct., at 463. One could always argue that where a state court had commented on been registered and mandate relief seemed unnecessary. 5 a matter of federal law, state officials would heed those There is certainly no indication that the decision to deny comments. To say that such comments are a ‘declaration the writ was based on the state court's view on any federal of federal law’ reviewable by this Court is a rationale that question. would reach every case in which the state court decision rests on adequate *62 state grounds, rendering that This Court creates an interesting anomaly by purporting doctrine a virtual nullity. The Court also cites two cases to reverse the **2674 judgment of the California for the proposition that the California Supreme Court can court. Since that court denied a writ of mandate to issue a declaratory judgment in an original proceeding. compel the registration of ex-felons, the only disposition But, on closer inspection, the cases cited by the Court, consistent with this Court's view that the California ante, at 2664 n. 13, merely demonstrate that California disenfranchisement provisions are constitutional would be courts, whose jurisdiction is not limited by any equivalent to affirm the judgment below. By reversing, the Court to Art. III, are free to render advisory opinions. 7 There apparently directs the issuance of the peremptory writ. is little **2675 doubt *63 that many public officials This anomaly demonstrates that this is a classic example would heed such an advisory opinion from the California of a case where ‘the same judgment would be rendered Supreme Court and they would also heed an advisory by the state court after we corrected its views of federal opinion issued by this Court, but that does not free us from laws,’ Herb v. Pitcairn, supra, 324 U.S., at 126, 65 S.Ct., the constitutional limitations on our jurisdiction. at 463; hence we can but offer an advisory opinion here. Whether we agree or disagree with the state court's view Because I believe that the judgment of the California court of the constitutionality of the challenged provisions, the was based on adequate and independent state grounds, I judgment of the state court will necessarily remain to deny do not think we have jurisdiction to consider any other the writ of mandate. issues presented by this case.

The Court is aware of this problem and purports to resolve B it by speculating that the California court may *61 have afforded plaintiffs declaratory relief. Such speculation is Assuming, arguendo, that the California Supreme Court totally unfounded. Neither the opinion nor the judgment did grant a declaratory judgment, I still believe that we of the court below even mentions declaratory relief. are without jurisdiction because no case or controversy The plaintiffs did not seek a declaratory judgment. The is presented. The Court seems willing to concede that the California Constitution on its face appears to bar the State claims of the named plaintiffs may well be moot. Ante, at Supreme Court from issuing a declaratory judgment in 2662. The Court, however, premises its *64 jurisdiction an original proceeding such as the one before us, since it on the assumption that there is a live controversy between limits that court's original jurisdiction to ‘proceedings for the named petitioner in this Court and the unnamed extraordinary relief in the nature of mandamus, certiorari, plaintiff class members in her own county. To reach

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 14 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 this conclusion, it is essential for the Court to conclude unnamed class members would still be subject to the that this case is, in fact, a class action and that, in the challenged disenfranchisement, hence the case presents, as circumstances of this case, it is appropriate to look to to unnamed class members, an issue capable of repetition, unnamed class members to determine whether there is a yet evading review. I disagree. live controversy. As the Court properly notes, a general rule of I am forced to point out that one of the crucial premises justificability is not one may not represent a class of which upon which the Court bases its assumption of jurisdiction he is not a part. Thus, as a general proposition, a federal —the existence of a class action—is highly speculative. court will not look to unnamed class members to establish I am persuaded that the California court never treated the case-orcontroversy requirement of Art. III. 8 But, the this case as a class action. As the majority notes, the case ‘evading review’ doctrine of Southern Pacific Terminal was titled a class action by its originators and the show- Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. cause order merely tracked the language of the complaint. 310 (1911), as recently applied in Dunn v. Blumstein, 405 But the California court was, of course, not bound by U.S. 330, 333 n. 2, 92 S.Ct. 995, 998, 31 L.Ed.2d 274 that designation. In the entirety of its lengthy opinion, (1972), provides a limited exception to the general rule the California court does not once refer to this suit as a —an exception necessary to insure that judicial review is class action, to respondents as class representatives, to the not foreclosed in cases where intervening events threaten existence of unnamed parties or to any other indicia of invariably to moot the named plaintiff's claim for relief. class-action status. Rather, the state court describes the case as simply ‘a proceeding for writ of mandate brought *66 The necessity for looking beyond the named class by three ex-felons to compel respondent election officials members in this limited category of cases is evidenced by to register them as voters.’ **2676 9 Cal.3d, at 201, our decision in Dunn v. Blumstein, supra, in which the 107 Cal.Rptr., at 138, 507 P.2d, at 1346. The opinion Court struck down a durational residence requirement proceeds to list the three plaintiffs and, in a footnote, to for voting. The suit had been brought to compel the explain that the only other plaintiffs were the League of registration of the named plaintiff and the members of the Women Voters and three nonprofit organizations which class he represented in order that they might participate support the interests of ex-felons. The opinion describes in an election scheduled for August 6, 1970. The Federal the defendants as the election officials of San Luis Obispo, District Court did not order preliminary relief in time Monterey, and Stanislaus Counties and the Secretary for the August election and, by the time the District of State ‘in his capacity (as) chief elections officer of Court decided the case, the next election was scheduled California,’ and notes that ‘(u)pon application we ordered for November 1970. By then, the named plaintiff would the Mendocino County clerk (the petitioner here) joined have met the challenged three-month requirement. The as an additional party (defendant).’ Id., at 202 n. 1, 107 District Court, nonetheless, rejected the State's argument Cal.Rptr., at 138, 507 P.2d, at 1346. This description of that the controversy over the validity of the three-month the parties *65 plainly indicates that this suit was not requirement was therefore moot. treated as a class action by the state court. I think it highly inappropriate that on the basis of nothing but speculation, By the time the appeal reached this Court, the only this case be fashioned into a class action, for the first time, named plaintiff had also satisfied the one-year state in this Court. residence requirement. We nonetheless reached the merits, observing that ‘(a)lthough appellee (the only named plaintiff) can now vote, the problem to voters posed C by the Tennessee residence requirements is “capable of repetition, yet evading review.” Moore v. Ogilvie, Even assuming that this case is a class action, I still would 394 U.S. 814, 816 (89 S.Ct. 1493, 1494, 23 L.Ed.2d not agree that it is properly before us. I do not believe 1) (1969).’ 405 U.S., at 333 n. 2, 92 S.Ct., at 998. that we can look beyond the named class members to find Both this Court and the District Court found that, a case or controversy in the circumstances of this case. although the **2677 named plaintiff had satisfied the The Court seems to hold that review is not foreclosed challenged residence requirements and would no longer by the possible mootness of the named plaintiffs' claim be disenfranchised thereby, the case was not moot. The because, but for the California Supreme Court's decision, challenged requirement remained applicable to unnamed

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 15 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 class members, 9 and the *67 issue presented was likely immediate controversy has been mooted by intervening to evade review. Obviously the mere passage of a few events, either he or unnamed class members may continue months would invariably have rendered a challenge to to suffer the alleged constitutional deprivation in the the residence requirements by individual named plaintiffs future. The case before us clearly satisfies this first element moot—threatening virtually to foreclose judicial review. of the Southern Pacific doctrine test. Since the California court declined to order any county clerk to *69 register A similar situation was presented in Roe v. Wade, 410 ex-felons, presumably the challenged disenfranchisement U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), relied on provisions could continue to be applied to unnamed class by the California court. We there held that although a members in counties other than those in which the named woman who was not pregnant at the time the suit was filed plaintiffs reside. 11 did not have standing to challenge the constitutionality of the Texas abortion laws, a continuing controversy over Second, the issue presented must be likely to evade review, the constitutionality of those laws existed as to a named but for invocation of the Southern Pacific doctrine. It is plaintiff who was pregnant when the suit was filed, even on the ‘evading review’ element that the Court's analysis though she may not have been pregnant at later stages of fails. Because the claim raised in this case concerns not a the appeal. We concluded that this case provided a classic time-related but rather a status-based deprivation, there example of an issue capable of repetition, yet evading is no issue evading review and no reason to look beyond review, hence the termination of the plaintiff's pregnancy the named plaintiffs. 12 This is *70 not a situation where, while the case was on appeal did not render the case moot by the time a case reaches this Court, it will always be —even though a woman whose pregnancy has ended is no too late to grant the named plaintiff relief. If and when more effected by the abortion laws than one who was not an ex-felon is refused access to the voting rolls because of pregnant at the time the suit was filed. ‘(T)he . . . human his past criminal record, an intervening election will not gestation period is so short that . . . pregnancy will come moot his claim for relief and the status giving rise to his to term before the usual appellate process is complete. If disenfranchisement will not inevitably terminate pending that termination makes a case moot, . . . appellate review review. will be effectively denied.’ Id., at 125, 93 S.Ct., at 713. There are clearly ways in which a challenge to the There are two common threads running through these California disenfranchisement provisions could reach this cases—in each the challenged statute would continue to be Court. The California Supreme Court has not issued a applied, but the named plaintiff's claim would inevitably writ of mandate compelling the registration of any ex- mature into mootness rending resolution of the lawsuit. felon. 13 If such a potential voter is, in fact, **2679 In Roe, the termination of pregnancy, in Dunn, the refused registration, a controversy suitable for resolution passage of the residence requirement period, and in other by this Court will be presented. The suit brought against 10 voting cases, the occurrence of an election, deprived petitioner Richardson, by an ex-felon resident of her own *68 the named plaintiff of a continuing controversy county, raising the same issues as those presented by this over the application of the challenged statute. In each case, is presently pending in a California intermediate instance, the mere passage of time threatened to insulate appellate court. 14 In that case, petitioner Richardson did, a constitutional deprivation from judicial review, and it in fact, deny the plaintiff registration because he was an is that danger which served as the rationale for rejecting ex-felon. Once that case completes its passage through suggestions of mootness. Where an invalid statute would the state courts, it could well serve as a vehicle for our thus continue to be applied simply because judicial review of the California disenfranchisement provisions. review of a live controversy involving the named plaintiff *71 That is, of course, but one example of how the was inveriably **2678 foreclosed—the issue would be issue presented here could properly reach this Court. This capable of repetition yet evading review. case does not therefore benefit from the Southern Pacific Accordingly, the Southern Pacific doctrine requires the doctrine's authority to look to unnamed class members to satisfaction of two tests in order to provide an answer to establish a case of controversy. a suggestion of mootness. First, the claimed deprivation That the California Supreme Court appears to have found must, in fact, be ‘capable of repetition.’ This element the plaintiffs' claims not to be moot does not detract from is satisfied where, even though the named plaintiff's

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 16 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 this conclusion since ‘(e)ven in cases arising in the state **2680 Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, courts, the question of mootness is a federal one which a 1950, 20 L.Ed.2d 947 (1968). federal court must resolve before it assumes jurisdiction.’ North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, II 404, 30 U.S.2d 413 (1971). Thus, unlike the Court, I am persuaded that we can look only to the named plaintiffs Since the Court nevertheless reaches the merits of the to satisfy the case-or-controversy requirement of Art. III. constitutionality of California's disenfranchisement of exfelons, I find it necessary to register my dissent on the D merits as well. The Court construes s 2 of the Fourteenth Amendment as an express authorization for the States The named plaintiffs here were registered only because to disenfranchise former felons. Section 2 does except the clerks in their counties had voluntarily abandoned an disenfranchisement for ‘participation in rebellion, or other allegedly illegal practice of disenfranchising ex-felons, and crime’ from the operation of its penalty provision. As the we have said that ‘(m)ere voluntary cessation of allegedly Court notes, however, there is little independent legislative illegal conduct does not moot a case; if it did, the courts history as to the crucial words ‘or *73 other crime’; would be compelled to leave '(t)he defendant . . . free to the proposed s 2 went to a joint committee containing return to his old ways.’ . . . (But a) case might become only the phrase ‘participation in rebellion’ and emerged moot if subsequent events made it absolutely clear that with ‘or other crime’ inexplicably tacked on. 16 In its the allegedly wrongful behavior could not reasonably exhaustive review of the lengthy legislative history of the be expected to recur.' United States v. Concentrated Fourteenth Amendment, the Court has come upon only Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. one explanatory reference for the ‘other crimes' provision 361, 364, 21 L.Ed.2d 344 (1968); accord, United States v. —a reference which is unilluminating at best. 17 W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Accordingly, whether the named The historical purpose for s 2 itself is, however, plaintiffs have a live controversy with the clerks in their relatively clear and, in my view, dispositive of this own counties would depend on the likelihood of future case. The Republicans who controlled the 39th Congress disenfranchisement. 15 But we need not consider that were concerned that the additional congressional question here because *72 none of the election officials in representation of the Southern States which would the named plaintiffs' counties sought review in this Court result from the abolition of slavery might weaken their and none is now before us. own political dominance. 18 There were two alternatives available—either to limit southern representation, which The sole petitioner before this Court is Viola Richardson. 19 None of the named plaintiffs are residents of her county. was unacceptable on a long-term basis, or to insure that While those named plaintiffs may or may not have a southern Negroes, sympathetic to the Republican cause, live controversy with the clerks in their own counties, would be enfranchised; but an explicit grant of sufferage they surely do not have one with petitioner Richardson. to Negroes was thought politically unpalatable at the While Richardson may well have a live controversy with time. 20 Section 2 of the Fourteenth Amendment was the ex-felons in her own county over the validity of the resultant compromise. *74 It put Southern States to a disenfranchisement laws, those ex-felons are not before choice—enfranchise Negro voters or lose congressional this Court, and she has no dispute with the named representation. 21 plaintiffs. In sum, there is no controversy between the parties before this Court. Petitioner Richardson seeks The political motivation behind s 2 was a limited one. to use the named plaintiffs' controversy with their own It had little to do with the purposes of the rest of county clerks as a vehicle for this Court to issue an the Fourteenth Amendment. As one noted commentator advisory opinion on the issue presented by the suit explained: brought against her by an ex-felon in her own county. “It became a part of the Fourteenth Amendment largely Such a decision would violate the “oldest and most through the accident of political exigency rather than consistent thread in the federal law of justiciability . . . through the relation which it bore to the other sections that the federal courts will not give advisory opinions.” of the Amendment. . . .” 22 ‘(I)t seems quite impossible

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 17 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 to conclude that there was a clear and deliberate from the reduction-of-representation remedy provided by understanding in the House that s 2 was the sole source s 2 does not necessarily imply congressional approval of national authority to protect voting rights, or that it of this disenfranchisement. 24 By providing a special expressly recognized the states' power to deny or abridge remedy for disenfranchisement *76 of a particular class the right to vote.' 23 of voters in s 2, Congress did not approve all election discriminations to which the s 2 remedy was inapplicable, and such discrimination thus are not forever immunized It is clear that s 2 was not intended and should not from evolving standards of equal protection scrutiny. be construed to be a limitation on the other sections of Cf. Shapiro v. Thompson, 394 U.S. 618, 638—639, 89 the Fourteenth Amendment. Section 2 provides a special S.Ct. 1322, 1333—1334, 22 L.Ed.2d 600 (1969). There remedy—reduced representation—to cure a particular is no basis for concluding that Congress intended by form of electoral abuse—the disenfranchisement of s 2 to freeze the meaning of other clauses of the Negroes. There is no indication that **2681 the framers Fourteenth Amendment to the conception of voting of the provisions intended that special penalty to be the rights prevalent at the time of the adoption of the exclusive remedy for all forms of electoral discrimination. Amendment. In fact, one form of disenfranchisement— This Court has repeatedly rejected that rationale. See one-year durational residence requirements—specifically Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d authorized by the Reconstruction Act, one of the 506 (1964); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, contemporaneous enactments upon which the Court relies 13 L.Ed.2d 675 (1965). to show the intendment of the framers of the Fourteenth Amendment, has already been declared unconstitutional Rather, a discrimination to which the penalty provision of by this Court in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. s 2 is inapplicable must still be judged against the Equal 995, 31 L.Ed.2d 274 (1972). Protection Clause of s 1 to determine whether judicial or congressional remedies should be invoked. *75 That Disenfranchisement for participation in crime, like conclusion is compelled by this Court's holding in Oregon durational residence requirements, was common at the v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 time of the adoption of the Fourteenth Amendment. But (1970). Although s 2 excepts from its terms denial of the ‘constitutional concepts of **2682 equal protection are franchise not only to ex-felons but also to persons under not immutably frozen like insects trapped in Devonian 21 years of age, we held that the Congress, under s 5, amber.’ Dillenburg v. Kramer, 469 F.2d 1222, 1226 (CA9 had the power to implement the Equal Protection Clause 1972). We have repeatedly observed: by lowering the voting age to 18 in federal elections. As ‘(T)he Equal Protection Clause is not shackled to the Mr. Justice Brennan, joined by Mr. Justice White, as well political theory of a particular era. In determining what as myself, there observed, s 2 was intended as no more lines are unconstitutionally discriminatory, we have never ‘than a remedy supplementary, and in some conceivable been confined to historic notions of equality, any more circumstances indispensable, to other congressional and than we have restricted due process to a fixed catalogue judicial remedies available under ss 1 and 5.’ 400 U.S., at of what was at a given time deemed *77 to be the 278, 91 S.Ct., at 341. limits of fundamental rights.’ Harper v. Virginia Board of Elections, 383 U.S. 663, 669, 86 S.Ct. 1079, 1083, 16 The Court's references to congressional enactments L.Ed.2d 169 (1966). contemporaneous to the adoption of the Fourteenth Amendment, such as the Reconstruction Act and the readmission statutes, are inapposite. They do not Accordingly, neither the fact that several States had explain the purpose for the adoption of s 2 of the ex-felon disenfranchisement laws at the time of the Fourteenth Amendment. They merely indicate that adoption of the Fourteenth Amendment, nor that such disenfranchisement for participation in crime was not disenfranchisement was specifically excepted from the uncommon in the States at the time of the adoption of special remedy of s 2, can serve to insulate such the Amendment. Hence, not surprisingly, that form of disenfranchisement from equal protection scrutiny. disenfranchisement was excepted from the application of the special penalty provision of s 2. But because Congress chose to exempt one form of electoral discrimination

to settle only a threshold question. ‘Compelling state interest’ is merely a shorthand description of the difficult III process of balancing individual and state interests that In my view, the disenfranchisement of ex-felons must the Court must embark upon when faced with a be measured against the requirements of the Equal classification touching on fundamental rights. Our other Protection Clause of s 1 of the Fourteenth Amendment. equal protection cases give content to the nature of that That analysis properly begins with the observation that balance. The State has the heavy burden of showing, first, because the right to vote ‘is of the essence of a democratic that the challenged disenfranchisement is necessary to a society, and any restrictions on that right strike at legitimate and substantial state interest; second, that the the heart of representative government,’ Reynolds v. classification is drawn with precision—that it does not Sims, 377 U.S., at 555, 84 S.Ct., at 1378, voting is exclude too many people who should not and need not be a ‘fundamental’ right. As we observed in Dunn v. excluded; and, third, that there are no other reasonable Blumstein, supra, 405 U.S., at 336, 92 S.Ct., at 999: ways to achieve the State's goal with a lesser burden ‘There is no need to repeat now on the constitutionally protected interest. E.g., Dunn v. the labors undertaken in earlier cases Blumstein, supra, at 343, 360, 92 S.Ct., at 1003, 1012; to analyze (the) right to vote and Kramer v. Union Free School District, 395 U.S. 621, 632, to explain in detail the judicial 89 S.Ct. 1886, 1892, 23 L.Ed.2d 583 (1969); see **2683 role in reviewing state statutes that Rosario v. Rockefeller, 410 U.S. 752, 770, 93 S.Ct. 1245, selectively distribute the franchise. In 1256, 36 L.Ed.2d 1 (1973) (Powell, J., dissenting); cf. decision after decision, this Court Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 has made clear that a citizen has S.Ct. 1076, 39 L.Ed.2d 306 (1974); NAACP v. Button, 371 a constitutionally protected right U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); to participate in elections on an Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 equal basis with other citizens in L.Ed.2d 231 (1960). the jurisdiction. See e.g., Evans v. I think it clear that the State has not met its burden Cornman, 398 U.S. 419, 421—422, of justifying the blanket disenfranchisement of former 426, 90 S.Ct. 1752, 1754—1755, 1756, felons presented by this case. There is certainly no basis 26 L.Ed.2d 370 (1970); Kramer v. for asserting that ex-felons have any less interest in the Union Free School District, 395 U.S. democratic process than any other citizen. Like everyone 621, 626—628, 89 S.Ct. 1886, 1889— else, their daily lives are deeply affected and changed 1890, 23 L.Ed.2d 583 (1969); Cipriano by the decisions of government. See Kramer, supra, 395 v. City of Houma, 395 U.S. 701, 706, U.S., at 627, 89 S.Ct., at 1889. As the Secretary of State 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 of California observed in his *79 memorandum to the (1969); Harper v. Virginia Board of Court in support of respondents in this case: Elections, 383 U.S. 663, 667, 86 S.Ct. ‘It is doubtful . . . whether the state can demonstrate 1079, 1081, 16 L.Ed.2d 169 (1966); either a compelling or rational policy interest in denying Carrington v. Rash, 380 U.S. 89, 93— former felons the right to vote. The individuals involved 94, 85 S.Ct. 775, 778, 779, 13 L.Ed.2d in the present case are persons who have fully paid 675 (1965); Reynolds v. Sims, supra.’ their debt to society. They are as much affected by the actions of government as any other citizens, and have as much of a right to participate in governmental decision- *78 We concluded: ‘(I)f a challenge statute grants the making. Furthermore, the denial of the right to vote to right to vote to some citizens and denies the franchise to such persons is a hindrance to the efforts of society to others, ‘the Court must determine whether the exclusions rehabilitate former felons and convert them into law- are necessary to promote a compelling state interest. “ 405 25 U.S., at 337, 92 S.Ct., at 1000. (Emphasis in original.) abiding and productive citizens.'

To determine that the compelling-state-interest test applies to the challenged classification is, however, It is argued that disenfranhisement is necessary to prevent vote frauds. Although the State has a legitimate and, in

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 19 Richardson v. Ramirez, 418 U.S. 24 (1974) 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 fact, compelling interest in preventing election fraud, the the election or canvass from being fairly held and lawfully challenged provision is not sustainable on that ground. conducted’ (s 17093).' *81 9 Cal.3d, at 215—216, 107 First, the disenfranchisement provisions are patently Cal.Rptr., at 147—148, 507 P.2d, at 1355—1356 (1973) both overinclusive and underinclusive. The provision is (footnotes omitted). not limited to those who have demonstrated a marked propensity for abusing the ballot by violating election laws. Rather, it encompasses all former felons and there Given the panoply of criminal offenses available to has been no showing that ex-felons generally are any deter and to punish electoral misconduct, as well as the more likely to abuse the ballot than the remainder of the statutory reforms and technological changes which have population. See Dillenburg v. Kramer, 469 F.2d, at 1225. transformed the electoral process in the last century, In contrast, many of those convicted of violating election election fraud may no longer be a serious danger. 26 laws are treated as misdemeanants and are not barred from voting at all. It seems clear that the classification Another asserted purpose is to keep former felons from here is not tailored to achieve its articulated goal, since voting because their likely voting pattern might be it crudely excludes large numbers of otherwise qualified subversive of the interests of an orderly society. See voters. See *80 Kramer v. Union Free School District, Green v. Board of Elections, 380 F.2d 445, 451 (CA2 supra, 395 U.S., at 632, 89 S.Ct., at 1892; Cipriano v. City 1967). Support for the argument that electors can be of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 kept from the ballot box for fear they might vote to L.Ed.2d 647 (1969). repeal or emasculate provisions of the criminal code, is drawn primarily from this Court's decisions in Murphy Moreover, there are means available for the State to v. Ramsey, 114 U.S. 15, 5 S.Ct. 747, 29 L.Ed. 47 prevent voting fraud which are far less burdensome on (1885), and Davis v. Beason, 133 U.S. 333, 10 S.Ct. the constitutionally protected right to vote. As we said 299, 33 L.Ed. 637 (1890). In Murphy, the Court upheld in Dunn, supra, 405 U.S., at 353, 92 S.Ct., at 1008, the the disenfranchisement of anyone who had ever entered State ‘has at its disposal a variety of criminal laws that are into a bigamous or polygamous marriage and in Davis, more than adequate to detect and deter whatever fraud the Court sanctioned, as a condition to the exercise of may be feared.’ Cf. Harman v. Forssenius, 380 U.S. 528, franchise, the requirement of an oath that the elector did 543, 85 S.Ct. 1177, 1186, 14 L.Ed.2d 50 (1965); Schneider not ‘teach, advise, counsel, or encourage any person to v. State, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. commit the crime of bigamy or polygamy.’ The Court's 155 (1939). The California court's catalogue of that State's intent was clear—‘to withdraw all political influence from penal sanctions for election fraud surely demonstrates that those who are practically hostile to’ the goals of certain there are adequate alternatives to disenfranchisement. criminal laws. Murphy, supra, 114 U.S. at 45, 5 S.Ct., at ‘Today . . . the Elections Code punishes at least 76 764; Davis, supra, 133 U.S., at 334, 10 S.Ct., at 299. different acts as felonies, in 33 separate sections; at least 60 additional acts are punished as misdemeanors, in 40 To the extent Murphy and Davis approve the doctrine separate sections; and 14 more acts are declared to be that citizens can be barred from the ballot box because felony-misdemeanors. Among this plethora of offenses they would vote to change the existing criminal law, those we take particular note, in the present connection, of decisions are surely of minimal continuing precedential the felony sanctions against fraudulent registrations (s value. We have since explicitly held that such ‘differences 220), buying and selling of votes (ss 12000—12008), of opinion cannot justify for excluding (any) group *82 **2684 intimidating voters by threat or bribery (ss 29130 from . . . ‘the franchise, “ Cipriano v. City of Houma, 395 —29135), voting twice, or fraudulently voting without U.S. at 705—706, 89 S.Ct., at 1900—1901; see Communist being entitled to do so, or impersonating another voter Party of Indiana v. Whitcomb, 414 U.S. 441, 94 S.Ct. 656, (ss 14403, 29430—29431), fraud or forgery in casting 38 L.Ed.2d 635 (1974); Evans v. Cornman, 398 U.S. 419, absentee ballots (ss 14690—14692), tampering with voting 423, 90 S.Ct. 1752, 1755, 26 L.Ed.2d 370 (1970). machines (s 15280) or ballot boxes (ss 17090—17092), ‘(I)f they are . . . residents, . . . they, as all other qualified forging or altering election returns (ss 29100—29103), residents, have a right to an equal opportunity for political and so interfering ‘with the officers holding an election representation. . . . ‘Fencing out’ from the franchise a or conducting a canvass, or with the voters lawfully sector of the population because of the way they way vote exercising their rights of voting at an election, as to prevent is constitutionally impermissible.' Carrington v. Rash, 380

U.S., at 94, 85 S.Ct., at 779. See Dunn, 405 U.S., at 355, federal *84 courts sustained New York's and **2686 92 S.Ct. at 1009. Florida's disenfranchisement provisions, the legislatures repealed those laws. Congress has recently provided for the restoration of felons' voting rights at the end of Although, in the last century, this Court may have justified sentence or parole in the District of Columbia. D.C.Code s the exclusion of voters from the electoral process for 1—1102(7) (1973). The National Conference on Uniform fear that they would vote to change laws considered State *85 Laws, 29 the American Law Institute, 30 important by a temporal majority, I have little doubt that the National Probation and Parole Association, 31 the we would not countenance such a purpose today. The National Advisory Commission on Criminal Justice process of democracy is one of change. Our laws are not 32 frozen into immutable form, they are constantly in the Standards and Goals, the President's Commission on 33 process of revision in response to the needs of a changing Law Enforcement and the Administration of Justice, society. The public interest, as conceived by a majority the California League of Women Voters, 34 the National **2685 of the voting public, is constantly undergoing Democratic Party, 35 and the Secretary of State of reexamination. This Court's holding in Davis, supra, and 36 Murphy, supra, that a State may disenfranchise a class California have all strongly endorsed full suffrage of voters to ‘withdraw all political influence from those rights for former felons. who are practically hostile’ to the existing order, strikes The disenfranchisement of ex-felons had ‘its origin in at the very heart of the democratic process. A temporal the fogs and fictions of feudal jurisprudence and *86 majority could use such a power to preserve inviolate doubtless has been brought forward into modern statutes its view of the social order simply by disenfranchising without fully realizing either the effect of its literal those with different views. Voters who opposed the significance or the extent of its infringement upon the repeal of prohibition could have disenfranchised those spirit of our system of government.’ Byers v. Sun Savings who advocated repeal ‘to prevent persons from being Bank, 41 Okl. 728, 731, 139 P. 948, 949 (1914). I enabled by their votes to defeat the criminal laws of the think it clear that measured against the standards of country.’ Davis, supra, 133 U.S., at 348, 10 S.Ct., at 302. this Court's modern equal protection jurisprudence, the Today, presumably those who support the legalization blanket disenfranchisement of ex-felons cannot stand. of marihuana could be barred *83 from the ballot box for much the same reason. The ballot is the democratic I respectfully dissent. system's coin of the realm. To condition its exercise on support of the established order is to debase that Mr. Justice DOUGLAS, agreeing with Part I—A of this currency beyond recognition. Rather than resurrect Davis opinion, dissents from a reversal of the judgment below as and Murphy, I would expressly disavow any continued he cannot say that it does not rest on an independent state 27 adherence to the dangerous notions therein expressed. ground. See Hayakawa v. Brown, 415 U.S. 1304, 94 S.Ct. 1145, 39 L.Ed.2d 457 (Douglas, J., in chambers). The public purposes asserted to be served by disenfrahchisement have been found wanting in many All Citations quarters. When this suit was filed, 23 States allowed ex-felons full access to the ballot. Since that time, four 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551, 72 O.O.2d 232 more States have joined their ranks. 28 Shortly after lower

Footnotes * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. 1 The petition for a writ of mandate in the Supreme Court of California also named the California Secretary of State as a respondent in his capacity of chief elections officer of the State of California. He did not join the petition for a writ of certiorari to this Court, and has filed a brief as a party respondent. Respondents here (petitioners below) also include,

in addition to the three individual respondents, the League of Women Voters and three nonprofit organizations which support the interests of ex-convicts—Los Pintos, 7th Step Foundations, Inc. (California Affiliates), and Prisoners' Union. 2 Proposition 7, passed at the November 7, 1972, general election, repealed former Art. II, s 1, of the California Constitution and added new Art. II, s 3: ‘The Legislature shall prohibit improper practices that affect elections and shall provide that no severely mentally deficient person, insane person, person convicted of an infamous crime, nor person convicted of embezzlement or misappropriation of public money, shall exercise the privileges of an elector in this state.’ The Supreme Court of California concluded that the new constitutional provision was no different in substance from the former one, and that it did not implicitly repeal the implementing sections of the California Elections Code challenged here. 3 Section 310 of the California Elections Code provides in relevant part that ‘(t)he affidavit of registration shall show: (h) That the affiant is not disqualified to vote by reason of a felony conviction.' Section 321 sets the form of the registration affidavit, which includes the following: ‘10. I am not disqualified to vote by reason of a felony conviction.’ 4 Section 383 of the California Elections Code provides: ‘The county clerk shall cancel the registration in the following cases: ‘(c) Upon the production of a certified copy of a subsisting judgment of the conviction of the person registered of any infamous crime or of the embezzlement or misappropriation of any public money. . . .’ Section 389 provides: ‘The county clerk shall, in the first week of September in each year, examine the records of the courts having jurisdiction in case of infamous crimes and the embezzlement or misappropriation of public money, and shall cancel the affidavits of registration of all voters who have been finally convicted of an infamous crime or of the embezzlement or misappropriation of public money. . . .’ Section 390 provides: ‘The county clerk, on the basis of the records of courts in the county having jurisdiction of such offenses, shall furnish to the registrar of voters in a county where there is a registrar of voters, before the first day of September of each year, a statement showing the names of all persons convicted of infamous crimes or of the embezzlement or misappropriation of public money during the year prior to that first day of September, whose convictions have become final. The registrar of voters shall, during the first week of September in each year, cancel the affidavits of registration of such persons. The county clerk shall certify the statement under the seal of his office. . . .’ 5 Section 14240 of the California Elections Code (Supp.1974) provides: ‘A person offering to vote may be orally challenged within the polling place only by a member of the precinct board upon any or all of the following grounds: ‘(g) That he has been convicted of a felony. ‘On the day of the election no person, other than a member of a precinct board or other official responsible for the conduct of the election, shall challenge any voter or question him concerning his qualifications to vote. . . .’ Section 14246 (Supp.1974) provides: ‘If the challenge is on the ground that the person challenged has been convicted of a felony or that he has been convicted of the embezzlement or misappropriation of public money, he shall not be questioned, but the fact may be proved by the production of an authenticated copy of the record or by the sworn oral testimony of two witnesses.’ 6 Section 1203.4 of the California Penal Code (Supp.1974) provides: ‘(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and he shall thereafter be released from all penalties and disabilities resulting from the offense of which he has been convicted. The probationer shall be informed of this right and privilege in his probation papers. . . .’ 7 Section 4852.01 of the California Penal Code (1970) provides that a person convicted of a felony who was incarcerated may file, any time after his release from custody, a notice of intention to apply for a certificate of rehabilitation and pardon. It further provides, however:

‘This chapter shall not apply to persons convicted of misdemeanors; to persons who have served time in county jails only; to persons serving a mandatory life parole; to persons committed under death sentences; or to persons in the military service.’ Section 4852.13 of the California Penal Code (1970) provides: ‘If, after hearing, the court finds that the petitioner has demonstrated by his course of conduct his rehabilitation and his fitness to exercise all of the civil and political rights of citizenship, the court shall make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner. Such order shall be filed with the clerk of the court, and shall be known as a certificate of rehabilitation. The certificate shall show the date on which the original notice of intention to apply for a certificate was filed.’ Section 4852.16 provides: ‘The certified copy of a certificate of rehabilitation transmitted to the Governor shall constitute an application for a full pardon upon receipt of which the Governor may, without any further investigation, issue a pardon to the person named therein, except that, pursuant to Section 1 of Article VII of the Constitution, the Governor shall not grant a pardon to any person twice convicted of felony, except upon the written recommendation of a majority of the judges of the Supreme Court.’ Section 4852.17 (Supp.1974) provides: ‘Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including but not limited to: (1) the right to vote . . ..’ 8 Section 350 of the California Elections Code (1961) provides: ‘If the county clerk refuses to register any qualified elector in the county, the elector may proceed by action in the superior court to compel his registration. In an action under this section, as many persons may join as plaintiffs as have causes of action.’ Respondents contended that pardon was not an effective device for obtaining the franchise, noting that during 1968— 1971, 34,262 persons were released from state prisons but only 282 pardons were granted. 9 Respondent Ramirez was convicted in Texas of the felony of ‘robbery by assault’ in 1952. He served three months in jail and successfully terminated his parole in 1962. In February 1972 the San Luis Obispo County Clerk refused to allow Ramirez to register to vote on the ground that he had been convicted of a felony and spent time in incarceration. Respondent Lee was convicted of the felony of heroin possession in California in 1955, served two years in prison, and successfully terminated his parole in 1959. In March 1972 the Monterey County Clerk refused to allow Lee to register to vote on the sole ground that he had been convicted of a felony and had not been pardoned by the Governor. Respondent Gill was convicted in 1952 and 1967 of second-degree burglary in California, and in 1957 of forgery. He served some time in prison on each conviction, followed by a successful parole. In April 1972 the Stanislaus County Registrar of Voters refused to allow Gill to register to vote on the sole ground of his prior felony convictions. 10 Paragraph VI of respondents' petition for mandamus states that the named ‘Petitioners bring this action individually and on behalf of all other persons who are ineligible to register to vote in California solely by reason of a conviction of a felony other than an election code felony.’ The remainder of the petition makes it clear that the class was further restricted to ex-felons, and the Supreme Court of California so treated it. 11 We refer to the named ‘defendants' in the action in the Supreme Court of California, even though in that court they were actually denominated respondents according to California practice, and we refer to named ‘plaintiffs' in that court, even though they were actually there denominated as petitioners. We do this for convenience of reference, in order to avoid as much as possible confusion between reference to the position of the parties in the Supreme Court of California and their position here. 12 The parties agree that the lack of uniformity is the result of differing interpretations of the 1966 Supreme Court of California decision in Otsuka v. Hite, 64 Cal.2d 596, 51 Cal.Rptr. 284, 414 P.2d 412, which defined ‘infamous crime’ as used in the California constitutional provisions. The California Secretary of State's report noted that ‘(m)ost’ of the 49 responding counties ‘have attempted to develop consistent criteria for determining which ex-felons shall be entitled to register. In some counties these policies have been formalized in writing, but in most instances a case-by-case method has been used.’ The report concluded: ‘2. Although the policy within most counties may be consistent, the fact that some counties have adopted different policies has created a situation in which there is a lack of uniformity across the state. It appears from the survey that a person convicted of almost any given felony would find that he is eligible to vote in some California counties and ineligible to vote in others.

‘3. In order to remedy this lack of uniformity, authoritative guidelines from either the legislature or the courts are urgently needed.’ 13 Our Brother MARSHALL argues in dissent that since the Supreme Court of California did not issue the peremptory writ of mandate, its opinion in this case is an advisory one which does not come within the ‘case or controversy’ requirement of Art. III of the Constitution. He also contends that that court's refusal to issue the peremptory writ must rest on some unarticulated state ground, which he concludes should bar review of the federal constitutional question by this Court. The Supreme Court of California has only recently noted its policy of avoiding advisory opinions on abstract questions of law, In re M., 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P.2d 737 (1970), while in the same opinion adverting to its ‘declaratory use of habeas corpus in a number of cases' such as In re Gonsalves, 48 Cal.2d 638, 311 P.2d 483 (1957). In support of its determination in the case before us that exercise of its original jurisdiction would be appropriate, the Supreme Court of California cited Young v. Gnoss, 7 Cal.3d 18, 101 Cal.Rptr. 533, 496 P.2d 445 (1972). There it had exercised its original mandamus jurisdiction to conclude that the durational residence requirements for voting imposed by California law violated the Equal Protection Clause of the Fourteenth Amendment. Saying that its ‘function at this time is simply to declare the minimum that must be done to implement Dunn v. Blumstein (405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)),’ 7 Cal.2d, at 27, 101 Cal.Rptr., at 539, 496 P.2d, at 451, the court refused to issue a peremptory writ of mandate in that case, just as it did here, saying that ‘(s)ince there is no reason to believe that any of the parties to this proceeding will not accede to our holdings herein, no purpose would be served by issuing a writ of mandate to compel such compliance with respect to the November 1972 general election. . . .’ Id., at 29, 101 Cal.Rptr., at 541, 496 P.2d, at 453. United States courts of appeals, which are barred by the case-or-controversy requirement of Art. III from issuing advisory opinions, have nonetheless declined to issue peremptory writs against district judges on the assumption that the latter would abide by the opinion of the court of appeals without the compulsion of such a writ. In re United States, 257 F.2d 844 (CA5 1958); In re United States, 207 F.2d 567 (CA5 1953). We think that the reliance of the Supreme Court of California on its earlier decision recognizing and approving the use of its original jurisdiction to grant declaratory relief, as well as its reliance on precedent in an original mandamus proceeding in which it reached the merits but declined to issue the peremptory writ where there was no question of mootness, supports our conclusion that that court's judgment in this case is for all practical purposes at least a declaratory judgment. And it is well settled that, where there is ‘an actual and acute controversy,’ an appeal from a declaratory judgment of a state court presents a ‘case or controversy’ within this Court's jurisdiction. Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730 (1933). Indeed, any other conclusion would unnecessarily permit a state court of last resort, quite contrary to the intention of Congress in enacting 28 U.S.C. s 1257, to invalidate state legislation on federal constitutional grounds without any possibility of state officials who were adversely affected by the decision seeking review in this Court. We are equally unable to accept the view of the dissenters that the California court's failure here to issue the peremptory writ must rest on that court's resolution of some unspecified state law question against petitioner. The mere failure of a state court to award peremptory relief in a proceeding which it treats as one for a declaratory judgment is not an ‘adequate state ground’ which precludes our review of its federal constitutional holding. 14 Ala.Const., Art. 6, s 5 (1819); Calif.Const., Art. 2, s 5 (1849); Conn.Const., Art. 6, s 3 (1818); Del.Const., Art. 4, s 1 (1831); Fla.Const., Art. 6, s 4 (1838); Ga.Const., Art. 2, s 6 (1868); Ill.Const., Art. 2, s 30 (1818); Ind.Const., Art. 6, s 4 (1816); Iowa Const., Art. 2, s 5 (1846); Kan.Const., Art. 5, s 2 (1859); Ky.Const., Art. 6, s 4 (1799); La.Const., Art. 6, s 4 (1812); Md.Const., Art. 1, s 5 (1851); Minn.Const., Art. 7, s 2 (1857); Miss.Const., Art. 6, s 5 (1817); Mo.,Const., Art. 3, s 14 (1820); Nev.Const., Art. 2, s 1 (1864); N.J.Const., Art. 2, s 1 (1844); N.Y.Const., Art. 2, s 2 (1821); N.C.Const., Art. 6, s 5 (1868); Ohio Const., Art. 4, s 4 (1802); Ore.Const., Art. 2, s 3 (1857); R.I.Const., Art. 2, s 4 (1842); S.C.Const., Art. 4 (1865); Tenn.Const., Art. 4, s 2 (1834); Tex.Const., Art. 7, s 4 (1845); Va.Const., Art. 3, s 14 (1830); W.Va.Const., Art. 3, s 1 (1863); Wis.Const., Art. 3, s 2 (1848). 1 The proceeding below was a petition for a writ of mandate in the California Supreme Court, hence the moving parties should properly be described as petitioners rather than plaintiffs. However, to avoid confusion, since the petitioners below are the respondents here and vice versa, the parties in the California court will be referred to herein simply as plaintiffs and defendants. 2 California Const., Art. II, s 1, provided, in part, that ‘no person convicted of any infamous crime . . . shall ever exercise the privileges of an elector in this State.’ Article II, s 1, was repealed by referendum at the November 7, 1972, general election and was replaced by a new Art. II, s 3, containing the same prohibition. The state implementing statutes include California Elections Code ss 310, 321, 383, 389, 390, and 14240.

3 The Attorney General filed a separate petition for certiorari, No. 73—324, to review the judgment of the California Supreme Court. The Secretary of State filed a memorandum opposing that petition for certiorari. The petition was denied today, 418 U.S. 904, 94 S.Ct. 3194, 41 L.Ed.2d 1152. 4 The judgment of the California Supreme Court is by custom the final paragraph of its opinion. The alternative writ referred to is merely a show-cause order, requiring the respondent to comply with the petitioner's demand or show cause why it should not be ordered to do so. 5 See 5 B. Witkin, Cal.Proc.2d, Extraordinary Writs s 22, pp. 3796—3797, and s 123, p. 3899 (1971). 6 Calif.Code Civ.Proc. s 1060; see 15 Cal.Jur.2d, Declaratory Relief s 13; 3 B. Witkin Cal.Proc.2d, Pleading s 705(c), p. 2329 (1971); see, e.g., Dills v. Delira Corp., 145 Cal.App.2d 124, 129, 302 P.2d 397, 400 (1956). The difference between ‘mandamus and declaratory relief (is) that appellate courts cannot give the latter.’ 5 B. Witkin, Cal.Proc.2d, Extraordinary Writs s 21, p. 3796 (1971). 7 In the first case relied on by the majority, In re M., 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P.2d 737 (1970), the California Supreme Court had previously granted a writ of habeas corpus which effectively mooted the petitioner's claim for relief. The court, nonetheless, later issued an opinion on the issue posed by the case while denying further relief. In a footnote, the court observed that as a general proposition, courts should avoid advisory opinions, but, in the very next sentence, reaffirmed its inherent discretion to issue such opinions. In the accompanying text, the court noted that it could render a decision in a moot case which would not be binding on a party before it, where the case involved issues of particular public importance. Although the court referred to its ‘declaratory use of habeas corpus in a number of cases,’ citing B. Witkin, Cal.Crim.Proc. s 790 (1963), and In re Fluery, 67 Cal.2d 600, 63 Cal.Rptr. 298, 432 P.2d 986 (1967), the Witkin treatise refers to the court's ‘declaratory use of habeas corpus' and In re Fluery, supra, in particular, as examples of the ‘use of the writ to render a purely advisory opinion unnecessary to the determination of the particular controversy.’ B. Witkin, Cal.Crim.Proc., Habeas Corpus and Other Extraordinary Writs s 790, p. 247 (Supp. 1967). The second case relied on by the majority is Young v. Gnoss, 7 Cal.3d 18, 101 Cal.Rptr. 533, 496 P.2d 445 (1972), cited by the court below solely for the proposition that mandamus is an appropriate remedy to seek in an original proceeding. In that case, the petitioners had sought mandamus relief from the application of a state durational residence requirement for voting in order that they might vote in a June primary. The California Supreme Court, in a lengthy opinion, indicated that the challenged requirement was unconstitutional on the authority of our decision in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), but exercised its equitable discretion not to order a change in the residence requirements for the June primary because too little time remained for such a change to be implemented in an orderly fashion. Accordingly, mandamus relief was denied. The court recommended that the necessary changes in residence requirements be effected before the November election but did not so order to give the ‘Legislature the opportunity to address itself to the problem . . ..’ 7 Cal.3d, at 28, 101 Cal.Rptr., at 540—541, 496 P.2d, at 452—453. The court relied on its earlier decision in Legislature v. Reinecke, 6 Cal.3d 595, 99 Cal.Rptr. 481, 492 P.2d 385 (1972), where the court had expressed its views on a legislative reapportionment problem, denied a writ of mandate, and retained jurisdiction to allow the legislature an opportunity to act before providing any judicial relief. Each of these cases involves examples of advisory opinions rather than declaratory relief. In the latter, what the California Supreme Court did was to provide some guidance to the legislature while staying its hand and not affording judicial relief for the claimed deprivation. It seems well settled that California courts have ‘inherent discretion’ to issue such advisory opinions. See 2 B. Witkin, Cal.Proc.2d, Actions s 44, p. 920 (1970); id., s 42, p. 916; 5 B. Witkin, Cal.Proc.2d, Extraordinary Writs s 117, p. 3894; cf. Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 749, 300 P.2d 163, 166 (1956). 8 The Court has held, for example, that Art. III restricts standing to bring a class action to the actual members of the class. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The named plaintiffs here had been disenfranchised at the time they filed suit, and there is thus no question concerning their standing to challenge the California disenfranchisement provisions. 9 The Court distinguished its decision in Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969), finding a challenge to Colorado's durational residence requirement moot, on the grounds that, in Hall, there had been an intervening change in law reducing the residence requirements from six months to two while the case was on appeal. Accordingly, application of the six-month requirement was incapable of repetition as to the named plaintiff or any other member of his class, and, having never been disenfranchised thereby, the named plaintiff had no standing to challenge the two-month requirement. 10 The Court has found a live controversy in other voting cases in which intervening circumstances seemed to have mooted the named plaintiff's claim for relief. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), for example, was an appeal from a decision denying relief to appellants who had unsuccessfully sought to be certified, as required by state law, as independent candidates for Presidential elector on the 1968 ballot. Appellants asserted that the Illinois certification

requirement violated the State's constitutional obligation not to discriminate against voters in less populous counties. By the time their appeal reached this Court, the 1968 election had already taken place, but we held the case was not moot because ‘while the 1968 election is over, (the challenged burden) remains and controls future elections . . .,’ id., at 816, 89 S.Ct., at 1494; see Hall v. Beals, supra, 396 U.S., at 49, 90 S.Ct., at 202, and the short span of time between the denial of certification for candidacy and actual balloting threatens to moot all future attacks on the questioned candidacy requirements. 394 U.S., at 816, 89 S.Ct., at 1494. See also Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 (1973). 11 The extent of continuing disenfranchisement is apt to be minimal. A survey conducted by the Secretary of State of California indicated that the election officials of 52 of the 58 counties in California, representing counties which contain 97.39% of the registered voters in the State, agreed with the clerks in the named plaintiffs' counties that ex-felons should not be barred from voting in their counties. Brief for Respondents 30. 12 The Court's opinion cites our decision in Indiana Employment Security Div. v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973), for the proposition that unnamed class members may not be looked to in cases arising from the federal system, but the case does not support that proposition. Burney concerned a constitutional challenge to the termination of unemployment insurance benefits without a prior hearing. The only named class representative received a post- termination hearing at which she obtained a reversal of the initial determination of ineligibility and full retroactive benefits. The Court remanded for consideration of mootness. The jurisdictional issue in this Court revolved around whether the case presented issues ‘capable of repetition, yet evading review.’ The Court did not have to find the alleged constitutional deprivation incapable of repetition, hence was not concerned with the problem of whether a future application to the named class representative was required. Rather, it appeared that the prior-hearing issue was not one which would evade review. But see id., at 542—546, 93 S.Ct., at 884—886 (dissenting opinion). The Court reasoned that a post- termination hearing, afforded as a matter of course, would not invariably moot all claims for relief from members of the class. If the post-termination hearing did not result in an award of retroactive payments, as it had in the named plaintiff's case, a live and continuing controversy would be presented as to the insured's claim to the benefits allegedly wrongfully withheld pending the hearing. A case had already come to this Court in just such a posture, and the Court had summarily affirmed the judgment of the three-judge court. Torres v. New York State Department of Labor, 405 U.S. 949, 92 S.Ct. 1185, 31 L.Ed.2d 228 (1972), but see 410 U.S. 971, 93 S.Ct. 1446, 35 L.Ed.2d 707 (1973) (dissenting opinion to denial of rehearing). It was a failure to satisfy the ‘evading review’ element of the test that led the Court to remand Burney for consideration of mootness. 13 In the absence of such an order, petitioner Richardson is under no compulsion to register ex-felons in her county nor subject to any penalty for failing to do so. See Cal.Code Civ.Proc. s 1097 (1955). 14 The suit against petitioner, Richardson v. James, 1 Civ. 32283, is presently pending in Division 3 of the Court of Appeal for the First Appellate District of California. 15 If claims of the named plaintiffs are moot, the proper disposition of this case would seem to be to vacate the judgment of the California Supreme Court and remand for such proceedings as that court deems appropriate. Brockington v. Rhodes, 396 U.S. 41, 44, 90 S.Ct. 206, 208, 24 L.Ed.2d 209 (1969). 16 See, e.g., Note, Restoring the Ex-offender's Right to Vote: Background and Developments, 11 Am.Crim.L.Rev. 721, 746 —747, n. 158 (1973). 17 Statement of Rep. Eckley, quoted, ante, at 2667. 18 Bonfield, The Right to Vote and Judicial Enforcement of Section Two of the Fourteenth Amendment, 46 Cornell L.Q. 108, 109 (1960); H. Flack, The Adoption of the Fourteenth Amendment 98, 126 (1908); B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 290—291 (1914); J. James, The Framing of the Fourteenth Amendment 185 (1956); Van Alstyne, The Fourteenth Amendment, the ‘Right’ to Vote, and the Understanding of the Thirty-ninth Congress, 1965 Sup.Ct.Rev. 33, 44 (1965). 19 James, n. 18, supra, at 138—139. 20 Kendrick, n. 18, supra, at 291; cf. Flack, n. 18, supra, at 111, 118. 21 Bonfield, n. 18, supra, at 111; James, n. 18, supra, at 185; Van Alstyne, n. 18, supra, at 43—44, 58, 65. 22 Id., at 43—44 (quoting from Mathews, Legislative and Judicial History of the Fifteenth Amendment (1909)). 23 Id., at 65. 24 To say that s 2 of the Fourteenth Amendment is a direct limitation on the protection afforded voting rights by s 1 leads to absurd results. If one accepts the premise that s 2 authorizes disenfranchisement for any crime, the challenged California provision could, as the California Supreme Court has observed, require disenfranchisement for seduction under promise of marriage, or conspiracy to operate a motor vehicle without a muffler. Otsuka v. Hite, 64 Cal.2d 596, 51 Cal.Rptr. 284,

414 P.2d 412 (1966). Disenfranchisement extends to convictions for vagrancy in Alabama or breaking a water pipe in North Dakota, to note but two examples. Note, Disenfranchisement of Ex-felons: A Reassessment, 25 Stan.L.Rev. 845, 846 (1973). Even a jaywalking or traffic conviction could conceivably lead to disenfranchisement, since s 2 does not differentiate between felonies and misdemeanors. 25 Memorandum of the Secretary of State of California in Opposition to Certiorari, in Class of County Clerks and Registrars of Voters of California v. Ramirez, No. 73—324. 26 Ramirez v. Brown, 9 Cal.3d 199, 215—216, 107 Cal.Rptr. 137, 147—148, 507 P.2d 1345, 1355—1356 (1973). 27 The Court also notes that the disenfranchisement of ex-felons has received support in the dicta of this Court and that we have only recently affirmed without opinion the decisions of two three-judge District Courts upholding disenfranchisement provisions. Fincher v. Scott, 352 F.Supp. 117 (MDNC 1972), aff'd per curiam, 411 U.S. 961, 94 S.Ct. 2151, 36 L.Ed.2d 681 (1973); Beacham v. Braterman, 300 F.Supp. 182 (SD Fla.), aff'd mem., 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969). But, dictum is not precedent and as Mr. Justice Rehnquist has only recently reminded us, summary affirmances are obviously not of the same precedential value as would be an opinion of this Court treating the question on the merits. Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974). See F. Frankfurter & J. Landis, The Business of the Supreme Court at October Term, 1929, 44 Harv.L.Rev. 1, 14 (1930). 28 The following States do not disenfranchise all former felons: Arkansas, Ark.Stat.Ann. s 3—707 (Supp.1973); Colorado, Colo.Const., Art. VII, s 10, and Colo.Rev.Stat.Ann. s 49—3—2 (Perm.Cum.Supp.1971); Florida, Fla.Stat.Ann. s 940.05 (1973); Hawaii, Hawaii Rev.Stat. s 716—5 (Supp.1972); Illinois, Ill.Rev.Stat., c. 46, s 3—5 (1973); Indiana, IC 1971, 3— 1—21—4, Ind.Ann.Stat. s 29—4804 (1969); Kansas, Kan.Stat.Ann. s 22—3722 (Supp.1973); Maine, Me.Rev.Stat.Ann., Tit. 21, s 245 (1964); Massachusetts, Mass.Gen.Laws Ann., c. 51, s 1 (Supp.1974—1975) (except election code offenders); Michigan, Mich.Const., Art. II, s 2 and Mich.Comp.Laws Ann. s 168.10 (1970); Minnesota, Minn.Stat. s 609.165 (1971); Nebraska, Neb.Rev.Stat. s 29—2264 (Supp.1972) and Neb.Rev.Stat. s 83—1118 (1971); New Hampshire, N.H.Rev.Stat.Ann. s 607—A:2 (Supp.1973); New Jersey, N.J.Stat.Ann. s 19:4—1 (Supp.1974—1975) (except election code offenders); Ohio Rev.Code Ann. s 2967.16 (Supp.1972); Oregon, Ore.Rev.Stat. ss 137.240 and 137.250 (1973); Pennsylvania, Pa.Const., Art. VII, s 1, Pa.Stat.Ann. Tit. 19, s 893 (1964), and Tit. 25, s 3552 (1963) (except election code offenders for four years); South Dakota, S.D.Comp.Laws Ann. ss 24—5—2 and 23—57—7 (1969); Utah, Utah Const., Art. IV, s 6 (except those convicted of treason or election code offenses); Vermont, Vt.Const., c. II, s 51 (except election code offenders); Washington, Wash.Rev.Code Ann. s 9.96.050 (Supp.1972); West Virginia, 51 Op.W.Va.Atty.Gen. No. 42, p. 182 (1965) (construing W.Va.Const., Art. IV, s 1); Wisconsin, Wis.Stat.Ann. s 57—078 (Supp.1974—1975); Wyoming, Wyo.Stat.Ann. s 7—311 (1957). In 1972 Montana amended its constitution to disenfranchise potential electors only while ‘serving a sentence for a felony.’ Mont.Const., Art. IV, s 2; Mont.Rev.Codes Ann. s 23—2701 (Supp.1973). In 1973, New York amended its laws to allow former felons whose sentence had expired or who were released from parole to vote. N.Y. Election Law s 152 (Supp.1973 —1974). Also in 1973, North Carolina amended its laws to restore all civil rights including the franchise to former felons discharged from prison or parole. N.C.Gen.Stat. s 13—1 (Supp.1973). And, in the same year, the Tennessee Legislature amended its ex-felon disen-Franchisement statutes. See Tenn.Code Ann. s 2—202 (Supp.1973). The New York ex-felon disenfranchisement provision was upheld in Green v. Board of Elections, 380 F.2d 445 (CA2 1967), and shortly thereafter the New York Legislature repealed that law. N.Y. Election Law s 152 (Supp.1973— 1974). Similarly the Florida disenfranchisement provisions were upheld in Beacham v. Braterman, 300 F.Supp. 182 (SD Fla.), aff'd per curiam, 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969). Subsequently, Florida statutes were amended to provide for the automatic restoration of all civil rights, including the franchise, upon the completion of sentence or release from parole or probation. Fla.Stat.Ann. s 940.05 (1973). 29 National Conference of Commissioners on Uniform State Laws, Uniform Act on Status of Convicted Persons ss 2—3 (1964). 30 American Law Institute, Model Penal Code s 306.3 (Proposed Official Draft 1962). 31 National Probation and Parole Association, Standard Probation and Parole Act ss 12 and 27 (1955). 32 National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 16.17, p. 592 (1973). The Report observed: ‘Loss of citizenship rights—(including) the right to vote . . .—inhibits reformative efforts. If correction is to reintegrate an offender into free society, the offender must retain all attributes of citizenship. In addition, his respect for law and the legal system may well depend, in some measure, on his ability to participate in that system. Mandatory denials of that participation serve no legitimate public interest.’ Id., at 593.

33 President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: Corrections 89—90 (1967): ‘(T)here seems no justification for permanently depriving all convicted felons of the vote . . .. (T)o be deprived of the right to representation in a democratic society is an important symbol. Moreover, rehabilitation might be furthered by encouraging convicted persons to participate in society by exercising the vote.’ 34 California League of Women Voters, Policy Statement, Feb. 16, 1972. 35 National Democratic Party, Party Platform 1972. 36 Memorandum of the Secretary of State of California in Opposition to Certiorari in Class of County Clerks and Registrars of Voters of California v. Ramirez, No. 73—324.

In the Supreme Court of the United States

JON HUSTED, Ohio Secretary of State, Petitioner, v. A. PHILIP RANDOLPH INSTITUTE, et al., Respondents.

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE AND THE OHIO STATE CONFERENCE OF THE NAACP IN SUPPORT OF RESPONDENTS

Counsel for Amici Curiae (Additional Counsel Listed on Signature Page) September 22, 2017 275734

TABLE OF CONTENTS Page TABLE OF CONTENTS ...... i

TABLE OF CITED AUTHORITIES ...... iv

IDENTITY AND INTEREST OF AMICI CURIAE ...... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ...... 2

ARGUMENT ...... 6

I. OHIO’S SUPPRESSIVE VOTER TACTICS DENY THE RIGHT TO VOTE ...... 6

A. History of Voter Suppression in Ohio . . .6

1. Voter Challenges ...... 7

2. Long Lines and Poll Worker Error . .7

3. Golden Week ...... 8

4. Provisional Ballots ...... 10

5. Other Election Administration Errors ...... 11 ii

Table of Contents Page B. Ohio’s History of Suppressive Voting Measures Has Led to Decreased Voter Engagement and Inactive Voters . . . . 12

1. a Decline in Black Voter Participation in Ohio in 2016 Reflects the Impact of Voter Suppression ...... 13

2. Disenfranchisement Results in Low Voter Participation Rates in communities of Color ...... 14

II. OHIO’S SUPPLEMENTAL PROCESS HAS A DISPROPORTIONATE IMPACT ON BLACK VOTERS ...... 17

A. Ohio’s Supplemental Process Has Disproportionately Purged Voters of color from Registration Rolls . . . . . 17

B. Ohio’s Supplemental Process Is Based on a Faulty Correlation Between Voter Inactivity and Voter Change of Address ...... 19

C. The Supplemental Process’s Mail Response Requirement Disproportionately Places Voters of color on the Inactive List ...... 21 iii

Table of Contents Page III. Ohio is not alone in its Violation of the NVRA...... 23

CONCLUSION ...... 26 iv

TABLE OF CITED AUTHORITIES Page Cases

A. Philip Randolph Inst. v. Husted, 838 F.3d 699 (6th Cir. 2016) ...... 4, 5

Common Cause and Georgia NAACP v. Kemp, No. 17-11315 (11th Cir. June 5, 2017) ...... 24

Common Cause of Colo. v. Buescher, 750 F. Supp. 2d 1259 (D. Colo. 2010) ...... 4

League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008) ...... 3, 7, 10, 12

NC NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016) ...... 2

NEOCH v. Husted, 696 F.3d 580 (6th Cir. 2012) ...... 10

Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612 (6th Cir. 2016) ...... 3

Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012) ...... 3, 8

Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016) ...... 3 v

Cited Authorities Page Ohio State Conference of the NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014), vacated as moot, 2014 WL 10384647 (6th. Cir. Oct. 1, 2014) . . .2, 7, 9

Reynolds v. Sims, 377 U.S. 533 (1962) ...... 2

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ...... 3

State ex rel. Painter v. Brunner, 128 Ohio St. 3d 17, 941 N.E. 2d 782 (2011) . . . . 10

Summit Cty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547 (6th Cir. 2004) ...... 7

Texas NAACP v. Steen, 71 F. Supp. 3d 627 (S.D. Tx. 2014) ...... 3

United States v. Ortiz, 897 F. Supp. 199 (E.D. Pa. 1995) ...... 23

Statutes and Other Authorities

U.S. Const. amend. XV ...... 6

52 U.S.C. § 20501 ...... 4

2005 Ohio Laws 40 (Sub. H.B. 234) ...... 8 vi

Cited Authorities Page Act of Apr. 16, 1868, § 1, 1868 Ohio Gen. & Loc. Laws 1st Sess. 97 (L.D. Myers & Bro. 1868) . . . .6

Alice Miranda Ollstein and Kira Lerner, Think Progress, “Republicans were wildly successful at suppressing voters in 2016” (Nov. 15, 2016) . . 13

America Goes to the Polls 2014, Nonprofit Vote . .20, 21

Andy Sullivan and Grant Smith, Use it or Lose it: Occasional Ohio Voters May Be Shut Out in November, Reuters (June 2, 2016) . . . . 18

Billy Corriher and Liz Kennedy, Ctr. for Am. Progress, Preventing Problems at the Polls: Ohio (Oct. 11, 2016) ...... 12

Darrel Rowland, Voting in Ohio | Fight over poll hours isn’t just political, The Columbus Dispatch (Aug. 19, 2012) ...... 9

Earl Letourneau, U.S. Census Bureau, Mail response/Return Rates Assessment (2012) . . . 22

Emily Badger, Why Long Voting Lines Could Have Long-Term Consequences, N.Y. Times (Nov. 8, 2016) ...... 12-13

Emily L. Mahoney, Hillary Davis, and Jimmy Miller, Ctr. for Public Integrity, America Scrubs Millions from the Rolls. Is it Fair? (Aug. 22, 2016) ...... 38 vii

Cited Authorities Page H.R. Rep. No. 103-9 (1993) ...... 4

Hannah Yi, Mori Rothman and Chris Bury, PBS Newshour, Why Ohio has purged at least 200,000 from the voter rolls (July 31, 2016) . . . .19

Hawaii Rev. Stat. §11-12 (2016) ...... 25

Hawaii Rev. Stat. §11-17 ...... 25

Jackie Borchardt, Ohio lawmaker wants the state to stop purging inactive voters, cleveland.com (Dec. 2, 2015) ...... 23-24

Jens Manuel Krogstad and Mark Hugo Lopez, Pew Research Ctr.: Fact Tank, Black Voter Turnout Fell in 2016, Even as a Record Number of Americans Cast Ballots (May 12, 2017) . . . .15

Jens Manuel Krogstad, Pew Research Ctr., Asian American voter turnout lags behind other groups; some non-voters say they are ‘too busy’ (Apr. 9, 2014) ...... 16

John P. Bueker, Jury Source Lists: Does Supplementation Really Work?, 82 Cornell l. Rev. 390 (1997) ...... 23

Joshua Field, Charles Posner, and Anna Chu, Ctr. for Am. Progress, Uncounted Votes: The Racially Discriminatory Effects of Provisional Ballots (Oct. 2014) . . . . 12 viii

Cited Authorities Page Kristen Taylor & Alexandra Eichler, Voting Problems in Ohio, Texas According to Election Protection Volunteers, Huffington Post (Nov. 6, 2012) . . . .11

Lauren Harmon, Charles Posner, Michele Jawando, and Matt Dhaiti, Ctr. for Am. Progress Action Fund, The Health of American Democracies (July 2015) ...... 12

Michael P. McDonald, 2 012 Tu r n o u t : Race, Ethnicity and the Youth Vote, Huffington Post (July 8, 2013) ...... 14

Michael Powell and Peter Slevin, Several Factors Contributed to ‘Lost’ Voters in Ohio, Wash. Post (Dec. 15, 2004) ...... 10, 11

Nathan Eagle, Should Hawaii Purge More People from List of Registered Voters? civil Beat (Oct. 20, 2014) ...... 25

O.G.C.A. § 21-2-233 ...... 24

O.G.C.A. § 21-2-234(a) ...... 24

Ohio Rev. Code § 3503.21(A)(7) ...... 5

Ohio Rev. Code § 3503.21(B) ...... 5

Ohio Rev. Code § 3505.20 ...... 6 ix

Cited Authorities Page Ohio Rev. Code § 3509.01(B)(2) ...... 9

Ohio Rev. Code § 3509.01(B)(3) ...... 9

Ohio Rev. Code § 3509.05(A) ...... 8

Ohio Rev. Code § 3509.32 ...... 12

Ohio Sen. Nina Turner and Ohio Rep. Kathleen Clyde, Voter Suppression in Ohio in the November 2012 Election (June 5, 2013) . . . . . 11

Peter S. Canellos, In Prosecuting Federal Crime, Jury Pool can be an Issue of Race, Boston Globe (Sept. 20, 2005) ...... 23

Robert Walters and Mark Curriden, A Jury of One’s Peers?: Investigating Underrepresentation in Jury Venires, 43 Judges’ Journal (2004) . . . . .22

Summit County Board of Elections Challenge Hearings, Oct. 28, 2004, Tr. 72:23-73-12 . . . . . 7

Sup. Ct. R. 37.2 ...... 1

T.C.A. §2-2-106(c) (2010) ...... 24

Tea Party Group Works to Remove Names from Ohio Voter List, LA Times (Sept. 26, 2012) . . . . 7 x

Cited Authorities Page Ted Eades, Revisiting the Jury System in Texas: A Study of the Jury Pool in Dallas County, 54 SMU L. REV. 1813 (2001) ...... 23

The Other Side: Lot Wright Shows How the Negroes Were Frightened from the Polls, fort Worth Daily Gazette (Jan. 16, 1885) . . . . .6

Thom File, U.S. Census Bureau, Voting in America: A Look at the 2016 Presidential Election (May 10, 2017) . . . . .13, 15

Thom File, U.S. Census Bureau, Who Votes? Congressional Elections and the American Electorate: 1978-2014 (July 2015) ...... 17

U.S. Census Bureau, Reported Voting and Registration by Sex, Race and Hispanic Origin; from States; U.S. Census Bureau, Current Population Survey (Nov. 2016) . . . . .16

U.S. Census Bureau, Voting and Registration of the Election of November 2016 (May 2017) . 15, 20, 21

U.S. Election Assistance Commission Report to the 114th Cong.: The 2014 EAC Election Admin. and Voting Survey Comp. Rept. (June 30, 2015) ...... 25 xi

Cited Authorities Page Wendy Weiser & Margaret Chen, Brennan Center for Justice, Voter Suppression Incidents in 2008 (Nov. 3, 2008) ...... 11

William H. Frey, Census Shows Pervasive Decline in 2016 Minority Voter Turnout, Brookings Institution (May 18, 2017) . . . . .13, 14

Zachary Roth, After early voting cuts, Souls to the Polls takes a hit in Ohio, MSNBC (Nov. 3, 2014) ...... 9

Pursuant to Supreme Court Rule 37.2, the National Association for the Advancement of Colored People (“NAACP”) and the Ohio State Conference of the NAACP (“OH NAACP”) respectfully submit this amici curiae brief in support of Respondents in this matter.1

IDENTITY AND INTEREST OF AMICI CURIAE

The NAACP is a non-profit organization founded on the goal of achieving an equitable society for African- Americans and communities of color. The right to vote is under constant threat of being diminished to a privilege instead of a guarantee to all United States citizens. Former Assistant Attorney General Deval Patrick’s letter to the Senate Judiciary Committee on the nomination of Jeff Sessions to be Attorney General highlights the triumphs of past voting rights cases and emphasizes the danger when the “rule of law is imperiled.” “Voting,” as he writes, “is a civic and even sacred right in our country.” The NAACP’s core mission is to protect the right to vote, and the organization has spent all 108 years of its existence in pursuit of that goal.

The OH NAACP serves as the statewide arm of the NAACP, one of the country’s oldest racial justice organizations. The OH NAACP works toward eliminating race-based discrimination and has done so for almost

1. No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae, their members, or their counsel made a monetary contribution to its preparation or submission. The parties have filed blanket consents to the filing of all amicus briefs in this matter. 2 a century. Throughout its history, the OH NAACP has actively fought for voting rights, most recently and prominently in the 2014 case, Ohio State Conference of the NAACP v. Husted, 768 F.3d 524 (6th Cir. 2014), vacated as moot, 2014 WL 10384647, at *1 (6th. Cir. Oct. 1, 2014). The OH NAACP has invested significant resources in the efforts to expand American democracy and increase participation in the electoral process.

In Ohio, amici have worked arduously to fulfill the protections of the U.S. Constitution and ensure that the voices of Ohio’s voters are heard at the polls. The organization is dedicated to securing the fundamental right to vote for those who have been historically silenced. Amici submit this brief to help the Court appreciate and understand the negative impact of Ohio’s Supplemental Process and similar provisions in other states on the African American community and voters of color.

INTRODUCTION AND SUMMARY OF ARGUMENT

Despite centuries of struggle, the sacred right to vote continues to evade a large number of voters of color in the United States. As the Court has recognized, the right of suffrage is fundamental to a free and democratic society. Reynolds v. Sims, 377 U.S. 533, 561-62 (1962). Although advances have been achieved in the fight to secure the right to vote for all citizens, the ability to participate fully in U.S. democracy still eludes far too many voters, particularly voters of color due to suppressive state tactics.2 This Court has long recognized that racial

2. Recent examples include NC NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016) (challenging voter suppression law passed 3 discrimination in the administration of elections is unconstitutional. See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). This denial of the right to vote is especially troubling, considering the various forms of physical violence that people of color have faced over the years in their attempts to register and vote. See, e.g., Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 639-651 (6th Cir. 2016) (Keith, J., dissenting).

While overt acts of violence have been used historically to deny the vote, today more insidious means of restricting access to the ballot are common. Ohio has a long history of barriers to the ballot, as demonstrated by consistent cuts to same-day registration and early in-person (“EIP”) voting. See Ohio Democratic Party v. Husted, 834 F.3d 620, 624 (6th Cir. 2016). Ohio has designed and fostered a system of voting that creates impermissible administrative barriers, such as long lines and unwarranted voter challenges that disproportionately impact voters of color. See Obama for America v. Husted, 697 F.3d 423, 425 (6th Cir. 2012) (affirming preliminary injunction preventing Ohio from cutting early voting). The United States Court of Appeals for the Sixth Circuit previously noted that during the 2004 election, Ohioans faced long lines and wait times, sometimes stretching into the early morning the following day. Id. at 426. In recent years, additional burdens that affect access to the ballot have emerged, such as poll worker errors and problems with provisional ballots. See League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008). by the North Carolina General Assembly), and Texas NAACP v. Steen, 71 F. Supp. 3d 627 (S.D. Tx. 2014) (ongoing challenge to a discriminatory voter ID law in Texas). See also http:// brennancenter.org/legal-work/naacp-v-steen (summarizing the timeline of events and litigation related to Steen). 4

In response to these problems, Ohio adopted a promising measure called Golden Week, which greatly extended same day registration and early voting opportunities for Ohioans. See NAACP, 768 F.3d at 531. Black voters utilized the early voting allowed by Golden Week at higher rates than White voters. Id. at 534. In spite of the law’s success, Ohio then eliminated Golden Week. Voting rights advocates challenged the state’s action in an effort to preserve the program’s monumental gains. Id. These barriers to voting in Ohio have chilled the vote in communities of color.

The National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq., sought to establish a system that extended the right to vote to Americans who had been previously shut out of the democratic process. Congress passed the NVRA with two priorities in mind: an assurance that as many citizens as possible could register and participate in federal elections, and an accurate maintenance of state voter rolls. See A. Philip Randolph Inst. v. Husted, 838 F.3d 699, 705 (6th Cir. 2016) (“APRI”) (quoting Common Cause of Colo. v. Buescher, 750 F. Supp. 2d 1259, 1274 (D. Colo. 2010)). The Sixth Circuit acknowledged the tension between the two primary purposes of the NVRA, but also noted that one of the guiding principles of the law is to ensure that, once registered, a voter remains on the rolls so long as he or she is eligible to vote in that jurisdiction. Id. at 706; see also H.R. Rep. No. 103-9, at 18 (1993). The Sixth Circuit’s analysis confirms that the NVRA was signed into law with the intent of securing and expanding the right to vote. Unfortunately, the Ohio Secretary of State’s misapplication of the NVRA continues the pattern of denying the right to vote to communities of color. 5

The NVRA is clear: a State cannot begin registration removal proceedings on the basis of an individual’s failure to vote in an election. Yet, Ohio adopted the voter maintenance procedure at issue in this case, known as the Ohio Supplemental Process, which does just that. See Ohio Rev. Code § 3503.21 (A)(7) & (B). The Sixth Circuit agreed, holding that the Ohio Supplemental Process violates Section 8, subsection (b)(2) of the NVRA. APRI, 838 F.3d at 712. As set forth below, Ohio’s Supplemental Process follows a long line of suppressive tactics that have limited participation in the electoral process of countless Ohio voters of color. Indeed, a direct connection exists between Ohio’s suppressive tactics–such as the elimination of Golden Week, voter challenges, and long lines at the polls—and the inactivity that, through the Supplemental Process, results in the removal of voters from registration rolls. Amici also address the impact of mail delivery on the inactivity of voters of color, which may contribute to a voter’s lack of response to correspondence from the state. In sum, amici contend that the Ohio Supplemental Process violates the language of the NVRA and disproportionately impacts voters of color. For these reasons, amici respectfully request affirmance of the Sixth Circuit’s decision that the Supplemental Process violates the NVRA. 6

ARGUMENT

I. OHIO’S SUPPRESSIVE VOTER TACTICS DENY THE RIGHT TO VOTE

A. History of Voter Suppression in Ohio

Historically, voters of color in Ohio have faced suppressive tactics that have led to voter inactivity. Ohio’s voter challenge statute, Ohio Rev. Code § 3505.20, for instance, descends from laws explicit in their intent to exclude African Americans from voting. See Act of Apr. 16, 1868, § 1, 1868 Ohio Gen. & Loc. Laws 1st Sess. 97, 97 (L.D. Myers & Bro. 1868) (“[I]t shall be the duty of the judges of election to challenge any person offering to vote at any election held under any law of this state, having a distinct and visible admixture of African blood.”).

Even after the enactment of the Fifteenth Amendment in 1870, Ohioans continued to use poll challenges that impeded and intimidated African American voters.3 As recently as 2004, Ohio’s voter challenge laws have been used to deliberately target African American and other voters of color. For example, ahead of the 2004 general election, the Summit County Board of Elections dismissed as unfounded nearly a thousand citizen voter challenges. During a hearing to address those challenges, a Board member called for reform of the citizen challenge statute

3. See The Other Side: Lot Wright Shows How the Negroes Were Frightened from the Polls, Fort Worth Daily Gazette (Jan. 16, 1885) at 5, http://chroniclingamerica.loc.gov/lccn/ sn86064205/1885-01-16/ed-1/seq-5/ (describing how numerous African American voters were challenged, and one voter attacked, during a recent Cincinnati election). 7 asserting that it served as an artifact of Jim Crow-era discrimination. See Summit County Board of Elections Challenge Hearings, Oct. 28, 2004, Tr. 72:23-73-12.

1. Voter Challenges

While Ohio amended its challenge law to prohibit private citizens from challenging voters inside the polls in 2006, poll watchers and pre-election challenges continued to target African Americans disproportionately.4 The vigorous use of same-day voter challenges have created long lines, delays, and confusion at the polls. See Summit Cty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547, 551 (6th Cir. 2004). While they do not directly deprive voters of their franchise, such challenges contribute to conditions that deter and discourage voters from turning out at the polls.

2. Long Lines and Poll Worker Error

Long lines and poll worker errors have also disproportionately impacted the ability of people of color to vote in Ohio. See League of Women Voters of Ohio, 548 F.3d at 468-69 (“Insufficient voting machines and long wait times…caused many voters to leave without voting to attend work, school, or provide care to family members. Poll workers did not inform these voters of their right to

4. See NAACP, 768 F.3d at 556 (listing the use of poll watchers as a recently implemented voting practice that suppresses political participation in communities of color); see also Tea Party Group Works to Remove Names from Ohio Voter List, LA Times (Sep. 26, 2012), http://articles.latimes.com/2012/sep/26/nation/la-na- ohio-voting-fight-20120927 (describing voter challenges aimed at African Americans in counties President Obama won in 2012). 8 vote by paper ballot.”). In response to these problems, Ohio passed Substitute House Bill 234, which greatly expanded early voting. See 2005 Ohio Laws 40 (Sub. H.B. 234). With the enactment of HB 234, Ohio voters had the option of voting early via an “absentee ballot,” which may be cast either EIP or by mailing the ballot to the Board of Elections. Ohio Rev. Code § 3509.05(A).

3. Golden Week

Further, under the 2005 early-voting scheme, the Boards of Election were required to make absentee ballots available for voters—either for EIP voting or by mail voting—no later than 35 days before the election, effectively providing a five-day window wherein Ohio voters could register and vote on the same day (“Golden Week”). See NAACP, 768 F.3d at 556. A large number of Ohio voters utilized the new Golden Week voting procedures. See Obama for America, 697 F.3d at 426 (noting that approximately 1.7 million Ohioans cast their ballots before election day during the 2008 general election, amounting to 20.7% of registered voters and 29.7% of total votes cast). Data from Cuyahoga and Franklin Counties, the two counties with the highest percentage of African American residents, suggests that early voters were disproportionately African American. Id. (82% of EIP votes in Franklin County were cast after hours on weekdays, on the weekend, or on the Monday before the election).

Ohio then sharply curtailed Golden Week registration and voting opportunities with the issuance of Directive 2012-35, which significantly reduced weekend voting hours, and the passage of SB 238, which effectively 9 eliminated Golden Week. Ohio Rev. Code § 3509.01(B) (2)-(3). The elimination of Golden Week, and the cuts to weekend and evening voting hours further burdened lower income and African American voters who are more likely to rely on public transportation and wage-based jobs, making them less likely to be able to vote in the hours permitted at the one early-voting location in each county. See NAACP, 768 F.3d at 539; Obama for America, 973 F.3d at 433 (“early voters tend to be members of demographic groups that may be unable to vote on Election Day or during the workday at local boards of elections because of work schedules.”). The decision to end Golden Week significantly affected voter turnout in Black communities when the hours were cut for voting the last Sunday before Election Day. 5 Historically, Black churches, organized “Souls to the Polls” during Golden Week to transport Black voters unable to vote on Election Day due to work restrictions or who lacked transportation.6

The fact that reduced evening and weekend voting opportunities disproportionally affects African American voters was no secret. Discussing his vote to shorten polling hours, a member of the Franklin County Election Board commented, “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban— read African-American—voter turnout machine.”7

5. Zachary Roth, After early voting cuts, Souls to the Polls takes a hit in Ohio, MSNBC (Nov. 3, 2014), http://www.msnbc.com/ msnbc/ohio-early-voting-cuts-souls-the-polls-takes-hit. 6. Id. 7. Darrel Rowland, Voting in Ohio | Fight over poll hours isn’t just political, The Columbus Dispatch (Aug. 19, 2012), http:// www.dispatch.com/content/stories/local/2012/08/19/fight-over- poll-hours-isnt-just-political.html. 10

4. Provisional Ballots

Provisional ballot challenges have been yet another source of disenfranchisement of voters of color in Ohio. See League of Women Voters, 548 F.3d at 467 (noting that 22% of provisional ballots were not counted in the 2004 general election, with the percentage ranging from 1.5% to 39.5% from county to county). Prior to the Sixth Circuit’s decision in NEOCH v. Husted, 696 F.3d 580 (6th Cir. 2012), and the enactment of SB 216, Ohio disqualified provisional ballots cast in the correct polling location, but the wrong precinct. The state did not make exceptions for poll-worker error, even though nearly all such ballots were cast as a result of poll-worker error, such as providing the voter with a provisional ballot for the wrong precinct. See State ex rel. Painter v. Brunner, 128 Ohio St. 3d 17, 941 N.E. 2d 782, 794 (2011) (per curiam). This process resulted in 14,355 provisional ballots being thrown out in 2008, and 11,775 in 2010 despite having been cast in the correct polling place.8

Even after Ohio was required to count these so-called “right church, wrong pew” ballots, it has continued to discard provisional votes cast within the correct county, but at the wrong polling place. A report by two Ohio state legislators regarding the 2012 election determined that 9,483 ballots were thrown out as a result of poll workers directing voters to the wrong polling place (and nearly

8. See NEOCH, 696 F.3d at 585; see also Michael Powell and Peter Slevin, Several Factors Contributed to ‘Lost’ Voters in Ohio, Wash. Post, A01 (Dec. 15, 2004) (reporting that in the 2004 election in Cleveland, “poorly trained poll workers apparently gave faulty instructions to voters that led to the disqualification of thousands of provisional ballots and misdirected several hundred votes to third-party candidates.”). 11

3,000 were rejected simply because the voter failed to print or sign their name in two places on the outside of the ballot envelope).9

5. Other Election Administration Errors

Other systemic failures in administering elections – which would give rise to inactive voters – are well- documented in Ohio. In 2004, for example, malfunctioning voting machines, uninformed poll workers, and malapportionment of resources in high-population-density neighborhoods all contributed to an election cycle where hundreds of voters stood in lines for up to ten hours to cast their ballots.10 During the 2008 election, Ohio failed to offer voter registration at public assistance offices and attempted to deny absentee ballots to people with mismatching state and voting-information records.11 In 2012, Ohio reduced the number of polling places to save on costs. This increased the number of voters in each precinct, with much of this overcrowding occurring in neighborhoods populated with people of color.12

9. Ohio Sen. Nina Turner and Ohio Rep. Kathleen Clyde, Voter Suppression in Ohio in the November 2012 Election (June 5, 2013). 10. Powell & Slevin, Several Factors Contributed to ‘Lost’ Voters in Ohio, Wash. Post, A01 (Dec. 15, 2004). 11. Wendy Weiser & Margaret Chen, Brennan Center for Justice, Voter Suppression Incidents in 2008 (Nov. 3, 2008). 12. Kristen Taylor & Alexandra Eichler, Voting Problems in Ohio, Texas According to Election Protection Volunteers, Huffington Post (Nov. 6, 2012). 12

Additional errors include registered voters not appearing on voting rolls in their precincts; improper denials of requests for absentee ballots; election officials providing voters with incorrect information about polling places; early closure of polling places; poll workers sending voters away without voting contrary to Ohio Rev. Code § 3509.32, which permits anyone in line as of closing time to vote; poll workers not providing provisional ballots where necessary, running out of provisional ballots or envelopes, or never having any at all. See League of Women Voters, 548 F.3d at 469. All of these measures, while varied, have a similar result – disenfranchising Black voters.

B. Ohio’s History of Suppressive Voting Measures Has Led to Decreased Voter Engagement and Inactive Voters

Ohio’s long history of voter suppression tactics has led to the denial of access to the ballot for many voters in the state. A 2015 Center for American Progress report ranked Ohio 37th in the nation in “accessibility of the ballot.”13 Reduced access to the ballot box has resulted in a pronounced and disparate impact on voters of color, decreasing their participation in the electoral process.14

13. Billy Corriher and Liz Kennedy, Ctr. for Am. Progress, Preventing Problems at the Polls: Ohio (Oct. 11, 2016), https://www.americanprogress.org/issues/democracy/ reports/2016/10/11/145796/preventing-problems-at-the-polls-ohio. 14. Lauren Harmon, Charles Posner, Michele Jawando, and Matt Dhaiti, Ctr. for Am. Progress Action Fund, The Health of American Democracies at 12, 15, 18-19, 22, 23 (July 2015); see also, Joshua Field, Charles Posner, and Anna Chu, Ctr. for Am. Progress, Uncounted Votes: The Racially Discriminatory Effects of Provisional Ballots (Oct. 2014); Emily Badger, Why 13

1. A Decline in Black Voter Participation in Ohio in 2016 Reflects the Impact of Voter Suppression

In the 2016 general election, Ohio saw a decline in Black voter participation rates comparable to the national decrease in Black voter turnouts, despite overall record national turnout among total voters.15 The 2016 election was only the second since 1980 in which the share of Black voters decreased.16 This decrease, from 12.9% in 2012 to 11.9%, is a reversal from 2012’s precedent-setting Black turnout rate, which exceeded that of whites for the first time in recorded history.17 The decline in rate and share of

Long Voting Lines Could Have Long-Term Consequences, N.Y. Times (Nov. 8, 2016), https://www.nytimes.com/2016/11/09/upshot/ why-long-voting-lines-today-could-have-long-term-consequences. html; Alice Miranda Ollstein and Kira Lerner, Think Progress, “Republicans were wildly successful at suppressing voters in 2016” (Nov. 15, 2016), https://thinkprogress.org/2016-a-case-study- in-voter-suppression-258b5f90ddcd. 15. William H. Frey, Census Shows Pervasive Decline in 2016 Minority Voter Turnout, Brookings Institution (May 18, 2017), https://www.brookings.edu/blog/the-avenue/2017/05/18/ census-shows-pervasive-decline-in-2016-minority-voter-turnout. 16. Between 2000 and 2004, the share of Black voters also decreased. Recent voting rates among Latinos, Asian Americans, and Pacific Islanders have been below those of White and Black voters, ranging from 5 to 20 percentage points lower. Thom File, U.S. Census Bureau, Voting in America: A Look at the 2016 Presidential Election (May 10, 2017), https://www.census.gov/ newsroom/blogs/random-samplings/2017/05/voting_in_america. html. 17. When survey non-respondents are removed from turnout rate calculations, the Black vote first exceeded White turnout 14 the Black turnout is noteworthy, given slight increases in the Black share and number of eligible voters.18 The data describes lower rates of Black voter turnout as compared to Whites nationally and in numerous states, including Ohio.19 The 2016 election findings deepen concerns about voter suppression, in light of the sharp decline of voting rates among Black voters and other voters of color, even as White voting rates increased. Moreover, the decrease in Black voter participation increases the likelihood that Black voters will be designated as inactive, which initiates removal from the voter rolls. In line with Ohio’s past practices, the current procedures continue to present unfortunate barriers to voting in communities of color, in turn leading to voter inactivity.

2. Disenfranchisement Results in Low Voter Participation Rates in Communities of Color

Persistently low voter participation among people of color reflects a lack of equitable access to the ballot

in 2008. Michael P. McDonald, 2012 Turnout: Race, Ethnicity and the Youth Vote, Huffington Post (July 8, 2013), http://www. huffingtonpost.com/michael-p-mcdonald/2012-turnout-race- ethnict_b_3240179.html. 18. “For the first time in more than a decade, the black share of voters declined, compared to the previous election—from 12.9 percent in 2012 to only 11.9 percent in 2016. This occurred despite a small rise in eligible black American voters.” William H. Frey, Census Shows Pervasive Decline in 2016 Minority Voter Turnout, Brookings Institution (May 18, 2017), https://www.brookings.edu/ blog/the-avenue/2017/05/18/census-shows-pervasive-decline-in- 2016-minority-voter-turnout. 19. Id. 15 and results in perpetual exclusion from the democratic process. A process that triggers removal of voters from the registration rolls for not voting exacerbates this problem. Nationally, from the 1980s to the present, with just two notable exceptions, voter turnout rates have consistently been lower for people of color than White voters.20

The 2016 presidential election held consistent with the historical trend; voting rates were comparatively lower among people of color than Whites: Whites voted at a rate of 65.3%, Blacks at 59.6%, Hispanics at 47.6%, and all others at 49.3%.21 For people of color, these rates fall below the national voting rate of 61.4%.22 The national decline in Black voter turnout was accompanied by a decline in the total number of Black voters.23 In Ohio, voting rates

20. In 2008, the voting rate among White voters was 66.1 %, Black non-Hispanic 64.1%, Hispanic 8.0%, all other 49.9%. In 2012, the rates were as follows: White 59.6%, Black 66.6%, Hispanic 48%, and other 49.9%. The higher rates of participation in communities of color in 2012 were widely associated with support for Barack Obama and excitement in the African American community about voting for the first Black president. Thom File, U.S. Census Bureau, Voting in America: A Look at the 2016 Presidential Election (May 10, 2017), https://www.census.gov/newsroom/blogs/ random-samplings/2017/05/voting_in_america.html. 21. U.S. Census Bureau, Voting and Registration of the Election of November 2016 (May 2017), https://www.census.gov/ data/tables/time-series/demo/voting-and-registration/p20-580. html. 22. Id. 23. Jens Manuel Krogstad and Mark Hugo Lopez, Pew Research Ctr.: Fact Tank, Black Voter Turnout Fell in 2016, Even as a Record Number of Americans Cast Ballots (May 12, 2017), 16 in 2016 among eligible Asian and Hispanic voters were also dramatically lower than for Whites, who registered at 72.4% and voted at 64.2%, compared to just 53.1% of Asians registered, and 46.8% who voted, while 68.9% of Hispanics registered and just 57.8% voted.24 These low voting rates provide clear evidence that voters of color consistently participate less in elections than White voters.

Voter participation data from mid-term elections over past decades shows similar lower voting rates among communities of color. From 2002-2010, mid-term voting rates among Black voters ranged from around 42-44%, while Whites voted at 48.6% or higher.25 This voting disadvantage is found among not only Black voters, but other communities of color as well. In the same period, 2002-2010, Latino and Asian mid-term election voting rates hovered around 31%.26 Census reports show that in 2014, Black/non-Hispanics voted at a rate of 40.6% and Hispanics at a woeful 27% in Congressional elections,

http://www.pewresearch.org/fact-tank/2017/05/12/black-voter- turnout-fell-in-2016-even-as-a-record-number-of-americans- cast-ballots. 24. U.S. Census Bureau, Reported Voting and Registration by Sex, Race and Hispanic Origin; from States; U.S. Census Bureau, Current Population Survey (Nov. 2016). 25. Jens Manuel Krogstad, Pew Research Ctr., Asian American voter turnout lags behind other groups; some non-voters say they are ‘too busy’ (Apr. 9, 2014), http://www.pewresearch.org/ fact-tank/2014/04/09/asian-american-voter-turnout-lags-behind- other-groups-some-non-voters-say-theyre-too-busy. 26. Id. 17 compared to 45.8% of Whites.27 The low mid-term voter participation rates reveal that low or suppressed turnout of voters of color is a perennial issue.

In sum, this compilation of election data shows an enduring problem of inactivity at the polls by communities of color. These undeniable historical statistics suggest that voter inactivity is due to institutional challenges, not idiosyncratic factors. In part, these low participation rates are a consequence of the adoption and implementation of unfair election laws and policies, past and present, that have denied historically disenfranchised voters of color the ability to participate at national average levels or at levels commensurate with White voters. The low voting rates among voters of color is undoubtedly a result of decades of complete exclusion from the franchise, followed by a litany of voter suppression practices, carried on by the Supplemental Process at issue here.

II. OHIO’S SUPPLEMENTAL PROCESS HAS A DISPROPORTIONATE IMPACT ON BLACK VOTERS

A. Ohio’s Supplemental Process Has Disproportionately Purged Voters of Color from Registration Rolls

Data on the removal of voters from registration rolls due to Ohio’s Supplemental Process demonstrates that the

27. Thom File, U.S. Census Bureau, Who Votes? Congressional Elections and the American Electorate: 1978-2014 (July 2015), http://www.census.gov/content/dam/Census/library/ publications/2015/demo/p20-577.pdf. 18 measure disproportionately affects voters of color. These voters are routinely removed from the rolls in higher percentages than their White counterparts.

For instance, one study found voters in certain neighborhoods in the three most populous and diverse counties in the state were up to 200% more likely to be removed from voting rolls as a result of the Supplemental Process.28 Hamilton County presents a grave contrast: African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity, compared to only 4% of voters in a suburban, majority-white neighborhood.29 A similar pattern appears in Ohio’s two other large, urban counties. In Cuyahoga County, which includes Cleveland, 5 percent of voters in neighborhoods in which President Obama received 60 percent or more of the vote in 2008 were removed. By contrast, only 2.5 percent of voters were removed in neighborhoods where President Obama received less than 40 percent of the vote. Even Ohio’s capital was not immune. In Franklin County, home of Columbus, 11 percent of voters in Democratic-leaning neighborhoods have been removed for inactivity since 2012. Yet only 6 percent of voters in Republican-majority neighborhoods were removed.30

28. Andy Sullivan and Grant Smith, Use it or Lose it: Occasional Ohio Voters May Be Shut Out in November, Reuters (June 2, 2016), http://www.reuters.com/article/us-usa-votingrights- ohio-insight/use-it-or-lose-it-occasional-ohio-voters-may-be-shut-out- in-november-idUSKCN0YO19D (hereinafter “Reuters Report”). 29. Id. 30. Id. 19

Placed within this context, it is not surprising that Ohio’s efforts to purge voter rolls have fallen disproportionately on voters of color. The five largest counties in Ohio contain nearly 73 percent of all African Americans living in Ohio, and these large counties have been the disproportionate target of voter purges. One analysis found that Ohio’s twenty most populous counties had purged more than 200,000 names from voter roles for inactivity in 2015 alone, and that Ohio’s single largest county, Cuyahoga, accounted for more than 25 percent of these purges, or nearly 52,000 names.31 Investigators have also noted that in Hamilton County, African American neighborhoods near downtown Cincinnati have had more than ten percent of the registered voters purged for inactivity since 2012, while in the more affluent (and whiter) suburbs that ring the city, only four percent of voters have been purged due to inactivity.32

In sum, Ohio’s purge process is yet another barrier, in a long history of hurdles, to participation in the electoral process by voters of color.

B. Ohio’s Supplemental Process Is Based on a Faulty Correlation Between Voter Inactivity and Voter Change of Address

Ohio’s Supplemental Process wrongly equates not voting with a change of address. The Secretary of State

31. Hannah Yi, Mori Rothman and Chris Bury, PBS Newshour, Why Ohio has purged at least 200,000 from the voter rolls (July 31, 2016), http://www.pbs.org/newshour/bb/inside-ohios- fight-voting-rules. 32. See Reuters Report. 20 submits that “[Ohio’s Supplemental Process] ‘seeks to identify electors whose lack of voter activity indicates they may have moved, even though their names did not appear’ in the change-of-address database.”33 As explained above, Ohio’s history of voter suppression mechanisms has led to high levels of inactivity among voters of color. Moreover, the state provides no evidence that “not voting for 2 years” is a reasonable proxy for “having moved out of one’s voting jurisdiction.” And the NVRA and HAVA statutes prohibit any assumption that lack of voter activity equates to a change of address for triggering voter removal from registration rolls. While certainly some voters have moved, Ohio offers no substantiation for a generalization that voting activity or inactivity bears any direct, cause- or-consequence, or implied relationship with their moving or remaining at their address.

Numerous factors may contribute to a voter missing an election, including: schedule conflicts, inability to get off work, forgetfulness, lack of transportation to the polls, being out-of-town, sickness, dissatisfaction with candidates, apathy, etc.34 By using “not voting” as the trigger for removal, and given the historic over-representation of voters of color among those not voting, this process inevitably impacts voters of color disproportionately. Given this community’s lower turnout

33. Petition for Writ of Certiorari at 10 (citation omitted). 34. America Goes to the Polls 2014, Nonprofit Vote, http://www.nonprofitvote.org/documents/2015/03/america- goes-polls-2014.pdf; see also U.S. Census Bureau, Voting and Registration in the Election of November 2016, Table 10, Reasons for Not Voting, by Selected Characteristics: November 2016 (May 2017), https://www.census.gov/data/tables/time-series/demo/ voting-and-registration/p20-580.html. 21 rates, the Supplemental Process has and will continue to result in disproportionately higher removal rates of Black voters.

Indeed, Ohio’s Supplemental Process perpetuates the problem of low turnout, leading to greater inactivity. In 2016, analysts found the “largest barrier to voting” is related to proper registration.35 The Ohio Supplemental Process exacerbates this problem by adding an administrative burden and removing voters who have already managed successfully to register. Again, voters of color are disproportionately impacted. By adding this removal process to the ongoing challenge of comparatively lower registration rates, Ohio creates yet another impediment to voters of color to remain registered and vote.36

C. The Supplemental Process’s Mail Response Requirement Disproportionately Places Voters of Color on the Inactive List

The Supplemental Process requires that registered voters who are placed on the inactive list take an additional action—respond to a confirmation notice via U.S. mail—in order to stay on the rolls. While use of the mail to provide notices is prescribed under the Help America Vote Act of 2002 (HAVA) and the NVRA, the evidence related to use of mail suggests that the addition of a mail voter response

35. America Goes to the Polls 2014, Nonprofit Vote, at 19. 36. “In 2016 in the United States, the voting rate for Non- Hispanic Whites was 65.3% while only 59.4% of Blacks and 47.6% of Hispanics voted.” U.S. Census Bureau, Voting and Registration, https://thedataweb.rm.census.gov/TheDataWeb_HotReport2/ voting/voting.html. 22 requirement for registered voters has an especially harsh impact on voters of color. Mail response and return rates suggest that non-white racial groups return mail at rates lower than the national total and are under-represented in mail returns when compared to their race’s percentage of total households in America.37 As one study explained, “[w]hen Hamilton County, Ohio, where Cincinnati is the county seat, removed 75,000 voters this year, nearly half, and in some neighborhoods far more, were purged because of ‘non-response’ [. . . and there was a] connection between the poverty rate and racial composition of ZIP codes in the county and the purge rates of registered voters.”38

Further, a study conducted in 2000 on jury summonses, which are sometimes generated using voter registration rolls, supports the assertion that communities of color fail to receive mail at rates higher than whites.39 Similarly,

37. Compared to the national rate of 79.3% and the rate for Whites of 82.5%, the mail return rates for other households by race are: Black (70.0%), Asian (75.4%), American Indian and Alaska Native (69.8%), Native Hawaiian and Other Pacific Islander (59.7%), Some Other Race (56.2%), Two or More Races (71.7%). Black householders made up 12.1% of all householders, but only 10.7% of mail returns, Asian householders made up 4.1% of all householders, but only 3.9 % of all mail returns, and Some Other Race householders made up 4.2% of all householders, but only 3.0 % of all mail returns. Earl Letourneau, U.S. Census Bureau, Mail Response/Return Rates Assessment (2012) at 23-24, https://www.census.gov/2010census/ pdf/2010_Census_Mail_Response_Return_Rates_Assessment.pdf 38. Emily L. Mahoney, Hillary Davis, and Jimmy Miller, Ctr. for Public Integrity, America Scrubs Millions from the Rolls. Is it Fair? (Aug. 22, 2016), https://www.publicintegrity. org/2016/08/22/20079/america-scrubs-millions-voter-rolls-it-fair.

39. Robert Walters and Mark Curriden, A Jury of One’s Peers?: Investigating Underrepresentation in Jury Venires, 43 Judges’ 23

Black neighborhoods experience a higher percentage of undeliverable-as-addressed (UAA) jury summonses than White suburban areas.40 Studies have also found that UAA summonses disproportionately affected households earning less than $35,00041, and that mail delivery in general is less reliable in urban areas, like Ohio’s largest cities, Cleveland, Cincinnati and Columbus, where people of color are more likely to live than whites.42

These studies show that the Supplemental Process, which requires voters to respond by mail to confirm their addresses in order to stay on the voter rolls, disproportionately results in the removal of voters of color.

III. Ohio is not alone in its violation of the NVRA

Ohio’s unnecessary supplemental process has made it, as one State representative said “the number one purger of voters in the country.”43 But unfortunately, Ohio

Journal 17, 19 (2004); Ted Eades, Revisiting the Jury System in Texas: A Study of the Jury Pool in Dallas County, 54 SMU L. REV. 1813, 1815 (2001).

40. Peter S. Canellos, In Prosecuting Federal Crime, Jury Pool can be an Issue of Race, Boston Globe (Sept. 20, 2005), http:// archive.boston.com/news/nation/washington/articles/2005/09/20/in_ prosecuting_federal_crime_jury_pool_can_be_an_issue_of_race. 41. Eades, Revisitng the Jury System in Texas, at 1815.

42. John P. Bueker, Jury Source Lists: Does Supplementation Really Work?, 82 Cornell L. Rev. 390, 425 (1997), citing United States v. Ortiz, 897 F. Supp. 199, 204 (E.D. Pa. 1995). 43. Jackie Borchardt, Ohio lawmaker wants the state to stop purging inactive voters, Cleveland.com (Dec. 2, 2015), http://www. 24 is not the only State failing to comply with the NVRA. Ohio is only one of several States across the country that undertake the extra—and unlawful—supplemental process, which punishes its citizens for not voting.44 States such as Oklahoma, Tennessee, Georgia, and Hawaii impermissibly use a voter’s lack of participation to initiate the voter-removal process. Several of the NAACP’s State and State-Area Conferences have initiated litigation to protect the rights of voters to remain on the rolls. Tennessee and Georgia have similar statutes.45

Georgia developed a mandatory secondary system of removing voters from its rolls for failure to vote, while permitting, but not requiring, the State to use the NVRA’s voter-removal procedure that relies on Postal Service information. Cf. O.G.C.A. § 21-2-234(a) (mandatory unlawful voter-removal scheme); O.G.C.A. §21-2-233 (lawful, permissive voter-maintenance program). Deval Patrick, the then-Assistant Attorney General for Civil Rights, sent a letter to the State of Georgia in 1993 outlining

cleveland.com/open/index.ssf/2015/12/ohio_lawmaker_wants_ the_state.html 44. Notably, many of these states would have been covered under Section 5 of the Voting Rights Act of 1965, and they have high concentrations of African-Americans and other communities of color, impoverished persons, and students. 45. Georgia’s unlawful procedure is described more fully below. Tennessee’s procedure is codified at T.C.A. §2-2-106(c) (2010) (“The county election commission shall also follow [address verification] process if indications exist that the voter may no longer reside at the address at which the voter is registered, such as the voter’s failure to vote, or otherwise update the voter’s registration over a period of two (2) consecutive regular November elections.”) (emphasis added). See also Common Cause and Georgia NAACP v. Kemp, No. 17-11315 (11th Cir. June 5, 2017). 25 the NVRA’s prohibition of using a person’s failure to vote as a starting process for voter roll maintenance. Georgia not only continued using it, but made it mandatory. Under this improper law, this mandatory purge process is triggered solely by an individual’s failure to vote in previous elections. Even though Georgia is on notice that the NVRA specifically prohibits removal based on failure to vote, it continues to enforce the law. Through this impermissible process, Georgia removed over 370,000 voters from its rolls between 2012 and 2014.46

Similarly, pursuant to Hawaii Revised Statutes §11-17, if a person has not voted in the last two general, primary, or special elections, that person is removed from the rolls.47 Hawaiians are not warned that they may be removed, and no confirmation notice is sent. The registrar simply strikes those persons from the rolls. Notably, the NVRA’s prescribed method of cleaning voter rolls is the secondary plan used by Hawaii. As of 2014, Honolulu’s election director alone removed 30,000 to 40,000 voters from the roll each year after an election.48

Upholding the Sixth Circuit’s ruling would prevent States from enacting new legislation that violates the NVRA, and would create a uniform, nondiscriminatory method of maintaining voter rolls—as Congress intended.

46. See U.S. Election Assistance Commission Report to the 114th Cong.: The 2014 EAC Election Admin. and Voting Survey Comp. Rept. 106 (June 30, 2015). 47. Hawaii Rev. Stat. §11-12 (2016). 48. Nathan Eagle, Should Hawaii Purge More People from List of Registered Voters? Civil Beat (Oct. 20, 2014), http://www. civilbeat.org/2014/10/should-hawaii-purge-more-people-from-list- of-registered-voters/. 26

CONCLUSION

Ohio’s Supplemental Process is the most recent hurdle in a long road of barriers to voters of color voting in the State of Ohio. These impediments have disproportionately impacted the rights of voters of color and led to voter inactivity in communities of color. Pursuant to Ohio’s Supplemental Process, these voters are vulnerable to being purged improperly from the registration rolls based solely on inactivity, which violates the letter and spirit of the NVRA. Accordingly, the judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

Martin L. Saad Gilda R. Daniels Kathleen K. Sheridan Counsel of Record John C. Vazquez Judith Browne Dianis Christopher N. Moran Donita Judge Venable LLP Eileen Ma 600 Massachusetts Avenue, NW Andrew Hairston Washington, DC 20001 Advancement Project (202) 344-4000 1220 L Street, NW, Suite 850 Washington, DC 20005 Bradford M. Berry (202) 728-9557 Janette M. Louard [email protected] Khyla D. Craine NAACP James Workman 4805 Mt. Hope Drive H. Lee Thompson Baltimore, MD 21215 Ohio State Conference (410) 580-5624 of The NAACP P.O. Box 29014 Columbus, OH 43229 Counsel for Amici Curiae September 22, 2017 Farrakhan v. Gregoire, 623 F.3d 990 (2010) 2010 Daily Journal D.A.R. 15,700

Thomas, Circuit Judge, filed concurring opinion joined by KeyCite Yellow Flag - Negative Treatment Schroeder, McKeown, and Wardlaw, Circuit Judges. Declined to Extend by Quinn v. Board of Education of the City of Chicago, N.D.Ill., February 13, 2017 Graber, Circuit Judge, filed opinion concurring in 623 F.3d 990 judgment. United States Court of Appeals, Ninth Circuit.

Muhammad Shabazz FARRAKHAN, aka West Headnotes (2) Ernest S. Walker; Al–Kareem Shadeed; Marcus X. Price; Ramon Barrientes; Timothy [1] Election Law Schaaf; Clifton Briceno, Plaintiffs–Appellants, Felon disenfranchisement v. Plaintiffs bringing a challenge, under VRA Christine O. GREGOIRE; Sam Reed; Harold W. provision prohibiting denial of right to Clarke; State of Washington, Defendants–Appellees. vote on account of race, to a state's felon No. 06–35669. disenfranchisement law, based on operation | of the state's criminal justice system, must at Argued and Submitted Sept. 21, 2010. least show that the criminal justice system | is infected by intentional discrimination or Filed Oct. 7, 2010. that the felon disenfranchisement law was enacted with such discriminatory intent. Synopsis Voting Rights Act of 1965, § 2(a), 42 U.S.C.A. Background: Convicted felons filed suit challenging § 1973(a). State of Washington's felon disenfranchisement law, as allegedly violating Voting Rights Act (VRA) by denying 5 Cases that cite this headnote right to vote on account of race. The United States District Court for the Eastern District of Washington, Robert [2] Election Law H. Whaley, Senior District Judge, granted Washington Felon disenfranchisement summary judgment, and felons appealed. The Court of There was no evidence of intentional Appeals, 338 F.3d 1009, affirmed in part, reversed in discrimination in operation of Washington's part, and remanded. On remand, the District Court, criminal justice system, and thus, Whaley, Senior District Judge, 2006 WL 1889273, granted Washington's felon disenfranchisement law Washington summary judgment. Felons appealed. The did not violate VRA provision prohibiting Court of Appeals, Tashima, Circuit Judge, 590 F.3d 989, denial or abridgment of right to vote on reversed, and subsequently granted en banc hearing. account of race. Voting Rights Act of 1965, § 2(a), 42 U.S.C.A. § 1973(a); West's RWCA 29A.04.079. Holdings: The Court of Appeals held that: 4 Cases that cite this headnote [1] VRA challenge to felon disenfranchisement law requires intentional discrimination in criminal justice system, and Attorneys and Law Firms [2] Washington's disenfranchisement law did not violate VRA. *991 Ryan P. Haygood (argued), John Payton, Theodore Shaw, Norman J. Chachkin, Debo P. Adegbile, Kristen Clarke and Dale E. Ho, NAACP Legal Defense Affirmed. & Educational Fund, Inc., New York, NY, Danielle

C. Gray, New York, NY, and Lawrence A. Weiser, University Legal Assistance at Gonzaga Law School, Lawrence S. Lustberg and Jennifer B. Condon, Gibbons Spokane, WA, for the plaintiffs-appellants. P.C., Newark, NJ, for amici curiae National Black Police Association, National Latino Officers Association, Robert M. McKenna (argued), Attorney General, Daniel American Probation and Parole Association and Six J. Judge, Senior Counsel, and Jeffrey T. Even and William Former Law Enforcement Officials. B. Collins, Deputy Solicitors General, Olympia, WA, for the defendants-appellees. Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, Derek S. Tarson and Marianne Koh, Of Counsel, Senior District Judge, Presiding. D.C. No. CV–96–00076– Debevoise & Plimpton LLP, New York, NY, for amici RHW. curiae Twenty–Three Leading Criminologists. Before: ALEX KOZINSKI, Chief Judge, MARY Sharon L. Browne and Ralph W. Kasarda, Pacific Legal M. SCHROEDER, DIARMUID F. O'SCANNLAIN, Foundation, Sacramento, CA, for amici curiae Pacific PAMELA ANN RYMER, ANDREW J. KLEINFELD, Legal Foundation and Center for Equal Opportunity. SIDNEY R. THOMAS, SUSAN P. GRABER, M. MARGARET McKEOWN, KIM McLANE Thomas C. Goldstein, Akin Gump Strauss Hauer & WARDLAW, RONALD M. GOULD and RICHARD Feld LLP, Washington, D.C., and Pamela S. Karlan and R. CLIFTON, Circuit Judges. Jeffrey L. Fisher, Stanford Law School Supreme Court Litigation Clinic, Stanford, CA, for amici curiae Thirteen Law Professors. PER CURIAM Opinion; Concurrence by Judge Daniel F. Kolb and Edmund Polubinski III, Davis Polk THOMAS; Concurrence by Judge GRABER. & Wardwell LLP, New York, NY, for amicus curiae Brennan Center for Justice at New York University OPINION School of Law. PER CURIAM: Juan Cartagena, Community Service Society, New York, NY, for amicus curiae Community Service Society. Washington's constitution denies the right to vote to “[a]ll persons convicted of infamous crime unless restored *992 Elizabeth B. Wydra, Douglas T. Kendall and to their civil rights.” Wash. Const. art. VI, § 3. An David H. Gans, Constitutional Accountability Center, “infamous crime” is one that's “punishable by death ... Washington, D.C., for amicus curiae Constitutional or imprisonment in a state correctional facility.” Wash. Accountability Center. Rev.Code § 29A.04.079. Washington has disenfranchised felons since 1866, four years before the Fifteenth Whitty Somvichian, Kyle C. Wong, Kelly Cooke and Amendment was ratified. Territorial Law of 1866, Rem. Tyler Onitsuka, Cooley LLP, San Francisco, CA, for & Bal. Code § 4755. amici curiae Lawyers' Committee for Civil Rights, Equal Justice Society, Legal Services for Prisoners with Children Plaintiffs claim that the state's felon disenfranchisement and American Parole and Probation Association. law violates section 2 of the Voting Rights Act (“VRA”) Sarah A. Dunne and Nancy Talner, American Civil because the law “results in a denial or abridgement of Liberties Union of Washington Foundation, Seattle, WA, the right ... to vote on account of race.” 42 U.S.C. § Peter A. Danelo, Seattle, WA, Leonard J. Feldman, 1973(a). Plaintiffs don't claim that the law was enacted P.K. Runkles–Pearson and Daniel A. Swedlow, Stoel for the purpose of denying minorities the right to vote. Rives LLP, Seattle, WA, and Laughlin McDonald and See Hunter v. Underwood, 471 U.S. 222, 233, 105 S.Ct. Nancy G. Abudu, ACLU Voting Rights Project, Atlanta, 1916, 85 L.Ed.2d 222 (1985). Nor do they present evidence GA, for amici curiae American Civil Liberties Union of that their convictions and resulting disenfranchisement Washington and American Civil Liberties Union. resulted from intentional racial discrimination in the operation of the state's criminal justice system. See McCleskey v. Kemp, 481 U.S. 279, 297–98, 107 S.Ct. 1756,

95 L.Ed.2d 262 (1987). Instead, they present statistical —disenfranchise felons. See The Sentencing Project, evidence that there are racial disparities in Washington's Felony Disenfranchisement Laws in the United States 3 criminal justice system. (Mar.2010), available at http://sentencingproject.org/doc/ publications/fd_ bs_fdlawsinusMarch2010.pdf. When this case was last before our court, we held that felon disenfranchisement laws can be challenged under There is an additional reason to be skeptical that felon section 2 by introducing such evidence. *993 Farrakhan disenfranchisement laws can be challenged under section 2 v. Washington, 338 F.3d 1009, 1016, 1020 (9th Cir.2003) of the VRA. By definition, felon disenfranchisement takes (“Farrakhan I ”). Based on the statistical evidence effect only after an individual has been found guilty of a presented by plaintiffs, the district court on remand found crime. This determination is made by the criminal justice that “there is discrimination in Washington's criminal system, which has its own unique safeguards and remedies justice system on account of race.” But the court reasoned against arbitrary, invidious or mistaken conviction. See, that this was only one relevant factor in section 2's e.g., 28 U.S.C. § 2254; Heck v. Humphrey, 512 U.S. 477, “totality of circumstances” balancing test. See 42 U.S.C. 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). § 1973(b); S.Rep. No. 97–417, at 28–29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206–07; see also Thornburg v. [1] In light of these considerations, we hold that Gingles, 478 U.S. 30, 46, 106 S.Ct. 2752, 92 L.Ed.2d 25 plaintiffs bringing a section 2 VRA challenge to a felon (1986). It concluded that other factors counterbalanced disenfranchisement law based on the operation of a state's plaintiffs' evidence of racial disparities, and therefore criminal justice system must at least show that the criminal granted summary judgment to defendants. justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with Three circuits—two sitting en banc—have disagreed with such intent. Our ruling is limited to this narrow issue, and Farrakhan I and concluded that felon disenfranchisement we express no view as to any of the other issues raised by laws are categorically exempt from challenges brought the parties and amici. We also leave for another day the under section 2 of the VRA. See Johnson v. Governor question of whether a plaintiff who has made the required of Fla., 405 F.3d 1214, 1234 (11th Cir.2005) (en banc); showing would necessarily establish *994 that a felon Hayden v. Pataki, 449 F.3d 305, 323 (2d Cir.2006) (en disenfranchisement law violates section 2. banc); Simmons v. Galvin, 575 F.3d 24, 41 (1st Cir.2009). In light of those opinions, we conclude that the rule [2] Because plaintiffs presented no evidence of announced in Farrakhan I sweeps too broadly. Felon intentional discrimination in the operation of disenfranchisement laws have a long history in the United Washington's criminal justice system and argue no States. See Green v. Bd. of Elections of N.Y.C., 380 F.2d other theory under which a section 2 challenge might 445, 450 & n. 4 (2d Cir.1967). These laws predate the be sustained, we conclude that they didn't meet their Jim Crow era and, with a few notable exceptions, see, burden of showing a violation of the VRA. Accordingly, e.g., Hunter, 471 U.S. at 229, 105 S.Ct. 1916 (concluding the district court didn't err when it granted summary that an Alabama constitutional provision “was enacted judgment against them. with the intent of disenfranchising blacks”), have not been adopted based on racial considerations. Many such AFFIRMED. laws were in effect when the Fourteenth and Fifteenth Amendments were ratified, see Hayden, 449 F.3d at 317 n. 12 (listing twenty-nine state constitutional provisions); THOMAS, Circuit Judge, with whom SCHROEDER , indeed, felon disenfranchisement has an affirmative McKEOWN, and WARDLAW , Circuit Judges, join, sanction in the Fourteenth Amendment, Richardson v. concurring: Ramirez, 418 U.S. 24, 54, 94 S.Ct. 2655, 41 L.Ed.2d I agree that the judgment of the district court should be 551 (1974). Congress was no doubt aware of these laws affirmed, but on different grounds. I would hold that the when it enacted the VRA in 1965 and amended it in claims for prospective injunctive relief are moot, and that 1982, yet gave no indication that felon disenfranchisement the district court should be affirmed on the remainder of was in any way suspect. Today, an overwhelming the claims for the reasons provided by the district court. number of states—including all states in our circuit On this record, we need go no further.

court thoroughly considered and weighed the traditional § 2(b) factors, often referred to as “the Senate Factors.” S.Rep. No. 97–417, at 28–29 (1982), reprinted in 1982 I U.S.C.C.A.N. 177; Thornburg v. Gingles, 478 U.S. 30, “As a general rule, if a challenged law is repealed or 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). The district expires, the case becomes moot.” Native Village of Noatak court properly concluded that, considering the totality of v. Blatchford, 38 F.3d 1505, 1510 (9th Cir.1994); see the circumstances, Washington's felon disenfranchisement also Bunker Ltd. Partnership v. United States, 820 F.2d law does not violate the Voting Rights Act. Therefore, I 308, 312 (9th Cir.1987) (holding that new legislation agree that the judgment should be affirmed. superseding prior law rendered challenge to prior statute moot). As I understand the majority opinion, it does not disturb the holding in Farrakhan v. Washington, 338 F.3d In this case, after the district court issued its 1009, 1019 (9th Cir.2003) that a § 2 analysis requires decision on remand, Washington repealed its felon consideration of factors external to the challenged disenfranchisement statute and enacted a new provision. voting mechanism itself. Nor does the majority opinion Among other changes, Washington law now provides that categorically prohibit a § 2 challenge to a felon the voting rights of felons will be “provisionally restored,” disenfranchisement statute. With that understanding, I at such time as those convicted under Washington state concur in the majority opinion. law are no longer under the authority of the Washington Department of Corrections. An Act Relating to the Congress enacted the Voting Rights Act of 1965 Restoration of the Right to Vote for People Who Were for the broad remedial purpose of eliminating racial Convicted of Felonies, ch. 325, 2009 Wash. Sess. Laws discrimination in voting. South Carolina v. Katzenbach, 1649 (codified at Wash. Rev.Code §§ 9.92.066, 9.94A.637, 383 U.S. 301, 315, 86 S.Ct. 803, 15 L.Ed.2d 769 9.94A.885, 9.96.050, 10.64.140, 29A.08.520). (1966). In enacting § 2, Congress noted that it was impossible to predict the variety of means that would The plaintiffs posit that the new law actually increases be used to infringe on the right to vote and that disenfranchisement; the State disputes this contention. the voting rights landscape was marked by innovation Regardless, the legal landscape has materially changed. and discrimination. 2 Congress's express objective in Plaintiffs sought to enjoin operation of the prior statute. amending § 2 was to “broaden the protection afforded That prospective relief is no longer available. Plaintiffs by the Voting Rights Act.” Chisom v. Roemer, 501 U.S. now request that we enjoin operation of the new statute. 380, 404, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). Thus, However, the district court has not had the opportunity to examination of factors external to the challenged voting address that issue in the first instance, and the empirical mechanism is a required part of a § 2 analysis. analysis that formed the basis of the claim has changed. Therefore, I would either dismiss the portion of the Section 2 provides, without limitation, that any voting appeal that relates to prospective injunctive relief as qualification that denies citizens the right to vote in a moot or, as Judge McKeown suggested in her dissent discriminatory manner violates the Voting Rights Act. 42 to the panel opinion, remand the case to the district U.S.C. § 1973; see also Allen v. State Bd. of Elections, court for re-examination in light of the new legislation. 393 U.S. 544, 566–67, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) Farrakhan v. Gregoire, 590 F.3d 989, 1016–18 (9th (noting that Congress intentionally chose the expansive Cir.2010) (McKeown, J., dissenting). language “voting qualifications or prerequisite to voting, or standard, practice, or procedure” for § 2 so as to be “all- inclusive of any kind of practice” that might be used by states to deny citizens the right to vote (internal quotation II marks omitted)). There is no categorical exclusion for As to the claims that are not moot, 1 I would affirm felon disenfranchisement laws in the text of the statute. the judgment of the district court as entered on remand. If Congress had intended categorically to exclude certain laws from the reach of § 2, it could have easily done so *995 Farrakhan v. Gregoire, No. CV–96–076–RHW, 2006 WL 1889273 (E.D.Wash. July 7, 2006). The district explicitly. It may still do so, if it chooses.

222 (1985). Thus, in my view, a categorical exclusion of That being said, in my view, establishing that a particular felon disenfranchisement laws from the reach of § 2 is felon disenfranchisement law violates § 2 because it inappropriate, either as a matter of judicial construct or discriminates on the basis of race will be very difficult. statutory interpretation. As we know, felon disenfranchisement provisions are presumptively constitutional. Richardson v. Ramirez, 418 U.S. 24, 54–55, 94 S.Ct. 2655, 41 L.Ed.2d 551 III (1974). A state's criminal justice system is a complex organization, with many factors contributing to the I respectfully part company with the majority to the extent ultimate incarceration of a particular person. Of course, that it suggests that proof of discriminatory intent is individual decisions can, in the aggregate, result in a required to establish a § 2 violation. Congress amended prison population that is racially disproportionate. That § 2 in 1982 “to make clear that proof of discriminatory is the thrust of the plaintiffs' argument in this case: that intent is not required to establish a violation of Section a multitude of small discriminatory decisions (whether 2.” S.Rep. No. 97–417, at 2 (1982), reprinted in 1982 intentional or not) have led to *996 incarceration U.S.C.C.A.N. 177, 179; see also Ruiz v. City of Santa of minorities in percentages that cannot be explained Maria, 160 F.3d 543, 557 (9th Cir.1998) (noting Congress's by non-racial factors. However, that result alone does statement that the “intent test” was “unnecessarily divisive not, in my judgment, compel the conclusion that the [in that] it involve[d] charges of racism on the part of felon disenfranchisement law violates § 2. If it did, then individual officials or entire communities,” it “placed an enforceability of felon disenfranchisement laws simply inordinately difficult burden of proof on plaintiffs,” and would depend on whether prison populations mirrored it “asked the wrong question” (internal quotation marks general population demographics. Using that logic, if the omitted, alterations in the original)). This is a question we prison population deviated from the norm in a statistically need not decide on this record or in this case. significant way, then felon disenfranchisement would be enjoined; if the prison population returned to normal With these observations, I concur. distributions, the injunction would be lifted. That is not the foundation of a § 2 violation. Indeed, Congress rejected this reasoning when it provided elsewhere in the GRABER, Circuit Judge, concurring in the judgment: statute that “nothing in this section establishes a right I concur in the judgment. Because I would resolve the to have members of a protected class elected in numbers case on the ground that we specifically remanded to the equal to their proportion in the population.” 42 U.S.C. § district court, I would not reach the issue addressed by 1973(b) (emphasis added). We have also noted that “a the majority. I therefore do not concur in the majority bare statistical showing of disproportionate impact on a opinion. racial minority does not satisfy the § 2 ‘results' inquiry.” Smith v. Salt River Project Agric. Improvement & Power In Farrakhan v. Washington, 338 F.3d 1009, Dist., 109 F.3d 586, 595 (9th Cir.1997) (emphasis in 1016 (9th Cir.2003), we held that Plaintiffs' felon original). Thus, in my view, the district court properly disenfranchisement claim is cognizable under Section 2 analyzed the data presented by the plaintiffs in the context of the Voting Rights Act (“VRA”). We held that the of the totality of the circumstances and in consideration district court had applied an erroneous standard instead of the Senate Factors. of the correct “totality of the circumstances” standard. Id. at 1016–19. Rather than apply the test ourselves, On the other hand, one can conceive of circumstances *997 we remanded to the district court for it to “make in which felon disenfranchisement laws could operate any requisite factual findings following an appropriate to violate § 2, whether by the structure or intent of evidentiary hearing, if necessary, and assess the totality of the law itself, or by other means. Indeed, the Supreme the circumstances.” Id. at 1020. Court has made it clear that states cannot use felon disenfranchisement as a tool to discriminate on the basis We denied Defendants' petition for rehearing en banc. of race, even if the laws are facially race-neutral. Hunter v. Farrakhan v. Washington, 359 F.3d 1116, 1116 (9th Underwood, 471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d Cir.2004) (order). Seven judges dissented from denial of

seven years ago. We declined to rehear the case en rehearing en banc. Id. at 1116–27 (Kozinski, J., dissenting from denial of rehearing en banc). The dissenting judges banc, over a vigorous dissent, and the Supreme Court would have reversed the judgment of the three-judge panel denied certiorari. In the many years that have followed, because of their view that Section 2 of the VRA does the parties have conducted additional discovery, filed voluminous submissions, and written dozens of pages of not reach felon disenfranchisement laws. Id. The Supreme briefs. The district court followed our mandate in detail Court denied certiorari. 1 Locke v. Farrakhan, 543 U.S. and resolved the case on the ground that we had specified. 984, 125 S.Ct. 477, 160 L.Ed.2d 365 (2004). On appeal to this court, the parties filed additional briefs, and the three-judge panel, too, resolved the appeal on the On remand, the parties conducted additional discovery ground that it previously had specified. and filed new affidavits and other submissions, including expert reports. The district court dutifully applied the Once we have resolved a preliminary and important point “totality of the circumstances” test and concluded that, of law and the full court and the Supreme Court have “[t]aking all of the relevant factors into account,” declined to intervene, judicial prudence strongly suggests Washington's felon disenfranchisement law does not that we should not later disturb that ruling—and thereby violate the VRA. Farrakhan v. Gregoire, No. CV–96– undo years of effort by the parties and the courts—in 076, 2006 WL 1889273, at *9 (E.D.Wash. July 7, 2006) the very same case when doing so is entirely unnecessary. (unpublished). I agree with the district court's thorough The animating principles of the “law of the case” doctrine analysis and its conclusion that, although one of the many apply here: “when a court decides upon a rule of law, relevant factors supports a finding of discrimination, none that decision should continue to govern the same issues in of the other factors does. Id. at *6–9. I would affirm the subsequent stages in the same case.” Arizona v. California, district court on that ground. 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). I do not question the authority or legitimacy of the Accordingly, there is no need to reach the question majority's opinion; I merely disagree with its discretionary whether felon disenfranchisement laws may be challenged 2 under Section 2 of the VRA. Reaching that question decision to resolve this case on its chosen ground. Were is unnecessary because we can affirm on the ground the result of *998 this case to hinge on that ground, or 3 described above—the ground that we mandated the were there some compelling reason to reach the issue, I district court to determine. might well come to a different conclusion.

Perhaps more importantly, judicial prudence strongly All Citations suggests that we decline to reach that question. We already decided that question in this case more than 623 F.3d 990, 2010 Daily Journal D.A.R. 15,700

Footnotes 1 Plaintiffs' challenge to Wash. Const. art. VI, § 3, and plaintiffs' damage claims were not rendered moot by passage of the new statute. Additionally, plaintiffs' claims for declaratory relief are arguably not moot to the extent that the provisions of the new and the old statutes are coextensive and the plaintiffs are subject to the same harm. Jacobus v. State of Alaska, 338 F.3d 1095, 1102–05 (9th Cir.2003). 2 S.Rep. No. 89–162, at 5 (1965), reprinted in 1965 U.S.C.C.A.N. 2508, 2562 (joint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick, Tydings, Dirksen, Hruska, Fong, Scott, and Javits); H.R. Rep. No. 89–439, at 10 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2441 (describing how “even after apparent defeat resisters s[ought] new ways and means of discriminating,” and, as a result, rejecting the case by case approach that “too often ha[d] caused no change in result, only in methods.”). 1 I note that we voted to deny rehearing en banc and that the Supreme Court denied certiorari only as important procedural history. I do not intend to imply that either we or the Court actually voted on the merits of the legal issue. 2 The decision to revisit a precedent in a later, different case presents a different issue than whether to revisit an issue decided in an earlier stage of the same case. 3 That the Supreme Court may soon vote to decide the issue is, in my view, a reason to defer submission of this case, not a reason to decide this case with haste.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 16-cv-61474-BLOOM/Valle

ANDREA BELLITTO and AMERICAN CIVIL RIGHTS UNION, Plaintiffs,

BRENDA SNIPES, in her official capacity as the SOE of Broward County, Florida,

Defendant,

1199SEIU UNITED HEALTHCARE WORKERS EAST,

Intervenor Defendant. /

ORDER

THIS CAUSE is before the Court following the presentation of law and disputed facts

during a five-day bench trial. The parties have each submitted proposed findings of fact and

conclusions of law. See ECF Nos. [236], [237] and [238]. The Court has carefully considered

the testimony, the exhibits admitted into evidence, arguments of counsel, and is otherwise duly

advised. For the reasons that follow, judgment is entered in favor of Defendant and Intervenor

Defendant.

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I. BACKGROUND

Plaintiff, American Civil Rights Union, Inc. (“ACRU”), is a non-profit corporation that

promotes election integrity, compliance with federal election laws, government transparency,

and constitutional government. Since November 1, 2003, Defendant Brenda Snipes (“Snipes”)

has been the Supervisor of Elections (“SOE”) for Broward County, Florida. See ECF No. [184]

at 9. Snipes holds an office created by Florida Statutes § 98.015 and is one of sixty-seven SOEs

throughout the State of Florida. Intervenor Defendant 1199SEIU United Healthcare Workers

East (“United”) is a labor union that focuses on representing healthcare workers and those who

work in healthcare facilities. Id.

On June 27, 2016, ACRU and Andrea Bellitto (“Bellitto”),1 one of ACRU’s members,

initiated these proceedings, bringing two claims against Snipes under Section 8 of the National

Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20507.2 See ECF No. [1]. Under Count

I of its Amended Complaint, ACRU claims that Snipes “has failed to make reasonable efforts to

conduct voter list maintenance programs, in violation of Section 8 of NVRA, 52 U.S.C. § 20507

and 52 U.S.C. § 21083(a)(2)(A), the Help America Vote Act (“HAVA”).” ECF No. [12] at ¶ 28.

It is undisputed that Snipes is responsible for performing list maintenance of Broward County’s

voter rolls in accordance with the NVRA. See ECF No. [184] at 9. Under Count II of the

Amended Complaint, ACRU claims that Snipes “has failed to respond adequately to Plaintiffs’

written request for data, [and] failed to produce or otherwise failed to make records available to

Plaintiffs concerning Defendant’s implementation of programs and activities for ensuring the

accuracy and currency of official lists of eligible voters for Broward County, in violation of

1 Bellitto’s claims have since been dismissed based on her lack of standing to bring suit. See ECF No. [64]. 2 The Court refers to 52 U.S.C. § 20507 interchangeably as “Section 8,” reflecting the statute’s original location at Section 8 of Pub. L. 103-31, May 20, 1993, 107 Stat. 77. 2

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Section 8 of the NVRA, 52 U.S.C. § 20507(i).” See ECF No. [12] at ¶ 33. On September 19,

2016, United filed a Motion to Intervene, which the Court granted. See ECF Nos. [23] and [29].

This Court later dismissed Count II, sua sponte, after determining that ACRU’s notice letter to

Snipes did not constitute sufficient notice for purposes of its failure to disclose claim under the

NVRA. See ECF No. [198]. The Court found that, as ACRU’s notice letter was the only written

correspondence sent to Snipes prior to the commencement of this lawsuit, Snipes was never

provided written notice of the potential NVRA violation claimed under Count II, nor was she

afforded ninety days after such written notice to cure the alleged violation—a requirement under

52 U.S.C. §§ 20510(b)(1), (2). Id. As such, the bench trial proceeded solely as to Count I -

ACRU’s contention that Snipes failed to make reasonable efforts to conduct voter list

maintenance programs in violation of Section 8 of NVRA and HAVA.

The genesis of this lawsuit stems from a brief series of interactions that took place

between the President of ACRU, Susan A. Carleson (“Carleson”), and Snipes back in early 2016.

On January 26, 2016, Carleson sent a letter to Snipes notifying her that, based on ACRU’s

research, Broward County was “in apparent violation” of Section 8 of the NVRA. See ECF No.

[12-1]. Carleson’s letter explained that, based on ACRU’s comparison of publicly available

information, Broward County “ha[d] an implausible number of registered voters compared to the

number of eligible living citizens.” Id. The letter expressed ACRU’s hope that the Broward

County Supervisor of Elections Office (“BCSEO”) would work toward compliance with Section

8 as well as ACRU’s intention to file a lawsuit under the statute if such compliance was not

achieved. Id. The letter further stated that, if the information referenced therein was no longer

accurate, “it would be helpful if [Snipes] could provide” documents related to the following:

updated registration data since the publication of information reported by the United States

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Election Assistance Commission (“EAC’) for 2014 from the November 2014 election (the “2014

EAC Report”); records obtained or received from federal and state courts, including jury recusal

forms, regarding lack of citizenship, death, or relocation; the number of ineligible voters

removed by category and by date; the source agency that provided the identifying information of

the removed deceased and when the data was provided; the number of notices sent to inactive

voters since the publication of the 2014 EAC Report, including the date, scope, and contents of

any mailing sent to all registered voters; the names of the staff responsible for conducting list

maintenance obligations; the number of ineligible voters removed for criminal conviction,

together with the underlying data and communications with law enforcement agencies; the total

number of voters registered in Broward County as of the date of any response; any records

indicating the use of citizenship or immigration status for list maintenance activities; and all list

maintenance records including federal voter registration forms containing citizenship eligibility

questionnaires for the previous 22 months. Id. Citing Section 8 of the NVRA, the letter

informed Snipes of the requirement that her office “make available for public inspection all

records concerning the implementation of programs and activities conducted for the purpose of

ensuring the accuracy and currency of official lists of eligible voters.” Id. It also invited Snipes

to call Carleson to arrange a time to discuss the matter as well as an inspection. Id.

On February 8, 2016, Snipes responded to ACRU’s letter with a letter of her own. See

ECF No. [12-2] at 1-2. Among other things, Snipes’s letter refuted the assertion that Broward

County’s voter rolls contained more voters than living persons residing in the county and

included two types of BCSEO certifications spanning the previous several years—which the

letter characterized as “documenting actions taken by [Snipes’s] office to manage removal of

voters no longer eligible to vote in Broward County.” Id. The letter closed by directing ACRU

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to BCSEO’s General Counsel and BCSEO’s website for any further information. Id. About two

months after the exchange of letters, legal representatives of ACRU contacted Snipes via

telephone on April 5, 2016, and the parties discussed the possibility of arranging a meeting and

an inspection of the records ACRU requested in its January 26, 2016 letter. Those efforts proved

unfruitful, however, as no further communications (at least not written) between ACRU and

Snipes took place in the nearly three months that followed.

In June 2016, ACRU commenced this lawsuit and the parties engaged in discovery and

other pretrial proceedings over the course of one year. ACRU seeks the following relief: (1)

declaring that Snipes is in violation of Section 8 of the NVRA by failing to conduct a reasonable

general program of voter list maintenance and (2) ordering Snipes to implement reasonable and

effective registration list maintenance programs to cure failures to comply with the NVRA and

ensure that only eligible registrants are on Broward County’s voter registration rolls and that

those registrations are accurate and current.

The bench trial proceeded before this Court on July 25, 2017. ACRU presented eleven

witnesses and Snipes and United presented five witnesses. The Court’s focus, and its resulting

analysis in this Opinion, center on whether Snipes, as the SOE for Broward County, conducted a

general program that makes a reasonable effort to remove ineligible voters by reason of death or

change of address as required by Section 8 of the NVRA.

II. CONCLUSIONS OF LAW AND FINDINGS OF FACT

A. Section 8 of the NVRA

The NVRA was enacted with the following purposes in mind:

(1) to establish procedures that increase the number of eligible citizens who register

to vote in elections for federal office;

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(2) to make it possible for federal, state, and local governments to implement the NVRA

in a manner that enhances the participation of eligible citizens as voters in elections for

federal office;

(3) to protect the integrity of the electoral process; and

(4) to ensure that accurate and current voter registrations rolls are maintained.

52 U.S.C. § 20501(b).

The NVRA’s goals can, at times, be in tension with one another. ACRU v. Philadelphia

City Comm’rs, 872 F.3d 175, 178 (3d Cir. 2017). Although the maintenance of clean voter rolls

can ensure the integrity of the election process, the purging of voter registration from those rolls

can also require voters to re-register, thereby limiting their ability to participate in elections. Id.

The NVRA’s legislative history reveals that “Congress was wary of the devastating impact

purging efforts previously had on the electorate,” noting that such efforts were frequently “highly

inefficient and costly” to the states and recognizing “a long history of such cleaning mechanisms

used to violate the basic rights of citizens.” Id. (citing S. Rep. No. 103-6, at 18 (1993)). Thus,

“the NVRA both protects registered voters from improper removal from the rolls and places

limited requirements on states to remove ineligible voters from the rolls.” Id. at 179.

To accomplish these goals, Section 8 of the NVRA provides that “the name of a

registrant may not be removed from the official list of eligible voters except— [1] at the request

of the registrant; [2] as provided by State law, by reason of criminal conviction or mental

incapacity; or . . . by reason of—[3] the death of the registrant; or [4] a change in the residence of

the registrant.” 52 U.S.C. § 20507(a)(3)-(4). “In short, once a person is properly registered to

vote, a state is only permitted to remove him or her from the voting list for narrowly specified

reasons. Specifically, Congress allows removal if: the person dies, changes residence, asks to be

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taken off the list, or becomes ineligible under state law because of criminal conviction or mental

incapacity.” ACRU, 872 F.3d at 179. The NVRA further requires states to “conduct a general

program that makes a reasonable effort to remove the names” of voters who are deceased or have

changed residence. 52 U.S.C. § 20507(a)(4). The NVRA permits, but does not require, states to

make an effort to remove voters who are ineligible by reason of felony conviction or mental

incapacity. See ACRU, 872 F.3d at 181-82. See also id. at 182 (“By its terms, the mandatory

language in Section 8(a)(4) only applies to registrants who have died or moved away. Removal

due to criminal conviction is not included on this list of mandatory purging.”). Likewise, while

the NVRA undoubtedly permits states to remove any non-citizen who somehow becomes

registered to vote when such individuals come to the state’s attention, it does not require a

generalized program that attempts to identify such voters. See id.; Arcia v. Detzner, 772 F.3d

1335, 1346-47 (11th Cir. 2014).

A state’s general program must be “uniform, nondiscriminatory, and in compliance with

the Voting Rights Act of 1965” and must not “result in the removal of the name of any person

from the official list of voters registered to vote . . . by reason of the person’s failure to vote.” Id.

§ 20507(b). In addition, all programs for the systematic removal of ineligible voters from the

registration rolls must be completed no later than ninety days prior to a federal election. Id. §

20507(c)(2). Finally, states may not remove a voter who appears to be ineligible due to a change

in residence unless the voter confirms the change in writing or the state first sends the voter “a

postage prepaid and pre-addressed return card, sent by forwardable mail” and the voter fails to

return the card and then fails to vote during the next two federal election cycles. Id. § 20507(d).

When a voter changes residence “to another address within the same registrar’s jurisdiction, the

registrar shall correct the voting registration list accordingly, and the registrant’s name may not

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be removed from the official list of eligible voters by reason of such a change of address.” Id. §

20507(f).

To ensure that election officials are fulfilling their list maintenance duties, the NVRA

contains public inspection provisions. 52 U.S.C. § 20507(i). These provisions are available to

any member of the public, including ACRU, and they convey Congress’s intention that the

public should be monitoring the state of the voter rolls and the adequacy of election officials’ list

maintenance programs. Id. Accordingly, election officials must provide full public access to all

records related to their list maintenance activities, including their voter rolls. Id. This mandatory

public inspection right is designed to preserve the right to vote and ensure that election officials

are complying with the NVRA. Project Vote v. Long, 682 F.3d. 331, 335 (4th Cir. 2012). If

someone has discovered sufficient facts to support a claim that an election official failed to

adequately maintain the voter rolls, that person may bring a claim in federal court to seek

enforcement. 52 U.S.C. § 20510(1).

The NVRA’s requirements strike a balance between protecting eligible voters’ right to

vote and protecting them from improper removal from the rolls while ensuring that ineligible

voters are removed from the rolls once their ineligibility has been confirmed. The NVRA does

not define what constitutes a “reasonable effort” to maintain accurate and current voter rolls

within the meaning of section 8(a)(4), but it provides a model program by which a state may

“meet the requirement” to make such an effort while complying with the other restrictions and

requirements of Section 8. Under the model program, a state may satisfy the “reasonable effort”

requirement if it establishes a program “under which –

(A) change-of-address information supplied by the Postal Service through its licensees is used to identify registrants whose addresses may have changed; and

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(B) if it appears from information provided by the Postal Service that –

(i.) a registrant has moved to a different residence address in the same registrar’s jurisdiction in which the registrant is currently registered, the registrar changes the registration records to show the new address and sends the registrant a notice of the change by forwardable mail and a postage prepaid pre-addressed return form by which the registrant may verify or correct the address information; or

(ii.) the registrant has moved to a different residence address not in the same registrar’s jurisdiction, the registrar uses the notice procedure described in subsection (d)(2) of this section to confirm the change of address.

Id. § 20507(c)(1).

As the NVRA’s model program is optional, states may use other programs instead of or

in addition to the model program. Id.; see also S. Rep. 103-6, at 19 (“Jurisdictions which choose

not to use the NCOA program should implement another reasonable program.”). Examples of

such alternative programs include relying on election-related mail returned as undeliverable,

canvasses by mail or door-to-door, or interstate data-sharing programs. See, e.g., United States

v. Missouri, No. 05-4391-CV-C-NKL (NKL), 2006 WL 1446356, at *8 (W.D. Mo. May 23,

2006), rev’d on other grounds, 535 F.3d 844 (8th Cir. 2008) (canvass); Wilson v. United States,

Nos. 95-20042, 94-20680, at 5-6 (N.D. Cal. Jan. 12, 1996) (order) (returned mail); see generally

Welker v. Clarke, 239 F.3d 596, 598-99 (3d Cir. 2001) (removal program must be based on

reliable information from a government agency).

HAVA sheds further light on what constitutes a reasonable program to remove voters

who have died or changed residence. Under 52 U.S.C. § 21083, states must provide for state

death records to be shared with election officials for purposes of removing registrants who have

died. Id. § 21083(a)(2)(A)(ii)(1). Neither the NVRA nor HAVA requires other death records to

be made available to election officials. However, other states—including Florida—may and do

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consider death information from other sources such as Social Security Administration records or

vital statistics records from other states. See Fla. Stat. § 98.075(3)(a)(1)(b); Ind. Stat. § 3-7-45-5

(requiring use of State and Territorial Exchange of Vital Events database for purposes of

identifying voters who have died out of state).

To satisfy its list-maintenance obligations under the NVRA, a state must have a “general

program” of list-maintenance, and that program must make a “reasonable effort” to identify and

remove those ineligible voters who have died or who have changed residence. Id. § 20507(a)(4).

The use of the phrase “reasonable effort” necessarily implies that states are not obligated to

continually scour their voter rolls to ensure that every ineligible voter is removed at the earliest

possible moment permitted by law. Nor are states required to make use of every available source

of change-of-address or death information as part of such “reasonable efforts.” They must

simply rely on reasonably valid and comprehensive sources of such information, such as the

United States Postal Service’s (“USPS”) National Change of Address (“NCOA”) system, which

contains all forwarding addresses submitted to the postal service by individuals who move, and

state death records, which contain death certificates for the vast majority of residents who have

died. The NVRA’s “reasonable effort” requirement must be construed in light of the NVRA’s

goal of ensuring that once registered, eligible voters remain on the rolls and are not erroneously

removed. Thus, states may not remove a voter based solely on a claim by a private party that the

person is no longer eligible. See H. Rep. 103-9, at *15 (NVRA’s requirements “may not be

avoided by a registrar conducting a purge program or activity based on lists provided by other

parties where such lists were compiled as the result of a selective, non-uniform, or discriminatory

program or activity.”). When scrutinizing the evidence presented at trial below, the Court

maintains these overarching principles in mind.

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B. Florida’s List Maintenance Tools

In connection with the state’s implementation of the NVRA, Florida has vested power in

the SOE to “conduct a general registration list maintenance program to protect the integrity of

the electoral process by ensuring the maintenance of accurate and current voter registration

records in the statewide voter registration system.” Fla. Stat. § 98.065(1). For example, §

98.015(3) requires that the SOE “shall update voter registration information;” § 98.015(10)

requires that all voter registration and list maintenance procedures be conducted in compliance

with any department rule, the Voting Rights Act of 1965, the NVRA or HAVA; and §

98.015(12) requires that the supervisor maintain a list of valid residential street addresses to

verify voters’ legal addresses. Sections 98.065 and 98.075 describe the procedures and tools

available to the SOE and the Florida Department of State (“DOS”) for performing list

maintenance for removal of registrants who are ineligible to vote. Specifically, Florida law

requires that the SOE incorporate one or more of the following procedures in the county’s

biennial registration list maintenance program:

a. Change-of-address information supplied by the USPS to identify registered voters

whose address may have changed.

b. Change-of-address information identified from returned nonforwardable return-if-

undeliverable mail sent to all registered voters in the county.

c. Change-of-address information identified from returned nonforwardable return-if-

undeliverable address confirmation requests mailed to all registered voters who have

not voted in the last two years and who did not make a written request that their

registration records be updated during that timeframe.

See Fla. Stat. § 98.065(2)(a)-(c).

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In addition, Florida law requires the SOEs to take specified list-maintenance actions if the

supervisor receives certain information, such as:

a. Information from an election official in another state indicating that a registered voter

in this state has registered to vote in that other state.3 See Fla. Stat. § 98.045(2)(b).

b. Change-of-address information from jury notices signed by the voter and returned to

the courts. See Fla. Stat. § 98.065(4)(a).

c. Change-of-address information from the Department of Highway Safety and Motor

Vehicles (“DHSMV”). See Fla. Stat. § 98.065(4)(a).

d. Change-of-address information from “other sources” indicating that a registered

voter’s legal residence might have changed to another location within the state. See

Fla. Stat. § 98.065(4)(a).

e. Information from the Department of Health or the United States Social Security

Administration indicating a voter is deceased. See Fla. Stat. § 98.075(3)(a)2.

f. Notice from the DOS that it has made a determination of initial credibility or

reliability that a voter has been adjudicated mentally incapacitated. See Fla. Stat. §

98.075(4).

g. Notice from the DOS that it has made a determination of initial credibility or

reliability that a voter has been convicted of a felony and his or her civil rights have

not been restored. See Fla. Stat. § 98.075(5).

h. Information from other sources indicating that a registered voter is ineligible to vote

because he or she is deceased, adjudicated a convicted felon without having his or her

civil rights restored, adjudicated mentally incapacitated without having his or her

3 Florida law deems this as a written request from the voter to have his or her name removed from the statewide voter registration program. See Fla. Stat. 98.045(2)(b). 12

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voting rights restored, does not satisfy the minimum age requirement, is not a United

States citizen, is a fictitious person, or has not listed a residence as his or her legal

residence. See Fla. Stat. § 98.075(6).

Significantly, Florida law does not impose an affirmative duty on the SOE to obtain any

of the above-listed information. Nor does Florida law require the SOE to take any action to

remove voters from the registration rolls until it receives the information listed above. See Fla.

Stat. § 98.045(2)(b) (emphasis added) (“Information received by a voter registration official . . .

shall be considered a written request from the voter to have the voter’s name removed. . .”); §

98.065(4)(a) (emphasis added) (“If the supervisor receives change-of-address-information . . .

from jury notices . . ., from the Department of Highway Safety and Motor Vehicles, or from

other sources . . .”); § 98.075(3)(a)2 (emphasis added) (“Within 7 days after receipt of such

information through the statewide voter registration system, the supervisor shall remove the

name of the registered voter”); § 98.075(4)-(5) (emphasis added) (“Upon receipt of the notice

that the department has made a determination of initial credibility and reliability, the supervisor

shall adhere to the procedures set forth in subsection (7) . . . “);§ 98.075(6) (emphasis added) (“If

the department or supervisor receives information from other sources . . . , the supervisor must

adhere to the procedures set forth in subsection (7)”).

In light of the text, structure, purpose and history of the NVRA, the Court determines that

a state’s list maintenance program makes a “reasonable effort” sufficient to satisfy the

requirements of Section 8(a)(4) of the NVRA if it does the following:

(1) Complies with all mandatory list-maintenance tools established by the governing state

to remove the names of ineligible voters by reason of death or change in residence;

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(2) Uses NCOA information supplied by the USPS, or similarly reliable information

garnered from other sources, such as mass mailings or targeted mailings, to identify registrants

whose addresses have changed to update its voter rolls; and

(3) Uses information from the state health department or other similarly reliable sources

to identify voters who have recently died to update its voter rolls and remove deceased

individuals from the rolls.

C. Evidence Presented At Trial

Having determined what constitutes a “reasonable effort” sufficient to satisfy the

requirements of Section 8(a)(4) of the NVRA, the Court now examines the evidence presented.

ACRU carries the burden of proof to show that Snipes violated the NVRA. Prickett v. U.S., 111

F. Supp. 2d 1191, 1192 (M.D. Ala. 2000) (“The burden of proof in civil cases is the same

regardless of whether the finder of fact is a judge in a bench trial or a jury”). ACRU contends

that it has satisfied this burden by (1) presenting evidence that the number of registrations on the

list of eligible voters exceeds the number of eligible citizen residents of Broward County; (2)

establishing, through expert testimony, how a reasonable election administration official would

carry out his or her duties; (3) demonstrating Snipes’s failure to adequately process and respond

to citizen complaints and submissions of information; (4) pointing to Snipes’s failure to use

certain available list-maintenance tools; and (5) Snipes’s admissions to inaccuracies and lack of

effective policies and procedures. Much of ACRU’s evidence overlaps in the five categories.

a. ACRU’s Evidence

i. Broward County’s Registration Rates

At trial, ACRU presented evidence that the registration rate in Broward County was at or

near 100% of the 18-and-older citizen population and used this evidence to argue that the high

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registration rate is evidence of an unreasonable list maintenance program. ACRU’s calculation

of the “registration rate” was based upon a comparison of the total voter registration figures for

Broward County with contemporary population data provided by the United States Census

Bureau. Dr. Steven A. Camarota (“Dr. Camarota”), an expert in population studies and statistics,

analyzed the population and registration data for Broward County for the last several election

cycles, specifically 2010, 2012, and 2014. See ECF No. [229] at 50-51. Dr. Camarota retrieved

and compared official population and registration figures from the Census Bureau and the United

States Election Assistance Commission to analyze the registration rate in Broward County. Id.

Dr. Camarota’s analysis concluded that:

1. In 2010, Broward County had a total registration of 1,214,714, and an active

registration of 1,042,290.4 See ECF No. [229] at 54. Broward County had a total

18-and-older population of 1,361,787, resulting in an 89.2% total registration rate

compared to the total adult population. Id. at 53, 55. For 2010, the estimated 18-

and-older citizen population for one year was 1,119,528 and for five years was

1,098,140, resulting in a citizen population registration rate of 108.5% to 110.6%.

Id. at 56-59.

2. In 2012, there was an active registration of 1,140,454, as the total registration was

not reported to the Election Assistance Commission that year. Id. at 53, 55.

Broward County had a total 18-and-older population of 1,421,895, resulting in an

80.2% active registration rate compared to the total adult population. Id. at 53,

56. For 2012, the estimated 18-and-older citizen population for one year was

4 Dr. Camarota testified that the difference between total registration numbers and active registration numbers was that the latter reflected those voters who voted in a more recent election cycle. See ECF No. [229] at 54. 15

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1,187,350 and for five years was 1,134,383, resulting in a citizen population

active registration rate of 96.1% to 100.5%. Id. at 57, 59.

3. In 2014, Broward County had a total registration of 1,198,616, and an active

registration of 1,071,305. Id. at 54-55. Broward County had a total 18-and-older

population of 1,467,042, resulting in an 81.7% total registration rate compared to

the total adult population. Id. at 54, 56. For 2014, the estimated 18-and-older

citizen population for one year was 1,239,345 and for five years was 1,187,020,

resulting in a citizen population total registration rate of 96.7% to 101.0%. Id. at

57, 59.

4. Based on the one-year data for 2010, 2012, and 2014, Dr. Camarota testified that

Broward County had more people registered to vote than citizens over the age of

18 within the county. Id. at 58.

Dr. Camarota also compared registration ratios in other jurisdictions to those found in

Florida. In doing so, he concluded that, according to Census Bureau reports, 65% of the 18-and-

older citizen population on a nationwide-basis was registered to vote in 2010. Id. at 59.

Similarly, in 2012, a presidential election year, this national figure was 71.2% while the 2014

figure was 64.6%. Id. By comparison, Dr. Camarota testified that in Florida, 63% of the 18-and-

older citizen population was registered to vote in 2010 with 68.3% in 2012 and 62.6% in 2014.

Id. at 60.

United, in turn, presented the testimony of Professor Dan Smith, an expert in the areas of

political science and elections at the state and local level. Professor Smith’s testimony, in part,

focused on Dr. Camarota’s registration rate calculations. Dr. Camarota used EAVS data, a

survey conducted by the Election Assistance Commission at the “book-closing date” for a

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general election in an even-numbered year, to determine the number of registered voters in

Broward County. See ECF No. [233] at 105. Professor Smith explained that the “book-closing

date” is the last time an individual can register to vote prior to an election. Id. at 106. Because

this data is obtained in October of an election year, it reflects a high point in a county’s number

of registered voters compared to almost any other time in a two-year cycle. Id. at 111-112.

These numbers reflect a rise in newly registered voters and a limitation placed on SOEs that does

not allow them to complete systematic list maintenance ninety days before an election. Id.

Professor Smith opined that other sources may provide a more accurate registration count, such

as the Statewide Voter Registration Database, which provides the number of registered voters by

county as reported by the individual SOEs in any given month. Id. at 108-109.

Professor Smith opined on the use of the American Community Survey (“ACS”) data to

determine the population count of voting-age citizens in Broward County. The ACS is a

monthly survey sent to a sample population of households tied back to the decennial census. Id.

at 114-115. The ACS provides estimates of population, including the voting-age population in a

jurisdiction. Id. The one-year ACS data reflects the midpoint population of that year - July. Id.

The five-year ACS data contains sixty months of monthly surveys and then uses the midpoint of

that five-year period. Id. at 115-116. Thus, the 2014 ACS survey reflects the population at its

mid-point - July of 2012. Id. For that reason, Professor Smith opined that a registration rate

analysis that uses the 2014 ACS for the denominator should use a numerator that reflects

registration numbers in July of 2012. Id. at 116, 120. Otherwise, it underestimates the

population in existence in 2014 in a growing county, such as Broward County. Id. Professor

Smith further opined that it would be improper to use a numerator at its highest possible point

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(the EAVS data) divided by a denominator that underestimates a growing population at that same

snapshot in time (the ACS data). Id. at 121-122.

On summary judgment, this Court previously observed that the high registration rate is

sufficient to support an initial claim that Snipes did not fulfill her duties to maintain voter rolls.

However, unreasonably high voter registration rates, without more, do not prove that Snipes

violated the NVRA. In scrutinizing the evidence, the Court finds Professor Smith’s analysis

persuasive and finds Dr. Camarota’s calculations to be misleading. The data source used for the

number of registered voters in Dr. Camarota’s numerator is not commensurate with the source

used for the number of eligible voters in his denominator. This is because the sources include

different groups of voters from different time periods. As explained above, Dr. Camarota

obtained his numerator from the EAVS database, reflecting the number of registered voters as of

the close of registration prior to the federal election when voter registration is at its highest. See

ECF No. [229] at 49, 68-70; ECF No. [233] at 121. In fact, Dr. Camarota agreed that there is an

increase in voter registration immediately before a federal election. Id. at 68. Federal law also

requires that all programs that systematically remove ineligible voters from the registration rolls

must be completed no later than ninety days prior to a federal election. 52 U.S.C. § 20507(c)(2).

Dr. Camarota further agreed that the EAVS data includes all individuals registered to vote in

Broward County regardless of whether they are physically present, such as military personnel

living overseas, individuals who are temporarily non-residents such as students, and people who

live in Florida seasonally. Id. at 67-68.

A consideration of the testimony reveals that a snapshot of voter registration taken from

the EAVS database in October of a federal election year will necessarily yield a greater number

of registered voters than a snapshot taken in January of that same year prior to the surge in

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registration and prior to the halt of systematic list-maintenance activities. The same would hold

true for a snapshot taken several months after the election when systematic list maintenance has

resumed and voter registration rates have decreased. Although the BCSEO’s website contains

the registration data for Broward County broken down by month, Dr. Camarota chose not to use

such data. Id. at 70-71. He likewise did not use the voter registration information from the

Florida Division of Elections (“DOE”) to measure the number of registered voters in Broward

County in a given month. Id. at 71.

To reflect population estimates for his denominator, Dr. Camarota relied upon the ACS

database. Id. at 74-77. Professor Smith explained that in a growing county, such as Broward

County, using a population estimate centered on July of 2012 does not accurately represent the

population estimate in existence in late 2014. See ECF No. [233] at 116, 119-120. In addition,

Professor Smith clarified that, unlike the EAVS data, the ACS data only counts those individuals

physically present in the county during the two months immediately preceding the data

collection. Id. at 117-119. This means it excludes individuals living overseas but registered to

vote in Broward County, college students who are studying away from but registered in Broward

County, as well as other seasonal residents registered in Broward County. Id.

The Court agrees with Professor Smith that Dr. Camarota’s chosen denominator – the

ACS data – underestimates the population in Broward County by excluding those registered

voters who are not physically present at the time of the survey while, at the same time, his

chosen numerator inflates the number of registered voters by including the same population

excluded in the ACS data. These data sets do not allow for an accurate comparison. Similarly,

Dr. Camarota’s use of the five-year 2014 ACS data, which accounts for population in July of

2012, does not reflect the population numbers in existence in October of 2014 – the timeframe

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used for the numerator. The net effect here is that Dr. Camarota compared voter registration

numbers when they are at their all-time high in October of 2014 to population estimates from

July of 2012. However, the comparison of these two different data sets, reflecting snapshots at

two different points in time, does not allow for an accurate calculation. Given the foregoing, the

Court finds that the registration rates presented by ACRU are inaccurate. ACRU’s argument that

Broward County’s registration rates are unreasonably high is, therefore, unsupported by any

credible evidence and necessarily fails to support ACRU’s contention that Snipes failed to

comply with the NVRA’s list-maintenance requirements.

ii. ACRU’s Evidence Regarding Reasonable List Maintenance Procedures

At trial, ACRU presented the testimony of Scott Gessler (“Mr. Gessler”), the former

Secretary of State for Colorado, as an expert witness in the area of election administration. Mr.

Gessler opined that Snipes’s list-maintenance efforts are not reasonable under industry standards

applicable to election administration officials in light of the state of the voter rolls, the

procedures used at the BCSEO, and the tools available to Snipes. For these reasons, he

concluded that Snipes lacks a general list-maintenance program. See ECF No. [229] at 135, 145.

Mr. Gessler first based his opinion on his understanding of Snipes’s compliance with

Florida Statute § 98.065. This provision of Florida law requires that a SOE incorporate “one or

more” of the following procedures during the county’s biennial list-maintenance program: (a)

use of change-of-address information supplied by the USPS through its licensees to identify

those voters whose address has changed, (b) use of change-of-address information identified

from returned nonforwardable return-if-undeliverable mail sent to all registered voters within the

county, or (c) use of change-of-address information identified from returned nonforwardable

undeliverable address confirmation requests mailed to all registered voters who have not voted in

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the last two years and who did not request that their records be updated during this timeframe.

Fla. Stat. § 98.065(2). Importantly, Florida law only requires that a SOE utilize one of these

three methods. Mr. Gessler opined that Snipes does not conduct reasonable list maintenance to

identify those registered voters who have moved whether inside or outside of Broward County.

His opinion, however, is belied by the evidence introduced at trial demonstrating that the

BCSEO effectively employs the first two methods outlined within § 98.065(2). Section

II(C)(b)(iii) of this Order, infra, details the procedures used at the BCSEO to identify voters

whose addresses have changed and its compliance with § 98.065(2).

The Court, however, agrees with the opinion of Mr. Gessler that the BCSEO did not

effectively complete the third statutory method – the mailing of change-of-address information

identified from returned nonforwardable undeliverable address confirmation requests mailed to

all registered voters who have not voted in the last two years and who did not request that their

records be updated during this timeframe. Mr. Gessler pointed out the number of individuals

who did not vote in the 2014 and 2012 elections, 592,463 and 378,111 respectively. In theory,

those individuals who did not vote and did not request that their records be updated should have

received a mailing from the BCSEO. ACRU argues that, despite the number of notices mailed

using this method - 14,704, and the number of individuals who contacted the office to have their

information updated, approximately 150,000, there is still a sizable, unexplained gap of several

hundred thousand voters who did not receive a mailing. Thus, the Court finds that the BCSEO

failed to reasonably implement this third statutory procedure as a list-maintenance tool.

Nonetheless, Florida law does not require that a SOE employ all three methods as part of its list

maintenance. Rather, Florida law only requires the use of one such tool and, as further explained

below, the Court finds that Snipes reasonably implemented two of these three tools.

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Next, Mr. Gessler based his opinion on the BCSEO’s lack of consistent and written

policies and procedures regarding list maintenance. See ECF No. [229] at 110-112. He opined

that, “any general program of list maintenance must include written or online training programs,

written or online policies and procedures, and adequate recordkeeping and reporting to allow for

later examination, analysis, or audit.” See ECF No. [217-10] at ¶14. However, the evidence

presented at trial contradicted the basis for Mr. Gessler’s opinion in that there was evidence

regarding the policies and procedures for list maintenance found in the Voter Registration

System, known as the VR System. Every employee in the Department of Voter Services at

BCSEO who works on list maintenance has access to the VR system, including the policies and

procedures online as needed. See ECF No. [232] at 23, 185, 195-196. The VR System has an

online help system that employees at BCSEO use to answer any questions on a specific process

involving voter registration and processing information. See ECF No. [233] at 11. The help

system is word searchable with built-in topics and indices. Id. At trial, ACRU admitted that,

during the discovery phase of the proceedings, when asked for the production of all manuals,

Snipes disclosed the use of the VR Manual. See ECF No. [230] at 67. Despite the disclosure of

the VR Manual, Mr. Gessler testified that he had not reviewed a copy of it and had no personal

knowledge of its contents. Id. at 85. Curiously, his report specifically references the need for

written or online policies and procedures. The VR Manual fits the definition of online policies

and procedures, and based on the testimony of the witnesses discussed below, the list

maintenance personnel at BCSEO regularly referenced the VR Manual to answer questions about

list maintenance policies and procedures. The Court rejects ACRU’s claim that a software

manual produced by a third-party equates to an unreasonable standard of care or otherwise

demonstrates a lack of policies. This manual and the procedures and policies contained therein

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are copies of documents accessible online to each employee and provide the necessary

information to keep each abreast of changes in procedures. Thus, the Court finds that the record

evidence does not support Mr. Gessler’s opinion that there was a lack of policies and procedures

pertaining to list maintenance at BCSEO.

At trial, there was significant debate about the admissibility of the Voter Services

Procedures Manual, a written manual disclosed during the second day of trial after Mr. Gessler

completed his direct examination. The Court allowed Mr. Gessler an opportunity to review the

written manual and to testify about whether and how the written manual impacted his opinion.

Ultimately, however, the Court finds this issue to be irrelevant as the employees in charge of list

maintenance at BCSEO did not regularly review or rely upon this written manual in their

execution of their functions. In fact, the vast majority of them seemed unaware of its existence.

Rather, they testified that they reviewed and relied upon the VR Manual for list maintenance

policies and procedures – a manual that Mr. Gessler did not review and could not, therefore,

comment upon.5 See ECF No. [232] at 82; ECF No. [232] at 11. In its analysis, the Court does

not give any weight to the belatedly produced Voter Services Procedures Manual.

Next, Gessler based his opinion on Snipes’s biannual certifications of list maintenance

submitted to the DOS, stating that the certifications themselves reveal a lack of consistent list

maintenance. He testified that the certifications reveal fluctuating and inconsistent numbers of

registrants moved from active to inactive status and from inactive to ineligible status. See ECF

5 Mr. Gessler testified he was aware of the existence of the VR Manual before he drafted his expert report and that Snipes had advised it was proprietary. See ECF No. [231] at 91. At no point in time prior to trial did ACRU file a motion to compel claiming that Snipes committed a discovery violation by failing to produce the VR Manual, a manual disclosed as proprietary. See ECF No. [230] at 13. In fact, the only request for a confidentiality order related to the disclosure of the VR Manual was made during the second day of trial by Snipes. Id. at 155-156. Likewise, ACRU had the opportunity to depose Jorge Nunez, BCSEO’s Information Technology Director who maintains the voter registration database, but chose not to do so. See ECF No. [233] at 65. As further discussed below, Mr. Nunez provided detailed testimony about the VR System, including information about its online policies and procedures. 23

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No. [229] at 163-166. For example, in the second half of 2011, Snipes removed 141,939 inactive

voters from the rolls but from the second half of 2013 until the second half of 2015, she did not

remove any inactive voters. See ECF No. [217-3] at 8. This one example, however, does not

paint a full picture of the list maintenance activities contained within the certifications. Within

each biannual certification between 2011 and 2016, there is evidence that the BCSEO mailed

thousands of address confirmation requests, address confirmation notices, and final notices to

active voters before placing them on the inactive list. Id. at 22. Similarly, although some

biannual certifications reflect a small number of voters being placed on the inactive list in the

second half of 2011, 2012, 2014 and first half of 2015, the BCSEO placed thousands and even

tens of thousands of voters on the inactive list in 2011, 2012, 2013, 2014, 2015, and 2016. Id.

When viewed in isolation, the unexplained gap in the removal of inactive voters between the first

half of 2013 and the second half of 2015 is suggestive of a lack of list maintenance. However,

when the certifications are viewed in their totality, there is sufficient evidence demonstrating that

the BCSEO has an ongoing list-maintenance program in place.

As to list-maintenance tools, Mr. Gessler opined that it was unreasonable for Snipes not

to avail herself of certain tools under Florida law. In particular, Mr. Gessler suggested that

Snipes employ the DAVID database from the DHSMV, the Social Security Disability Index

(“SSDI”), the ERIC database to compare information from state to state, and the SAVE program

to determine a voter’s citizenship. See ECF No. [217-10] at 20. However, the evidence at trial

revealed that Snipes was either using the suggested databases through the VR System, applying

to use the system or does not have the power to implement the system. For example, the Florida

DOS – at the state level - receives reports from the SSDI and then forwards that information

from the national database to the individual counties through the Florida Voter Registration

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System (“FVRS”). See ECF No. [233] at 150. At trial, Sharon Fleming (“Ms. Fleming”),

Snipes’s Voter Services Coordinator, testified that the BCSEO receives this information about

deceased voters on a daily basis from the DOS. See ECF No. [232] at 200. Thus, the BCSEO

already uses the SSDI through information provided at the state level.

With regard to ERIC, Mr. Gessler agreed that an individual SOE cannot join ERIC and

instead the whole state must choose to participate in the database. See ECF No. [230] at 87-88.

Mr. Gessler did not dispute that Florida has chosen not to join ERIC and Snipes confirmed that

Florida has not implemented it. Id.; see also ECF No. [232] at 101. Similarly, it was unclear

whether the SAVE system can be implemented at the county level as opposed to the state level.

See ECF No. [233] at 155 (testifying that access to SAVE is through the Florida Division of

Elections (“DOE”)). With regard to DAVID from the DHSMV, Snipes testified that she has

learned of the database in the last year or two, the BCSEO is in the process of applying for

DAVID access, and she is only aware of one SOE in Florida using it to date in Orange County.

See ECF No. [232] at 99-101. There is no evidence that any other SOEs in Florida are currently

using DAVID. Even though Snipes does not currently use DAVID, the Florida DOE receives

change-of-address, registration, and change-of-party information from the DHSMV and supplies

that information to BCSEO through the FVRS. Id. at 34, 178. Nevertheless, while it may be the

“gold standard” to use many of these tools, the NVRA’s requirement of a reasonable list-

maintenance program does not mandate the use of such tools, especially at the county level.

Finally, Mr. Gessler based his opinion regarding Snipes’s lack of reasonable list-

maintenance efforts on the registration rate in Broward County, relying upon Dr. Camarota’s

computations.6 In his opinion, the ratio of voter registration to citizen voting-age population

6 The Court previously excluded Mr. Gessler’s computation of Broward County’s voter registration rates, finding that he was not qualified to offer such a data-driven opinion. See ECF No. [182] at 26, 29. At 25

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serves as a warning that there are inadequate procedures or activities for list maintenance,

especially when the ratio is at or above 100%. Id. at 135-138. As explained in § II(C)(a)(ii)

supra, the Court finds that Dr. Camarota’s computations are not reliable in that they use an

inflated voter registration number and a deflated voter-eligible population number, leading to a

misleading result. By relying upon an inaccurate registration rate as a basis to suggest a lack of

list maintenance, the entire premise of this opinion is flawed from the start.7

In sum, the Court is not persuaded by Mr. Gessler’s opinion that Snipes did not comply

with § 98.065(2)(c) and that several list-maintenance tools should have been implemented. The

Court finds his ultimate opinion that Snipes does not maintain an adequate list-maintenance

program to be unsupported by the weight of the evidence.

iii. Citizen Complaints about the Broward County Voter Rolls

ACRU’s next bundle of evidence consists of the testimony from several Florida and

Broward residents who acquired and reviewed the official lists of registered voters in Broward

County: Richard DeNapoli, Richard Gabbay, William Skinner, Kirk Wolak, Logan Churchwell,

and Gregg Prentice. These witnesses testified about the registrations they observed on the voter

trial, Mr. Gessler testified that he was present in the courtroom when Dr. Camarota testified about Broward County’s registration rates and thereafter referenced Dr. Camarota’s computation of those rates as support for his opinion. See ECF No. [229] at 134, 135, 138. 7 ACRU’s Proposed Findings of Fact and Conclusions of Law argue that neither Snipes nor United offered testimony from an election administration expert witness. See ECF No. [237] at 19-20. This argument, however, flips the burden of proof in the case. ACRU – not Snipes or United – bears the burden of demonstrating that Snipes does not have a reasonable list maintenance program in effect. Neither Snipes nor United has an affirmative duty to proffer expert witness testimony to prove that Snipes has such a program in place. To find otherwise would require the Defendant and Intervenor-Defendant to disprove Plaintiff’s case rather than requiring that Plaintiff prove its case. Significantly, the Eleventh Circuit opinion upon which ACRU relies for this argument required that the plaintiff therein, not the defendant, provide evidence either by expert testimony or testimony of custom to establish the appropriate standard of care. See Insurance Co. of the West v. Island Dream Homes, Inc., 679 F.3d 1295, 1298 (11th Cir. 2012). 26

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lists and, in some cases, submitted the records they observed into evidence.8 ACRU introduced

into evidence citizen reports in support of its position that Snipes’s list maintenance program is

inadequate. According to ACRU, “[w]hen citizens discover defects in the voter rolls, how an

election official processes that information provided by helpful third parties is an important part

of its list maintenance.” ECF No. [237] at 30.

With regard to information provided by third parties, such as citizens, Florida law

provides the following:

If the department or supervisor receive information from sources other than those identified in subsections (2)-(5) that a registered voter is ineligible because he or she is deceased, adjudicated a convicted felon without having had his or her voting rights restored, does not meet the age requirement pursuant to s. 97.041, is not a United States citizen, is a fictitious person, or has listed a residence that is not his or her legal residence, the supervisor must adhere to the procedures set forth in subsection (7) prior to the removal of a registered voter’s name from the statewide voter registration system.

Fla. Stat. § 98.075(6). Subsection 7, in turn, requires that a supervisor receiving information

under subsection (6) “[n]otify the registered voter of his or her ineligibility by mail within 7 days

after receipt of notice or information” and then details the information that must be included

within the notice. Fla. Stat. § 98.075(7). The Court recognizes that information supplied by

citizens is valuable to the general list maintenance process under § 98.075(6). However, not all

information is relevant to the list maintenance process required by Section 8 of the NVRA – the

sole issue in this lawsuit. The NVRA only requires “a general program that makes a reasonable

effort to remove the names of ineligible voters from the official lists of eligible voters by reason

of (A) the death of the registrant; or (B) a change in the residence of the registrant.” 52 U.S.C. §

20507(a)(4) (emphasis added). Thus, the Court considers ACRU’s evidence of citizen

complaints in light of the NVRA’s list-maintenance requirements.

8 Many of these records were not admitted for the truth of the matter asserted but were instead admitted to show the information these citizens provided to Snipes. See ECF No. [230] at 174. 27

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As evidence of such citizen complaints, ACRU presented the testimony of Richard

DeNapoli (“Mr. DeNapoli”), an attorney who cross-referenced information available on the

SSDI with voter information on the BCSEO’s website and then analyzed data involving voters

who died in 2011. See ECF No. [230] at 246. Upon reviewing a data set of 2,100 deceased

individuals, he determined that 481 were still listed as active voters on the Broward County rolls

as of May of 2012. Id. at 247. According to Mr. DeNapoli, within one month of presenting the

data to Snipes, the voters were removed from the voter rolls. Id. at 247-248. Mr. DeNapoli’s

submission of information to BCSEO relates to the removal of a registered voter by reason of

death – an area specifically covered by the NVRA’s list-maintenance requirement. His

testimony demonstrates that the BCSEO quickly responded to information about ineligible voters

received from a third-party. The Court finds that such evidence supports Snipes’s position that

the BCSEO has an adequate list-maintenance program as required by the NVRA.

Similarly, ACRU presented the testimony of Richard Gabbay (“Mr. Gabbay”), a

registered voter in Broward County Precinct F004. Mr. Gabbay researched whether registration

records of voters in his retirement community were accurate. See ECF No. [231] at 98-99, 104.

He obtained a list of voters in his precinct from the state and compared it to the social registry

published for his retirement community to determine whether there were any inaccuracies in the

voter rolls. Id. at 104-105. Based on this comparison, Mr. Gabbay compiled a list of 629 voters

whose registration appeared to be inaccurate because the person no longer lived at the address or

was deceased – both areas covered under the NVRA’s list-maintenance requirement. Id. at 103-

105. He then presented that list in an Excel spreadsheet to Snipes on October 6, 2015 pursuant to

§ 98.075(6). Id.

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Two days later, Snipes personally responded to his request in writing as follows: “Mr.

Gabbay: Thank you for forwarding the results of your research on the status of voters who are

members of Precinct F004 in Coconut Creek. We will review your findings and take the

appropriate steps under Florida law to update the voters’ records as deemed necessary. Thank

you again for the work that you have done on this project and for sharing your findings.” See

ECF No. [224-42] at 6. Thereafter, on December 1, 2015, Snipes sent Mr. Gabbay a letter

informing him that all active voters had been sent a Vote-By-Mail mass mailing in October of

2015 – the same month that he reported his findings - and that if that piece of mail was returned

as non-deliverable, a process of changing the voter’s status would begin that would take

approximately ninety days. Id. at 136-137. Two months later, on February 4, 2016, Snipes

emailed Mr. Gabbay to inform him that she was in the process of rechecking the list he provided

to determine how many records were changed as a result of the Vote-By-Mail mailing. Id. at

137. Thereafter, on March 21, 2016, Snipes mailed Mr. Gabbay the results of her research and

list-maintenance activities in response to his submission, which revealed that 196 voters were

removed from the active voter list due to returned mail from the mass mailing; four voters were

removed from the list because they moved out of Broward County; three voters were removed

because they had a duplicate registration; thirteen voters were removed because they were

deceased; three voters remained on the active voter list but did not vote in the March of 2016

election; three voters remained on the active voter list and voted in the March of 2016 election;

and the remaining 407 voters were already on the inactive voter list and were scheduled to be

removed from the voter list in May of 2017. Id. at 139-140; ECF No. [224-42] at 5. Mary Hall

(“Ms. Hall”), BCSEO’s Director of Voter Services, and Snipes also testified that, in response to

Mr. Gabbay’s submission, Voter Services looked through the database and notified every voter

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on that list via a written notice.9 See ECF No. [232] at 62-63, 212. In addition, in February of

2017, Snipes forwarded a spreadsheet to Mr. Gabbay revealing the names of all voters removed

from the voter rolls within Mr. Gabbay’s October of 2015 submission.10 See ECF No. [231] at

109. The Court finds that the evidence presented of Mr. Gabbay’s submission of voter research

to the BCSEO demonstrates responsiveness to this citizen complaint. The BCSEO reviewed the

submitted information, mailings were sent out to the individuals on the list, and action was taken

to remove ineligible voters from the rolls based on the results of the research.

ACRU next presented the testimony of citizen William Skinner (“Mr. Skinner”), an

attorney who worked with another Broward County voter, Kirk Wolak (“Mr. Wolak”), to

analyze and compare voter data in New York and Florida. Pursuant to Freedom of Information

Act requests, Mr. Skinner obtained copies of both the New York voter rolls and the Florida voter

rolls. See ECF No. [230] at 161-162. He then asked Mr. Wolak to create a file, using the New

York and Florida data, containing the first name, middle name, last name, and date of birth of the

person for both jurisdictions. Id. at 164. The purpose of this data was to locate voters who were

registered to vote in both states. Id. at 167. On August 11, 2016, Mr. Skinner provided this

information to three individuals at the BCSEO via email.11 Id. at 168; ECF No. [217-1].

According to Mr. Skinner, he did not receive a response to this email, so he sent a follow-up

email on September 21, 2016 to which he did not receive a response either. See ECF No. [230]

at 170. He then followed up a third time on February 22, 2017 via email and received a

9 Ms. Hall testified that the BCSEO does not maintain copies of the notification cards sent to the voters. See ECF No. [232] at 75-76. 10 ACRU’s Proposed Findings of Fact and Conclusions of Law raise issues surrounding Snipes’s lack of compliance with Mr. Gabbay’s request to inspect list maintenance records pursuant to Section 8 of the NVRA. However, the sole issue in this lawsuit is whether Snipes maintains a reasonable list-maintenance program under Section 8 of the NVRA – not whether Snipes provided a non-party with access to list- maintenance records. 11 Mr. Skinner also submitted the information to Palm Beach County and Miami-Dade County as the data was not limited to Broward County. Id. at 167-168. 30

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telephone call from Dolly Gibson at the BCSEO who indicated that the spreadsheet files had not

been received. Id. Mr. Skinner then emailed the attachments a second time to the BCSEO. Id.

Snipes emailed him on March 6, 2016 to state she did not receive the files, and Mr. Skinner

testified he did not receive any further response from her office. Id. at 170-171.

In this instance, the Court recognizes that Snipes failed to adequately respond to

information of potential duplicate voters provided by Mr. Skinner. This certainly suggests a lack

of diligence in investigating information received from a third-party source under Florida Statute

§ 98.075(6), (7). However, Snipes’s lack of responsiveness to information about potential

duplicate voters is not probative of whether Snipes implemented a reasonable list-maintenance

program under Section 8 of the NVRA, as it is neither relevant to a registrant’s change of death or

a change of address. Unlike the information supplied by Mr. DeNapoli or Mr. Gabbay that was

directly tied to the NVRA’s list-maintenance requirement, the possibility of duplicate

registrations is not material to the Court’s analysis. Both Mr. Skinner and Mr. Wolak recognized

that there is no prohibition in Florida to be registered in two states at one time. See ECF No.

[230] at 141-142, 183. Moreover, both witnesses agreed that Florida has many seasonal

residents who reside in New York for part of the year and in Florida for another part of the year

as well as residents from New York who retire in Florida.12 Id. at 141; 188-189. While Florida

law provides a mechanism to remove voters who register in another state, this provision of

Florida law falls outside the scope of the NVRA’s narrow list-maintenance focus. See § II(C)(iv)

infra (explaining the distinction between the NVRA’s authorization to remove certain registered

voters under Section 8(a)(3) versus the mandatory requirement to remove certain registered

12 The Court also questions the accuracy of the data. Both Mr. Wolak and Mr. Skinner recognized that they were limited in the data they were provided. When comparing the voter rolls of the two states, they did not have access to the last four digits of voter social security numbers, DMV numbers, or access to their signature cards to ensure that these were indeed duplicate voters. Id. at 147; 197-198. 31

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voters in Section 8(a)(4) pursuant to reasonable list-maintenance efforts). While the submission

of this information would have required that Snipes take specific steps under Florida law,

Section 8(a)(4) of the NVRA – the provision at issue in this lawsuit - does not mandate the

purging of duplicate voters from the rolls. Thus, Snipes’s non-responsiveness to Mr. Skinner’s

submission does not run afoul of the NVRA’s list-maintenance requirements.

Additional evidence in the form of citizen complaints came from Mr. Wolak, who also

reviewed the Broward County voter roll for implausible birth years. See ECF No. [230] at 111-

112. Unlike the New York versus Florida duplicate voter submission, this data could be

evidence of the need to remove deceased voters from the rolls – a list maintenance requirement

under Section 8 of the NVRA. Mr. Wolak testified that he sorted the data he obtained from an

official Voter Extract File and reduced the list to reflect all registrants having a date of birth of

101 years of age or older. Id. at 121. This list contained 3,045 entries. Among these entries

were three registrants with dates of birth in 1886, 1889, and 1896 and two registrants who were

127 and 120 years old and listed as active voters. Id. at 122. Mr. Wolak did not independently

review his data to determine whether these individuals identified were living or deceased and had

no personal knowledge of such information. Id. at 137-138. Mr. Wolak also admitted he did not

know if any of these individuals’ dates of birth were entered into the database incorrectly, did not

verify any of the dates of birth, and admitted that some voters who fill out their registration cards

by hand may have difficult-to-read handwriting leading to an incorrect date-of-birth entry. Id. at

149-152. But even if this evidence were based on personal knowledge or otherwise

corroborated, there was no evidence presented that Mr. Wolak submitted his spreadsheet to the

BCSEO and, if he did, what response he received. Id. at 144-145. Mr. Wolak only testified that

he provided this spreadsheet to Mr. Skinner; however, there was no evidence that Mr. Skinner

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submitted this data to Snipes. Id. at 119, 145. Mr. Skinner only testified that he supplied

evidence of the New York-Florida voter comparison to the BCSEO, making no mention of this

other data set. Id. at 168; ECF No. [217-1]. Mr. Skinner’s email in which he provided the New

York-Florida data to the BCSEO made no mention of the implausible voter-age spreadsheet that

Mr. Wolak created. See ECF No. [217-1]. As such, Mr. Wolak’s spreadsheets regarding

implausible voter age are not relevant to Snipes’s responsiveness to citizens’ complaints. This is

because there is no evidence that this data was ever submitted to Snipes for further action or

verification.

Next, ACRU presented evidence from Logan Churchwell (“Mr. Churchwell”), an

employee of the Public Interest Legal Foundation. In March of 2017, Mr. Logan reviewed

Broward County’s voter registration list from May of 2016 and created a spreadsheet reflecting

possible duplicate voter registrations, deceased voters, one underage voter, voters age 105 or

older, and voters with commercial addresses.13 Id. at 201-205, 217. Mr. Churchwell testified

that ACRU’s counsel instructed him to create this spreadsheet in March of 2017 in support of

this lawsuit. Id. at 213. According to Mr. Churchwell, “in the mid-summer of 2016,” he

presented some form of the information contained within the spreadsheet to the BCSEO but

received no response. Id. at 216, 240. Mr. Churchwell’s unidentified submission of information

occurred long before he compiled the spreadsheet, which was created in March of 2017.

Sometime after May of 2017, Mr. Churchwell spot checked his spreadsheets and found about

two dozen of those voters still on the rolls. Id. at 216-217.

13 Mr. Churchwell additionally reviewed the spreadsheet that Mr. Wolak compiled and randomly searched the names of individuals on that list in the SSDI to determine whether they were deceased. See ECF No. [230] at 206-207. As stated, there was no evidence presented that Mr. Wolak’s list was supplied to the BCSEO. 33

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The vast majority of Mr. Churchwell’s spreadsheets pertained to list maintenance falling

outside the purview of the NVRA’s list-maintenance requirement, such as duplicate voter

registrations, underage voters, and voters residing at a commercial address. The Court

emphasizes that its focus remains on the list maintenance required under Section 8 of the NVRA

– removal of citizens ineligible to vote by reason of death or change of address. As such, the

relevant portions of Mr. Churchwell’s data are limited to deceased voters and those of a voting

age of 105 or older to the extent those voters may be deceased. Based on Mr. Churchwell’s

testimony, however, the Court is unable to discern whether this specific subset of data was ever

provided to the BCSEO as Mr. Churchwell never specified exactly what information he provided

in the summer of 2016. Further, Mr. Churchwell testified that he completed his analysis in

March of 2017 – approximately nine months after he submitted data to the BCSEO. Similarly,

Mr. Churchwell’s unclear testimony makes it impossible to determine whether the two dozen

individuals he found on the voter rolls during his spot checking after May of 2017 were within

the category of deceased voters or voters of an implausible age. Id. at 217. Without more

precise testimony, the Court cannot determine whether Snipes received information from Mr.

Churchwell about deceased voters or those of an implausible age, and if so, whether Snipes

removed any or all such voters from the rolls in response to Mr. Churchwell’s submission. For

these reasons, the Court concludes that this evidence fails to support ACRU’s position.

The final witness who testified about citizen complaints was Gregg Prentice. Mr.

Prentice testified that he gave Snipes’s office certain data in which he identified 1,200 voters

who listed a UPS store as their address. See ECF No. [231] at 149. He submitted this

information in December of 2013 but did not receive a written response from Snipes. Id. at 153.

Rather, he received a telephone call from Snipes in May of 2014 in which he was informed that a

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letter had been mailed advising these voters that, if they did not respond within thirty days, their

address would be changed to the BCSEO’s address. Id. at 153-154. On cross-examination, Mr.

Prentice admitted he did not know if any of those identified voters were homeless, lived in a

mobile home or boat, or were military personnel living overseas receiving mail at the UPS

location. Id. at 158-160. He likewise did not know whether any of those voters were legal

residents of Broward County without a permanent residence, and he was not aware of the

responses Snipes received from the mailer or what procedures Snipes employed when changing

their addresses from the UPS store to the BCSEO. Id. at 161-163, 167. Mr. Prentice also

assisted Mr. Gabbay in presenting his submission of 629 voters to Snipes, but testified that he did

not personally submit the information. Id. at 155. He recalled receiving a summary sheet from

Snipes in response to Mr. Gabbay’s submission. Id. at 175-176. Finally, Mr. Prentice was

involved in a third submission to the BCSEO involving 204 active registrants who no longer

lived in the Wynmoor retirement community, Precinct 004. Id. at 155. Mr. Prentice agreed that

Snipes responded to this submission by providing an email containing five categories along with

detailed spreadsheets with each registrant color coded. Id. at 175.

Looking at Mr. Prentice’s testimony in light of the NVRA’s list-maintenance

requirements, the Court concludes that the first submission - a voter’s use of a non-residential

address – is not relevant. A voter’s listing of a UPS store as his or her address does not make the

voter ineligible to vote by reason of death or change of address. On the other hand, the Court

finds that the two sets of data that Mr. Gabbay submitted in conjunction with Mr. Prentice

involving potential deceased voters or voters who changed their address are indeed relevant to

the NVRA’s list-maintenance requirement. Mr. Prentice’s testimony, however, establishes that

Snipes investigated both submissions, responded to Mr. Gabbay and Mr. Prentice, and explained

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the actions taken on the voter rolls. Thus, the testimony establishes that Snipes was indeed

undertaking reasonable list-maintenance efforts required by the NVRA.

iv. Snipes’s Admissions of List-Maintenance Tools Not Used

As its fourth bundle of evidence, ACRU argues that Snipes and her staff made numerous

admissions reflecting a lack of list-maintenance activities, such as lack of knowledge about all of

the databases used by the state FVRS system; failing to use multiple list-maintenance tools

available to her, such as jury recusal forms, out-of-state registration information, and the DAVID

database; failing to process information received from citizen complaints, and failing to monitor

the registration rate within Broward County. The Court will address each of these admissions in

turn.

ACRU first argues that the BCSEO is not competent in the use of the state FVRS system

because Jorge Nunez (“Mr. Nunez”), BCSEO’s Information Technology Director who maintains

the Broward County voter registration database, could not identify the specific databases used in

the DOS’ FVRS system. See ECF No. [237] at 37. The Court disagrees with this

characterization of Mr. Nunez’s testimony. Mr. Nunez testified that the VR System, which is the

BCSEO’s portal, interfaces directly with the FVRS, the state’s portal, and allows the BCSEO to

receive transactions from the state and to, in turn, report transactions to the state. See ECF No.

[233] at 10, 49, 90. In response to the Court’s inquiries, Mr. Nunez explained that he is not

familiar with the specific databases or technology the DOS uses in its FVRS database or how the

DOS obtains the data it inputs into FVRS. Id. at 90. The Court finds nothing extraordinary

about Mr. Nunez’s testimony on the subject. He is not an employee of the DOS who should be

familiar with the databases used at the state level and incorporated into the FVRS – the state’s

portal. Rather, he is a Broward County employee who demonstrated familiarity with and

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knowledge of the VR System, the BCSEO’s portal. The Court finds that Mr. Nunez’s

unfamiliarity with the inner workings of the FVRS at the DOS level is not evidence of any

failure or inability to use the information DOS supplies through the FVRS to the BCSEO’s VR

System. To the contrary, Mr. Nunez provided detailed testimony, further discussed below, as to

how the information received from the DOS through the FVRS is used on a daily basis at the

BCSEO.

Next, ACRU argues that there were multiple list maintenance tools that Snipes could

have used but admittedly failed to use, including jury recusal forms, the DAVID database,14 and

out-of-state registration information. Starting with recusal forms, the Court finds that Florida

law does not require a SOE to use such forms as part of its list-maintenance tools. Section

98.065(4)(a) does not impose an affirmative duty on election officials to seek out jury notices

signed by a voter and returned to the courts. Rather, the statute authorizes a supervisor to change

a voter’s registration records to reflect a new address and requires the mailing of an address

change notice “if the supervisor receives change-of-address information . . . from jury notices

signed by the voter and returned to the courts.” Fla. Stat. § 98.065(4)(a) (emphasis added).

Significantly, earlier this year, the Florida Legislature attempted to enact House Bill No. 709,

which would amend § 98.065 and require that supervisors enter into agreements with the local

clerk of court to receive monthly change-of-address information and a list of potential jurors who

identified themselves as aliens. The proposed legislation would have further required that the

supervisor compare this information with the statewide voter registration system. However, on

March 10, 2018, the legislation was indefinitely postponed and withdrawn from consideration.

The Florida Legislature had the opportunity to impose such a requirement on its own supervisors

14 The Court has already addressed the use of the DAVID database when discussing Mr. Gessler’s opinions supra. 37

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and declined to do so. Thus, not only does the text of § 98.065(4)(a) demonstrate that Florida

does not require that supervisors use jury recusal forms, but withdrawn House Bill No. 709 is a

further indicator that this is not a required list-maintenance tool under Florida law. When

considering whether Snipes has implemented a reasonable list-maintenance program under

Section 8 of the NVRA, the Court rejects ACRU’s argument that the failure to use jury recusal

forms is unreasonable.

Similarly, the Court finds that Section 8 of the NVRA does not require Snipes to review

duplicate data in or out of the state as ACRU suggests. In making this argument, ACRU

attempts to shift a duty that Florida has delegated to the DOS to the individual county

supervisors. Florida Statute § 98.075(2) provides that the DOS “shall identify those voters who

are registered more than once or those applicants whose registration applications would result in

duplicate registrations.” Notably, the statute does not impose any similar requirement to search

for duplicate registrations on the individual SOEs. In support of its argument, ACRU directs the

Court to Florida Statute § 98.045, which authorizes the removal of a voter from the statewide

registration system if “information [is] received by a voter registration official from an election

official in another state indicating that a registered voter in this state has registered in that other

state.” Fla. Stat. ¶ 98.045(2)(b) (emphasis added). Florida law considers the receipt of such

information to be “a written request from the voter to have the voter’s name removed from the

statewide voter registration system.” Id. Significantly, Section 8(a)(3) of the NVRA authorizes,

but does not require, the removal of a registrant from the voter rolls “at the request of a

registrant.” 52 U.S.C. § 20507(a)(3). By deeming voter registration in another state as the

equivalent to the voter’s written request for removal, Florida law authorizes voter removal in

conformity with Section 8(a)(3) of the NVRA. Much like this provision of the NVRA, which

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“places no affirmative obligations on states (or voting commissions) to remove voters from the

rolls,” ACRU, 872 F3d at 182, Florida law places no affirmative obligation on SOEs to seek out

voter registration information in other states for the purpose of removing voters. Id. at 182 (“By

its terms, the mandatory language in Section 8(a)(4) only applies to registrants who have died or

moved away. [Voter r]emoval . . . [authorized by Section 8(a)(3)] is not included on this list of

mandatory purging.”). Authorizing the removal of a registrant from the voter rolls upon the

receipt of certain information, such as the voter’s written request for removal, is not the same as

imposing a list-maintenance duty on SOEs to seek out such information for the purpose of

removing the voter. “[T]he NVRA was intended as a shield to protect the right to vote, not as a

sword to pierce it.” Id. And with that principle in mind, the Court declines to impose a

requirement on Snipes to seek out voter registrations in other states as part of a mandatory voter

purge program. This is particularly so given that Section 8(a)(3) of the NVRA allows, but does

not require, voter removal upon the written request of the voter.

Finally, ACRU argues that Snipes admittedly did not process information obtained from

citizen complaints and did not monitor Broward County’s registration rates. The Court has

already addressed whether the NVRA’s list-maintenance requirements necessitated any response

to citizen complaints or follow up by Snipes, finding that Snipes appropriately followed up on

information provided about deceased voters, voters of an implausible age, and voters whose

address changed. As to ACRU’s registration rates proffered by Dr. Camarota and relied upon by

Mr. Gessler, the Court has already rejected such evidence as set forth above. Thus, the Court

finds that neither of these constitutes an admission of list maintenance failures.15

15 The Court takes notice that ACRU’s Proposed Findings of Fact and Conclusions of Law contain an extensive section detailing Snipes’s purported discovery violations. Indeed, this appears to be a new sixth bundle of evidence. The Court has already addressed Snipes’s belated production of the Voter Services Procedure Manual during trial. Not only is there no procedural prejudice in that Mr. Gessler had time to 39

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v. List-Maintenance Certifications

As its final bundle of evidence, ACRU points to Snipes’s records to prove unreasonable

list-maintenance practices, specifically referring to the certifications provided to the DOS.16

Florida law requires each SOE to prepare and submit Certifications of List Maintenance

activities. Fla. Stat. § 98.065(6). These certifications consist of two pages and are filed with the

DOS no later than July 31 for the first six-month period of the year and January 31 for the

second six-month period of the preceding year. Id. Their purpose is to allow the DOS to review

the list-maintenance activity conducted by each SOE and determine whether that activity is

adequate under the statute. Id.

In accordance with these requirements, Mr. Nunez prepares twice-yearly certifications

summarizing BCSEO’s list maintenance activities, which Snipes signs, certifies, and provides to

the DOS. See ECF Nos. [217-5] and [217-6]. The two types of certifications include: (1)

“Certification of Address List Maintenance Activities” and (2) “Certification of Eligibility

Records Maintenance.” Id. The certifications reflect numbers from the VR System, revealing

the number of address confirmations, change notices, and final notices mailed out during that

time period as well as the number of voters changed from inactive to ineligible status, and the

number of registrants deemed ineligible to vote because of death, felony conviction, mental

incapacity, or lack of citizenship. Id.; see also ECF No. [233] at 34.

review the written manual and the opportunity to opine on its contents, but there is also no substantive prejudice as the Court has not given the manual any significance in its analysis. Similarly, ACRU argues that Snipes did not properly disclose Sharon Fleming’s job title, which led to its decision not to depose her during discovery. Again, the Court allowed ACRU to depose Ms. Fleming during trial in advance of her testimony, curing any potential prejudice. With that said, ACRU also raises miscellaneous arguments about other discovery issues in its Proposed Findings of Fact and Conclusions of Law – issues that were not argued to prove Snipes implemented an unreasonable list-maintenance program. For that reason, the Court declines to address these other miscellaneous alleged discovery violations. 16 Although ACRU raises additional arguments within this bundle of evidence, such as disputing Snipes and United’s evidence pertaining to training, policies and procedures, and list-maintenance practices for the removal of ineligible voters, these arguments overlap with other evidence presented at trial. For that reason, the Court’s findings with regard to such evidence are addressed in other sections of this opinion. 40

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During the course of this lawsuit, there is evidence that Snipes’s original certifications

submitted to the DOS were amended. Compare ECF No. [217-5] with [217-6]. Snipes

originally produced thirteen sets of biannual certifications spanning from 2009 through mid-

2016. See ECF No. [217-5]. Toward the end of the discovery period, Snipes then amended five

of the thirteen Certification of Address List Maintenance Activities forms for the periods ending

in December of 2011, December of 2012, December of 2013, June of 2014, and December of

2015. See ECF No. [217-6]. ACRU concedes that “[f]rom the original certifications to the

amended versions there were no changes to the numbers reported.” See ECF No. [237] at 56.

In addition to the numbers, the certifications also feature three checkboxes, which

correspond to the three types of list-maintenance mailings outlined in § 98.065(2). The three

checkboxes are labelled (1) “Change-of-address information from U.S. Postal Service/NCOA”

corresponding to § 98.065(2)(a); (2) “Mass (nonforwardable) mailing to all registered voters in

county” corresponding to § 98.065(2)(b); and (3) “Targeted address confirmation request

(nonforwardable) mailing to registered voters who have not voted or requested an update to their

records within the last 2 years” corresponding to § 98.065(2)(c). Five of the thirteen biannual

certifications were amended to check off one or more of these categories omitted from the

original certifications. See ECF No. [217-6]. The following changes were made:

1. The December of 2011 certification was amended from certifying NCOA and

targeted mail list-maintenance activities to add mass mailing list maintenance.

Compare ECF No. [217-5] at 22 with ECF No. [217-6] at 8.

2. The December of 2012 certification originally failed to check off any specific method

of list-maintenance mailings. Despite this, there was clearly ongoing list maintenance

occurring as the following were mailed to voters: 572 address confirmation notices,

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2,704 address change notices, 4,996 final address confirmation notices, 21 registered

voters who responded to final address confirmation notices, one registered voter

placed on the inactive list, and 17,091 voters removed from the statewide voter

registration system. See ECF No. [217-5] at 18. The amended certifications were

modified to specify that mass mailings and targeted mailings were used during this

timeframe. Compare ECF No. [217-5] at 18 with ECF No. [217-6] at 6.

3. The December of 2013 certification similarly did not check off any specific method

of list-maintenance mailings. Once again, list-maintenance mailings were clearly

ongoing as the numbers reflect the following: 5,043 address confirmation notices,

31,689 address change notices, 24,763 final address confirmation notices, 5,772

registered voters who responded to final address confirmation notices, 31,885

registered voters placed on the inactive list, and zero voters removed from the

statewide voter registration system. See ECF No. [217-5] at 18. In the amended

version, Snipes certified that she used all three forms of list-maintenance mailings

during this time period.

4. The June of 2014 certification reflected that a targeted mailing was completed during

this timeframe while the amended certification added that a mass mailing was also

completed. Compare ECF No. [217-5] at 9 with ECF No. [217-6] at 12.

5. The December of 2015 certification originally stated that an NCOA mailing was

completed while the amended certification added that a mass mailing and a targeted

mailing were completed. Compare ECF No. [217-5] at 6 with ECF No. [217-6] at 4.

While five of the thirteen certifications were amended subsequent to the lawsuit being

filed, the number of list-maintenance documents mailed out and the actions taken with respect to

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voters remained identical in the amended version. The only modification was an amendment as

to the mailing method employed during the specified time period – the type of box checked off at

the top of the form. It is apparent to the Court that omissions in the original certifications came

to light as a result of this litigation. A more careful review of the certifications prior to their

submission would have prevented the need for amendment. The sole purpose of providing this

information to the DOS is to report accurate information about list-maintenance. As such, the

Court finds nothing improper about an amendment to a certification upon the discovery of an

error. To find otherwise would deter SOEs from correcting errors and would result in the

submission of inaccurate information to the state. This is especially true in this case when the

numbers were not modified – only the boxes checked off at the top. For example, it is clear to

the Court that the BCSEO was performing significant list-maintenance mailings during the

period reported in the December of 2012 and December of 2013 certifications. The former

indicates that 17,091 voters were removed from the rolls while the latter indicates that 31,885

were placed on the inactive list, and both reflect that thousands of notices were mailed. Despite

the obviousness of ongoing list-maintenance mailings, none of the boxes on the form were

checked off. The Court finds nothing improper about Snipes’s amendment of the certifications

to correct omissions that went unnoticed until they were pointed out during the pendency of this

lawsuit. Scrutiny of records during litigation often brings clerical errors to light.

Even if the Court disregarded the amended certifications and reviewed only the original

ones in conjunction with other evidence in the record, such as invoices from Commercial

Printers, Inc. (“Commercial Printers”), a third-party vendor that performs printing and mailing

for BCSEO’s list-maintenance program, the result remains the same.17 Florida law only requires

17 The record also contains abundant Commercial Printers invoices documenting the list-maintenance mailings identified in the certifications for the years 2013, 2014, 2015. See e.g. ECF Nos.[217-13], [221-15] - [221-22], 43

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that, once every two years, Snipes complete one of three forms of list-maintenance mailings. At

a minimum, the Court concludes that the BCSEO completed NCOA mailings in 2009, 2011,

2013, and 2015. The original June of 2009, December of 2011, and December of 2015

certifications specify that an NCOA mailing was completed during this frame. See ECF No.

[217-5] at 6, 22, and 27. In addition, the Commercial Printers invoices in the record reflect that

such mailings were completed in May of 2013 and May of 2015. See ECF No. [217-13].

Regardless of whether Snipes amended the certifications, the Court finds there is sufficient

evidence from the invoices and original certifications, in addition to the testimony discussed

below, demonstrating that the BCSEO completed biennial NCOA list-maintenance processes as

required by Florida law.

b. Snipes and United’s Evidence

At trial, Snipes and United presented evidence to demonstrate the reasonableness of the

BCSEO list-maintenance program and its compliance with Florida law and Section 8 of the

NVRA. In particular, they presented evidence of employee training, their use of the VR system,

including the VR Manual, and their list-maintenance policies and procedures followed to update

voter rolls when a voter becomes ineligible by reason of an address change, death, felony

conviction, mental incapacity, lack of citizenship, and duplicate registration.

i. BSCEO Training

Snipes and several other individuals at the BCSEO are responsible for carrying out voter

registration and list-maintenance duties, including Mr. Nunez, Ms. Hall, and Sharon Fleming

(“Ms. Fleming”), the Voter Services Coordinator. See ECF No. [233] at 8-9; ECF No. [232] at

15, 166-167. In addition, Snipes has a staff of approximately seventeen to eighteen employees,

[221-27] – [221-54]. Export files, including NCOA export files, exchanged with Commercial Printers are also in the record. See ECF Nos. [221-11] – [221-14] and [221-23] – [221-26]. 44

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supervised by Ms. Fleming, who work on list-maintenance activities. See ECF No. [232] at 166,

167-68. With regard to training, all directors at the BCSEO have attended and graduated from

the Florida Certified Election Professional program and thirteen individuals in the office have a

Master Certification for Election Professionals, including Snipes. See ECF No. [232] at 51-52;

112-115. Snipes has also completed the National Certification for Election Officials and has

taught the Fundamentals of Leadership course for the Florida Certified Election Professional

program. Id. at 113. Additionally, the data processing supervisor on Fleming’s staff conducts

ongoing in-person training of the processing clerks, teaching them how to process a new

registration, an address change, a name change, a party change; how to look up a voter; the

process for removal of registered voters; and the procedure used for address confirmation

notices. Id. at 168, 183-185. The training follows processes found in the VR Manual. Id. at

168. Snipes also holds retreats three to four times a year with her staff for training purposes to

discuss voter registration, list maintenance, and outreach. Id. at 51-52.

ii. The VR System

Similar to other Florida counties, Broward County uses the VR System, a voter

registration database system developed by an outside vendor with which BCSEO has a contract.

See ECF No. [232] at 28; ECF No. [233] at 89-90. The VR System interfaces directly with the

FVRS, the statewide voter registration database. See ECF No. [233] at 89-90. The VR System

contains the BCSEO’s list-maintenance policies and procedures. See ECF No. [232] at 17-18,

168, 185. Every employee in the Department of Voter Services who works on list-maintenance

activities has access to the system, including the online policies and procedures. See ECF No.

[232] at 23, 185, 195-196. In addition, the VR System has an online help desk to answer any

questions on a specific process involving voter registration and processing of information. See

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ECF No. [233] at 11. The help system is word searchable and contains built-in topics and

indices. Id. The VR System also contains training modules and a training log. See ECF No.

[232] at 23, 45.

iii. Procedures Relating to Change of Address

Every two years during odd-numbered years, the BCSEO utilizes information received

from the USPS NCOA program as part of its list-maintenance activities. See ECF No. [232] at

148; ECF No. [233] at 89. To complete this process, BCSEO contracts with Commercial

Printers. See ECF No. [232] at 92. Commercial Printers, a certified NCOA-Link USPS

provider, has been the vendor for the BCSEO before Snipes became the SOE. Id. at 150; ECF

No. [233] at 20. To generate a mailing to a voter, Mr. Nunez testified that he first exports files

through the VR System containing relevant information about all active voters in Broward

County. See ECF No. [233] at 21-24. Following its receipt of the export file, Commercial

Printers then checks each voter against the NCOA database and sends a file to Mr. Nunez

containing the forwarding address information for any NCOA matches located. Id. With this

information, Mr. Nunez then converts the file into a Microsoft Excel format and uploads it into

the VR System. Id. Voter Services next reviews each change-of-address record in the queue and

flags the record for the appropriate action to be taken, such as sending an address confirmation

notice, a final notice, a voter identification card, or other mailings. Id. Once this process is

complete, Mr. Nunez runs a report and reviews it to ensure that no records were missed. Id. The

IT Department then exports the information and prepares it so that Commercial Printers can send

out the mailings flagged by Voter Services. Id. As of the date of the trial, the BCSEO last

updated its voter rolls using the NCOA program data in May of 2017. Id. at 29-30; ECF No.

[232] at 72.

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Among the mailings sent by Commercial Printers is the address confirmation notice,

which seeks to confirm whether a voter is at a certain address. See ECF No. [232] at 207. If the

address confirmation notice is received as undeliverable, the BCSEO will process the notice

according to the information on the USPS yellow sticker and prepare an information card or a

final notice. Id. The BCSEO usually makes three attempts to verify a voter’s address before the

voter is moved from “active” to “inactive” status. Id. at 208. If the voter does not respond to the

final notice within thirty days or the final notice is returned as undeliverable, the voter is moved

to “inactive” status. Id. Voters who do not respond to final notices will be removed from the

voter rolls after remaining inactive for two general elections. Id. at 208-209.

In addition, the BCSEO uses mass mailings as part of its list-maintenance process. See

ECF No. [232] at 57-58, 173. In 2013 and 2015, it completed mass mailings to more than one

million voters in Broward County, sending them voter identification cards via forwardable first-

class mail and Vote By Mail forms via nonforwardable first-class mail. 18 Id. at 20, 57-58; ECF

No. [233] at 30. If the mailings are returned as non-deliverable, the BCSEO will send out an

initial request card, followed by a change-of-address notice, and then a final notice. See ECF

No. [232] at 57-58. The BCSEO also sends out change-of-address information identified from

returned nonforwardable return-if-undeliverable address confirmation requests mailed to all

18 During trial, Mr. Gessler testified that compliance with this statute requires a mailing to all active and inactive voters. See ECF No. [229] at 222-223. However, Mr. Gessler also testified that he was not familiar with Rule 1S-2.041 of the Florida Administrative Code. Id. at 240. Rule 1S-2.041 “provides procedures to maintain current and accurate addresses of legal residence for registered voters, eliminate duplicate registration records for the same voter, and identify and remove ineligible registered voters.” FAC Rule 1S-2.041(1). Subsection (e)(1) provides that “[o]nce a voter has been made inactive through this subsection, third-party address changes processes shall not apply to change an inactive voter’s legal residence until he or she is restored to active status.” An “inactive voter” is defined as “a registered voter whose registration record has been placed on inactive status after procedures in Section 98.065(4)(c), F.S., and this rule were followed.” Thus, Rule 1S-2.041, which provides the procedures for list maintenance, does not require that a SOE mail further change-of-address notices to an inactive voter once he or she is placed in “inactive” status. 47

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registered voters who have not voted in the last two years and who did not request that their

registration records be updated during that time. Id. at 59. This was most recently done in 2015.

Id. In addition to the above procedures, the Florida DOE also provides DHSMV data to the

BCSEO regarding voter change of address. Id. at 34.

The BCSEO does not remove a registered voter from the rolls by reason of change of

address unless the registrant confirms in writing that the registrant has changed residence to a

place outside of Broward County or has failed to respond to a final notice and has not voted or

appeared to vote in the last two general elections for federal office occurring after the notice is

mailed. As a result of its list-maintenance activities, between January 1, 2014 and December 31,

2016, the BCSEO removed 85,484 registrants who moved out of the county, 2,739 registrants

who moved out of the county and requested a change of address, 1,886 voters who requested to

be removed, and 97,941 voters whose mail was returned and remained inactive for two general

elections. See ECF No. [221-3] at 5770.

The evidence presented at trial reflects that the BCSEO uses the following three mailings

to identify, update, and remove, if needed, voters from the Broward County voter rolls due to

change of residence: (1) notifications to voters who have filed a forwarding address with USPS;

(2) mass mailings related to voting matters to registered voters; and (3) targeted mailings to

registered voters who have not voted for a certain period of time. As explained above, the Court

questions whether this third procedure has been effectively implemented given the number of

registrants who did not vote in 2012 and 2014 when compared to the number of the targeted

mailings and the number of individuals who requested an address change. Nonetheless, Florida

law only requires the implementation of one of these three methods every other year. As such,

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the weight of the evidence supports the finding that the BCSEO effectively implemented the first

two methods.

iv. Procedures Related to Deceased Voters

Florida’s DOS obtains reports of deceased individuals from the Florida Health

Department and from SSDI. See ECF No. [233] at 150. The DOS, in turn, forwards that

information to the counties, including the BCSEO, after identifying individuals who become

deceased both in and out of Florida. Id. Deceased data is transmitted through the VR System

and the BCSEO uses that information to remove deceased voters from the voter rolls on a daily

basis. See ECF No. [232] at 200. When the DOS notifies the BCSEO that a voter is deceased,

the office inputs the information into the database, matches the date of birth, address, and last

four digits of the social security number, and then removes the deceased voter from the rolls.

See ECF No. [232] at 65-66. If there is any irregularity in the decedent’s information, the

BCSEO sends the family a letter requesting the individual’s death certificate. Id. If it receives

information that a voter is deceased from sources other than the DOS, the BCSEO makes efforts

to confirm the death and obtain a copy of the death certificate before removing the registrant

from the voter rolls. Id. If the BCSEO is unable to obtain a copy of the death certificate, it

checks with the state and, if the death still cannot be confirmed, it sends a death notice to the

registrant’s last-known address to verify whether the voter is indeed deceased prior to removal.

Id. at 168-169. Between January 1, 2014 and December 31, 2016, Snipes removed 37,095

registrants from Broward County’s voter rolls that were determined to be deceased. See ECF

No. [221-3] at 5770.

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v. Procedures Related to Convicted Felons

Similarly, on a daily basis, BCSEO receives an electronic list of individuals with a felony

conviction from the DOS through the VR System. See ECF No. [232] at 123, 201. The BCSEO

then mails a letter to each voter on that list, giving them thirty days to reply by either confirming

or contesting the information contained in the notice. Id. at 125. If no reply is received within

thirty days, the BCSEO mails a second notice. Id. If no reply is received after the second notice,

it then publishes a notice in the newspaper and waits another thirty days for a reply. Id. If no

such reply is received, the voter is then removed from the voter rolls. Id. At the end of every

month, the BCSEO removes all voters who are ineligible to vote due to a felony conviction

pursuant to the above ninety-day verification period. Id. at 201. Between January 1, 2014 and

December 31, 2016, Snipes removed 5,102 registrants from Broward County’s voter rolls that

were determined to have a felony conviction. See ECF No. [221-3] at 5770.

vi. Procedures Related to Non-Citizens

Like the national voter registration form, Florida’s voter registration form requires

applicants to affirm their citizenship under penalty of perjury. See ECF No. [232] at 35-36.

Occasionally, the U.S. Department of Homeland Security sends individuals applying for

citizenship to the BCSEO to obtain documentation indicating whether they have registered to

vote as non-citizens. Id. at 90-91. Those non-citizens who registered to vote are then removed

from the voter rolls. Id. Between January 1, 2014 and December 31, 2016, Snipes removed four

non-citizen registrants from Broward County’s voter rolls. See ECF No. [221-3] at 5770.

vii. Procedures Related to Mental Incapacity

Florida’s DOS regularly sends information to the counties about individuals who are

ineligible to vote by reason of mental incapacity. See ECF No. [232] at 190, 202. Upon receipt

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of such information from the state, the BCSEO follows the same ninety-day verification

procedure it follows for convicted felons. Id. Once the verification process is complete, the

BCSEO then removes the voter from its rolls. Id. at 203. Between January 1, 2014 and

December 31, 2016, Snipes removed 238 registrants from Broward County’s voter rolls that

were determined to be mentally incapacitated. See ECF No. [221-3] at 5770.

viii. Procedures Related to Duplicate Registrations

On a daily basis, the BCSEO receives notifications of potential duplicate registrations

from the DOS via FVRS and, upon receipt of such information, it consolidates the registrations

so that only one remains active. See ECF No. [232] at 66-67. The BCSEO determines the

correct county of residence by looking at the most recent update to the voter’s record. Id.

Between January 1, 2014 and December 31, 2016, Snipes removed 5,225 voters registered

elsewhere and 4,407 duplicate registrants. See ECF No. [221-3] at 5770.

ix. Voter Removal

On a regular basis, Mr. Nunez runs an “inactive process” within the VR System to move

those voters who have been flagged as potentially ineligible to vote from “active” status to

“inactive” status. See ECF No. [233] at 13-14. An “inactive” voter is one who has not

maintained contact with the BCSEO by either not voting or not responding to its notices. See

ECF No. [232] at 170. Similarly, Mr. Nunez runs an “ineligible process” in the VR System,

which moves “inactive” voters who are no longer eligible to vote in Broward County to

“ineligible” status.19 See ECF No. [233] at 13-14. The voter is officially removed from the voter

rolls and must fill out a new voter registration form to be re-added to the rolls. Id. at 19. To

complete the “ineligible” process, Mr. Nunez goes into the VR System and uses the date of the

19 However, ninety days prior to a primary or general election for federal office, BCSEO does not remove any registered voters from the voter rolls. See ECF No. [233] at 24. 51

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penultimate general election to identify those inactive voters who have not voted during the last

two general elections. Id. at 16.

At trial, United introduced a summary of all voters moved to “ineligible” status along

with the basis for such ineligibility, revealing the number of voters removed from the voter rolls

based on the loss of civil rights, death, mental incapacitation, or other ineligible status. Id. at 19;

see ECF No. [221-1]. Between January 1, 2014 and December 31, 2016, the BCSEO removed

239,868 registrants from Broward County’s voter rolls. See ECF No. [221-3] at 5770; ECF No.

[233] at 151-153. Between January 7, 2015 and January 10, 2017, the BCSEO removed 192,157

registered voters from Broward County’s voter rolls. See ECF No. [233] at 142. Thus,

approximately 16% of all registered voters were removed during this two-year period. In

addition, during this same time period, 148,645 registered voters in Broward County changed

their address from one location within Broward County to a new address within the same county,

which is evidence of additional list maintenance. Id. at 145.

III. ANALYSIS

Throughout this Order, the Court has focused on the one issue properly before it: whether

Snipes, as the SOE for Broward County, conducts a general program that makes a reasonable

effort to remove the names of ineligible voters from its voter rolls by reason of (1) the

registrant’s death or (2) a change in residence of the registrant. Section 8 of the NVRA does

not define what constitutes a “reasonable effort.” ACRU suggests that “accuracy and currency

of the voter rolls [should] dictate the degree of list maintenance activity that should be

reasonably undertaken.” ECF No. [237] at 76. It proposes that the required degree of list-

maintenance activity should be lower if a jurisdiction “has a relatively static population, with an

ordinary registration rate, low transience, and there is no evidence of problems or inaccuracies on

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the rolls,” but a heightened list-maintenance standard should apply if there is “an implausible

registration rate, together with evidence of inaccurate and non-current rolls.” Id. Although

ACRU advocates for a jurisdiction-by-jurisdiction standard of reasonableness, it also argues that

“the NVRA applies nationally [and therefore], it creates a national standard of care.” Id. at 77.

These two concepts are in conflict.

The Court recognizes that the NVRA has nationwide application, and for that reason, it

declines to apply a subjective approach that would vary widely from jurisdiction to jurisdiction.

Applying such an approach would hold election officials to widely different standards under the

same federal statute. For example, a SOE in a rural county with a static population in North

Florida would be held to a lower list-maintenance standard than a SOE on the Gulf Coast with a

high number of seasonal residents or a SOE in a county with a large transient population of

college students, such as Alachua County. Such a fluid, subjective, county-by-county test would

leave local election officials guessing as to what constitutes reasonable list-maintenance efforts,

providing no uniformity or predictability among SOEs within the same state.

Equally problematic is ACRU’s suggestion that an implausible registration rate and

evidence of inaccurate and non-current rolls should require a higher list-maintenance standard.

As evidenced by this case, there may not be a consensus about a jurisdiction’s registration rate,

what constitutes an “implausible” registration rate, or whether the voter rolls are accurate,

leading to uncertainty about the applicable list-maintenance standard. Further, under this

standard, the same county’s list-maintenance practices could theoretically evolve depending

upon current registration rates. For example, if a county appeared to have an “implausible”

registration rate at one point in time, it would be subject to a more stringent list-maintenance test.

But, if the same county’s registration rate lowered to a “plausible” level, then the same county

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would be subject to a lower list-maintenance standard. The Court finds that ACRU’s proposed

definition of “reasonable efforts” is too subjective and would lead to an arbitrary, non-uniform,

unworkable, and unpredictable application. The proposed definition would thwart the

Congressional intent of Section 8 of the NVRA.

Snipes, in turn, suggests a standard by which (1) compliance with the NVRA’s “safe

harbor” provision would constitute sufficient evidence of list-maintenance efforts for address

changes; and (2) use of deceased voter data would constitute sufficient evidence for purposes of

removing deceased voters. See ECF No. [238] at 10-11. United suggests a similar test. See ECF

No. [236] at 45. With regard to the “safe harbor,” “Congress provided states with an example of

a procedure for identifying and removing voters who had changed residence that would comply

with the NVRA’s mandates and accompanying constraints.” Philip Randolph Inst. v. Husted,

838 F.3d 699, 707 (6th Cir. 2016), cert. granted, 137 S. Ct. 2188 (2017)). To avail oneself of

this “safe harbor,” a program must be established under which “voters who appear to have

moved based on information contained in the NCOA database are sent subsection (d)

confirmation notices.” Id. ACRU argues that the Court should “reject the notion that the NVRA

creates a ‘safe harbor’ whereby all of an election official’s list maintenance obligations can be

satisfied by doing one of the two described mailings” because it does not address registrants who

have died and because such an interpretation “strips protections for voters who are wrongfully

removed from the rolls.” See ECF No. [237] at 78-79. Addressing ACRU’s first point, the

Court agrees that the “safe harbor” provision does not address list-maintenance directed at

deceased voters. Neither Snipes nor United suggests that compliance with this provision alone

renders the list-maintenance processes in compliance with Section 8 of the NVRA. They both

recognize that list-maintenance directed at removing deceased voters is separately required.

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With regard to ACRU’s second point, the Court does not find a basis to conclude that the

enforcement of this “safe harbor” provision would lead to a violation of voter rights. As part of

the NVRA, Congress specifically outlined a procedure by which states can comply with change-

of-address list-maintenance requirements through the use of NCOA information. Such language

in Section 8(c)(1) of the NVRA cannot be ignored and must be given meaning. While states are

not required to adopt an identical list-maintenance procedure and are certainly free to adopt more

robust list-maintenance practices, the Court concludes that compliance with this safe-harbor

provision satisfies Section 8(a)(4)’s list maintenance requirement for address changes. 52 U.S.C.

§ 20507(c)(1). As this provision is optional, a state’s use of similarly reliable information

garnered from other sources, such as mass mailings or targeted mailings, to identify registrants

whose addresses have changed to update voter rolls will also satisfy this requirement.

With regard to list-maintenance procedures for the removal of ineligible voters by reason

of death, a “reasonable effort” is one that uses information from the social security disability

index, state health department, or other similarly reliable sources to identify voters who have

recently died.

Finally, a “reasonable effort” also necessitates compliance with all mandatory list-

maintenance tools established by the governing state to remove the names of voters who are

ineligible due to death or change in residence. The NVRA gives the individual states discretion

to determine the means by which they will conduct their list-maintenance efforts so they can best

balance the goals of protecting eligible voters’ rights to vote, while removing those verified to be

ineligible to vote. Thus, “reasonable efforts” under the NVRA also requires compliance with an

individual state’s mandatory list-maintenance processes for voter change of address and death.

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Having defined what constitutes “reasonable efforts” under Section 8(a)(4) of the NVRA,

the Court must apply the evidence presented at trial to determine whether Snipes, as the SOE for

Broward County, failed to satisfy its requirements.20 Plaintiff has the burden of proof, and, for the

reasons explained below, the Court concludes that ACRU has not satisfied its burden of

demonstrating a violation.

A. Compliance with Mandatory State List-Maintenance Tools for Death or Change of Address

Starting with change of address, Florida mandates that the SOE conduct at least one of

the following list-maintenance methods on a biennial basis:

a. Use change-of-address information supplied by the USPS through its licensees to

identify registered voters whose address may have changed;

b. Use change-of-address information identified from returned nonforwardable return-if-

undeliverable mail sent to all registered voters in the county;

c. Use change-of-address information identified from returned nonforwardable return-if-

undeliverable address confirmation requests mailed to all registered voters who have

not voted in the last two years and who did not make a written request that their

registration records be updated during that timeframe.

See Fla. Stat. § 98.065(2).

As explained in detail above, the Court finds that, at a minimum, the BCSEO completed

the NCOA list-maintenance process during the years 2009, 2011, 2013, and 2015. This, standing

20 Throughout the trial, ACRU presented evidence relating to a purported lack of list-maintenance procedures for the removal of voters ineligible to vote because they are underage, not a United States citizen, failed to supply their legal residence, or are registered to vote in another state. Section 8(a)(4) of the NVRA, however, does not require states to conduct a program that makes a reasonable effort to remove voters who are ineligible for these reasons. Rather, the list-maintenance requirement is only as to death or change of address, nothing more. The Court limits its inquiry to the two list-maintenance requirements of the NVRA. To inquire otherwise would expand the NVRA’s requirements beyond what Congress intended. 56

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alone, is sufficient to comply with Florida’s mandatory list-maintenance requirements for change

of address. In addition, the Court finds that the BCSEO completed at least one mass mailing to

more than one million voters in Broward County, sending them Vote-By-Mail forms via non-

forwardable first-class mail, in 2015. At trial, Snipes and United presented evidence in the form

of certifications, invoices, export files, and testimony demonstrating that the BCSEO

implemented these procedures. Between January 1, 2014 and December 31, 2016, its list-

maintenance efforts led to the removal of 85,484 registrants who moved out of the county, 2,739

registrants who moved out of the county and requested a change of address, 1,886 voters who

requested to be removed, and 97,941 voters whose mail was returned and remained inactive for

two general elections. See ECF No. [221-3] at 5770.

Though not required, Snipes also routinely conducts mailings to all active voters for a

variety of reasons and uses returned undeliverable mail to identify any voters who may have

moved, updating the voter rolls accordingly. Such mailings are well documented throughout

Snipes’s certifications, invoices from Commercial Printers, export files, and testimony of

multiple witnesses. Snipes also uses change-of-address information from the DHSMV obtained

through the DOS to maintain Broward County’s voter rolls. Thus, the Court finds that Snipes’s

change-of-address list-maintenance procedures are more than reasonable under Florida law.

With regard to mandatory list-maintenance requirements for deceased voters, Florida

requires that the DOS – not the SOE – identify those registered voters who are deceased by

comparing information received from either the Department of Health or the Social Security

Administration. See Fla. Stat. § 98.075(3). Within seven days of receiving such information

from the DOS, the SOE is required to remove the voter from the statewide voter registration

system. Id. A SOE is also required to remove the name of any deceased registered voter upon

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receipt of a copy of a death certificate issued by a government agency authorized to issue death

certificates. Id. At trial, the evidence established that Florida’s DOS obtains reports of deceased

individuals from the Florida Health Department and from SSDI. The DOS forwards that

information to the BCSEO, which, in turn, uses that information to remove deceased voters from

the rolls on a daily basis. BCSEO does so by inputting the information into the database,

matching the date of birth, address, and last four digits of the social security number, and then

removing the deceased voter from the rolls. Any irregularity in the decedent’s information

prompts the BCSEO to send the family a letter requesting the individual’s death certificate and,

upon the receipt of such information, the voter is then removed. Between January 1, 2014 and

December 31, 2016, Snipes removed 37,095 registrants from Broward County’s voter rolls who

were determined to be deceased. Even Mr. Gessler conceded that the procedures the BCSEO

follows with regard to the SSDI are proper and reasonable. He testified: “Since then, I have

learned that the Secretary of State office does provide the Social Security Death Index, which I

think is reasonable and proper. And I, by no means, think that the Supervisor is in error by

relying upon that. I think it’s a good thing that that’s happening.” See ECF No. [230] at 34

(emphasis added). Even though Mr. Gessler testified he would like to see Snipes use the Social

Security Disability Cumulative Death Index, Florida law does not mandate its use. It may be

perfectly reasonable to use such a tool where available, but that does not make it unreasonable

not to use the tool. The same holds true for Mr. Gessler’s testimony that Snipes could or should be

using additional tools for list-maintenance, such as jury recusal forms, the ERIC database, or the

DAVID database. Neither Florida law nor the NVRA mandate their use.

Florida law also requires that the SOE take certain actions to investigate information

supplied by other sources regarding the ineligibility of voters. See Fla. Stat. § 98.075(6), (7).

Florida authorizes its SOEs to follow up on information about ineligible voters received from 58

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other sources, such as citizen complaints. Because ACRU has only asserted a claim for a

violation of Section 8(a)(4) of the NVRA, the Court limits its focus to those citizen complaints

disclosing voter ineligibility by reason of change of address or death. Here, the evidence

revealed that the BCSEO received citizen complaints on these subjects from Mr. Prentice, Mr.

Gabbay, and Mr. DeNapoli.21

Starting with Mr. Prentice, he testified that he submitted information to BCSEO of 204

active registrants who no longer lived in the Wynmoor retirement community and that Snipes

responded to this submission via email with detailed, color-coded spreadsheets for each

registrant. With regard to Mr. Gabbay’s submission, Snipes responded to his email within two

days informing him that the BCSEO would review his findings and take appropriate steps to

investigate the information. Ms. Hall mailed out notices to all individuals identified in his

submission. Snipes emailed Mr. Gabbay again to inform him that all active voters were sent a

Vote-By-Mail mass mailing during the same month he reported his findings, which would

prompt a list-maintenance process. She then emailed him eight weeks later, advising that she

was in the process of rechecking his list to determine how many records were changed as a result

of the Vote-By-Mail mass mailing. And, approximately one month later, Snipes mailed Mr.

Gabbay the results of her research and list-maintenance activities. Finally, as to Mr. DeNapoli’s

submission, the voters on his list were removed from the voter rolls within one month. ACRU

carried the burden to prove that Snipes failed to follow Florida law in response to these citizen

complaints. However, ACRU did not come forward with any evidence that Snipes failed to

timely investigate these submissions, failed to complete the required list maintenance as a result

of these submissions, or otherwise failed to respond to these citizen complaints. Thus, the Court

21 Although Mr. Wolak testified that he compiled a spreadsheet of data revealing deceased individuals on the voter rolls, there was no evidence that such data was provided to the BCSEO. 59

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concludes the evidence established that Snipes took prompt and reasonable action when citizen

concerns were brought to her attention, as required by Florida law.

The weight of the evidence supports the conclusion that Snipes’s list-maintenance

program with regard to the removal of ineligible voters by reason of death or change of address

complies with the mandatory requirements of Florida law.

B. NCOA, Mass Mailings, and Targeted Mailings

Next, the Court finds that Snipes’s biennial use of the NCOA database to locate change-

of-address information followed by the mailing of address confirmation notices allows Snipes to

avail herself of the safe-harbor provision in Section 8(c)(1) of the NVRA. This provision allows

states to satisfy the list-maintenance requirements of Section 8(a)(4), which Snipes has done. As

detailed above, Snipes also completes several other forms of list maintenance to identify voters

whose address has changed, further evidencing the reasonableness of her efforts.

C. SSDI and State Department of Health Sources

With regard to the third and final prong, the Court has already determined that Snipes’s list-

maintenance program for deceased voters complies with Florida’s mandatory requirements. Those

same efforts are reasonable under the NVRA.

IV. CONCLUSION

The Court concludes that Snipes, as the SOE for Broward County, implemented a general

program that makes a reasonable effort to remove the names of ineligible voters from the official

lists of eligible voters by reason of death or change of address. Accordingly, Plaintiff ACRU has

failed to prove a violation of Section 8 of the NVRA, and judgment must be entered in favor of

Defendant Dr. Brenda Snipes and Defendant-Intervenor 1199SEIU United Healthcare Workers

East. Pursuant to Rule 58 of the Federal Rules of Civil Procedure, the Court will enter judgment

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for Defendant Dr. Brenda Snipes and Defendant-Intervenor 1199SEIU United Healthcare

Workers East by separate order.

DONE AND ORDERED in Chambers in Miami, Florida, this 30th day of March, 2018.

______BETH BLOOM UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of record

A. Philip Randolph Institute v. Husted, 838 F.3d 699 (2016)

[3] confirmation notice had to provide, to registrants who moved to another state, information concerning how the KeyCite Yellow Flag - Negative Treatment registrant could continue to be eligible to vote. Certiorari Granted by Husted v. A. Philip Randolph Institute, U.S., May 30, 2017 838 F.3d 699 Reversed and remanded. United States Court of Appeals, Sixth Circuit. Siler, Circuit Judge, filed an opinion concurring in part and dissenting in part. A. PHILIP RANDOLPH INSTITUTE; Northeast Ohio Coalition for the Homeless; Larry Harmon, Plaintiffs–Appellants, v. West Headnotes (13) Jon HUSTED, Secretary of State, Defendant–Appellee. [1] Federal Courts Injunction No. 16–3746 When reviewing the decision of a district court | to grant or to deny a request for issuance of Argued: July 27, 2016 a permanent injunction, legal conclusions are | reviewed de novo. Decided and Filed: September 23, 2016

Synopsis Cases that cite this headnote Background: Organizations and an individual brought action for declaratory and injunctive relief against Ohio [2] Federal Courts Secretary of State, alleging violations of National Voter Elections, voting, and political rights Registration Act (NVRA) and Help America Vote Act The Court of Appeals would review de (HAVA), relating to state's process for removing inactive novo the District Court's conclusion that registrants from state's registered voter rolls and state's Ohio Secretary of State's voluntary cessation confirmation notice for registrants whose residence had of allegedly illegal activity, regarding changed. The United States District Court for the confirmation notice for potential removal Southern District of Ohio, George C. Smith, J., 2016 from registered voter rolls of registrants WL 3542450, denied plaintiffs' request for permanent whose residence had changed, was sufficient injunction and entered judgment for Secretary. Plaintiffs to moot the challenge under National Voter appealed. Registration Act (NVRA). 52 U.S.C.A. § 20507(d).

1 Cases that cite this headnote Holdings: The Court of Appeals, Clay, Circuit Judge, held that: [3] Statutes [1] state was not permitted to use in a maintenance process Exceptions, Limitations, and Conditions a registrant's voter inactivity for two years as trigger for Exceptions to a statute's general rules must be sending confirmation notice regarding potential removal construed narrowly. from voter rolls; Cases that cite this headnote [2] Secretary's adoption of a new form for confirmation notice did not render moot the challenge to the [4] Election Law confirmation notice; and Correction of lists

Help America Vote Act's (HAVA) exception potential removal from registered voter rolls, to National Voter Registration Act's (NVRA) resulted in removal from voter rolls of general rule prohibiting states from using registrants who failed to vote, as generally voter registration maintenance processes that prohibited by National Voter Registration removed from their registered voter rolls Act (NVRA), though failure to vote was registrants who failed to vote, which exception only one type of inactivity that triggered a allowed states' maintenance processes to use confirmation notice. 52 U.S.C.A. § 20507(a) NVRA's confirmation-notice procedure with (4)(A, B), (b)(2), (d)(1)(B)(ii); Ohio Rev. Code respect to states' obligation under NVRA Ann. § 3503.21. to remove from voter rolls registrants who were no longer eligible to vote because 2 Cases that cite this headnote their residence had changed, which notice procedure prohibited removal unless a [8] Statutes registrant failed to timely respond to a Plain Language; Plain, Ordinary, or confirmation notice and thereafter failed to Common Meaning vote in two general elections, did not authorize Unless otherwise defined, statutory terms are a state to use in a maintenance process a generally interpreted in accordance with their registrant's voter inactivity for two years as ordinary meaning. a trigger for sending confirmation notice. 52 U.S.C.A. § 20507(a)(4)(A, B), (b)(2), (d)(1)(B) Cases that cite this headnote (ii); Ohio Rev. Code Ann. § 3503.21.

3 Cases that cite this headnote [9] Federal Courts Rights and interests at stake Federal Courts [5] Statutes Inception and duration of dispute; Superfluousness recurrence; ‘capable of repetition yet A statute should be construed so that effect is evading review‘ given to all its provisions, so that no part will Claims become moot when the issues be inoperative or superfluous. presented are no longer live or the parties lack Cases that cite this headnote a legally cognizable interest in the outcome.

Cases that cite this headnote [6] Statutes Plain, literal, or clear meaning; [10] Federal Courts ambiguity Inception and duration of dispute; A court may look to the legislative history recurrence; ‘capable of repetition yet of a statute only to explain the meaning and evading review‘ purpose of a provision whose text is genuinely Federal Courts ambiguous. Voluntary cessation of challenged 1 Cases that cite this headnote conduct Generally, voluntary cessation of allegedly [7] Election Law illegal conduct does not deprive the tribunal Correction of lists of power to hear and determine the case, i.e., does not make the case moot, but a narrow State's voter registration maintenance exception to that general rule exists in cases process, which used a registrant's voter where a defendant claiming that its voluntary inactivity for two years as a trigger compliance moots a case successfully carries for sending confirmation notice regarding the formidable burden of showing that it

is absolutely clear the allegedly wrongful from registered voter rolls must provide behavior could not reasonably be expected to information concerning how the registrant recur. can “continue” to be eligible to vote, is not limited to intra-state changes of residence, and 2 Cases that cite this headnote instead also encompasses a registrant's move to another state. 52 U.S.C.A. § 20507(d)(2)(B). [11] Election Law 3 Cases that cite this headnote Review by courts of proceedings of registration officers Ohio Secretary of State did not show mootness, based on voluntary cessation *701 Appeal from the United States District Court for of allegedly illegal conduct, of challenge the Southern District of Ohio at Columbus. No. 2:16–cv– under National Voter Registration Act 00303—George C. Smith, District Judge. (NVRA) to state's confirmation notice form regarding removal from registered voter Attorneys and Law Firms rolls of registrants who were no longer eligible to vote because their residence had ARGUED: Stuart C. Naifeh, DĒMOS, New York, New changed; while state had a new confirmation York, for Appellants. Michael J. Hendershot, OFFICE notice form, it was issued pursuant to OF THE OHIO ATTORNEY GENERAL, Columbus, Secretary's directive rather than any legislative Ohio, for Appellee. ON BRIEF: Stuart C. Naifeh, process, so reversing the cessation would Naila Awan, DĒMOS, New York, New York, Freda not be particularly burdensome, and because J. Levenson, Elizabeth Bonham, ACLU OF OHIO, Secretary's office was an elected position, *702 Cleveland, Ohio, Richard Saphire, UNIVERSITY there was a distinct possibility that a future OF DAYTON SCHOOL OF LAW, Dayton, Ohio, Secretary would be less inclined to maintain Paul Moke, WILMINGTON COLLEGE, Wilmington, the confirmation notice in its new form. 52 Ohio, for Appellants. Michael J. Hendershot, Eric E. U.S.C.A. § 20507(d). Murphy, Steven T. Voigt, Jordan S. Berman, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Cases that cite this headnote Ohio, for Appellee. Tovah R. Calderon, Vikram Swaruup, UNITED STATES DEPARTMENT OF JUSTICE, [12] Federal Courts Washington, D.C., Emmet J. Bondurant, BONDURANT Voluntary cessation of challenged MIXSON & ELMORE LLP, Atlanta, Georgia, Michelle conduct E. Kanter Cohen, PROJECT VOTE, INC., Washington, D.C., Lauren M. Burke, JUDICIAL WATCH, INC., Under the voluntary cessation of challenged Washington, D.C., for Amici Curiae. conduct exception to mootness, a claim becomes moot only if interim relief or events Before: SILER, CLAY, and GIBBONS, Circuit Judges. have completely and irrevocably eradicated the effects of the alleged violation of the law. CLAY, J., delivered the opinion of the court in which Cases that cite this headnote GIBBONS, J., joined, and SILER, J., joined in part. SILER, J. (pp. 715–17), delivered a separate opinion concurring in part and dissenting in part. [13] Election Law Correction of lists Provision of National Voter Registration Act OPINION (NVRA), stating that if a registrant has CLAY, Circuit Judge. changed residence to a place outside registrar's jurisdiction, any confirmation notice sent to The A. Philip Randolph Institute (“APRI”), the that registrant regarding potential removal Northeast Ohio Coalition for the Homeless (“NEOCH”),

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 A. Philip Randolph Institute v. Husted, 838 F.3d 699 (2016) and Larry Harmon (collectively “Plaintiffs”) filed suit prepaid forwardable form on which the voter must seeking to enjoin the defendant, Ohio Secretary of State indicate whether he or she still lives at the same address. Jon Husted (“the Secretary”), from removing the names Recipients of the notice are removed from the rolls if they: of registered voters from Ohio's voter rolls pursuant to (1) do not respond to the confirmation notice or update the state's so-called Supplemental Process, which Plaintiffs their registration; and (2) do not subsequently vote during allege violates the National Voter Registration Act of a period of four consecutive years that includes two federal 1993 (“NVRA”), 52 U.S.C. § 20501 et seq., and the elections. 2 See Ohio Rev. Code § 3503.21(A)(7), (B). Help America Vote Act of 2002 (“HAVA”), 52 U.S.C. § 20901 et seq. Plaintiffs also sought an injunction requiring Ohio's so-called “Supplemental Process” is the second the Secretary either to reinstate otherwise eligible voters method the state uses for identifying and removing from who were improperly removed from the rolls pursuant the rolls voters who are no longer eligible to vote due to a to the Supplemental Process, or to count provisional change of residence. The Supplemental Process is largely ballots cast by such persons. Finally, Plaintiffs alleged identical to the NCOA Process, except in the way it begins: that the change-of-address confirmation notices mailed to rather than identifying voters who may have moved by voters as part of the Supplemental Process fail to meet reference to the NCOA database, each county's BOE the standards for such notices set out in the NVRA, 52 compiles a list of registered voters who have not engaged U.S.C. § 20507(d)(2). Before us is Plaintiffs' appeal from in any “voter activity” for two years. For the purposes of the district court's order denying Plaintiffs' request for a the Supplemental Process, “voter activity” includes “filing permanent injunction and directing entry of judgment in a change of address” with a designated state agency; favor of the Secretary. For the reasons set forth below, we “filing a voter registration card with the [BOE]; ... casting REVERSE the district court's judgment and REMAND an absentee ballot; casting a provisional ballot; [or] voting for further proceedings consistent with this opinion. on election day.” 3 (R. 42–1, Damschroder Dep., PageID 1548–49.) After compiling a list of inactive voters, each BOE sends a confirmation notice to those on its list. As BACKGROUND with the NCOA Process, voters sent a confirmation notice are removed from the rolls if they subsequently fail to vote for four years and fail to either respond to the notice or re- Factual History register. In sum, under the Supplemental Process, a voter In addition to maintaining procedures for removing the is purged from the rolls after six years of inactivity—even names of the deceased, those who have been adjudicated if he or she did not move and otherwise remains eligible incompetent, and convicted felons from its voter rolls, to vote. see Ohio Rev. Code § 3503.18(A)–(C), Ohio utilizes two processes for identifying and purging from the rolls When this litigation began, the confirmation notices sent voters who are no longer eligible to vote because they to voters pursuant to both the NCOA Process and have moved outside their county of registration. See Supplemental Process required that voters provide their name, current Ohio address, date of birth, and either Ohio Rev. Code § 3503.21. 1 The first is Ohio's “NCOA their Ohio driver's license number, their Social Security Process,” under which the Secretary's office compares the number, or a copy of a document verifying their identity names and addresses contained in Ohio's Statewide Voter and address. The notices required that voters provide Registration Database to the National Change of Address such information regardless of whether they had changed (“NCOA”) database. “The NCOA database contains address or were merely confirming that they still lived names and addresses of individuals who have filed changes at the same address. Moreover, the notices did not of address with the United States Postal Service.” (R. adequately inform voters of the consequences of failing to 38–2, Damschroder Decl., ¶ 11.) The Secretary thereafter respond to the notice; rather, the form indicated that the provides each county's Board of Elections (“BOE”) with a recipient's registration “may” be canceled if he or she did list of voters registered therein who appear to have *703 not respond, re-register, or vote in the next four years. (R. moved, based on the comparison of the two databases. 42–13, 2015 Conf. Notice Form, PageID 1702.) Finally, The BOEs then “send[ ] a confirmation notice ... to the form failed to inform voters who had moved outside each individual identified.” (Id.) That notice is a postage

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 A. Philip Randolph Institute v. Husted, 838 F.3d 699 (2016) of Ohio on how they could remain eligible to vote in their parties agreed to engage in limited discovery and to new state. address all the dispositive issues in the case through simultaneous briefing. The parties filed their briefs in May As discussed below, the Secretary issued a new and June of 2016, with Plaintiffs styling their briefs as confirmation notice form during the pendency of this memoranda supporting motions for summary judgment litigation. On the newly issued form, voters can confirm and a preliminary injunction. On June 17, 2016—the day that they have not changed address by simply signing, the parties' final briefs were due before the district court *704 dating, and returning the postage prepaid form. —the Secretary issued a directive requiring BOEs to use a The new form also provides voters with the dates by which new version of the confirmation notice form. As discussed they must either return the form or vote in order to remain above, that new form corrected all but one of Plaintiffs' registered. Notably, however, the new form still lacks alleged deficiencies. information on how persons who have moved to another state can register to vote in their new state. On June 29, 2016, the district court issued an order denying Plaintiffs' motions for summary judgment and a preliminary injunction; the order directed entry of judgment in favor of the Secretary. Addressing the parties' Procedural History arguments under permanent injunction standards, the This case began with two letters sent by NEOCH and court began by rejecting Plaintiffs' arguments that the APRI to the Secretary in December 2015 and February Supplemental Process violates the NVRA and the HAVA. 2016, respectively. Both letters asserted that Ohio's The court held that because Section 8 of the NVRA does Supplemental Process violated Section 8 of the NVRA. not explicitly dictate what information states may or must Not long after sending their letters, APRI and NEOCH use as a “trigger” for sending a confirmation notice, that representatives began meeting with the Secretary in an decision was impliedly left to the states. The court also attempt to resolve their concerns without litigation. Those concluded that the Supplemental Process does not violate meetings failed to produce results, causing Plaintiffs to file the NVRA and the HAVA's prohibition on removing this suit in federal district court on April 6, 2016. Plaintiffs' voters from the rolls solely by reason of their failure to complaint alleged two causes of action relevant to this vote because such removal occurs only after a voter has appeal: first, that the Supplemental Process unlawfully failed to vote and failed to respond to a confirmation removes registered voters from the rolls due to their failure notice. to vote in violation of Section 8, subsection (b)(2) of the NVRA, 52 U.S.C. § 20507(b)(2); and second, that the Turning to the Plaintiffs' arguments regarding the legality confirmation notices sent to voters under both the NCOA of Ohio's confirmation *705 notice form, the district Process and the Supplemental Process fail to meet the court first noted the Secretary's promise that his newly standards for such forms set out in the NVRA, 52 U.S.C. issued form would be used during the upcoming voter § 20507(d)(2). roll purges. Relying on that promise, the court held that the Secretary's voluntary cessation of illegal activity The day after filing their complaint, Plaintiffs moved was sufficient to moot Plaintiffs' challenges to the for a temporary restraining order (“TRO”) prohibiting confirmation notice form. Finally, the court rejected the Secretary from “removing eligible Ohio voters Plaintiffs' argument that the newly issued form still from the voter rolls on account of their failure to violated 52 U.S.C. § 20507(d)(2)(B) by failing to provide vote pursuant to Ohio's ‘Supplemental Process.’ ” (R. those who have moved out of Ohio with information on 9, Mot. for TRO, PageID 36.) Plaintiffs' motion how to stay registered. The court held that this argument also requested a preliminary injunction compelling the was waived because Plaintiffs' briefing failed to raise the Secretary to reinstate voters already removed from the argument, and that the argument failed on the merits rolls pursuant to the Supplemental Process. Four days in any event because it “defies logic” that the NVRA later, Plaintiffs agreed to withdraw their request for would require local registrars to “coach” voters on how a TRO in exchange for the Secretary's agreement not to register in a different state. (R. 66, Order, PageID to initiate the Supplemental Process prior to July 1, 23025.) Thus having rejected all of Plaintiffs' arguments 2016. A week after Plaintiffs filed their complaint, the on the merits, the district court held that no preliminary

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 A. Philip Randolph Institute v. Husted, 838 F.3d 699 (2016) injunction was warranted and that judgment should be statute itself.”). Importantly, Section 8's language pairs entered for the Secretary. 4 Plaintiffs filed their notice of the *706 mandate that states maintain accurate voter appeal the following day. rolls with multiple constraints on how the states may go about doing so.

Those constraints begin with subsection (a) of Section DISCUSSION 8, which states that “[i]n the administration of voter registration for elections for Federal office, each State Standard of Review shall ... provide that the name of a registrant may not be removed from the official list of eligible voters except” [1] [2] The parties agree that there are no disputes under certain circumstances. 52 U.S.C. § 20507(a)(3) regarding the facts recounted above, and that the district (emphasis added); see also S. Rep. No. 103–6, at 19 (1993) court's denial of Plaintiffs' request for an injunction was (“[O]ne of the guiding principles of [the NVRA is] to based solely on its interpretation of the NVRA and the ensure that once registered, a voter remains on the rolls so HAVA. “When reviewing the decision of a district court long as he or she is eligible to vote in that jurisdiction.”); to grant or to deny a request for issuance of a permanent H.R. Rep. No. 103–9, at 18 (1993). The Act then provides injunction, ... legal conclusions are reviewed de novo.” an exhaustive list of circumstances justifying removal: Sec'y of Labor, U.S. Dep't of Labor v. 3Re.com, Inc., 317 “criminal conviction or mental incapacity as provided F.3d 534, 537 (6th Cir. 2003) (internal quotation marks by state law, the death of the registrant, or ... a change omitted); see also Communities for Equity v. Mich. High of the registrant's residence.” U.S. Student Ass'n Found. Sch. Athletic Ass'n, 459 F.3d 676, 680 (6th Cir. 2006) v. Land, 546 F.3d 373, 376 (6th Cir. 2008) (citing 42 (“[S]tatutory interpretation questions are issues of law, U.S.C. § 1973gg–6(a)(3)–(4), now codified as 52 U.S.C. § which we review de novo.”). We also review de novo the 20507(a)(3)–(4)). This case concerns the final circumstance district court's conclusion that some of Plaintiffs' claims justifying removal—change of residence—which is subject are now moot. Cleveland Branch, N.A.A.C.P. v. City of to its own mandate and accompanying constraints. Parma, 263 F.3d 513, 530 (6th Cir. 2001). Subsection (a)(4) of Section 8 requires that states “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists Analysis of eligible voters by reason of ... a change in the residence of the registrant;” the Act thereafter specifies that any I. Plaintiffs' Challenge to Ohio's Supplemental Process such program must be conducted “in accordance with Congress' stated purposes in enacting the NVRA were, subsections (b), (c), and (d).” 52 U.S.C. § 20507(a)(4)(B). inter alia, “to establish procedures that will increase the number of eligible citizens who register to vote in Subsection (b) provides two additional constraints on elections for Federal office; ... [and] to ensure that accurate states' discretion. First, all roll maintenance procedures and current voter registration rolls are maintained.” 52 must “be uniform, nondiscriminatory, and in compliance U.S.C. § 20501(b). “These purposes counterpose two with the Voting Rights Act of 1965 (42 U.S.C. 1973 general, sometimes conflicting, mandates: To expand et seq.).” Id. § 20507(b)(1). Second, and more pertinent and simplify voter registration processes so that more to this appeal, subsection (b)(2) provides that roll individuals register and participate in federal elections, maintenance procedures “shall not result in the removal while simultaneously ensuring that voter lists include of the name of any person from the official list of voters only eligible ... voters.” Common Cause of Colo. v. registered to vote in an election for Federal office by Buescher, 750 F.Supp.2d 1259, 1274 (D. Colo. 2010). reason of the person's failure to vote.” Id. § 20507(b)(2). Those sometimes conflicting mandates are reflected in the This language from subsection (b)(2) was later modified language of Section 8 of the NVRA, 52 U.S.C. § 20507, by the HAVA, which appended the following clause to which is where our analysis must begin. See Lewis v. the general prohibition on removal by reason of failure to United States, 445 U.S. 55, 60, 100 S.Ct. 915, 63 L.Ed.2d vote: 198 (1980) (“[I]n any case concerning the interpretation of a statute the ‘starting point’ must be the language of the ... except that nothing in this paragraph may be construed to prohibit a State from using the procedures

described in subsections (c) and (d) to remove an for identifying and removing voters who had changed individual from the official list of eligible voters if the residence that would comply with the NVRA's mandates individual— and accompanying constraints. That subsection provides that “[a] State may meet the requirement of subsection (a) (A) has not either notified the applicable registrar (in (4) by establishing a program under which” voters who person or in writing) or responded during the period appear to have moved based on information contained in described in subparagraph (B) to the notice sent by the NCOA database are sent subsection (d) confirmation the applicable registrar; and then notices. See id. § 20507(d)(1) (emphasis added). The parties do not dispute that Ohio's NCOA Process mirrors (B) has not voted or appeared to vote in 2 or more this so-called “safe-harbor” procedure and that the consecutive general elections for Federal office. NCOA Process is thus permissible under the NVRA. Id. By the HAVA's own terms, however, this language is not to “be construed to authorize or require conduct The focus of this case, therefore, is Ohio's prohibited under ... or to supersede, restrict, or limit Supplemental Process. Specifically, Plaintiffs argue that the application of ... [the NVRA].” Id. § 21145(a); see the Supplemental Process violates the clause of subsection also H.R. Rep. 107–329, at 37 (2001) (indicating that (b)(2)—hereinafter referred to as the “prohibition under the HAVA, “removal of those deemed ineligible clause”—prohibiting roll maintenance processes that must be done in a manner consistent with the [NVRA]. “result in the removal of the name of any person from The procedures established by NVRA that guard against the official list of voters registered to vote in an election removal of eligible registrants remain in effect under this for Federal office by reason of the person's failure to law. Accordingly, [the HAVA] leaves NVRA intact, and vote.” Id. § 20507(b)(2). The Secretary responds that does not undermine it in any way.”). the Supplemental Process is permitted by the exception to subsection (b)(2)'s prohibition clause added by the Subsections (c) and (d) of Section 8 provide two final HAVA—hereinafter referred to as the “except clause”— constraints on states' roll maintenance procedures. First, which states: “... except that nothing in this paragraph subsection (c)(2)(A) provides that “any program the may be construed to prohibit a State from using the *707 purpose of which is to systematically remove the procedures described in subsections (c) and (d).” Id. The names of ineligible voters from the official list of eligible legality of Ohio's Supplemental Process can therefore be voters” must be completed “not later than 90 days prior boiled down to two questions: whether the Process is to the date of a primary or general election for Federal expressly permitted by subsection (b)(2)'s except clause; office.” 52 U.S.C. § 20507(c)(2)(A). Second, subsection (d) and, if not, whether the Supplemental Process violates that (1) establishes that states “shall not remove the name of a subsection's prohibition clause. registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has A. The Supplemental Process is not expressly permitted changed residence” without first subjecting the registrant by subsection (b)(2)'s except clause to the confirmation notice procedure outlined in that Turning to the first operative question, it bears repeating subsection. Id. § 20507(d)(1) (emphasis added). That that the Supplemental Process fully incorporates mandatory confirmation notice procedure is the one subsection (d)'s confirmation notice procedure. Certainly, described above as the final step of Ohio's NCOA Process under the except clause's plain language, such and Supplemental Process: a forwardable postage prepaid incorporation is permissible even though the confirmation and pre-addressed form is sent to a voter, and the voter is notice procedure itself involves consideration of a removed from the rolls if (1) he or she does not respond to registrant's failure to vote. See id. § 20507(b)(2) and the confirmation notice or update his or her registration, (d)(1)(B)(ii). But that conclusion does not end our and (2) he or she does not subsequently vote during a inquiry—the Supplemental Process does not only employ period of four consecutive years that includes two federal subsection (d)'s confirmation notice procedure. Rather, elections. See id. § 20507(d). under the Supplemental Process, the confirmation notice procedure is “triggered” by a registrant's failure to Finally, we note that in subsection (c)(1) of Section 8, engage *708 in any “voter activity” for two years. We Congress provided states with an example of a procedure must therefore determine whether that trigger provision

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 7 A. Philip Randolph Institute v. Husted, 838 F.3d 699 (2016) should be analyzed separately from the confirmation § 20507(b)(2); rather, under the Secretary's interpretation, notice procedure, such that the trigger is subject to the use of those procedures would render states' processes prohibition clause; or, in the alternative, whether the completely immune to the general rule that the except Supplemental Process' incorporation of the confirmation clause modifies. We decline to adopt this interpretation, notice procedure means that the entire Process—including and instead err on the side of giving maximum effect the trigger—is permitted under the except clause. to the prohibition clause's general rule. See, e.g., Singer, supra, § 47:11, at 250–51 (“[W]here a general provision in The Secretary advocates for the second of these two a statute has certain limited exceptions, all doubts should positions. He states, for example, that “[t]he language be resolved in favor of the general provision rather than that a cancellation ‘shall not result’ from a ‘failure to the exceptions.”). vote’ ‘except’ when coupled with the failure to ‘respond[ ]’ to an address-confirmation inquiry authorizes the Ohio [5] *709 Further counseling against the Secretary's Supplemental Process.” (Def.'s Br. at 27 (emphasis interpretation is the fact that reading “when coupled with” omitted); see also id. at 41.) The operative language in this into the except clause would reduce the prohibition clause argument is the phrase “when coupled with,” by which to mere surplusage. That is because the plain language the Secretary implies that a process resulting in removal of subsection (d)(1) provides that processes for removing by reason of failure to vote is nevertheless permitted by voters based on change in residence must incorporate the except clause so long as it is “coupled with” the subsection (d)'s confirmation notice procedure. See 52 procedures outlined in subsection (d). We note, however, U.S.C. § 20507(d)(1). In other words, it is required that neither the phrase “when coupled with,” nor any that such processes be “coupled with” subsection (d)'s comparable language, appears in the except clause's text. 5 procedure. Thus, under the Secretary's interpretation, See 52 U.S.C. § 20507(b)(2). The Secretary's argument subsection (b)(2)'s prohibition clause would serve no is therefore flawed insofar as it requires us to “read[ ] a purpose because all state procedures would necessarily phrase into the statute when Congress has left it out.” be permitted by the except clause by virtue of their Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. (mandatory) incorporation of the confirmation notice 2035, 124 L.Ed.2d 118 (1993). procedure. This reading of the NVRA would contravene the Supreme Court's repeated insistence that “a statute [3] [4] Moreover, the Secretary's reading of the except should be construed so that effect is given to all clause would require us to ignore the traditional rule its provisions, so that no part will be inoperative or of statutory construction dictating that exceptions to a superfluous.” Clark v. Rameker, ––– U.S. ––––, 134 S.Ct. statute's general rules be construed narrowly. Comm'r of 2242, 2248, 189 L.Ed.2d 157 (2014) (quoting Corley v. Internal Revenue v. Clark, 489 U.S. 726, 739, 109 S.Ct. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 1455, 103 L.Ed.2d 753 (1989) (“In construing [statutes] L.Ed.2d 443 (2009)). in which a general statement of policy is qualified by an exception, we usually read the exception narrowly in order The Secretary responds that his interpretation does not to preserve the primary operation of the provision.”); reduce the prohibition clause to surplusage because Detroit Edison Co. v. Sec. & Exch. Comm'n, 119 F.2d 730, when read together, the prohibition and except clauses 739 (6th Cir. 1941) (“Provisos and exceptions in statutes constitute a single “belt-and-suspenders” rule that merely must be strictly construed and limited to objects fairly “explains what is permitted and what is prohibited by within their terms, since they are intended to restrain or describing both sides of the same coin.” (Def.'s Br. at except that which would otherwise be within the scope of 49 (citing TMW Enter., Inc. v. Fed. Ins. Co., 619 F.3d the general language.”); see also 2A Norman J. Singer, 574, 577 (6th Cir. 2010)).) In other words, the Secretary Statutes and Statutory Construction § 47:11, at 246–47 (6th would have us hold that subsection (b)(2) only prohibits ed. 2000) (“Subsidiary clauses which limit the generality processes that do not incorporate the confirmation notice of a rule are narrowly construed, as they are considered procedure, and that the except clause simply reinforces exceptions.”). Contrary to that general rule, the Secretary that prohibition by expressly “permitt[ing]” use of the would have us adopt an expansive interpretation of the confirmation notice and safe-harbor procedures. (Id.) But except clause under which states can not only “us[e] the this argument once again ignores the fact that subsection procedures described in subsections (c) and (d),” 52 U.S.C. (d)(1) already mandates that “[a] State shall not remove

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 8 A. Philip Randolph Institute v. Husted, 838 F.3d 699 (2016) the name of a registrant from the official list of voters” to simultaneously write new language into, and essentially without performing the confirmation notice procedure. excise language out of, the NVRA. But even if we did 52 U.S.C. § 20507(d)(1) (emphasis added). We decline conclude that the NVRA's language is ambiguous, we to read subsection (b)(2) as a mere reiteration of that would find little solace in the even more ambiguous mandate. Perhaps more importantly, we find that the language of the congressional reports on which the Secretary's “belt-and-suspenders” argument ignores the Secretary relies. Cf. Exxon Mobil Corp. v. Allapattah NVRA's plain language: subsection (b)(2)'s clauses are Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d not written as alternative presentations of the same rule; 502 (2005) (“[L]egislative history is itself often murky, rather, those clauses explicitly establish a general rule with ambiguous, and contradictory.”). Not only is the above- a proviso. See id. § 20507(b)(2). quoted passage from the congressional reports internally unclear as to which of the practices described therein is The Secretary also argues that the Senate and prohibited under the NVRA, the passage does not purport House reports accompanying the NVRA justify his to provide an exhaustive list of processes that subsection interpretation of the except clause. Those reports both (b)(2) was designed to prohibit. See H.R. Rep. No. 103–9, state, in pertinent part: at 30 (1993); S. Rep. No. 103–6, at 46 (1993).

Almost all states now employ some Based on the above, we reject the Secretary's procedure for updating lists at contention that the Supplemental Process' incorporation least once every two years, though of subsection (d)'s confirmation notice procedure means practices may vary somewhat from that the entire Supplemental Process is automatically county to county. About one-fifth permitted under the except clause. That interpretation of the states canvass all voters on of the NVRA would require us to improperly ignore the list. The rest of the states do “the language and design of the statute as a whole.” not contact all voters, but instead Nat'l Air Traffic Controllers Ass'n v. Sec'y of Dep't of target only those who did not vote Transp., 654 F.3d 654, 657 (6th Cir. 2011) (quoting United in the most recent election (using States v. Parrett, 530 F.3d 422, 429 (6th Cir. 2008)). not voting as an indication that an We further conclude that the only reasonable reading of individual might have moved). Of the NVRA is that any part of a state's roll maintenance these, only a handful of states simply process that does not mimic the expressly permitted drop the non-voters from the list procedures outlined in subsections (c) or (d)—in this case, without notice. These states could the Supplemental Process' two-year “trigger” provision— not continue this practice under [the is subject to subsection (b)(2)'s prohibition clause. NVRA].

S. Rep. No. 103–6, at 46 (1993); H.R. Rep. No. 103–9, B. The Supplemental Process violates subsection (b)(2)'s at 30 (1993). This passage in the reports, the Secretary prohibition clause argues, suggests that subsection (b)(2)'s prohibition is [7] [8] Having concluded that we must focus our analysis intended to invalidate only those state processes that on the Supplemental Process' two-year trigger provision, “simply drop the non-voters from the list without notice.” we turn to the second dispositive question in this case: Id. Thus, the argument goes, the reports indicate that whether that trigger provision “result[s]” in removal the except clause permits any process that incorporates by reason of failure to vote. 52 U.S.C. § 20507(b) subsection (d)'s confirmation notice procedure. (2) (emphasis added). We typically “proceed from the understanding that unless otherwise defined, statutory [6] *710 This argument is problematic for at least two terms are generally interpreted in accordance with their reasons. First, we may only look to the legislative history ordinary meaning.” Sebelius v. Cloer, ––– U.S. ––––, of a statute to “explain the meaning and purpose of a 133 S.Ct. 1886, 1893, 185 L.Ed.2d 1003 (2013) (internal provision whose text is genuinely ambiguous.” Sherfel v. brackets and quotation marks omitted) (quoting BP Am. Newson, 768 F.3d 561, 569 (6th Cir. 2014). As discussed Prod. Co. v. Burton, 549 U.S. 84, 91, 127 S.Ct. 638, above, the unambiguous language of Section 8 requires 166 L.Ed.2d 494 (2006)). “Webster's dictionary defines rejecting the Secretary's interpretation, lest we be forced ‘result’ as ‘to proceed or arise as a consequence, effect, or

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 9 A. Philip Randolph Institute v. Husted, 838 F.3d 699 (2016) conclusion.’ ” Pension Trust Fund for Operating Eng'rs v. as one of several types of “voter activity” in which a Fed. Ins. Co., 307 F.3d 944, 952 (9th Cir. 2002). In this voter must fail to engage in order to trigger the sending case, the Supplemental Process' trigger provision explicitly of a confirmation notice. We must assume not only that uses a person's failure to engage in any “voter activity”— Congress intended the prohibition clause to play some role which includes voting—for two years as the “trigger” in the NVRA's statutory scheme, see Clark, 134 S.Ct. at for sending a confirmation notice. Under the ordinary 2248, but also that Congress intended the prohibition to meaning of “result,” the Supplemental Process would be more than a paper tiger. But the clause would have violate the prohibition clause because removal of a voter no teeth at all if states could circumvent it by simply “proceed[s] or arise[s] as a consequence” of his or her including “voting” in a disjunctive list of activities in which failure to vote. Id. a registrant must fail to engage in order to “trigger” the confirmation notice procedure. In more concrete terms, a As noted by the Secretary and the district court, however, state cannot avoid the conclusion that its process results in subsection (b)(2)'s prohibition clause appears to have been removal “solely by reason of a failure to vote,” 52 U.S.C. given a more narrow interpretation by the HAVA. Passed § 21083(a)(4), by providing that the confirmation notice in 2002, the HAVA created *711 an “independent ... procedure is triggered by a registrant's failure either to requirement [that states] maintain an accurate list of vote or to climb Mt. Everest or to hit a hole-in-one. eligible voters.” Colón–Marrero v. Vélez, 813 F.3d 1, 13 (1st Cir. 2016). In connection with that requirement, the For his part, the Secretary reiterates that the Supplemental HAVA requires states to implement Process incorporates subsection (d)'s requirement that the voter must fail to respond to a confirmation notice before [a] system of file maintenance that voter can be removed from the rolls. He thereafter that makes a reasonable effort to argues that the Process' incorporation of that failure- remove registrants who are ineligible to-respond requirement insures that voters are never to vote from the official list of removed “solely” for failure to vote. But this argument eligible voters. Under such system, merely rehashes the one we rejected above—that a consistent with the National Voter state's process for identifying and removing voters who Registration Act of 1993 ( [52 U.S.C. have changed residence comports with subsection (b)(2)'s § 20501] et seq.), registrants who prohibition clause so long as it incorporates subsection have not responded to a notice and (d)'s confirmation notice procedure. This interpretation of who have not voted in 2 consecutive the NVRA would render the prohibition clause entirely general elections for Federal office superfluous because subsection (d)(1) already requires shall be removed from the official states to use the confirmation notice procedure. See 52 list of eligible voters, except that no U.S.C. § 20507(d)(1). Once again, we decline “to adopt an registrant may be removed solely by interpretation of a congressional enactment which renders reason of a failure to vote. superfluous another portion of that same law.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 185, 131 52 U.S.C. § 21083(a)(4)(A) (emphasis added). This section S.Ct. 2313, 180 L.Ed.2d 187 (2011). of the HAVA, the Secretary argues, restates the NVRA's prohibition and except clauses “in slightly different Finally, we note that the parties' arguments and the district words” (Def.'s Br. at 32), and in so doing suggests that court's order raise two additional questions: (1) whether subsection (b)(2)'s prohibition on consideration of failure processes for identifying and removing from *712 the to vote only operates to prohibit state processes that rolls voters who have changed residence must have remove registrants from the rolls “solely” by reason of provisions that “trigger” subsection (d)'s confirmation their failure to vote. notice procedure; and (2) what the NVRA and the HAVA have to say, if anything, about the form such “triggers” In the end, however, this language from the HAVA can or cannot take. While these questions are undoubtedly does not change our analysis because operation of the important, we need not answer them in order to hold that Supplemental Process' trigger is ultimately based “solely” Ohio's Supplemental Process is impermissible under the on a person's failure to vote. This is so, notwithstanding NVRA. Regardless of whether “trigger” provisions are the fact that the Supplemental Process includes voting

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 10 A. Philip Randolph Institute v. Husted, 838 F.3d 699 (2016) required, and regardless of what forms such “triggers” can *713 The Secretary argues that because he is a or cannot take, it is clear that the Supplemental Process governmental actor, we should defer to his assurances does include a trigger, and that that trigger constitutes that his recent changes to the confirmation notice form perhaps the plainest possible example of a process that are permanent. Although it is true that “cessation of the “result[s] in” removal of a voter from the rolls by reason allegedly illegal conduct by government officials has been of his or her failure to vote. 52 U.S.C. § 20507(d)(2). We treated with more solicitude by the courts than similar therefore hold that Ohio's Supplemental Process violates action by private parties,” Mosley v. Hairston, 920 F.2d Section 8, subsection (b)(2) of the NVRA. 409, 415 (6th Cir. 1990) (quoting Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988)), such solicitude does not carry much of an official's burden of demonstrating II. Plaintiffs' Challenge to Ohio's Confirmation Notice that “there is no reasonable expectation ... that the alleged Form violation will recur,” Davis, 440 U.S. at 631, 99 S.Ct. Below, the district court held: (1) that Plaintiffs' challenges 1379. Indeed, the Supreme Court has declined to defer to Ohio's confirmation notice form were mooted by the to a governmental actor's voluntary cessation, even where Secretary's adoption of a new form that addressed all that cessation occurred pursuant to legislative process. See but one of Plaintiffs' concerns; and (2) that Plaintiffs' City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, remaining challenge to the form—that it fails to provide 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) (“[T]he city's out-of-state voters with information on how to remain repeal of the objectionable language would not preclude registered—is not supported by Section 8's statutory it from reenacting precisely the same provision if the language. 6 We address these holdings in turn. District Court's judgment were vacated.”); see also League of Women Voters of Ohio, 548 F.3d at 474 (“It is hard to see how the voluntary passage of legislation or issuance A. Mootness of directives can moot claims such as these.” (footnote [9] [10] Claims become moot “when the issues presented omitted)). are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Cty. of Los Angeles v. Davis, [11] Nevertheless, apparently relying on such solicitude, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1978) the district court held that Plaintiffs' claims were moot (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 because “[t]here is no evidence to suggest that the S.Ct. 1944, 23 L.Ed.2d 491 (1969)). Generally, “voluntary Defendant does not plan to use this Revised Notice cessation of allegedly illegal conduct does not deprive in 2016 or at any other point in the future.” (R. 66, the tribunal of power to hear and determine the case, PageID 23024.) We note as an initial matter, however, i.e., does not make the case moot.” Id. (quoting United that this holding gets it backwards: Plaintiffs were not States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. required to produce evidence suggesting that the Secretary 894, 97 L.Ed. 1303 (1953)). However, a narrow exception planned on reengaging in the allegedly illegal behavior to that general rule exists in cases where a defendant after resolution of the case. See Laidlaw, 528 U.S. at claiming that its voluntary compliance moots a case 190, 120 S.Ct. 693. Rather, it was—and remains—the successfully carries “the formidable burden of showing Secretary's “formidable burden” of “showing that it is that it is absolutely clear the allegedly wrongful behavior absolutely clear the allegedly wrongful behavior could not could not reasonably be expected to recur.” Friends of reasonably be expected to recur.” Id. The Secretary has the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 failed to meet that burden in this case. U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); see also Davis, 440 U.S. at 631, 99 S.Ct. 1379 (holding that To begin, the new confirmation notice form was issued voluntary cessation can render an issue moot if “there is pursuant to the Secretary's “directive,” rather than any no reasonable expectation ... that the alleged violation will legislative process. Thus, this is not a case in which recur” (citation and internal quotation marks omitted)). reversing the cessation would be particularly burdensome. We have stated that it is a “rare instance” in which this Cf. Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, standard will be met. League of Women Voters of Ohio v. 982 (6th Cir. 2012) (holding that the relevant issue was Brunner, 548 F.3d 463, 473 (6th Cir. 2008). mooted by the defendant municipality's ordinance that was “years in the making”). Indeed, it appears from the

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 11 A. Philip Randolph Institute v. Husted, 838 F.3d 699 (2016) record that the confirmation notice form is revised on a subsection (d)(2)(B) of Section 8, that “[i]f the registrant relatively frequent basis—at least four times in the last has changed residence to a place outside the registrar's nine years, not counting the most recent revision. And jurisdiction in which the registrant is registered,” any because the Ohio Secretary of State is an elected official, confirmation notice sent to that voter must provide there remains a distinct possibility that a future Secretary “information concerning how the registrant can continue will be less inclined to maintain the confirmation notice in to be eligible to vote.” 52 U.S.C. § 20507(d)(2)(B). its current form. Finally, we note that the circumstances Plaintiffs assert that the newly issued form violates this of the Secretary's issuance of the new form do not inspire provision because it does not provide Ohio registrants confidence in his assurances regarding the likelihood of who have moved out of state with information on how recurrence—he issued that new form on the same day to re-register in their new state. 7 This requirement could as the parties' final merits briefs were due before the be satisfied, Plaintiffs contend, by simply modifying the district court, attaching the form as an exhibit to his brief confirmation notice to direct the recipient to the Federal and only then presenting his mootness argument. This Election Assistance Commission's website, on which the fact makes the Secretary's voluntary cessation appear less recipient will find “instructions and guidance for voter genuine. See id. (noting that the defendant municipalities' registration in all states.” (Pls.' Br. at 44 n.15.) voluntary cessation “appear[ed] genuine”). [13] Below, the district court held that it “defies logic [12] Given these facts, we conclude that the Secretary that the NVRA would saddle the various secretaries of has not carried his burden of showing that it is state (or their equivalents) with the onerous burden of “absolutely clear the allegedly wrongful behavior could coaching out-of-state residents through the registration not reasonably be expected to recur.” Laidlaw , 528 process in their new states of residence.” (R. 66, PageID U.S. at 190, 120 S.Ct. 693. Plaintiffs' challenges to 23025.) In support of this assertion, the court noted the confirmation notice *714 therefore have not been that the subsection on which Plaintiffs' argument is rendered moot by the new form. Even if we felt differently based provides that states must supply registrants with about the possibility of recurrence, however, that alone information on how to “continue” to be eligible to vote. would not render Plaintiffs' request for an injunction (Id. (quoting 52 U.S.C. § 20507(d)(2)(B)).) Without much moot. A claim becomes moot only if “interim relief or additional analysis, the district court proclaimed that the events have completely and irrevocably eradicated the word “continue” necessarily means “continue to vote effects of the alleged violation.” Davis, 440 U.S. at 631, 99 within that State—not register in another state.” (Id.) The S.Ct. 1379; see also Ragsdale, 841 F.2d at 1365 (noting that Secretary's arguments on appeal buttress this conclusion an issue is moot only if “there are no remaining effects of by arguing that “[n]o voter can ‘continue to be eligible’ the alleged violation”). As Plaintiffs note, the Secretary's to vote by moving from Ohio to Michigan, ... [r]ather, newly-issued form does nothing to correct the fact that the new Michigander must become a newly registered Ohio has, for years, been removing voters from the rolls Michigan voter.” (Def.'s Br. at 54.) because they failed to respond to forms that are blatantly non-compliant with the NVRA. Thus, in any event, the We find this argument unavailing. To begin, subsection new form could not render all of Plaintiffs' claims for (d)(2)(B)'s plain language *715 contains no intra-state relief moot. Cf. Anderson v. Spear, 356 F.3d 651, 655 limitation. See 52 U.S.C. § 20507(d)(2)(B). Instead, that (6th Cir. 2004) (“As is readily apparent, the action of the subsection provides that information on how to continue legislature suspending the operation of certain provisions to be eligible to vote must be presented to anyone of the campaign law [in 2003] does not eliminate the case who “has changed residence to a place outside the or controversy which existed by the operation of those registrar's jurisdiction.” Id. The “outside the registrar's laws in 1999.”). jurisdiction” language is the part of subsection (b)(2)(B)'s mandate that establishes its geographic applicability— had Congress intended to place geographic limitations on B. Merits the mandate, it would have done so with this language The final question before us concerns the merits of rather than relying on a counterintuitive definition of the Plaintiffs' remaining challenge to the newly issued word “continue.” Moreover, that word—“continue”— confirmation notice form. Plaintiffs argue that the form must be accorded its ordinary meaning. Cloer, 133 S.Ct. does not comply with the NVRA's mandate, contained in

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 12 A. Philip Randolph Institute v. Husted, 838 F.3d 699 (2016) at 1893 (“[U]nless otherwise defined, statutory terms are For the reasons stated above, we REVERSE the district generally interpreted in accordance with their ordinary court's judgment and REMAND for further proceedings meaning.”). “Continue” means to “keep up or maintain consistent with this opinion. esp[ecially] without interruption a particular condition.” Webster's Third New International Dictionary 493 (1986). Certainly, a registrant can “keep up or maintain ... without interruption,” id. her condition of being “eligible to vote,” CONCURRING IN PART 52 U.S.C. § 20507(d)(2)(B), regardless of whether she must AND DISSENTING IN PART fully re-register or merely confirm her new address. SILER, Circuit Judge, dissenting in part and concurring Further weighing against the Secretary's interpretation in part. of subsection (d)(2)(B)—whereby “continuing” to vote Because of the urgency of this issue and the need to allow excludes situations in which voters must fully re-register— the Supreme Court to consider it, I write the dissent/ is the fact that some states require voters to fully re-register concurrence in condensed fashion. It does not reflect the even when they move to a new jurisdiction within the extent to which I disagree with the majority opinion, same state. See, e.g., N.J. Stat. § 19:31–11 (“A voter who although I respect it. moves from an election district in one county to an election district in another county prior to the close of registration *716 I commend the Secretary for issuing a new preceding an election shall register in the new county of confirmation notice form during the pendency of this residence....”); Okla. Stat. tit. 26, § 4–118 (“Any registered litigation. In all aspects of the law, except for directions voter who changes his or her residence to another county on how the voter can continue his registration, it complies may apply for registration as an initial registrant in with the National Voter Registration Act of 1993 (NVRA) such other county.”). Indeed, the 2007 version of Ohio's and the Help America Vote Act of 2002 (HAVA). confirmation notice form suggests that Ohio itself once required voters who moved between counties to fully Both sides agree that the language of the NVRA re-register. Under the Secretary's reasoning, intra-state is unambiguous. “If the words of the statute are movers subject to such re-registration requirements would unambiguous, the judicial inquiry is at an end, and the not be entitled to “information concerning how [they] can plain meaning of the text must be enforced.” United States continue to be eligible to vote,” 52 U.S.C. § 20507(d) v. Plavcak, 411 F.3d 655, 661 (6th Cir. 2005) (quoting (2)(B), because the requirement that they re-register Hudson v. Reno, 130 F.3d 1193, 1196 (6th Cir. 1997)). means that they are not “continuing” to be eligible to vote. Not only would this outcome completely defeat This seems to be a much simpler process than as outlined the purpose of subsection (d)(2)(B)'s mandate in states in the majority opinion. The Secretary has established a with re-registration requirements, it would contradict the Supplemental Process for purging voters from the voting Secretary and district court's own conclusion that the rolls in Ohio. The key language in the statute attacked by word “continue” operates to free states of subsection (b) the plaintiffs is from 52 U.S.C. § 20507(b)(2), which directs (2)(B)'s mandate with regard to out-of-state movers only. that States shall not remove “the name of any person from the official list of voters registered to vote in an election for In sum, we conclude that the district court erred Federal office by reason of the person's failure to vote.” by holding that Plaintiffs' claims regarding Ohio's However, that same subsection allows a State to use “the confirmation notice are moot, and that the court erred procedures described in subsections (c) and (d) to remove by concluding that Ohio need not provide out-of-state an individual from the official list of eligible voters” under movers with information on how they can continue to be certain circumstances. Id. That subsection indicates that if eligible to vote. the voter

(A) has not either notified the applicable registrar (in person or in writing) or responded during the period CONCLUSION described in subparagraph (B) to the notice sent by the applicable registrar; and then

in 2 consecutive general elections for (B) has not voted or appeared to vote in 2 or more Federal office shall be removed from consecutive general elections for Federal office, the official list of eligible voters, except that no registrant may be then subsection (d) provides how States may cancel removed solely by reason of a failure registrations of those who may have changed addresses. to vote. Id. It provides that the registrant should not be removed from the list of voters unless he or she confirms that he 52 U.S.C. § 21083(a)(4). As the Secretary has explained, it or she has changed residence or has failed to respond to a is his position that no voter is removed solely by reason notice described in paragraph (2) and has not voted during of a failure to vote, and thus he has complied with the a certain period of time. 52 U.S.C. § 20507(d)(1). language from both statutes. I agree. The statutes leave it to the States to implement, and Ohio has developed a The part of the statute which is in contention is § 20507(b) lawful procedure. (2), which indicates that the State shall not remove the voter “by reason of the person's failure to vote.” The On the question of mootness, I agree with the majority Secretary indicates that the person is not removed from that the plaintiffs had standing to bring the challenge the voting rolls until after the registrant is sent a notice by to the notice form when the case was filed. However, I mail to find out if he or she still lives at the old address. disagree with the conclusion that this case is not moot Not until that person fails to respond, as plaintiff Larry because the issues, save one, concerning the confirmation Harmon did, does the State then list the voter as “inactive” notice form have been corrected by the Secretary. in the registration database. Nevertheless, this “inactive” Cessation of certain “conduct by government officials voter has all the rights to cast a regular ballot at any has been treated with more solicitude by the courts than election, but if four years transpire without the registrant's similar action by private parties.” Mosley v. Hairston, voting, his or her registration record is canceled. However, 920 F.2d 409, 415 (6th Cir. 1990) (quoting Ragsdale v. if the registrant has any voting activity during those four Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988)). I agree with years, he or she returns to an active voter status. the district court that there is no evidence to show that the Secretary would change the current notice, and this court The text of the NVRA directs the States to “conduct a should give him deference on that question. However, general program that makes a reasonable effort to remove I concur with the majority that the current notice does the names of ineligible voters from the official lists of not comply with the NVRA final mandate that when the eligible voters by reason of” death or relocation. 52 U.S.C. Secretary sends the confirmation notice that the registrant § 20507(a)(4). The district court found the Secretary has has been purged, the notice must provide “information made a reasonable effort to carry out that mandate, and I concerning how the registrant can continue to be eligible agree. The State cannot remove the registrant's name from to vote.” 52 U.S.C. § 20507(d)(2)(B). the rolls for a failure to vote only, and Ohio does not do so. It removes registrants only if (1) they have not voted The district court found that this issue was waived by or updated their registration for the last two years, (2) the plaintiffs for failure to include it in their pleadings also failed to respond to the address-confirmation notice, before filing their reply brief. However, their motion for and (3) then failed to engage in any voter activity in summary judgment argued that the confirmation notice four consecutive years, including two consecutive Federal forms do not advise people who have moved out of elections following that notice. the State how they could register in their new State. Although I agree with the district court that the State *717 The decision of the district court also follows the officials have been given an “onerous burden of coaching language in HAVA. The district court cited the following out-of-state residents through the registration process in language from that act: their new States of residence,” that is what the statute requires. The district court ruled that the mandate only [C]onsistent with the National applies to give the registrant information about registering Voter Registration Act of 1993 ..., in another location in Ohio, but the language of the registrants who have not responded statute is broader than that. In their brief on appeal, to a notice and who have not voted plaintiffs have suggested that an easy way to comply

would be by directing voters to the Election Assistance Commission's website containing the federal form, which Therefore, I would affirm the decision of the district court, provides instructions and guidance for voter registration except insofar as it declined to require the Secretary to in all States. Although such a notice should be easy to amend its notice to voters who have moved to other States. attach to the notification to the registrants, it assumes that I would grant relief on that sole issue. all registrants know how to utilize websites. Nevertheless, that is the relief which the plaintiffs have requested, and All Citations it seems simple enough for the Secretary to institute that amendment to the notice. 838 F.3d 699

Footnotes 1 Both processes are performed on an annual basis. See Ohio Rev. Code § 3503.21(D). 2 As discussed below, the NCOA Process mirrors the voter roll maintenance procedure outlined in Section 8, subsection (c) of the NVRA. See 52 U.S.C. § 20507(c). Because that subsection describes the NCOA Process as one way in which states “may” comply with their obligation under the NVRA to identify and remove voters who are no longer eligible due to a change of residence, see 52 U.S.C. § 20507(a)(4) and (c), the NCOA Process is sometimes referred to in this litigation as the “Safe–Harbor Process.” 3 According to the Secretary, BOEs carrying out the Supplemental Process “also have discretion to consider whether signing a candidate, issue, or local option petition is viewed as voter activity.” (R. 38, Def.'s Merits Br., PageID 257.) 4 Absent from this summary of the holdings in the district court's order is discussion of Plaintiffs' claim that Ohio's Supplemental Process is applied in a non-uniform manner in violation of 52 U.S.C. § 20507(b)(1). The district court rejected that claim, and Plaintiffs' briefing on appeal does not address it. We therefore conclude that the claim is forfeited. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997). 5 In a similar vein, the Secretary asserts that the except clause “authorizes removals that follow the procedures in subsections (c) and (d).” (Def.'s Br. at 27 (emphasis omitted).) This argument again adds language to the except clause, which does not authorize all “removals that follow the procedures in subsections (c) and (d)” (id. (emphasis added)); rather, the clause simply permits states to “us[e] the procedures” in those subsections. See 52 U.S.C. § 20507(b)(2). 6 On appeal, the Secretary reiterates these arguments, but adds that Plaintiffs no longer have standing to bring their remaining challenge to the notice form because they have not shown that either they or their members have moved out of state—i.e., that they have been injured by the form's failure to provide registration information to out-of-state movers. This standing argument, however, is merely a mootness argument presented in another form. Cf. Cleveland Branch, N.A.A.C.P., 263 F.3d at 525 (“[S]tanding concerns only whether a plaintiff has a viable claim that a defendant's unlawful conduct was occurring at the time the complaint was filed, ... while mootness addresses whether that plaintiff continues to have an interest in the outcome of the litigation.” (citation and internal quotation marks omitted)). The Secretary does not dispute that Plaintiffs had standing to challenge the confirmation notice form at the outset of this litigation. We therefore do not address the Secretary's standing argument further. 7 Below, the district court concluded that this argument was waived because “Plaintiffs ... raised this argument for the first time in their Reply brief.” (R. 66, PageID 23024.) This was error; Plaintiffs' motion for summary judgment explicitly argued that Ohio's confirmation notice forms “do[ ] not tell people who have moved out of the state how they can register in their new state.” (R. 39, Pls.' Mot. for Summ. J., PageID 1407 (citing 52 U.S.C. § 20507(d)(2)(B)).)

Fred is a recently retired tenured member of the Law Faculty at Seton Hall University School of Law where he served as the law school’s Associate Dean. He has a national reputation having been elected as the President of the Hispanic National Bar Association, traveling the country helping to create strong bonds among the various legal communities. Fred is engaged in the full time practice of law, specializing in Real Estate Law. He is with the firm of Gaccione Pomaco located in Belleville.

Fred is a highly esteemed and respected public servant. He served as a school board member in the South Orange-Maplewood school system as well as a commissioner’s appointee to the Newark School Board. Governor Kean appointed Fred as a member of the Dr. Martin Luther King Memorial Commission. Fred was a member of Governor Florio’s cabinet as the Public Advocate and the Public Defender for the State of New Jersey. He was elected six times to the New Jersey General Assembly where he held many leadership positions including that of Parliamentarian. During his last term, Fred rose to the position of Speaker Pro Tempore. Fred served as Chairman of the Regulated Professions and Independent Authorities Committee and also chaired the Telecommunications and Utilities Committee. He served as the Vice-Chairman of the Transportation Committee and was a member of the Legislature’s Joint Committee on Ethics. Fred was appointed to numerous special committees looking into issues involving healthcare, pensions and the structure of the State University system. He has been a delegate to the National Democratic Convention and is honored to have been a New Jersey representative to the Electoral College.

While considered a strong voice for consumers, Fred has received special recognition by the business community including the New Jersey Chamber of Commerce and the New Jersey Business and Industry Association. He has received strong support from various labor unions and organizations.

DIANNA HOUENOU

Dianna serves as Policy Counsel for the ACLU of New Jersey. In that role, she conducts legal and policy analysis related to the ACLU-NJ’s advocacy campaigns. Her work focuses primarily on criminal justice reform issues, including police practices, police transparency and accountability, and immigrants’ rights. She educates the public and local and state officials about issues impacting civil rights and civil liberties. She also coordinates several ACLU-NJ coalitions, particularly Newark Communities for Accountable Policing and New Jersey United for Marijuana Reform, which advocates for marijuana legalization as a matter of racial and social justice.

Dianna is a registered lobbyist for the ACLU, encouraging lawmakers to support measures that protect people’s rights and enhance people’s access to justice. She is also responsible for organizing public engagement events and facilitating know-your-rights presentations. Donita Judge is a Senior Attorney and Co-Program Director of Advancement Project’s Power & Democracy Program based in Washington, DC. Judge served as co-counsel representing the NC NAACP in the landmark North Carolina “monster” voter suppression case, NCNAACP v. McCrory. On July 29, 2016, the United States Court of Appeals for the Fourth Circuit found that the voter suppression law was enacted with racially discriminatory intent and permanently barred the law from being in effect. On appeal, the Supreme Court of the United States refused to reinstate the law for the November 2016 election.

Currently, Judge is co-counsel in Vote v. Louisiana, a case to restore voting rights to ex- offenders in Louisiana on probation or parole. This case turns on state constitutional interpretation of the meaning of “under an order of imprisonment for conviction of a felony.”

Judge has provided extensive testimony to state and federal legislators on voter suppression tactics used throughout the country and challenged barriers to the ballot in every federal election in Ohio between 2004 and 2012. She was co-counsel in the successful 2012 Ohio provisional ballot lawsuit, SEIU v. Husted, which mandated Ohio count provisional ballots cast in the wrong precinct due to poll worker error.

She is the recipient of numerous awards, including being named a 2016 Rutgers University Fellow and receiving the Rutgers Medal—the university’s highest nonacademic award—given to commemorate the university’s 250th anniversary.

Judge earned her Bachelor degree from Rutgers University, with highest honors, and was elected Phi Beta Kappa. While earning her law degree from Rutgers School of Law-Newark, she was selected a NAACP Legal Defense and Educational Fund, Inc., (LDF) Earl Warren Legal Scholar and Kinoy-Stavis Fellow. She served as a law clerk for the Honorable Michelle Hollar-Gregory in the Superior Court of New Jersey. Judge is a member of the New Jersey Advisory Committee to the U.S. Commission on Civil Rights and a national board member of the ACLU.

Scott Novakowski

Associate Counsel and Debevoise Legal Fellow

Scott Novakowski is Associate Counsel at the New Jersey Institute for Social Justice and the Institute’s inaugural Judge Dickinson R. Debevoise Social Justice Legal Advocacy Fellow. Scott is the primary author of We Are 1844 No More: Let Us Vote, a report on New Jersey's disfranchisement law. Scott is leading the Institute's campaign to restore voting rights to people on parole, probation, or in prison for a felony. Scott's writing on voting rights and racial justice has been published in the Star Ledger, NJ Spotlight, and the Asbury Park Press.

Before joining the Institute, Scott was a voting rights attorney at the New York-based policy organization Demos working to eliminate barriers to civic participation faced by low-income communities and people of color. Through advocacy and litigation, his work at Demos focused primarily on enforcing the National Voter Registration Act, a federal law that requires voter registration services to be provided by state public assistance agencies and departments of motor vehicles, and protecting voters from being unlawfully removed from the registration rolls.

Prior to law school, Scott was a Policy Analyst at Demos for five years, performing data analysis and writing reports and articles on various aspects of voting rights. While in law school, Scott worked with the Innocence Project and the NAACP Legal Defense and Educational Fund and served as Submissions Editor of the Cardozo Law Review. Scott holds a J.D. from the Benjamin N. Cardozo School of Law and a M.S.W. and B.A., both from the University of Connecticut.

Follow him on Twitter at @scnovakowski.

Chief Counsel Matthew J. Platkin

Matthew J. Platkin currently serves as Chief Counsel to Governor Philip D. Murphy, having previously served as Policy Director for Murphy for Governor.

In his previous role Matt managed the campaign's internal research and policy team and coordinated substantive positions taken by then-candidate Phil Murphy. He joined Murphy for Governor at the campaign's launch in May 2016, after having served in a similar role for New Way for New Jersey since 2015.

Prior to joining New Way for New Jersey, Matt was an attorney at Debevoise & Plimpton LLP in New York, where his practice focused on criminal and regulatory investigations. He also maintained an active pro bono practice, representing indigent clients facing criminal and removal proceedings in federal and immigration court. He is admitted to practice in New Jersey and New York, as well as in the U.S. District Courts for the Eastern and Southern Districts of New York.

Matt has been active in New Jersey and national Democratic politics, having worked for Senator Cory Booker’s 2013 Senate campaign as well as having advised various state and federal campaigns across the country. Matt began his career working on economic policy at The Brookings Institution in Washington, D.C., where he advised members of Congress on policies to promote economic recovery and job growth in the wake of the 2008 financial crisis.

Matt is a product of New Jersey's public schools and is a graduate of Madison High School. He holds a B.A. with distinction and Phi Beta Kappa from Stanford University, and a J.D. from Stanford Law School, where he earned pro bono distinction and served as President of the American Constitution Society and as an Editor of the Stanford Law Review.

Matt and his wife, Sophia, reside in Montclair.

Justice Walter F. Timpone was nominated by Gov. Chris Christie and sworn in as an Associate Justice of the Supreme Court of New Jersey on May 2, 2016. He maintains his chambers in Newark.

Justice Timpone received a Bachelor's degree from St. Francis College in New York in 1972, a Master's degree in Special Education from New York University in 1974, and his Juris Doctorate from Seton Hall University School of Law in 1979. He is the former law clerk to the late Honorable Vincent P. Biunno, United States District Court, District of New Jersey.

He was previously associated with the firm of Townley & Updike in New York City before joining the United States Attorney's Office in Newark where he served for eleven years. His major accomplishments there were as the Chief of Special Prosecutions, where he led the prosecutions and convictions of nearly twenty-five public officials for corruption and fraud against the public.

He served as the first Federal Election Monitor in Passaic County where he was charged with ensuring the voting rights of the County’s Hispanic citizens and the County’s compliance with Federal and State consent orders.

He also served, at the appointment of N.J. Attorney General John Farmer, on the panel charged by Governor Whitman with investigating problems surrounding the Department of Motor Vehicles Inspection Program.

He acted as ombudsman to the United States Department of Defense overseeing a Defense Department contractor who entered a guilty plea concerning failed parts prepared for inclusion in Patriot missiles.

He served as acting general counsel for UMDNJ where he negotiated the deferred prosecution agreement for that organization and worked with the federal monitor to correct UMDNJ’s deficiencies in the practices and procedures

He served as a Commissioner on the New Jersey Election Law Enforcement Commission ("ELEC") where he employed his experience in campaign finance regulations and laws.

While at McElroy, Deutsch, Mulvaney & Carpenter, LLP, he negotiated successfully Deferred Prosecution Agreements for public and private health care organizations. He acted as an Associate General Executive Board Attorney for the LIUNA Union where he would investigate, charge, and take to hearing union members for violations of the union's constitution and ethics procedures. He also represented a variety of LIUNA Trusts and Committees.