Document:O.C.G.A

10/17/2018 https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=9d09416e-e8c4-442f-a2c8-ba2222532876&ecomp Lexis Advance Document:O.C.G.A. 21-2-234 O.C.G.A. 21-2-234 Copy Citation Current through the 2018 Regular Session of the General Assembly Official Code of Georgia Annotated TITLE 21. ELECTIONS CHAPTER 2. ELECTIONS AND PRIMARIES GENERALLY ARTICLE 6. REGISTRATION OF VOTERS 21-2-234. Electors who have failed to vote and with whom there has been no contact in three years; confirmation notice requirements and procedure; time for completion of list maintenance activities (a) (1) As used in this Code section and Code Section 21-2-235, the term "no contact" shall mean that the elector has not filed an updated voter registration card, has not filed a change of name or address, has not signed a petition which is required by law to be verified by the election superintendent of a county or municipality or the Secretary of State, has not signed a voter's certificate, and has not confirmed the elector's continuation at the same address during the preceding three calendar years. (2) In the first six months of each odd-numbered year, the Secretary of State shall identify all electors whose names appear on the list of electors with whom there has been no contact during the preceding three calendar years and who were not identified as changing addresses under Code Section 21-2-233. The confirmation notice described in this Code section shall be sent to each such elector during each odd-numbered year. Such notices shall be sent by forwardable, first-class mail. (b) When mailings to electors whose names appear on the list of electors, including, but not limited to, acknowledgments under Code Section 21-2-226, are returned undeliverable by the United States Postal Service, the confirmation notice described in this Code section shall be sent to such electors. (c) The confirmation notice shall be a postage prepaid, preaddressed return card on which an elector may state such elector's current address and which also includes a notice which states substantially the following: (1) If the elector has not changed addresses or has changed addresses within the county or municipality in which the elector is currently registered, the elector must return the card with the https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=9d09416e-e8c4-442f-a2c8-ba2222532876&ecomp=vs6fkkk&prid 1/3

10/17/2018 https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=9d09416e-e8c4-442f-a2c8-ba2222532876&ecomp updated information, if any, within 30 days after the date of the notice; and (2) If the card is not returned within 30 days after the date of the notice, the elector's name shall be transferred to the inactive list of electors provided for in Code Section 21-2-235. (d) If the elector returns the card and shows that he or she has changed residence to a place outside of the State of Georgia, the elector's name shall be removed from the appropriate list of electors. If the elector confirms his or her change of address to an address outside of the boundaries of the county or municipality in which the elector is currently registered, but still within the State of Georgia, the elector's registration shall be transferred to the new county or municipality. The Secretary of State or the registrars shall forward the confirmation card to the registrars of the county in which the elector's new address is located, and the registrars of the county of the new address shall update the voter registration list to reflect the change of address. (e) If the elector returns the card and states that the elector has changed residences within the county or municipality in which the elector is currently registered, the elector shall remain on the list of electors, the registration records shall be corrected to reflect such new address, and a new voter identification card shall be issued pursuant to Code Section 21-2-226. (f) If such elector returns the card and confirms that such elector continues to reside at the current address at which such elector is registered, the fact of such confirmation shall be recorded and the elector shall remain on the list of electors. (g) If the elector fails to return the card within 30 days after the date of the notice, the elector shall be transferred to the inactive list provided for in Code Section 21-2-235. (h) Nothing in this Code section shall prevent the removal from the list of electors of an elector for ineligibility to vote. (i) List maintenance activities pursuant to this Code section and Code Section 21-2-233 shall be completed not later than 90 days prior to a general primary or general election for federal offices or a presidential preference primary. This subsection shall not apply to notices sent pursuant to subsection (b) of this Code section. History Code 1981, 21-2-234, enacted by Ga. L. 1994, p. 1443, 3; Ga. L. 1995, p. 8, 1; Ga. L. 1996, p. 26, 1; Ga. L. 1997, p. 649, 2; Ga. L. 1998, p. 295, 1; Ga. L. 2017, p. 697, 12/HB 268. OFFICIAL CODE OF GEORGIA ANNOTATED Copyright 2018 by The State of Georgia All rights reserved. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=9d09416e-e8c4-442f-a2c8-ba2222532876&ecomp=vs6fkkk&prid 2/3

10/17/2018 https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=9d09416e-e8c4-442f-a2c8-ba2222532876&ecomp Content Type: Statutes and Legislation Terms: 21-2-234 Narrow By: custom: custom Sources: Official Code of Georgia Annotated Date and Time: Oct 17, 2018 11:23:04 a.m. EDT About LexisNexis Privacy Policy Terms & Conditions Sign Out Copyright 2018 LexisNexis. All rights reserved. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=9d09416e-e8c4-442f-a2c8-ba2222532876&ecomp=vs6fkkk&prid 3/3

10/17/2018 Lawriter - ORC - 3503.21 Occurrences resulting in cancellation of registration. 3503.21 Occurrences resulting in cancellation of registration. (A) The registration of a registered elector shall be canceled upon the occurrence of any of the following: (1) The filing by a registered elector of a written request with a board of elections or the secretary of state, on a form prescribed by the secretary of state and signed by the elector, that the registration be canceled. The filing of such a request does not prohibit an otherwise qualified elector from reregistering to vote at any time. (2) The filing of a notice of the death of a registered elector as provided in section 3503.18 of the Revised Code; (3) The filing with the board of elections of a certified copy of the death certificate of a registered elector by the deceased elector's spouse, parent, or child, by the administrator of the deceased elector's estate, or by the executor of the deceased elector's will; (4) The conviction of the registered elector of a felony under the laws of this state, any other state, or the United States as provided in section 2961.01 of the Revised Code; (5) The adjudication of incompetency of the registered elector for the purpose of voting as provided in section 5122.301 of the Revised Code; (6) The change of residence of the registered elector to a location outside the county of registration in accordance with division (B) of this section; (7) The failure of the registered elector, after having been mailed a confirmation notice, to do either of the following: (a) Respond to such a notice and vote at least once during a period of four consecutive years, which period shall include two general federal elections; (b) Update the elector's registration and vote at least once during a period of four consecutive years, which period shall include two general federal elections. (8) The receipt by the board of elections of a cancellation notice or request pursuant to section 111.44 of the Revised Code. (B) (1) The secretary of state shall prescribe procedures to identify and cancel the registration in a prior county of residence of any registrant who changes the registrant's voting residence to a location outside the registrant's current county of registration. Any procedures prescribed in this division shall be uniform and nondiscriminatory, and shall comply with the Voting Rights Act of 1965. The secretary of state may prescribe procedures under this division that include the use of the national change of address service provided by the United States postal system through its licensees. Any program so prescribed shall be completed not later than ninety days prior to the date of any primary or general election for federal office. (2) The registration of any elector identified as having changed the elector's voting residence to a location outside the elector's current county of registration shall not be canceled unless the registrant is sent a confirmation notice on a form prescribed by the secretary of state and the registrant fails to respond to the confirmation notice or otherwise update the registration and fails to vote in any election during the period of two federal elections subsequent to the mailing of the confirmation notice. http://codes.ohio.gov/orc/3503.21 1/2

10/17/2018 Lawriter - ORC - 3503.21 Occurrences resulting in cancellation of registration. (C) The registration of a registered elector shall not be canceled except as provided in this section, section 111.44 of the Revised Code, division (Q) of section 3501.05 of the Revised Code, division (C)(2) of section 3503.19 of the Revised Code, or division (C) of section 3503.24 of the Revised Code. (D) Boards of elections shall send their voter registration information to the secretary of state as required under section 3503.15 of the Revised Code. The secretary of state may prescribe by rule adopted pursuant to section 111.15 of the Revised Code the format in which the boards of elections must send that information to the secretary of state. In the first quarter of each year, the secretary of state shall send the information to the national change of address service described in division (B) of this section and request that service to provide the secretary of state with a list of any voters sent by the secretary of state who have moved within the last twelve months. The secretary of state shall transmit to each appropriate board of elections whatever lists the secretary of state receives from that service. The board shall send a notice to each person on the list transmitted by the secretary of state requesting confirmation of the person's change of address, together with a postage prepaid, preaddressed return envelope containing a form on which the voter may verify or correct the change of address information. (E) The registration of a registered elector described in division (A)(7) or (B)(2) of this section shall be canceled not later than one hundred twenty days after the date of the second general federal election in which the elector fails to vote or not later than one hundred twenty days after the expiration of the fouryear period in which the elector fails to vote or respond to a confirmation notice, whichever is later. (F) (1) When a registration is canceled pursuant to division (A)(2) or (3) of this section, the applicable board of elections shall send a written notice, on a form prescribed by the secretary of state, to the address at which the elector was registered, informing the recipient that the elector's registration has been canceled, of the reason for the cancellation, and that if the cancellation was made in error, the elector may contact the board of elections to correct the error. (2) If the elector's registration is canceled pursuant to division (A)(2) or (3) of this section in error, it shall be restored and treated as though it were never canceled. Amended by 131st General Assembly File No. TBD, SB 63, 1, eff. 9/13/2016. Amended by 131st General Assembly File No. TBD, HB 359, 1, eff. 9/8/2016. Amended by 130th General Assembly File No. 58, SB 200, 1, eff. 3/20/2014. Amended by 129th General AssemblyFile No.105, SB 295, 1, eff. 8/15/2012. Amended by 129th General AssemblyFile No.40, HB 194, 1 Made subject to referendum in the Nov. 6, 2012 election. The version of this section thus amended was repealed by 129th General AssemblyFile No.105, SB 295, 1, eff. 8/15/2012. Amended by 128th General AssemblyFile No.9, HB 1, 101.01, eff. 10/16/2009. Effective Date: 01-01-1995; 05-02-2006 http://codes.ohio.gov/orc/3503.21 2/2

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 1 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION COMMON CAUSE, et al., v. Plaintiffs, BRIAN KEMP, Secretary of State, CIVIL ACTION FILE NUMBER 1:16-cv-452-TCB Defendant. O R D E R This case concerns Georgia s program for removing voters from county voter registration rolls due to a change in residency. Two nonprofit organizations, Plaintiffs Common Cause and the Georgia State Conference of the NAACP, contend that the Georgia law violates federal voting-rights laws and the First Amendment to the U.S. Constitution. Currently before the Court is Defendant Brian Kemp s motion to dismiss for failure to state a claim [10].

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 2 of 21 I. Factual Background 1 At issue in this case is Georgia s program for removing ineligible voters from the voter registration rolls, codified primarily as O.C.G.A. 21-2-234 ( Section 234 ). The program operates as follows: during the first six months of each odd-numbered year, the secretary of state 2 compiles a list of voters with whom there has been no contact during the previous three years. 21-2-234(a)(2). No contact is deemed to have been made when the elector has not filed an updated voter registration card, has not filed a change of name or address, has not signed a petition which is required by law to be verified by the election superintendent of a county or municipality or the Secretary of State, has not signed a voter s certificate, and has not confirmed the elector s continuation at the same address during the preceding three calendar years. 21-2-234(a)(1). The voters identified by the secretary are sent an address confirmation notice that includes a postage prepaid, preaddressed return card. 21-2-234(c). The voter can use the card for 1 At the motion-to-dismiss stage, the Court accepts as true the factual allegations in the complaint and construes them in the light most favorable to the non-moving party. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). 2 Defendant Kemp is the current Secretary of State of Georgia. 2

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 3 of 21 address confirmation, or to inform the secretary that he or she has moved. 21-2-234(d), (e), & (f). If the card is not returned within thirty days, then the voter s name is moved to the list of inactive voters. 21-2-234(c)(2) & (g). Voters on the inactive list can still vote. 21-2-235(c). Any contact with the electoral system including voting would return the person to the active voters list. If there is no contact from a voter on the inactive list for two consecutive federal general election cycles, then the voter is removed from the registration list. 21-2-235(b). II. Procedural History Georgia first enacted its voter-removal program in 1994. See 1994 Ga. Laws 1443. Pursuant to the then Section 5 of the Voting Rights Act of 1965, the U.S. Department of Justice reviewed the law and objected to the voter-removal program. See [1-1]. Georgia amended the law in 1997, putting into force the current version of Section 234. The DOJ again reviewed the law, and ultimately gave it preclearance under Section 5 of the Voting Rights Act. This preclearance meant that the DOJ found that the law neither has the 3

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 4 of 21 purpose nor will have the effect of denying or abridging the right to vote on account of race or color. Perry v. Perez, 565 U.S. 388, 391 (2012) (quoting 42 U.S.C. 1973c(a), now codified as 52 U.S.C. 10304(a)). On February 10, 2016, Common Cause and the Georgia State Conference of the NAACP brought suit on behalf of Georgia voters whose right to vote has been prejudiced, or is at risk of being prejudiced, by Kemp s enforcement of [S]ection 234. [1] at 3. After the parties had briefed Kemp s motion to dismiss [10], the United States submitted a statement of interest in this case pursuant to 28 U.S.C. 517. 3 In its notice, the United States sides with Plaintiffs and argues that the voter-removal program violates federal voting-rights laws. The notice makes no mention of Plaintiffs claim concerning violations of the First Amendment. 3 The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States. 4

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 5 of 21 III. Legal Standard To survive a 12(b)(6) motion, a plaintiff must plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007); see also Chandler v. Sec y of Fla. Dep t of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012). The Supreme Court has explained this standard as follows: A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted); Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 (11th Cir. 2012). Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are enough to raise a right to relief above the speculative level, and a formulaic recitation of the elements of a cause of action will not do. Twombly, 550 U.S. at 555. While all well-pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff, Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011), 5

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 6 of 21 the Court need not accept as true plaintiff s legal conclusions, including those couched as factual allegations, Iqbal, 556 U.S. at 678. IV. Individual Capacity Claims The complaint seeks equitable relief against Kemp in both his official and individual capacities. Claims seeking prospective equitable relief from a state agent performing official duties are considered official-capacity claims. See Wu v. Thomas, 863 F.2d 1543, 1550 (11th Cir. 1989); Santhuff v. Seitz, 385 F. App x 939, 942 n.3 (11th Cir. 2010). Kemp moves to dismiss all claims against him in his individual capacity. Plaintiffs do not respond to this prong of Kemp s motion, but instead assert in a footnote that Plaintiffs have properly sued Kemp in his individual capacity. [17] at 5 n.6 (citing Alabama v. PCI Gaming Auth., 801 F.3d 1278 (11th Cir. 2015)). Since Plaintiffs seek only equitable relief, the claims are considered brought against Kemp in his official capacity. See Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 n.9 (11th Cir. 1995) ( Qualified immunity does not pertain to claims for injunctive or declaratory relief, because these claims are considered to be official capacity claims against the relevant 6

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 7 of 21 governmental entity. ). Accordingly, all claims against Kemp in his individual capacity will be dismissed. V. Compliance with Federal Voting Rights Laws A. Relevant Statutes 1. The NVRA The National Voter Registration Act of 1993 ( NVRA ), Pub. L. No. 103-31, 107 Stat. 77 (codified as amended at 52 U.S.C. 20501 11 (2016)), established procedures to increase the number of eligible citizens who register to vote and to enhance[ ] the participation of eligible citizens as voters in federal elections. 52 U.S.C. 20501(b). The NVRA sought to simultaneously protect the integrity of the electoral process and ensure that accurate and current voter registration rolls are maintained. Id. Section 8 of the NVRA sets standards for removing voters due to a change of residence. States are required to conduct 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 change in... residence. 20507(a)(4). Programs enacted by states shall be uniform, 7

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 8 of 21 nondiscriminatory, and in compliance with the Voting Rights Act of 1965. 20507(b)(1). States are prohibited from using voter-removal programs that result in the removal of the name of any person from the official list of voters... by reason of the person s failure to vote. 20507(b)(2). When removing a voter from the rolls, states must abide by the notice provisions of subsections (c) and (d)(1)(b). Id. Those subsections provide a two-step notice process: first, the registrant must fail to respond to a postage-prepaid and pre-addressed residency confirmation card. 20507(b)(2)(A) & (d)(1) (2). Then, if the registrant has not voted or appeared to vote in 2 or more consecutive general elections for Federal office, he or she may be removed. 20507(b)(2)(B). The NVRA expressly permits states to take account of the U.S. Postal Service s change-of-address database to determine which voters may have changed residence and therefore would be ineligible to vote. 20507(c)(1). This safe harbor provision demonstrates a permissible way for a state to determine which voters should receive the residency confirmation notice. 8

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 9 of 21 2. HAVA In 2002, Congress passed the Help America Vote Act ( HAVA ), Pub. L. No. 107-252, 116 Stat. 1666-1730. HAVA requires states to maintain a single, uniform, official, centralized, interactive computerized statewide voter registration list. 52 U.S.C. 21083(a)(1)(A). The registration list must be managed in a uniform and nondiscriminatory manner. Id. Moreover, states are required to adhere to minimum standards for ensuring the accuracy of the voter registration list. 21083(a)(4). Specifically, HAVA requires states to maintain: A system of file maintenance that makes a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible voters. Under such system, consistent with the [NVRA], registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote. 21083(a)(4)(A). HAVA is explicit that removal of voters must be done in accordance with the provisions of the [NVRA]. 21083(a)(2)(A). 9

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 10 of 21 B. Analysis Plaintiffs do not contest that the residency-confirmation notices used under Section 234 comply with the NVRA, nor do they contest that the Georgia statute complies with the process for removing voters who fail to return the card. Indeed, the language of Georgia s notice provision, and the language of the provision dealing with removal of voters who fail to return the card, closely mirrors the language of the NVRA. This means that the only issue before the Court is the legality of the process for determining which voters are subject to the residency confirmation process the so-called trigger provision. There is a dearth of caselaw on this issue. The Court is aware of only one case A. Phillip Randolph Inst. v. Husted, 838 F.3d 699 (6th Cir. 2016) which analyzed a state s trigger provision. The Sixth Circuit decision is a helpful comparison, but is not controlling, and the Court cannot abdicate its duty to abide by the Eleventh Circuit s rules for interpreting statutory provisions. Hence, it is an issue of first impression in this circuit whether a state may, under the NVRA and 10

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 11 of 21 HAVA, send residency confirmation notices to registered voters based on their failure to vote. In interpreting the meaning of a statute, the Court must first look to the plain language of the statute. Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1559 (11th Cir. 1989). In doing so, the Court may examine the design of the statute as a whole and... its object and policy. Crandon v. United States, 494 U.S. 152, 158 (1990). If the statute is unclear or ambiguous in any way, the court may look to legislative history and other extrinsic evidence. See Cabalceta, 883 F.2d at 1559. The Eleventh Circuit has also instructed that when the plain meaning of a statute produces an unreasonable [result] plainly at variance with the policy of the legislation as a whole this Court has followed [the purpose of the act], rather than the literal words. Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1529 (11th Cir. 1996) (quoting Perry v. Commerce Loan Co., 383 U.S. 392, 400 (1966)). However, [w]hen the import of the words Congress has used is clear... we need not resort to legislative history, and we certainly should not do so to undermine the 11

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 12 of 21 plain meaning of the statutory language. Harris v. Garner, 216 F.3d 970, 976 (11th Cir. 2000). Kemp first argues that the notifications are not triggered by a failure to vote, but instead by a voter s failure to have contact with election officials. See [10-1] at 12 13. Importantly, the definition of no contact includes failure to sign a voter s certificate. O.C.G.A. 21-2- 234(a)(1). Because voter s certificates are assigned only at voting polls, O.C.G.A. 21-2-402, a failure to sign such a certificate is a direct indication of a failure to vote. Hence, it is disingenuous to argue that the trigger provision does not take into account a person s failure to vote. And the inclusion of other, extraneous methods of establishing contact does not diminish the fact that failure to vote is necessary to trigger the notification provision. Accord Husted, 838 F.3d at 711 ( But the clause would have no teeth at all if states could circumvent it by simply including voting in a disjunctive list of activities in which a registrant must fail to engage in order to trigger the confirmation notice procedure. ) 12

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 13 of 21 Yet contrary to Plaintiffs assertions, this does not invalidate Section 234. The NVRA is silent on when and how a state may decide to send out the notifications. Other than the exemplar safe-harbor provision, there is no explicit statutory language governing trigger provisions. 4 What remains instead is the prohibition in section (b)(1) that the process as a whole must be uniform, nondiscriminatory, and in compliance with the Voting Rights Act. Plaintiffs argue that the law is not uniform because it does not apply to the entire jurisdiction and instead applies only to those voters who have not voted in three years. [17] at 18. This argument is factually inaccurate: Georgia s voterremoval program begins with the entire population of voters and applies the same removal process to all voters. See O.C.G.A. 21-2- 234(a)(2) (directing the secretary of state to begin notification procedure by searching through all electors whose names appear on the list of electors ). Moreover, Plaintiffs reading of uniform would require 4 The language of the safe-harbor provision is permissive, not exclusive, meaning states may permissibly use other trigger methods. 52 U.S.C. 20507(c)(1) ( A state may meet the requirements of subsection (a)(4) by.... ) (emphasis added). 13

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 14 of 21 states to send confirmation notifications to every registered voter, a result that contradicts the NVRA s exemplar safe-harbor provision. The United States argues for additional requirements regarding the type of information a state may use to determine to whom it sends notifications, asserting that only objective and reliable information can be considered. See [19] at 12. But again, this language is nowhere to be found in the NVRA or HAVA. 5 The Court s role is to uphold the law as written, not to usurp Congress s role in writing the law. 6 Finally, Plaintiffs argue that because Section 234 takes into account voting history, it will necessarily result in removal... by reason of the person s failure to vote. But this reading ignores the fact that voters are removed from the rolls only if they fail to respond to the 5 The United States found support for this assertion in Welker v. Clarke, 239 F.3d 596 (3d Cir. 2001). However, the United States acknowledges that this discussion was merely dicta, where the Third Circuit offered a brief summary of the NVRA for purposes of showing how it contributed historically to Pennsylvania s laws for voter removal. See id. at 599. 6 The parties also disagree on whether the current position of the United States is inconsistent with its previous preclearance activities, see Part II.B, supra, or inconsistent with the position it has taken in other cases. See [22] at 10 15. Regardless of this history or the current position of the United States, the Court must apply the text of the statute as written. See City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013); Cabalceta 883 F.2d at 1559. 14

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 15 of 21 notification in addition to having no contact with the electoral process for seven years. Plaintiffs would read the NVRA as prohibiting a state from ever considering a person s failure to vote when removing ineligible voters, but Congress did not write such a prohibition into the law, and the NVRA s removal process explicitly references a voter s failure to vote[ ] or appear[ ] to vote in 2 or more consecutive general elections. 52 U.S.C. 20507(b)(2)(B); see also 20507(d)(1)(B)(ii). This is further supported by HAVA, which restates the provision as prohibiting states from removing a voter solely by reason of a failure to vote. 52 U.S.C. 21083(a)(4)(A) (emphasis added). Whether HAVA truly narrows the prohibition in the NVRA as Kemp argues or simply restates a fundamental principle of the NVRA as Plaintiffs contend does not affect the outcome, as Georgia s law does not violate the NVRA and thus does not violate HAVA s more narrowly-worded prohibition. 7 7 There is support in HAVA for the position that the trigger must be based on something other than failure to vote: HAVA states that persons who fail to return the confirmation notice and who have not voted in two consecutive general Federal elections shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of failure to vote. 52 U.S.C. 21083(a)(4)(A) (emphasis added). The word except could imply that some uses of 15

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 16 of 21 In short, Georgia s removal process, which closely mirrors the language of the NVRA and HAVA, does not violate those statutes. VI. Compliance with the First Amendment Plaintiffs claim that Section 234 violates qualified Georgia voters right not to vote, which is secured by the First Amendment to the United States Constitution. [1] at 41. Kemp argues that no such right exists, and that even if it did the statute does not impermissibly infringe on that right. Plaintiffs find support for the right not to vote in Hoffman v. Maryland, 928 F.2d 646 (4th Cir. 1991). That case involved a pre-nvra statute in Maryland that removed voters from the voter registration rolls if they failed to vote for five years. Id. at 647 48. However, the the confirmation-notice process are lawful, but other uses of that process are unlawful because they result in the removal of a person solely by reason of failure to vote. Thus, a statute that combined the confirmation-notice process with a trigger based only on failure to vote would violate HAVA. However, this argument fails because it overly-parses a single word of the statute. The Court must interpret this language in the context of its subsection and the rest of the statute. Crandon, 494 U.S. at 158. Given the repeated mentions in HAVA that it does not supersede the provisions of the NVRA, the most harmonic reading of the language in question is that it restates a basic purpose of the NVRA. See 52 U.S.C. 21083(a)(2)(A) (under HAVA, removals must be done in accordance with the provisions of the [NVRA] ) & 21083(a)(4)(A). 16

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 17 of 21 Hoffman court did not find that plaintiffs possessed a right not to vote. Id. at 648 ( We need not and do not decide the correctness of [the First Amendment argument] because, even if there is a right not to vote of constitutional significance, it is not infringed upon by Maryland s purge statute. ). Similarly, the Court here need not find that such a right exists, because even assuming that there exists a First Amendment right not to vote, Section 234 does not violate that right. At the onset, the statute does not compel anyone to vote. Moreover, as previously discussed, a citizen s failure to vote will not, by itself, result in removal from the voter rolls. See Part V, supra. But, assuming that the right not to vote encompasses the right to remain wholly unresponsive to the electoral system while remaining on the voter registration rolls, Section 234 still does not impermissibly infringe on this right. The parties disagree on what legal standard should be applied to analyze a law that infringes on the right not to vote. Plaintiffs assert that the right to be registered without voting involves both speech and non-speech conduct... [and] must satisfy the four-part test set forth in 17

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 18 of 21 United States v. O Brien, 391 U.S. 367 (1968). [17] at 22. 8 However, the parties did not point to and the Court is unaware of any cases that applied the O Brien test to a statute regulating voter conduct. 9 Hoffman, which Plaintiffs cite in support, is the most illustrative case on this point. In Hoffman, 928 F.2d at 648 49, the Fourth Circuit referenced the O Brien test when discussing a voter-removal statute, but ultimately decided to apply the test used for time, place or manner restrictions. Under that standard, content-neutral... regulations are acceptable so long as they are designed to serve a substantial 8 O Brien, 391 U.S. at 377, laid out a four-part test for laws that regulate both speech and non-speech conduct: [A] government regulation is sufficiently justified if [(1)] it is within the constitutional power of the Government; [(2)] it furthers an important or substantial governmental interest; [(3)] the governmental interest is unrelated to the suppression of free expression; and [(4)] the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Plaintiffs assert that Gerogia s statute fails the second and fourth prongs of the O Brien test. 9 See, e.g., Rosario v. Rockefeller, 410 U.S. 752, 761 (1973) (upholding preelection registration process because it tied to a particularized legitimate purpose, and is in no sense invidious or arbitrary ); Stein v. Ala. Sec y of State, 774 F.3d 689, 691 (11th Cir. 2014) (upholding ballot access ordinance where Plaintiffs failed to show that the legitimate, nondiscriminatory reasons for the State's restrictions on petition-based ballot access unconstitutionally burdens their associational rights ). 18

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 19 of 21 governmental interest and do not unreasonably limit alternative avenues of communication. Id. The Court agrees with Hoffman that the time, place or manner restrictions are most appropriate to use in this case. Applying that standard here, the Court finds that maintenance of accurate voter registration rolls is a substantial governmental interest, as mandated under the NVRA and HAVA. See 52 U.S.C. 20501(b)(4) & 21083(a)(4). Georgia s statute is designed to serve that interest, and it does nothing to limit the vast array of other avenues of political communication. Moreover, the statute in question in Hoffman was found not to violate the purported right not to vote. 928 F.2d at 649. Since the Maryland law in Hoffman unquestionably removed voters based solely on their failure to vote, see id. at 647 48, Section 234 would similarly pass the First Amendment test implemented by the Hoffman court. Section 234 also passes muster under the two standards advocated by Kemp. First, in a forum-based analysis, Kemp argues that presence on the voter rolls would be considered, at most, a non-public or 19

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 20 of 21 limited public forum. [10-1] at 20. Regulations in those fora need only be reasonable and viewpoint-neutral, 10 and the Court agrees that Section 234 passes this test. Next, Kemp analogizes this case to ballotaccess cases where the right to vote is implicated. [10-1] at 22. In such cases, [r]egulations imposing severe burdens on plaintiffs rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). The regulation at issue here is most similar to the lesser or limited burden upheld in Burdick, where Hawaii prohibited write-in voting. See Burdick, 504 U.S. at 437. Because the Georgia statute is reasonable and nondiscriminatory, it passes this balancing test. 10 Christian Legal Soc y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 679 n.11 (2010); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. v, 473 U.S. 788, 806 (1985). 20

Case 1:16-cv-00452-TCB Document 34 Filed 03/17/17 Page 21 of 21 Thus, even if there existed a right not to vote, Georgia s statute does not impermissibly infringe upon that right. VII. Conclusion For the foregoing reasons, Kemp s motion to dismiss [10] is GRANTED. IT IS SO ORDERED this 17th day of March, 2017. Timothy C. Batten, Sr. United States District Judge 21

Case: 17-11315 Date Filed: 03/12/2018 Page: 1 of 3 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 17-11315 D.C. Docket No. 1:16-cv-00452-TCB [DO NOT PUBLISH] COMMON CAUSE, GEORGIA STATE CONFERENCE OF THE NAACP, versus BRIAN KEMP, individually and in his official capacity as Secretary of State of the State of Georgia, Plaintiffs Appellants, Defendant Appellee. Appeal from the United States District Court for the Northern District of Georgia (March 12, 2018) Before WILSON, and DUBINA, Circuit Judges, and GOLDBERG, * Judge. * Honorable Richard W. Goldberg, Judge for the United States Court of International Trade, sitting by designation.

Case: 17-11315 Date Filed: 03/12/2018 Page: 2 of 3 PER CURIAM: Plaintiffs/Appellants, Common Cause ( CC ) and Georgia State Conference of the NAACP ( NAACP ) (collectively Plaintiffs ), appeal the district court s order granting the Secretary of State s ( Secretary of State or State ), motion to dismiss their claims challenging Georgia Code 21 2 234 ( Section 234 ), which codifies a program for removing ineligible voters from the voter registration rolls. Plaintiffs contend that the program violates federal voting rights law, specifically the National Voter Registration Act, 52 U.S.C. 20507 ( NVRA ), and the Help America Vote Act, 52 U.S.C. 21083 ( HAVA ), and the First Amendment to the United States Constitution. I. ISSUES 1. Whether Section 234 violates the National Voters Registration Act and the Help America Vote Act. 2. Whether Section 234 violates the First Amendment. II. STANDARD OF REVIEW This court reviews de novo the district court s order dismissing a complaint for failure to state a claim. Blevins v. Aksut, 849 F.3d 1016, 1018 19 (11th Cir. 2017). 2

Case: 17-11315 Date Filed: 03/12/2018 Page: 3 of 3 This court also reviews de novo questions of statutory interpretation. Burlison v. McDonald s Corp., 455 F.3d 1242, 1245 (11th Cir. 2006). III. DISCUSSION After reviewing the record, reading the parties briefs and having the benefit of oral argument, we vacate the district court s order of dismissal and remand this case to the district court to consider in the first instance the United States Supreme Court s pending disposition in A. Phillip Randolph Inst. v. Husted, 838 F.3d 699 (6th Cir. 2016), cert. granted, 137 S. Ct. 2188 (2017) (argued January 10, 2018). On remand, the district court should also conduct a more detailed analysis of the First Amendment question. VACATED and REMANDED with directions. 1 1 On remand, nothing precludes the Plaintiffs from moving the district court for a preliminary injunction to restore those removed voters from the voter registration rolls pending a ruling from the Supreme Court. 3

(Slip Opinion) OCTOBER TERM, 2017 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 HUSTED, OHIO SECRETARY OF STATE v. A. PHILIP RANDOLPH INSTITUTE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 16 980. Argued January 10, 2018 Decided June 11, 2018 The National Voter Registration Act (NVRA) addresses the removal of ineligible voters from state voting rolls, 52 U. S. C. 20501(b), including those who are ineligible by reason of a change in residence, 20507(a)(4). The Act prescribes requirements that a State must meet in order to remove a name on change-of-residence grounds, 20507(b), (c), (d). The most relevant of these are found in subsection (d), which provides that a State may not remove a name on change-of-residence grounds unless the registrant either (A) confirms in writing that he or she has moved or (B) fails to return a preaddressed, postage prepaid return card containing statutorily prescribed content and then fails to vote in any election during the period covering the next two general federal elections. In addition to these specific change-of-residence requirements, the NVRA also contains a general Failure-to-Vote Clause, 20507(b)(2), consisting of two parts. It first provides that a state removal program shall not result in the removal of the name of any person... by reason of the person s failure to vote. Second, as added by the Help America Vote Act of 2002 (HAVA), it specifies that nothing in [this prohibition] may be construed to prohibit a State from using the procedures described above sending a return card and removing registrants who fail to return the card and fail to vote for the requisite time. Since one of the requirements for removal under subsection (d) is the failure to vote, the explanation added by HAVA makes clear that the Failure-to-Vote Clause s prohibition on removal by reason of the person s failure to vote does not categorically preclude using nonvoting as part of a test for removal. Another provision makes this point even more clearly by providing that no registrant

2 HUSTED v. A. PHILIP RANDOLPH INSTITUTE Syllabus may be removed solely by reason of a failure to vote. 21083(a)(4)(A) (emphasis added). Respondents contend that Ohio s process for removing voters on change-of-residence grounds violates this federal law. The Ohio process at issue relies on the failure to vote for two years as a rough way of identifying voters who may have moved. It sends these nonvoters a preaddressed, postage prepaid return card, asking them to verify that they still reside at the same address. Voters who do not return the card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls. Held: The process that Ohio uses to remove voters on change-ofresidence grounds does not violate the Failure-to-Vote Clause or any other part of the NVRA. Pp. 8 21. (a) Ohio s law does not violate the Failure-to-Vote Clause. Pp. 8 16. (1) Ohio s removal process follows subsection (d) to the letter: It does not remove a registrant on change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years. See 20507(d)(1)(B). Pp. 8 9. (2) Nonetheless, respondents argue that Ohio s process violates subsection (b) s Failure-to-Vote Clause by using a person s failure to vote twice over: once as the trigger for sending return cards and again as one of the two requirements for removal. But Congress could not have meant for the Failure-to-Vote Clause to cannibalize subsection (d) in that way. Instead, the Failure-to-Vote Clause, both as originally enacted in the NVRA and as amended by HAVA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. The phrase by reason of in the Failure-to-Vote Clause denotes some form of causation, see Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176, and in context sole causation is the only type of causation that harmonizes the Failure-to-Vote Clause and subsection (d). Any other reading would mean that a State that follows subsection (d) nevertheless can violate the Failure-to-Vote Clause. When Congress enacted HAVA, it made this point explicit by adding to the Failure-to-Vote Clause an explanation of how the clause is to be read, i.e., in a way that does not contradict subsection (d). Pp. 9 12. (3) Respondents and the dissent s alternative reading is inconsistent with both the text of the Failure-to-Vote Clause and the clarification of its meaning in 21083(a)(4). Among other things, their reading would make HAVA s new language worse than redundant, since no sensible person would read the Failure-to-Vote Clause as prohibiting what subsections (c) and (d) expressly allow. Nor does

Cite as: 584 U. S. (2018) 3 Syllabus the Court s interpretation render the Failure-to-Vote Clause superfluous; the clause retains meaning because it prohibits States from using nonvoting both as the ground for removal and as the sole evidence for another ground for removal (e.g., as the sole evidence that someone has died). Pp. 12 15. (4) Respondents additional argument that so many registered voters discard return cards upon receipt that the failure to send cards back is worthless as evidence that an addressee has moved is based on a dubious empirical conclusion that conflicts with the congressional judgment found in subsection (d). Congress clearly did not think that the failure to send back a return card was of no evidentiary value, having made that conduct one of the two requirements for removal under subsection (d). Pp. 15 16. (b) Nor has Ohio violated other NVRA provisions. Pp. 16 21. (1) Ohio removes the registrants at issue on a permissible ground: change of residence. The failure to return a notice and the failure to vote simply serve as evidence that a registrant has moved, not as the ground itself for removal. Pp. 16 17. (2) The NVRA contains no reliable indicator prerequisite to sending notices, requiring States to have good information that someone has moved before sending them a return card. So long as the trigger for sending such notices is uniform, nondiscriminatory, and in compliance with the Voting Rights Act, 20507(b)(1), States may use whatever trigger they think best, including the failure to vote. Pp. 17 19. (3) Ohio has not violated the NVRA s reasonable effort provision, 20507(a)(4). Even assuming that this provision authorizes federal courts to go beyond the restrictions set out in subsections (b), (c), and (d) and strike down a state law that does not meet some standard of reasonableness, Ohio s process cannot be unreasonable because it uses the change-of-residence evidence that Congress said it could: the failure to send back a notice coupled with the failure to vote for the requisite period. Ohio s process is accordingly lawful. Pp. 19 21. 838 F. 3d 699, reversed. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and GORSUCH, JJ., joined. THOMAS, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion.

Cite as: 584 U. S. (2018) 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, Washington, 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. 16 980 JON HUSTED, OHIO SECRETARY OF STATE, PETITIONER v. A. PHILIP RANDOLPH INSTITUTE, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [June 11, 2018] JUSTICE ALITO delivered the opinion of the Court. It has been estimated that 24 million voter registrations in the United States about one in eight are either invalid or significantly inaccurate. Pew Center on the States, Election Initiatives Issue Brief (Feb. 2012). And about 2.75 million people are said to be registered to vote in more than one State. Ibid. At issue in today s case is an Ohio law that aims to keep the State s voting lists up to date by removing the names of those who have moved out of the district where they are registered. Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed, postage prepaid card to these individuals asking them to verify that they still reside at the same address. Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls. We are asked to decide whether this program complies with federal law.