Case 1:16-cv-00452-TCB Document 28 Filed 07/21/16 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION COMMON CAUSE and * GEORGIA STATE CONFERENCE * OF THE NAACP, * * Civil Action No. Plaintiffs, * 1:16CV00452-TCB * v. * * BRIAN KEMP, individually and in * his official capacity as Secretary of * State of the State of Georgia, * * Defendant. * * PLAINTIFFS BRIEF REGARDING DEFENDANT S NOTICE OF SUPPLEMENTAL AUTHORITY Emmet J. Bondurant Georgia Bar No. 066900 Jason J. Carter Georgia Bar No. 141669 Chad K. Lennon Georgia Bar No. 408953 BONDURANT MIXSON & ELMORE LLP 3900 One Atlantic Center 1201 West Peachtree Street NW Atlanta, Georgia 30309 Telephone: (404) 881-4100 Facsimile: (404) 881-4111 Counsel for Plaintiffs
Case 1:16-cv-00452-TCB Document 28 Filed 07/21/16 Page 2 of 9 Defendant cites A. Phillip Randolph Institute v. Husted, 2016 WL 3542450 (S.D. Ohio June 29, 2016). That opinion construes the National Voter Registration Act (NVRA) and related statutes and gets them exactly backwards: Husted uses NVRA subsection (d), which is an additional protection against improper voter removal, to swallow the express prohibition on removing voters for failing to vote. This defeats both the plain statutory language and the clear intent of Congress. 1 For purposes of this case and Husted, the NVRA and HAVA have two touchstones. First, they only allow removal of ineligible voters. 52 U.S.C. 20507(a)(4) (NVRA requirement that States remove the names of ineligible voters ); id. 21083(a)(4)(A) (HAVA requirement that States remove registrants who are ineligible to vote ). Nothing authorizes the removal of eligible voters. Second, both statutes expressly prohibit a State from removing voters for failing to vote. See id. 20507(b)(2) (NVRA requirement that no voter be removed by reason of the person s failure to vote ); id. 21083(a)(4)(A) (HAVA requirement that no registrant may be removed solely by reason of a failure to vote ). Husted construes the NVRA to undermine these two touchstones by relying on a strained reading of subsection (d). That subsection requires a State to mail a 1 Husted is on expedited appeal in the Sixth Circuit. A. Philip Randolph Inst. v. Husted, No. 16-3746, ECF No. 14 (6th Cir. July 6, 2016) (granting motion to expedite over Appellee s opposition). Opening briefs were filed on July 13 and 20, ECF Nos. 24 & 31; and oral argument is set for July 27, ECF Nos. 16 & 22. 1
Case 1:16-cv-00452-TCB Document 28 Filed 07/21/16 Page 3 of 9 confirmation notice before removing a voter. Husted holds that subsection (d) authorizes Ohio s supplemental program, which sends a notice to voters who do not vote, and then removes them if they do not respond and continue not voting. Husted concludes: Subsection (d)... does not specifically state who should be sent a confirmation notice or when that confirmation notice should be sent. Therefore,... that decision is left to the states. Husted at *6. This conclusion contradicts the language and purpose of subsection (d) as well as the surrounding text. Considering the NVRA in its entirety, it is clear that subsection (d) is an additional protection against improper removal of voters. Compliance with subsection (d) is not sufficient to lawfully remove a voter; it is but one requirement among several. Subsection (a)(4) requires a general program that makes a reasonable effort to remove the names of ineligible voters. And to remove a voter who has changed residence, subsection (a)(4)(b) requires that the State comply with subsections (b), (c) and (d). These three subsections combine to form a set of protections to prevent improper removal of voters. Based on the use of the word and, it is clear that removal of voters must comply with all three subsections. Subsection (b) requires that the removal program: (1) be uniform, nondiscriminatory and comply with the Voting Rights Act; and (2) shall not result in the removal... by reason of the person s failure to vote, except that nothing in 2
Case 1:16-cv-00452-TCB Document 28 Filed 07/21/16 Page 4 of 9 this paragraph may be construed to prohibit a state from using the procedures described in subsections (c) and (d) to remove an individual.... 20507(b)(2). Thus, for purposes of removing ineligible voters based on change of address, subsection (b) establishes the general rule that voters may not be removed for failure to vote. But it provides a safe harbor if the State uses the procedures in subsections (c) and (d): States may comply with subsection (a)(4) by removing voters based on the USPS change of address database. Subsection (d) has become the crux of the issue. Unlike (c), it is not a permissive safe harbor; it expressly prohibits a State from removing a voter based on change of address without sending a written confirmation notice to the voter. By its plain terms, subsection (d) is an additional restriction on any voter removal program based on change of address. Subsections (a)(4)(b) and (b)(2) likewise demand this conclusion, because they both use the word and in requiring compliance with subsection (d) in addition to their other restrictions on voter removal programs. There is no reason to conclude that subsection (d) is a safe harbor in and of itself. And there is no support for the idea that compliance with its additional restriction vitiates the other provisions of the NVRA. That conclusion, reached in Husted and propounded by Defendant here, is absurd; it renders meaningless the rest of the NVRA, and it flies in the face of Congress intent. See S. REP. 103-6, at 3
Case 1:16-cv-00452-TCB Document 28 Filed 07/21/16 Page 5 of 9 17-19 (criticizing States that penalize... non-voters by removing their names merely because they have failed to cast a ballot in a recent election. ). Reading the entire statute, a voter removal program based on change of residence can either meet the subsection (c) safe harbor (in which case it must also comply with subsection (d)), or it must comply with every other requirement: subsection (a)(4) s requirement that it be a reasonable effort to remove ineligible voters; subsection (b) s requirements that it be uniform, non-discriminatory and not result in the removal of a voter for failure to vote; and subsection (d) s notice requirements. Yet Husted and Defendant both contradict the statutory language, arguing that as long as a State satisfies subsection (d), the NVRA is satisfied. This analysis is also inconsistent with HAVA. HAVA reaffirms that any program must be a reasonable effort to remove ineligible voters (Husted noticeably elides this restriction), and it repeats that any removal must comply with the NVRA. See 21083(a)(4)(A). Husted s interpretation of this subsection also renders meaningless its final clause. According to Husted, a State s removal of a voter is never solely by reason of failure to vote, so long as the State also sends a notice and the voter fails to respond. Husted at *8. This nullifies (a)(4)(a) s final clause, which is an exception to a State s ability to remove voters who have not responded to a notice and who have not voted in two consecutive general Federal 4
Case 1:16-cv-00452-TCB Document 28 Filed 07/21/16 Page 6 of 9 elections. The exception reaches both conditions, including the confirmation notice. Satisfying the two conditions is not sufficient; the statute requires more: States must also comply with the exception. If complying with both conditions were sufficient, the exception would have no meaning. Husted s conclusion that a confirmation notice defeats HAVA s exception is precisely backwards. Husted also misses the mark on reasonableness : it reads the requirement out of the statute. For the same reasons discussed above, subsection (a)(4)(b) s reference to the additional restrictions in subsections (b), (c) and (d) does not eliminate the reasonableness requirement. The requirements are cumulative; otherwise, the reasonableness provision would be meaningless. Moreover, the statute demands a reasonable effort to remove ineligible voters. The effort here is not related to eligibility. Husted admits: A voter s non-participation in an election may not be an ideal indicator of whether a voter has moved.... Husted at *9. Of course, this understates the problem. Not only is non-participation not an ideal indicator of ineligibility, but it is the one criterion that is forbidden by the statute. Put simply, Husted (and Defendant here) read subsection (d), an additional requirement that restricts removal of voters, to eliminate all other requirements in the statute and allow voter removal based on the one criterion the statute says is expressly impermissible. This turns the statute on its head. 5
Case 1:16-cv-00452-TCB Document 28 Filed 07/21/16 Page 7 of 9 Respectfully submitted this 21st day of July, 2016. /s/ Chad K. Lennon Emmet J. Bondurant Georgia Bar No. 066900 Jason J. Carter Georgia Bar No. 141669 Chad K. Lennon Georgia Bar No. 408953 BONDURANT MIXSON & ELMORE LLP 3900 One Atlantic Center 1201 West Peachtree Street NW Atlanta, Georgia 30309 Telephone: (404) 881-4100 Facsimile: (404) 881-4111 Counsel for Plaintiffs
Case 1:16-cv-00452-TCB Document 28 Filed 07/21/16 Page 8 of 9 CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(D), I hereby certify that the foregoing has been prepared in compliance with Local Rule 5.1(B) in 14-point New Times Roman type face. This the 21st day of July, 2016. /s/ Chad K. Lennon Chad K. Lennon
Case 1:16-cv-00452-TCB Document 28 Filed 07/21/16 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that I have this day filed the foregoing PLAINTIFFS BRIEF REGARDING DEFENDANT S NOTICE OF SUPPLEMENTAL AUTHORITY with the Clerk of Court using the CM/ECF filing system, which will automatically send e-mail notification of such filing to all counsel of record. This 21st day of July, 2016. /s/ Chad K. Lennon Chad K. Lennon