tv Husted v. Randolph Institute Oral Argument CSPAN June 11, 2018 6:20pm-7:28pm EDT
i feel like overpopulation is the root cause of many of our societal problems. i don't know that there are easy solus to t problems but i do feel like that is probably the most important issue facing our state as well as our city on a global scale. and all of that. >> voices from the states. part of c-span's 50 capital to or -- capital tour. >> this case centered on whether the ohio purge policy voted just
violated the help america vote act. anyone who does not vote in a two-year timeframe is sent a notice on the board of elections. this oral argument is about an hour five minutes. >> this requires states to under take general programs to remove individuals and at the same time places limits on those feder theated programs including state not removing individuals for presidents unless they failed to respond to a vote over
to federal elections. >> would your case have been stronger without the enactment of section be? in other words, could you rely on a and d? >> if there was no -- >> if there were no be at all. -- b at all. >> certainly i think there was no failure to vocalize, that is one of the main prohibitions on which they are relying. you have to interpret that be clearly indicates -- b indicates that's a long we send individuals a notice and we wait to federal elections befe we remove them, that is except double. >> because of the except clause. >> because you have to interpret the substance provision in a way
that reconciles it with the use of failure to vote. only our position interprets these in a way that allows the backend use of not voting. >> if congress did not want failure to vote, that be a trigger for this procedure? >> i do not think so. i think that is something completely different. they treated as a safe harbor for meeting and a pleasant element that estate has objective evidence that an individual had moved.
in fact, the postal service provision is a safe harbor on the other side of the balance on keeping eligible voters on the role. >> sza complicated system for a simple position. did you have any reason to believe someone has changed and send them a notice, and after two election cycles, disqualified him? why have the post office provision at all? why have any other provision? nowt is, i understand ohio is not waiting for people to miss two election cycles, they are waiting every year. right? >> no. we run notices every year but we -- >> you have taken the position in your brief that you really do not need it. you can send out a notice anytime, anyplace that if someone fails to respond to it, you can purge them. is that not your position? >> know, our position is the
notice gets sent out and if they respond -- >> my point is you do not need the failure to vote two years to use it. >> that is right because a statewide kansas not be based on failure to vote, whatsoever. that is why they have to read into d, an element they make up from whole cloth which they have objective evidence removed. >> the senate report explicitly says that what they wanted to avoid was a mailing that is on responded to being cause for removing someone. was its purpose, why would it not make sense that the only reason you can send the notice is if you have some sort of reasonable basis to believe someone has moved. failure to vote cannot be at because the senate report says
they believe the failure to vote was a constitutional right. you have a right not to vote. >> there is a couple of points. the first is, what if people do not respond to the notice. i agree there is a report suggesting they are concerned that people would be removed fairly for responding -- sibley for responding. but they did not put an element into the room -- into the procedures. the put what is called voting on the backend. if an individual does not respond, they still have two elections for which they vote. vote,espect to failure to i think history is quite clear that the concern was removing individuals for voting in the recent election. that is what the report says on page 17. >> the provision has to do with the notice. -- whya very reasonable
do you need it -- >> because that is the minimal record on the other side of the balance. as i was mentioning to justice ginsburg, that is a safe harbor for the state's obligation to engage in maintenance efforts. the states having duty to remove ineligible voters and c begins by saying you can meet your obligation to remove ineligible voters by going through this process. it is the minimum on one side of the balance. >> if i can take you to the question, it seems as though you are effectively turning this into a safe harbor in the sense. says that these confirmation procedures are a permissible part of the program. even though, part of the confirmation procedures are about not voting. that is clear that it says that. you are now trying to take that and convert it into something
bigger and broader. essentially saying that if you -- these procedures, you are your entire program is going to be insulated for criticism even though there's another part of your program that explicitly relies on nonvoting. i don't see that in any way being the point of this. which trying to take ap1 says you can have a part of the program that does this and turn it into a much bigger and broader safe harbor for everything that you do. >> my response would be you have to interpret the words of the clause in a way that would not prohibit what it requires. of nonvotinghe use on federal elections. we have the argument for why the failure to respond to the notice breaks the link. there was this debate in the 1990's. >> i must say i do not understand and i think this is a little bit of a different
question. but since you raised the argument, i don't understand. what the ohio program does is it says non-voting, failure to respond, nonvoting and you are trying to pick out the middle piece of that saying that is the only proximate cause. thinks not how we proximal cause in any area. >> this court has repeatedly said it is flexible. >> no argument on that. there can be more than one proximate cause in the world. >> and the court has said you have to pick the proximate cause fits the statute. the best way to reconcile b and breaksfailure to respond causal failure to vote and removal.
>> why do you need the proximate cause argument at all? what the statute says is that someone may not be removed from the list by reason of the person's failure to vote. it cannot mean but for cause because then it would run it because the statute itself takes failure to vote into account. that is one of the things that necessary for someone to be removed from the list under deed. in the h be that and ava, they use the term solely. wise in the best interpretation from this one cannot be removed from the list solely because. >> that is correct. of the approximate cause was a valuable phrase was the sole. >> isn't that just adding a
>> don't think this failure to vote cause bars the state from using confirmation procedures. it is not. can be a permissible part of the state program. that is your way to reconcile the two things. take it on its own, the failure to vote clause might bar confirmation procedures. those procedures say no, not these. >> that may have been one reconcile and our way. the states debated on this issue on the 1990's and congress intervened and reconciled with the addition of the have a provision.
>> the clause is a part of a different provision in a different statute dealing with a related but different subject matter. there would be no reason to take one provision that says solely and saysau that provision says soli we're going to treat this one as also saying solely even though it does not. in fact we have a rule against that ieretation. usually, we say, look, congress knows a provision and it did not do it here. .> in the same law, >> it adopted a clarification amendment that said, except nothing in this provision shall be construed to prohibit them from using the procedures and see and d. -- c and d.
>> you are exactly right. it says don't interpret the failure to vote clause as preventing use of the confirmation procedures. >> that does not mean they can do anything else on top of the confirmation procedures. >> it is a rule of clarification. it says you have to construe and i think with that combined makes it quite clear you have to interpret the language in some way to break the link between voting and removal. interpreting it to be the sole cause as a way to accomplish that feat. i think that is why there is a clarification amendment on the one hand and in the other
clause. i think the public context is clear here. >> when we get to the essence of what you, it appears are reading is that the failure denc to is enough suggest someone has moved. it seems to be your position. it can be the only one. when you do results in disenfranchising disproportionately certain cities where large groups of minorities live, where large groups of homeless people live, and across the coury, th groups that both the least. in large measure because many of them work very long hours and,
without the golden week that ohio rescinded, many of them cannot vote because the polls are not open while they are not working. have very, cleveland voters tryings of to vote. all of these impediments result in large numbers of people not voting in certain spots in the state. so, if the word reasonable effort has any meaning with the congress who have said that the failure to vote is a constitutional right, how can we read this statute to permit you to begin a process of disenfranchising soli on the soley on the --
basis of that? with no independent evidence that the person has moved. you can use the post office, they tell you that. you can use certified mail. er change ofe jur addresses. you can use driver license, motor vehicle change of addresses. ways are dozens of other that you could verify a change of address. yet, you're suggesting that using a failure to appear at an election or elections as evidence of moving when people have a right not to vote if they choose, and many have. and others like the veteran was a plaintiff in this case explains the reasons why he failed to vote into elections -- in two elections. i have to give meaning to the words congress said, do not use the failure to vote as a result
-- that results in someone being disenfranchised. i don't understand how you could say that the failure to vote can forsed as a sole basis sending out notices. it is not a reasonable inference so how can it be a reasonable effort? >> the failure to vote clause says failure to vote cannot be andsole basis for removal, it says nothing about sending a notice. , would also add subsection the within subsection d, congress identified the minimum sufficient for states to remove individuals. >> that is minimal. but you think maximum should see a little more than the minimum? a change in the residence is in accordance withb, c and d. and b has you using the post
office, correct? >> c. >> c has you using the post office and b says shall not resun theemal of the name of a person for any official register to vote in election to federal office by reason of the person's failure to vote. >> that is correct. if you interpret that to be a sole proximate cause text than ours does not satisfy it has nobody is removed by solely of that. they are removed because they failed to respond to a notice and failed to vote over six years which is more than the minimum. >> would you please explain to me why a change of address is reasonable? what are the statistics that show that the vast majority of people that you disenfranchise from voting, that you strike
from eion rules have actually moved? there was no statistical evidence that is necessary because congress made the determination of what is necessary. >> no. i give you an example. >> that was an example of meeting the minimum duty on the other side. there is in them -- there is a minimum requiring on states to undertake. >> there is a minimum requirement on the voter who gets your notice to respond. >> absolutely the statute places it on the voter. >> after you have evidence they have moved. >> there is nothing in the statute that suggests there are limitations on the trigger. with respect to minorities, our asition is not at all congress responded concerned
saying the process must be nondiscriminatory -- >> that is the problem. this is discriminatory. i understand that some don't believe in impact that you have to look at it to determine -- >> but it would only be one claim. today under the failure to vote clause. >> i can give you a couple of more minutes to get more of your argument out. >> i would like to get back to the public context in with the provisions were in action. that is quite powerful. on the one hand, you had states from 1994 all the way up to the hava amendment debating the department of justice whether the process is just like ohio's poor permissible. on the other hand, there was nobody who made argument that anse could be read to be operative. under our view, the clarification in hava was
designed specifically to address the long-standing debate that the statute before became effective. in a wayre suggesting that is quite helpful to the state here and hobble was passed and it had to provisions. it had the clarifying amendment, on the one hand and it had the related provision dealing with statewide statement which is effectively a comparable decision. you get the notice and if you miss just one election. >> that is incorrect. if you know voter activity over a two-year. which would include one general election and one off your election and any primary elections as well. >> are there other states that do it just like ohio? arounde are many states,
eight, that use failure to vote as the trigger for the notice. some use to, some use three, some use for. -- four. it would not only outlaw those who use failure to vote, it would outlaw any state that takes into account failure to vote on the front end including many states that target individuals who have not voted recently with a non-forwarded mailing and respond to that with confirmation notices saying any individuals have bounced back to, that's would be equally prohibited under the argument here today. because they are saying any front end use of not voting would be illegal. >> federal council. -- thank you counsel. you have a couple minutes for rebuttal.
>> if i could begin with justice kennedy's question. believe ohio's process was permissible before congress and the clarification amendment in 2002. but the amendment made it clearer for two basic reasons. first, sections eight c and eight d, that is the postal service process and the notice process for requiring that nonvoting be the immediate cause for removal. construe itou can is not prohibiting that and it is limited to removing people only solely by reason of their failure to vote. second, this was a significant shift in the federal state balance at the time. prior to the and the ra. many people removed -- were removed for failure to vote. others had processes that were far less protected than ohio's. none of them had a waiting period what the nra did is
require everybody to improve their processes while beyond what they were before the -- before it was passed and let that state have flexibility. there's nothing in the statute that would say states are barred from using a nonvoting trigger in conjunction with the protective process. >> you tell me there is a 24 year history of solicitor general's of both political parties under both presidents of both medical parties who have taken a position contrary to yours. amendment,after the it said that the federal election commission, when it wrote to congress with respect to the help america vote act, it took a position the old , solicitor generals were taking. everybody but you today have come in and say the act before the clarification says something different. seems quite unusual that your
office would change its position so dramatically. i might accept it if you thought the help america vote act in fact clarified something that was ambiguous, the are taking a very different position. even before that act, it was clear you could do it this way. >> what i'm saying is that i think the act and the amendment made it clearer and after the clarification -- >> please explain the change of position after that many presidents, that many solicitor generals, this many years, the vast majority of states, over 40 actually, who read it the way your opponents read it, most people read it that way. how did the solicitor general change its mind? do believe this doesn't have in impact, a negative impact on certain groups in the society?
believe that, i after congress passed the clarification amendment, it clarified what was at the time a -- an ongoing debate between the department of justice's of state. the only plausible way to reject public context and with respect to some members of the court, public members -- >> point me where in the legislative history people say that with absolute clarity. i understand the legislative history. both sides are saying in its history, it helps us. s ambiguous as the language may be. >> public context is not legislative history. i referred you to justice scalia and professor manna's article. that public context makes clear that the only thing that was in need of clarification at the time that the memo was passed
was precisely this question on whether states like ohio can use a nonvoting trigger in conjunction with the process. there's nothing in the statute that bar that. i think it reflects the balance that congress was trying to strike between the one hand dramatically increasing the number of voters on the voter rolls, but on the other, giving states the flexible to they need to manage the issues that ase when you have overinflated voter rolls. >> was at the position of the united states, and correct me if i'm wrong, i thought the united states was taking a position that nonvoting was not a reliable indicator. >> that is partly correct. it read into a reliable evidence requirements.
our current position is that when you look at the statute there is simply no way to read into it as reliable evidence requirement found nowhere in the text and congress in fact rejected and reflects this federal state balance where to articles said it required everybody to be far more protective of voters than they were before the act was passed. state that floor, but the addressed theely compromise giving states the flex ability they needed to arise when you have bloated voter rolls. >> i think you'd knowledged this but would bright that if your position is correct, that the failure to vote clause simply does not apply to removal programs for change of residence? is that correct? >because all of those programs
are sent as a out for everything. >> it has a broader explanation. >> not much broader because of could you use failure to vote for mental incapacity and failure one of the principal ths at the time it was passed was one thing you put your finger on. this practice among states to have a use it or lose its mentality to the right to vote. you either exercise it or you do not. they wanted to take that off of the table. another thing they wanted to do is make sure you could never use anyure to vote to presume other basis -- >> what i'm asking is to related questions. one, is the effect of your position -- if the effect of your position is to say we don't mean this to apply to programs about to the residence, then why didn't congress just say that?
and number two, i can see the point it makes the failure to ompletelye -- closet meaningless, but i'm looking for the place it has some real impact on anybody in the program. >> this comes out in some of the legislative history. states simply used failure to vote as a proxy for the whole grounds for removal. they did not tie it to this basis or that the basis. congress was concerned about relying on the failure to vote. they wanted to take it completely off of the board. b2 was the only provision taking it completely off of the board and said nobody can be removed merely for their failure to vote, but when you combine nonvoting with the process, the protective process congress set that required everyone to improve the procedures, there is nothing in the statute that
prohibits that, and the clarification amendment said even clearer -- >> with respect, i do not think you answered either of the questions i asked you. why would not they have just two said the failure to vote clause does not apply to wear a state uses confirmation procedures? >> your honor. i do not know the answer to that is notould say the nvra a statute i would hold up for a paradigm. >> so the second question is, what is left of the failure to vote clause practically speaking? it takes completely off of the table failure to vote and the presumption for any other grounds for removal. >> what are the ground are we talking about? nobody used it as a presumption for mental incapacity. >> prior to the and the ra, the , they used itnvra for a whole panel of basis of removal. >> wasn't itself a ground for
being removed? he states to not regarded as a proxy for anything else. they took the position that it was use it or lose it. if you did not vote for a certain. of time. period of time, that was grounds. >> that is correct. a use ittes that had or lose it mentality, you could never do that. those that would have other basis of removal, ohio joins the basic initial to vote with the process for determining whether somebody has been removed from both rules and with respect to 1b does notthat 8d set a different process, it clearly does. there are two provisions. you to remove somebody if they notified you that they have moved, and a clearly standalone process.
the other is the corollary to that. thatu haven't notified us you moved, here's another process states can use to make that determination. >> thank you, general. >> thank you mr. chief justice. >> if i laced the failure to vote clause and violates 8a, which sets out a list of purchasing roles. itbars states from doing under any other circumstances in the supplemental process of the way it is designed it assures many of the people purged have not moved let alone moved to a different county or state which is the only move that can justify a purge under the plain nvra.of the
it is not provide adequate evidence to come to the conclusion that the person has moved it all. >> your argument is that failure to vote is not one of the listed grounds for being removed. that is the argument you have just made. , sayingwhat ohio does that failure to vote is grounds or saying moving out of the district is grounds for removal and failure to vote lays a part in determination of whether a person moves out of the district. it is evidentiary, not the ground for removal in and of itself. >> they do say they are using and invision of eight a fact, if it does not do that, it becomes illegal. the failureis that to vote for two years tells you almost nothing about whether or not anybody has moved.
50% or 60% of the voters that ohio helps over to your. . >> i understand that. if you hav says voted for 20 years, we will send out the notice. would you say that violates this act? the act says you cannot use a failure to vote as a reason for purging somebody from the rolls. what the supplemental process -- >> that doesn't raise an inference that the person moved? >> they rejected amendments like this. they even rejted a 100 year rule. they said we don't want failure to vote for which the basis people are purged. >> that is not enough to even spark an inquiry by sending a
postcard saying if in fact you decided he did not want to vote 20 years, but you wanted to keep uramon the list, send this back. that would be illegal? >> we are talking about the people that do not send it back which is a large majority of people. wh you do not get the notice back, what that tells you is absolutely nothing about whether the person has moved. when you get to the end of the three stages of the process, not getting the notice y idea why or where, and four more years of nonvoting, the only evidence the person has is not -- is that they are not voting. >> if not getting the notice back tells you nothing, why did congress not make that part of the determination? >> it is a safeguard. it is a warning to the voters that their registration said this is at risk in a give them two options. they can send it back, if they
haven't moved and want to say i'm still there. t they say you can just vote in the next four years to not send it back. most people do not send it back in these statistics are in the record. we have the state's initial brief and the statistics ohio provided that they do every two years, they say here is what happens to these confirmation notices. 2011, they sent out 1.5 million of these confirmations -- >> what are they supposed to do? every year a certain number of people die and every year a certain number moved to california. we don't want them on the voter roll, it is a problem voting dead people. what should the state do? >> the dead people are not a problem. let's say they died in hawaii or alaska. or died and has mania -- ta
zmania. is rhode island supposed to look at the hospital records there or voter records there? >> the realistic concern about the death issue, there are ways -- >> there ar what? >> there are lists made -- >> i am very ignorant in this. i'm in rhode island, i see the statute, i know some people have died, maybe in rhode island and outside, maybe they have moved to california, i do not want them voting in my state or people pretending to being them in my state. what do i do? >> i do not have a detailed understanding of that, but i understand there is a national database with information provided by all of the states whose list who have died. >> the question also included people who moved. what about them?
>> there are a variety of ways within the state. the bureau of motor vehicles has change of address process and under the nvra, if you change your driver's your registration is automatically updated. if you move from cincinnati to cleveland, they are required to notify within 10 days. then you have the ncoa process. they provide an address to the post office. on an annual basis, those addresses get compared to the statewide database. those people get taken care of long before the supplemental process. >> or is that a commonsense argument? >> show what? >> that when you move, you notify someone. had anstate never
y statistics. >> i thought i read it was 40% to 50%. >> the statistic in the record is that 40% of mail that gets returned to us as undeliverable is because people have not posted a forward address. it is likely to be a much smaller percent who do not do that when they moved to a different county or state. >> under your interpretation, could ohio send address verification notices to the entire electorate? >> if they did that to the entire electorate, it would not violate 8b2. it would violate 8a -- >> so the fact that they use a general mail to everyone wouldn't affect the outcome in your view? >> no, your honor, because 70%
of the people do not return them. that is what statistics show. 10% were undeliverable. 1.2 million just threw them away. >> the reason i am asking you these questions is because i don't believe congress would have passed a statute that would prevent a state from purging a voting role of people who have died or moved out of the state. i am trying to reconcile the two. therefore i ask you what the state is supposed to do with the latter objective and suppose they send a card which says no forwarding, don't forward and their theory is if the person has moved, and they wait long enough, and they send it a couple of times, the post office will send it back. they will know the person has moved. >> that is the precise system that 14 or so states use. the key feature is that it is not forward double. -- not forward double. >> you then have to go into the
confirmation process. >> ok i got my answer. can i add one thing t? i would like to add, that because they don't want to send nonforfeitable cards to everyone because it is expensive in a state like california, what they do is send those non-forwardable cards to people who have not voted in three or four years. now is it ok? >> if they only proceed to purge people when it says no longer at this address, undeliverable here it i think it is fine. because it is not based on nonvoting at that point. >> so the triggering event can beat the failure to vote? i would have thought that is >> if they only proceed to purge inconsistent with the rest of your argument. >> i think reasonable people could differ about this whether
that is illegal, but when you have an intervening cause that clearly says this person has moved, just as when they return a confirmation notice, then it is ok even if the reason was nonvoting. you have some concrete information. >> but the response is really the substance of your argument. which is it is still trier by the failure to vote. the law says you cannot use failure to vote in one of these processes. >> the law says failure to vote cannot be the reason you are purging them. when the only evidence you have is nonvoting come up and that is clearly the reason you are purging them. that is what the supplemental process does. >> the reason they are purging them is because they want to protect the voter rolls from people who have moved and are
voting in the wrong district. but what we are talking about our he best tools to implement that reason. to implement that purpose. >> congress thought the worst thing you could do to find voting in the wrong district. people who move is to look at people who were not voting. congress knew there were vast numbers of people who choose not to vote. that is a terribly inaccurate way to identify people who have moved. it says very specifically that people do have a right not to vote. the committee recognizes that while voting is a right, people have an equal right not to vote. >> this is a statutory right here. >> i understand that but there are ny democracies that require you to vote. i have certainly seen it proposed, would it be a good idea given a low voter turnout? do you think that would be unconstitutional? >> there's a pretty persuasive argument to that in the national libertarian brief. in the first amendment act says
you have a right to vote, and it right not to vote because you don't want to vote for those candidates -- >> in your view we have the safe harbor, you use the safe -- the post office change of address. what else could be the trigger? >> non-forwardable mail, national change of address, the dmv records which come into play. people are continually reregistered. that is required by section five. there are statewide -- interstate databases. it lists everybody who go somewhere else and registers or gets a drivers license in some others state. all of that is available to the state of ohio. it is important to understand
the small number of people they are looking for with this process. it is an important subject. as a policy matter, there are strong arguments on both sides. congress has struck a compromise. we have a -- not the ideal system. achieving the result of people who have moved from voter lists. you have not said very much about the language of the statute. how do you get -- if by reason of a person's daily to vote is not cause, how do you get around the language ofb2? >> what it says is you can't have a system that uses the nonvoting as the reason for purging somebody. you can use c and d.
nonvoting can come into play at the end of the process, not the beginning. >> but that is not what be to says. except that you can do what it is set out. you can do c and d. what it says is the principal that you cannot use failure to vote as a reason for removing someone may not be construed to prohibit. it tells you how to interpret the first part of the two. it is not an exception. >> it is an explanation that the one kind is the part that comes in at the end of the process. they went on to emphasize the sequence. a, they have not responded with a notice and then they have not voted. that is clearly what congress
was trying to preserve. >> it says that it is all right if you followed either c or d. >> it says that it is all right >> c and d, your honor. >> you think you have to follow c and d? >> you need to follow something like c. clearly congress anticipated there would be something that would tell you they have moved. if they don't get the notice back, but no evidence at all if they have moved from the notice? and then four more years of nonvoting. precisely the thing that congress said you should not be purged for. some other indication that they have moved before you put them into the process. if you do not have that, you
will vastly overpurge people. because so many people don't vote for two years. 70% of them do not send back the notice. >> you just told me that it doesn't matter how many years is required by the trigger. it could be 10, 20. >> yes because that is what the statute said. >> wre does it say that? >> it says do not purge people unless you have a good reason to think they have moved. >> not voting for 20 years is a good indicator? >> i don't think so. lots of people don't move for 20 years. >> where does it say that? >> it says do not purge people unless you have a good reason to it is not an unusual thing in our country i believe. the statute we are dealing with says the reason you are purging them cannot be there non-voting. when they get to the end of the
supplemental process, that is the only evidence they have. as weak as it is, it is six years of nonvoting and a notice that doesn't get return which tells them nothing. >> it doesn't tell them nothing, it tellshem they did not respond to a notice that says you are going to use your registration if you don't vote through the two years to elections. >> they have more evidence than just that they have not voted. you have indicated that under some circumstances, the method of notification as we have in states that you reference on pages 14 and 15, that is ok. even though it is triggered solely on failure to vote. i don't think you can maintain the existence of the validity of those states positions and your argument against the position here. you may say it makes a difference because of the quality of the information you get from one notice or another. but you cannot attack this on the basis that it is triggered by the failure to vote.
you have to say failure to vote plus a method of notification that you think is not sufficient. because you do think in other cases, tell you to vote plus a different method is ok. it cannot based just on effect of failure to vote being the trigger. >> where talking about the people who don't return the notice. no one will claim that when they don't get anything back that that tells them anything about whether they are living in the same place . when their forwardable, they have no idea which place they were thrown in the trash. >> it's not just that it is not returned, but they've gotten the notice and have not voted. >> so at the end of the day, they have six years of nonvoting and they say that is some evidence that have moved. it is weak evidence, but some evidence. the statute says you need that are evidence than that.
the one thing we don't want you to do is use nonvoting. >> maybe i'm just repeating myself -- maybe we are both just repeating ourselves. you don't just have the failure to vote, you have the failure to vote plus the notification that you need to do something. in some situations, you think the notification is sufficient. you would say in those it is not just the failure to vote. in this case you say the notification is not sufficient. so it is the failure to vote. >> is the fundamental difference between when you get something back from the post office and you get nothing back. >> but the point is your argument turns on the notice and not the fact that it is triggered by a failure to vote. >> the forwardable notice that congress specifies have to be forwardable, it was designed to be a safeguard telling people their rights were at risk.
to turn it into the test, the state says we could give this to everybody. and then purge people when they don't return the notice on the assumption that means they haven't for -- that they have moved. the thing about that kind of notice is when 70% of the people don't return it, which happened in 2011 in ohio, you have no more idea whether they have moved or not moved. >> this does seem at the moment to boil down to an empirical question. you think that sending a notice which is forwardable is not going to tell you not much when it comes back. >> it will not tell you much when it doesn't come back. >> sorry, i misspoke.
you think returning a notice forwardable when it doesn't come back tells you virtually nothing has people just throw things in the wastebasket. it tells you next to nothing. >> it doesn't tell you whether it's been forwarded. >> you don't know if they got it at the old address, or they forwarded, but if it wasn't forwardable, and you get a from the post office that tells you a lot. got it. if you are right on the first, then we have nothing left here or next to nothing them not voting. his point is we have something else. we do have the fact that that notice did not come back. that means more than you think it means. that is their point. if that is so, all i'm asking is is there any place in this record that i can look for some numbers or surveys or something hard that will support you or will support them?
>> your honor, there is no evidence about whether or not people who fail to return the notice have moved because they have never claimed it was evidence that they have moved. there only claim in this case is that we are targeting these people -- >> there might be surveys about how many people throw everything in the waste basket. i confess to doing that at sometimes. >> i most pe do. >> i know that is your opinion. is there any hard evidence one way or another? >> the evidence we have is that most people throw it in the wastebasket. 70%. >> page. >> exhibit i. 1.5 million confirmation notices. 1.2 million were ignored. 10% were undeliverable. 20% were returned. the other important -- >> mr. smith, there is one thing
-- maybe i should have asked this of the state, but once you don't return the notice, you could put on thective list. that means that you no longer get mailings? >> it means you can still vote, but you cannot -- you are not notified of your polling place. >> you are not sent any more reminders? it is one notice in six years and you disappear from any further mailing? >> that is my understanding. i couldn't swear to it. >> i'm sure they will corrected if it is wrong. >> let me talk if i could about this concept of a commit cause -- of proximate cause. the reason has to be something that is causally linked to the underlying reason.
they think you have moved to a erendiffcountyate and the only evidence they have at the end of the supplemental process is nonvoting. they don't claim the 70% of the people is evidence of anything. it is a hoop they go through. it is a safeguard. it is not the reason that anyone is being purged of the rlyiue of ether they have moved. even if you want to do a proximate cause, and as it has been pointed out, there are three things that have to happen. three years of nonvoting, nonreturn of the notice -- it does not really make sense. >> what is your standard of causation? it is not solely, it is not proximate cause? >> the analysis ought to be used based on reason not cause.
>> i don't understand why it is proximate cause, but it is strike one, strike two, strike three. th all rocks and it causes. igree as well. but i don't think it's the right way to think about it. the reason they are being identified is because they have not responded. >> that says that states shall include provisions. it is mandatory. to have a system of file maintenance that makes a reasonable effort to remove ineligible voters. under this system, registers who under this system, registers who have not responded to a notice and who have not voted in two consecutive general elections or federal office shall be removed
from the official list. i itself, that seems pretty clear. how do you get around that? >> i think the except clause is the same set forth in b2 which is to say the reason you're getting into the purge cannot be nonvoting. >> except that no registrant may be removed solely by gilliard to vote. under ohio's provisions it are they removed solely on failure to vote? >> so the notice says if they don't return -- i don't see how that is solely. >> the only evidence they have that you have moved is your nonvoting. so congress when it wrote that would have thought that the supplemental process removes people solely for nonvoting, it did not think of the confirmation as a reason to remove people.
>> if somebody returns the notice, they never vote, but they return the notice, >> it depends on what they say. if they stay on the list. either event, the state has direct information about where they live and can take whatever action it should your the problem we have here is this kind of notice, which says you do not have to return it. most of the time it will not get returned. it does not provide any evidence at all on which to decide these people should be purged. it's like the old ohio use it or lose it system. the other thing -- the other fact in the record is the small number of people the
supplemental process supposedly is trying to find. what we have in the record is how many people moved to a different county or state in each year. exhibit e to their main brief. 3% moved to a different county or state outside of the registrars jurisdiction. 3% per year. that is a small number by itself, but the supplemental process is only triggered to trying to find that sliver of people. because they changed their address or forwarded an address to the post office, so -- >> mr. smith, could you give me concrete numbers? how many voters have been purged as a result of this system? >> i can't give you exact numbers. i can refer you to reports that look in detail of all of the processes with respect to registration and purge.
two things i can tell you, it is in the hundreds of thousands. in many years, it was something like several hundred thousand in 2015 according to a more recent report. i can also tell you -- >> but you gave me 3% of people nationally move. that is what i'm trying to get to. how many people in michigan? >> the statistics that were put in our national. in ohio, thinks that national statistics represent ohio. i don't think the census does these by state or at least it is not in the record. >> i don't know 3% of what? >> people who move. >> 3% of what greater number? >> of all people in the country? >> so we have to divide it up?
>> 97% of people do not move in any given year. most of those 3% are going to be located in one of the other ways. we are talking about a relatively tiny group of people which they then use the gens with 50 or 60% of people. the process is vastly overbroad in its design. to try to find a relatively small group of people. starting with up to 60% in off year, 70% don't return the notice. you just end up with a lot of false positives. that is how this system is operating. it finds a lot of people that have moved who have not moved. i think i will leave it at that. >> thank you, counsel. two minutes, mr. murphy. >> thank you.
the first question i would like to answer is the statistics of people who move without relying on the post office. 40% of individuals do not notify the post office. mber 395. think this is significant because it shows why the postal service provision is a safe harbor for meeting the state's obligation to remove individuals. it will be woefully insufficient. states will have to do other efforts if they want to maintain adequate roles. i think this goes to in the end, a statute that was balancing competing purposes. trying to remove ineligible voters and ensure protections for eligible voters. it came up with a compromise.
the compromise left a lot of room for states to adopt procedures that are best in that state. with respect to sending information, my friend on the other side mention the eric program, head of the 2016 election, ohio sent letters to eligible yet unregistered voters many of those could have received this ahead of registration deadlines, encouraging them to register. >> i'm sorry, people don't get notice that they have been struck. they get one notice and are put on the inactive list? >> under the nvra, the minimum requirement is -- >> under ohio's law they only get one notice? >> that's why i was mentioning the eric program. 1.6 million letters were sent.
>>ould you answer my question? are they ever sent any voting information outside of this eric program? >> suggesting that the state sent absentee ballot applications. that would have gone to many of these individuals. not everybody. many of the individuals who had been sent this notice and voted in the previous election. >> thank you, counsel. the case is submitted. >> watching c-span tonight starting at 8:00 eastern for live coverage of the u.s.-north korea summit between president trump and north korean leader kim jong-il. overnight, 4:00 a.m., live coverage of president trump's post conference. inn us at 7:00 for analysis
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