Husted v. A. Philip Randolph Institute , 138 S. Ct. 1833 ( 2018 )

(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), includ-
ing 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 subsec-
tion (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 pread-
dressed, postage prepaid “return card” containing statutorily pre-
scribed content and then fails to vote in any election during the peri-
od 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 pro-
gram “shall not result in the removal of the name of any per-
son . . . 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 remov-
ing registrants who fail to return the card and fail to vote for the req-
uisite time. Since one of the requirements for removal under subsec-
tion (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 pro-
cess 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 pre-
sumed to have moved and are removed from the rolls.
Held: The process that Ohio uses to remove voters on change-of-
residence 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 regis-
trant, 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 con-
text 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 expla-
nation of how the clause is to be read, i.e., in a way that does not con-
tradict subsection (d). Pp. 9–12.
(3) Respondents’ and the dissent’s alternative reading is incon-
sistent with both the text of the Failure-to-Vote Clause and the clari-
fication 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 super-
fluous; the clause retains meaning because it prohibits States from
using nonvoting both as the ground for removal and as the sole evi-
dence 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 congression-
al judgment found in subsection (d). Congress clearly did not think
that the failure to send back a return card was of no evidentiary val-
ue, having made that conduct one of the two requirements for remov-
al 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” provi-
sion, §20507(a)(4). Even assuming that this provision authorizes fed-
eral 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 stand-
ard of “reasonableness,” Ohio’s process cannot be unreasonable be-
cause 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, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 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.
2 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Opinion of the Court
I
A
Like other States, Ohio requires voters to reside in the
district in which they vote. Ohio Rev. Code Ann.
§3503.01(A) (West Supp. 2017); see National Conference of
State Legislatures, Voting by Nonresidents and Non-
citizens (Feb. 27, 2015). When voters move out of that
district, they become ineligible to vote there. See
§3503.01(A). And since more than 10% of Americans move
every year, 1 deleting the names of those who have moved
away is no small undertaking.
For many years, Congress left it up to the States to
maintain accurate lists of those eligible to vote in federal
elections, but in 1993, with the enactment of the National
Voter Registration Act (NVRA), Congress intervened. The
NVRA “erect[s] a complex superstructure of federal regu-
lation atop state voter-registration systems.” Arizona v.
Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 5 (2013).
The Act has two main objectives: increasing voter registra-
tion and removing ineligible persons from the States’ voter
registration rolls. See §2, 107 Stat. 77, 52 U.S. C.
§20501(b).
To achieve the latter goal, the NVRA requires States to
“conduct a general program that makes a reasonable effort
to remove the names” of voters who are ineligible “by
reason of ” death or change in residence. §20507(a)(4).
——————
1 United States Census Bureau, CB16–189, Americans Moving at
Historically Low Rates (Nov. 16, 2016), available at https://www.
census.gov/newsroom/press-releases/2016/cb16-189.html (all Internet
materials as last visited June 8, 2018). States must update the ad-
dresses of even those voters who move within their county of residence,
for (among other reasons) counties may contain multiple voting dis-
tricts. Cf. post, at 12 (BREYER, J., dissenting). For example, Cuyahoga
County contains 11 State House districts. See House District Map,
Ohio House Districts 2012–2022, online at http://www.ohiohouse.gov/
members/district-map.
Cite as: 584 U. S. ____ (2018) 3
Opinion of the Court
The Act also prescribes requirements that a State must
meet in order to remove a name on change-of-residence
grounds. §§20507(b), (c), (d).
The most important of these requirements is a prior
notice obligation. Before the NVRA, some States removed
registrants without giving any notice. See J. Harris, Nat.
Munic. League, Model Voter Registration System 45 (rev.
4th ed. 1957). The NVRA changed that by providing in
§20507(d)(1) that a State may not remove a registrant’s
name on change-of-residence grounds unless either (A) the
registrant confirms in writing that he or she has moved or
(B) the registrant fails to return a preaddressed, postage
prepaid “return card” containing statutorily prescribed
content. This card must explain what a registrant who
has not moved needs to do in order to stay on the rolls, i.e.,
either return the card or vote during the period covering
the next two general federal elections. §20507(d)(2)(A).
And for the benefit of those who have moved, the card
must contain “information concerning how the registrant
can continue to be eligible to vote.” §20507(d)(2)(B). If
the State does not send such a card or otherwise get writ-
ten notice that the person has moved, it may not remove
the registrant on change-of-residence grounds. See
§20507(d)(1). 2
While the NVRA is clear about the need to send a “re-
turn card” (or obtain written confirmation of a move)
before pruning a registrant’s name, no provision of federal
law specifies the circumstances under which a return card
——————
2 The principal dissent attaches a misleading label to this return card,
calling it a “ ‘last chance’ notice.” Post, at 6–7, 9–12 (opinion of BREYER,
J.). It is actually no such thing. Sending back the notice does not
represent a voter’s “last chance” to avoid having his or her name
stricken from the rolls. Instead, such a voter has many more chances
over a period of four years to avoid that result. All that the voter must
do is vote in any election during that time. See 52 U.S. C.
§20507(d)(1)(B).
4 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Opinion of the Court
may be sent. Accordingly, States take a variety of ap-
proaches. See Nat. Assn. of Secretaries of State (NASS)
Report: Maintenance of State Voter Registration Lists 5–6
(Dec. 2017). The NVRA itself sets out one option. A State
may send these cards to those who have submitted
“change-of-address information” to the United States
Postal Service. §20507(c)(1). Thirty-six States do at least
that. See NASS Report, supra, at 5, and n. v (listing
States). Other States send notices to every registered
voter at specified intervals (say, once a year). See, e.g.,
Iowa Code §48A.28.3 (2012); S. C. Code Ann. §§7–5–
330(F), 7–5–340(2)–(3) (2017 Cum. Supp.); see also S. Rep.
No. 103–6, p. 46 (1993). Still other States, including Ohio,
take an intermediate approach, see NASS Report, supra,
at 5–6, such as sending notices to those who have turned
in their driver’s licenses, e.g., Ind. Code §§3–7–38.2–
2(b)(2), (c)(4) (2004), or sending notices to those who have
not voted for some period of time, see, e.g., Ga. Code Ann.
§21–2–234 (Supp. 2017); Ohio Rev. Code Ann.
§3503.21(B)(2); Okla. Admin. Code §230:15–11–19(a)(3)
(2016); Pa. Stat. Ann., Tit. 25, §1901(b)(3) (Purdon 2007);
Wis. Stat. Ann. §6.50(1) (2017 West Cum. Supp.).
When a State receives a return card confirming that a
registrant has left the district, the State must remove the
voter’s name from the rolls. §§20507(d)(1)(A), (3). And if
the State receives a card stating that the registrant has
not moved, the registrant’s name must be kept on the list.
See §20507(d)(2)(A).
What if no return card is mailed back? Congress obvi-
ously anticipated that some voters who received cards
would fail to return them for any number of reasons, and
it addressed this contingency in §20507(d), which, for
convenience, we will simply call “subsection (d).” Subsec-
tion (d) treats the failure to return a card as some evi-
dence—but by no means conclusive proof—that the voter
has moved. Instead, the voter’s name is kept on the list
Cite as: 584 U. S. ____ (2018) 5
Opinion of the Court
for a period covering two general elections for federal office
(usually about four years). Only if the registrant fails to
vote during that period and does not otherwise confirm
that he or she still lives in the district (e.g., by updating
address information online) may the registrant’s name be
removed. §20507(d)(2)(A); see §§20507(d)(1)(B), (3).
In addition to these specific change-of-residence re-
quirements, the NVRA also imposes two general limita-
tions that are applicable to state removal programs. First,
all such programs must be “uniform, nondiscriminatory,
and in compliance with the Voting Rights Act of 1965.”
§20507(b)(1). Second, the NVRA contains what we will
call the “Failure-to-Vote Clause.” See §20507(b)(2).
At present, this clause contains two parts. The first is a
prohibition that was included in the NVRA when it was
originally enacted in 1993. It provides that a state pro-
gram “shall not result in the removal of the name of any
person . . . by reason of the person’s failure to vote.” Ibid.
The second part, added by the Help America Vote Act of
2002 (HAVA), 116 Stat. 1666, explains the meaning of
that prohibition. This explanation says that “nothing in
[the prohibition] may be construed to prohibit a State from
using the procedures described in [§§20507](c) and (d) to
remove an individual from the official list of eligible vot-
ers.” §20507(b)(2).
These referenced subsections, §§20507(c) and (d), are
the provisions allowing the removal of registrants who
either submitted change-of-address information to the
Postal Service (subsection (c)) or did not mail back a re-
turn card and did not vote during a period covering two
general federal elections (subsection (d)). And since one of
the requirements for removal under subsection (d) is the
failure to vote during this period, the explanation added
by HAVA in 2002 makes it clear that the statutory phrase
“by reason of the person’s failure to vote” in the Failure-to-
Vote Clause does not categorically preclude the use of
6 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Opinion of the Court
nonvoting as part of a test for removal.
Another provision of HAVA makes this point more
directly. After directing that “registrants who have not
responded to a notice and . . . have not voted in 2 consecu-
tive general elections for Federal office shall be removed,”
it adds that “no registrant may be removed solely by rea-
son of a failure to vote.” §21083(a)(4)(A) (emphasis added).
B
Since 1994, Ohio has used two procedures to identify
and remove voters who have lost their residency
qualification.
First, the State utilizes the Postal Service option set out
in the NVRA. The State sends notices to registrants
whom the Postal Service’s “national change of address
service” identifies as having moved. Ohio Rev. Code Ann.
§3503.21(B)(1). This procedure is undisputedly lawful.
See 52 U.S. C. §20507(c)(1).
But because according to the Postal Service “[a]s many
as 40 percent of people who move do not inform the Postal
Service,” 3 Ohio does not rely on this information alone. In
its so-called Supplemental Process, Ohio “identif[ies]
electors whose lack of voter activity indicates they may
have moved.” Record 401 (emphasis deleted). Under this
process, Ohio sends notices to registrants who have “not
engage[d] in any voter activity for a period of two consecu-
tive years.” Id., at 1509. “Voter activity” includes “casting
a ballot” in any election—whether general, primary, or
special and whether federal, state, or local. See id., at
1507. (And Ohio regularly holds elections on both even
and odd years.) Moreover, the term “voter activity” is
——————
3 U. S. Postal Service, Office of Inspector Gen., MS–MA–15–006,
Strategies for Reducing Undeliverable as Addressed Mail 15 (2015); see
also Brief for Buckeye Institute as Amicus Curiae 10. Respondents and
one of their amici dispute this statistic. See Tr. of Oral Arg. 46; Brief
for Asian Americans Advancing Justice et al. as Amici Curiae 27–28.
Cite as: 584 U. S. ____ (2018) 7
Opinion of the Court
broader than simply voting. It also includes such things
as “sign[ing] a petition,” “filing a voter registration form,
and updating a voting address with a variety of [state]
entities.” Id., at 295, 357.
After sending these notices, Ohio removes registrants
from the rolls only if they “fai[l] to respond” and “con-
tinu[e] to be inactive for an additional period of four con-
secutive years, including two federal general elections.”
Id., at 1509; see Ohio Rev. Code Ann. §3503.21(B)(2).
Federal law specifies that a registration may be canceled if
the registrant does not vote “in an election during the
period” covering two general federal elections after notice,
§20507(d)(1)(B)(ii), but Ohio rounds up to “four consecu-
tive years” of nonvoting after notice, Record 1509. Thus, a
person remains on the rolls if he or she votes in any elec-
tion during that period—which in Ohio typically means
voting in any of the at least four elections after notice.
Combined with the two years of nonvoting before notice is
sent, that makes a total of six years of nonvoting before
removal. Ibid.
C
A pair of advocacy groups and an Ohio resident (re-
spondents here) think that Ohio’s Supplemental Process
violates the NVRA and HAVA. They sued petitioner,
Ohio’s Secretary of State, seeking to enjoin this process.
Respondents alleged, first, that Ohio removes voters who
have not actually moved, thus purging the rolls of eligible
voters. They also contended that Ohio violates the
NVRA’s Failure-to-Vote Clause because the failure to vote
plays a prominent part in the Ohio removal scheme: Fail-
ure to vote for two years triggers the sending of a return
card, and if the card is not returned, failure to vote for four
more years results in removal.
The District Court rejected both of these arguments and
entered judgment for the Secretary. It held that Ohio’s
8 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Opinion of the Court
Supplemental Process “mirror[s] the procedures estab-
lished by the NVRA” for removing people on change-of-
residence grounds and does not violate the Failure-to-Vote
Clause because it does not remove anyone “solely for
[their] failure to vote.” App. to Pet. for Cert. 43a, 57a,
69a–70a.
A divided panel of the Court of Appeals for the Sixth
Circuit reversed. 838 F.3d 699 (2016). It focused on
respondents’ second argument, holding that Ohio violates
the Failure-to-Vote Clause because it sends change-of-
residence notices “based ‘solely’ on a person’s failure to
vote.” Id., at 711. In dissent, Judge Siler explained why
he saw the case as a simple one: “The State cannot remove
the registrant’s name from the rolls for a failure to vote
only, and Ohio does not do [that].” Id., at 716.
We granted certiorari, 581 U. S. ___ (2017), and now
reverse.
II
A
As noted, subsection (d), the provision of the NVRA that
directly addresses the procedures that a State must follow
before removing a registrant from the rolls on change-of-
residence grounds, provides that a State may remove a
registrant who “(i) has failed to respond to a notice” and
“(ii) has not voted or appeared to vote . . . during the pe-
riod beginning on the date of the notice and ending on the
day after the date of the second general election for Fed-
eral office that occurs after the date of the notice” (about
four years). 52 U.S. C. §20507(d)(1)(B). Not only are
States allowed to remove registrants who satisfy these
requirements, but federal law makes this removal manda-
tory. §20507(d)(3); see also §21083(a)(4)(A).
Ohio’s Supplemental Process follows subsection (d) to
the letter. It is undisputed that Ohio does not remove a
registrant on change-of-residence grounds unless the
Cite as: 584 U. S. ____ (2018) 9
Opinion of the Court
registrant is sent and fails to mail back a return card and
then fails to vote for an additional four years.
B
Respondents argue (and the Sixth Circuit held) that,
even if Ohio’s process complies with subsection (d), it
nevertheless violates the Failure-to-Vote Clause—the
clause that generally prohibits States from removing
people from the rolls “by reason of [a] person’s failure to
vote.” §20507(b)(2); see also §21083(a)(4)(A). Respondents
point out that Ohio’s Supplemental Process uses a person’s
failure to vote twice: once as the trigger for sending return
cards and again as one of the requirements for removal.
Respondents conclude that this use of nonvoting is illegal.
We reject this argument because 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. Instead, as permitted by subsection
(d), Ohio removes registrants only if they have failed to
vote and have failed to respond to a notice.
When Congress clarified the meaning of the NVRA’s
Failure-to-Vote Clause in HAVA, here is what it said:
“[C]onsistent with the [NVRA], . . . no registrant may be
removed solely by reason of a failure to vote.”
§21083(a)(4)(A) (emphasis added). The meaning of these
words is straightforward. “Solely” means “alone.” Web-
ster’s Third New International Dictionary 2168 (2002);
American Heritage Dictionary 1654 (4th ed. 2000). And
“by reason of ” is a “quite formal” way of saying “[b]ecause
of.” C. Ammer, American Heritage Dictionary of Idioms
67 (2d ed. 2013). Thus, a State violates the Failure-to-
Vote Clause only if it removes registrants for no reason
other than their failure to vote.
This explanation of the meaning of the Failure-to-Vote
Clause merely makes explicit what was implicit in the
10 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Opinion of the Court
clause as originally enacted. At that time, the clause
simply said that a state program “shall not result in the
removal of the name of any person from the [rolls for
federal elections] by reason of the person’s failure to vote.”
107 Stat. 83. But that prohibition had to be read together
with subsection (d), which authorized removal if a regis-
trant did not send back a return card and also failed to
vote during a period covering two successive general elec-
tions for federal office. If possible, “[w]e must interpret
the statute to give effect to both provisions,” Ricci v.
DeStefano, 557 U.S. 557, 580 (2009), and here, that is
quite easy.
The phrase “by reason of ” denotes some form of causa-
tion. See Gross v. FBL Financial Services, Inc., 557 U.S.
167, 176 (2009). Thus, the Failure-to-Vote Clause applies
when nonvoting, in some sense, causes a registrant’s name
to be removed, but the law recognizes several types of
causation. When a statutory provision includes an unde-
fined causation requirement, we look to context to decide
whether the statute demands only but-for cause as op-
posed to proximate cause or sole cause. See Holmes v.
Securities Investor Protection Corporation, 503 U.S. 258,
265–268 (1992). Cf. CSX Transp., Inc. v. McBride, 564
U.S. 685, 692–693 (2011).
Which form of causation is required by the Failure-to-
Vote Clause? We can readily rule out but-for causation. If
“by reason of ” in the Failure-to-Vote Clause meant but-for
causation, a State would violate the clause if the failure to
vote played a necessary part in the removal of a name
from the list. Burrage v. United States, 571 U.S. 204, 211
(2014). But the removal process expressly authorized by
subsection (d) allows a State to remove a registrant if the
registrant, in addition to failing to send back a return
card, fails to vote during a period covering two general
federal elections. So if the Failure-to-Vote Clause were
read in this way, it would cannibalize subsection (d).
Cite as: 584 U. S. ____ (2018) 11
Opinion of the Court
Interpreting the Failure-to-Vote Clause as incorporating
a proximate cause requirement would lead to a similar
problem. Proximate cause is an elusive concept, see
McBride, supra, at 692–693, but no matter how the term
is understood, it is hard to escape the conclusion that the
failure to vote is a proximate cause of removal under
subsection (d). If a registrant, having failed to send back a
return card, also fails to vote during the period covering
the next two general federal elections, removal is the
direct, foreseeable, and closely connected consequence.
See Paroline v. United States, 572 U.S. 434, 444–445
(2014); Bridge v. Phoenix Bond & Indemnity Co., 553 U.S.
639, 654 (2008).
By process of elimination, we are left with sole causa-
tion. This reading harmonizes the Failure-to-Vote Clause
and subsection (d) because the latter provision does not
authorize removal solely by reason of a person’s failure to
vote. Instead, subsection (d) authorizes removal only if a
registrant also fails to mail back a return card.
For these reasons, we conclude that the Failure-to-Vote
Clause, as originally enacted, referred to sole causation.
And when Congress enacted HAVA, it made this point
explicit. It added to the Failure-to-Vote Clause itself an
explanation of how it is to be read, i.e., in a way that does
not contradict subsection (d). And in language that cannot
be misunderstood, it reiterated what the clause means:
“[R]egistrants who have not responded to a notice and who
have not voted in 2 consecutive general elections for Fed-
eral 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) (emphasis
added). In this way, HAVA dispelled any doubt that a
state removal program may use the failure to vote as a
factor (but not the sole factor) in removing names from the
list of registered voters.
That is exactly what Ohio’s Supplemental Process does.
12 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Opinion of the Court
It does not strike any registrant solely by reason of the
failure to vote. Instead, as expressly permitted by federal
law, it removes registrants only when they have failed to
vote and have failed to respond to a change-of-residence
notice.
C
Respondents and the dissent advance an alternative
interpretation of the Failure-to-Vote Clause, but that
reading is inconsistent with both the text of the clause and
the clarification of its meaning in §21083(a)(4)(A). Re-
spondents argue that the clause allows States to consider
nonvoting only to the extent that subsection (d) requires—
that is, only after a registrant has failed to mail back a
notice. Any other use of the failure to vote, including as
the trigger for mailing a notice, they claim, is proscribed.
In essence, respondents read the language added to the
clause by HAVA—“except that nothing in this paragraph
may be construed to prohibit a State from using the proce-
dures described in subsections (c) and (d)”—as an excep-
tion to the general rule forbidding the use of nonvoting.
See Brief for Respondents 37. And the Sixth Circuit
seemed to find this point dispositive, reasoning that “ ‘ex-
ceptions in statutes must be strictly construed.’ ” 838
F.3d, at 708 (quoting Detroit Edison Co. v. SEC, 119 F.2d
730, 739 (CA6 1941)).
We reject this argument for three reasons. First, it
distorts what the new language added by HAVA actually
says. The new language does not create an exception to a
general rule against the use of nonvoting. It does not say
that the failure to vote may not be used “except that this
paragraph does not prohibit a State from using the proce-
dures described in subsections (c) and (d).” Instead, it
says that “nothing in this paragraph may be construed” to
have that effect. §20507(b)(2) (emphasis added). Thus, it
sets out not an exception, but a rule of interpretation. It
Cite as: 584 U. S. ____ (2018) 13
Opinion of the Court
does not narrow the language that precedes it; it clarifies
what that language means. That is precisely what Con-
gress said when it enacted HAVA: It added the “may not
be construed” provision to “[c]larif[y],” not to alter, the
prohibition’s scope. §903, 116 Stat. 1728.
Second, under respondents’ reading, HAVA’s new lan-
guage is worse than superfluous. Even without the added
language, no sensible person would read the Failure-to-
Vote Clause as prohibiting what subsections (c) and (d)
expressly allow. Yet according to respondents, that is all
that the new language accomplishes. So at a minimum, it
would be redundant.
But the implications of this reading are actually worse
than that. There is no reason to create an exception to a
prohibition unless the prohibition would otherwise forbid
what the exception allows. So if the new language were
an exception, it would seem to follow that prior to HAVA,
the Failure-to-Vote Clause did outlaw what subsections (c)
and (d) specifically authorize. And that, of course, would
be nonsensical.
Third, respondents’ reading of the language that HAVA
added to the Failure-to-Vote Clause makes it hard to
understand why Congress prescribed in another section of
the same Act, i.e., §21083(a)(4)(A), that “no registrant may
be removed solely by reason of a failure to vote.” As inter-
preted by respondents, the amended Failure-to-Vote
Clause prohibits any use of nonvoting with just two nar-
row exceptions—the uses allowed by subsections (c) and
(d). So, according to respondents, the amended Failure-to-
Vote Clause prohibits much more than §21083(a)(4)(A).
That provision, in addition to allowing the use of nonvot-
ing in accordance with subsections (c) and (d), also permits
the use of nonvoting in any other way that does not treat
nonvoting as the sole basis for removal.
There is no plausible reason why Congress would enact
the provision that respondents envision. As interpreted by
14 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Opinion of the Court
respondents, HAVA would be like a law that contains one
provision making it illegal to drive with a blood alcohol
level of 0.08 or higher and another provision making it
illegal to drive with a blood alcohol level of 0.10 or higher.
The second provision would not only be redundant; it
would be confusing and downright silly.
Our reading, on the other hand, gives the new language
added to the Failure-to-Vote Clause “real and substantial
effect.” Husky Int’l Electronics, Inc. v. Ritz, 578 U. S. ___,
___ (2016) (slip op., at 4) (internal quotation marks omit-
ted). It clarifies the meaning of the prohibition against
removal by reason of nonvoting, a matter that troubled
some States prior to HAVA’s enactment. See, e.g., FEC
Report on the NVRA to the 106th Congress 19 (1999).
Respondents and the dissent separately claim that the
Failure-to-Vote Clause must be read to bar the use of
nonvoting as a trigger for sending return cards because
otherwise it would be “superfluous.” Post, at 17 (opinion of
BREYER, J.); see Brief for Respondents 29. After all, sub-
section (d) already prohibits States from removing regis-
trants because of a failure to vote alone. See §20507(d)(1).
To have meaning independent of subsection (d), respond-
ents reason, the Failure-to-Vote Clause must prohibit
other uses of the failure to vote, including its use as a
trigger for sending out notices.
This argument is flawed because the Failure-to-Vote
Clause has plenty of work to do under our reading. Most
important, it prohibits the once-common state practice of
removing registered voters simply because they failed to
vote for some period of time. Not too long ago,
“[c]ancellation for failure to vote [was] the principal means
used . . . to purge the [voter] lists.” Harris, Model Voter
Registration System, at 44. States did not use a person’s
failure to vote as evidence that the person had died or
moved but as an independent ground for removal. See
Cite as: 584 U. S. ____ (2018) 15
Opinion of the Court
ibid. 4 Ohio was one such State. Its Constitution provided
that “[a]ny elector who fails to vote in at least one election
during any period of four consecutive years shall cease to
be an elector unless he again registers to vote.” Art. V, §1
(1977).
In addition, our reading prohibits States from using the
failure to vote as the sole cause for removal on any ground,
not just because of a change of residence. Recall that
subsection (d)’s removal process applies only to change-of-
residence removals but that the Failure-to-Vote Clause
applies to all removals. Without the Failure-to-Vote
Clause, therefore, States could use the failure to vote as
conclusive evidence of ineligibility for some reason other
than change of residence, such as death, mental incapac-
ity, or a criminal conviction resulting in prolonged impris-
onment.
D
Respondents put forth one additional argument regard-
ing the Failure-to-Vote Clause. In essence, it boils down
to this. So many properly registered voters simply discard
return cards upon receipt that the failure to send them
back is worthless as evidence that the addressee has
moved. As respondents’ counsel put it at argument, “a
notice that doesn’t get returned” tells the State “absolutely
nothing about whether the person has moved.” Tr. of Oral
Arg. 41, 58. According to respondents, when Ohio removes
registrants for failing to respond to a notice and failing to
vote, it functionally “removes people solely for non-voting”
unless the State has additional “reliable evidence” that a
registrant has moved. Id., at 49, 71.
This argument is based on a dubious empirical conclu-
——————
4 See,e.g., Haw. Rev. Stat. §11–17(a) (1993); Idaho Code Ann. §34–
435 (1981); Minn. Stat. §201.171 (1992); Mont. Code Ann. §13–2–401(1)
(1993); N. J. Stat. Ann. §19:31–5 (West Supp. 1989); Okla. Stat., Tit. 26,
§4–120.2 (1991); Utah Code §20–2–24(1)(b) (1991).
16 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Opinion of the Court
sion that the NVRA and HAVA do not allow us to indulge.
Congress clearly did not think that the failure to send
back a return card was of no evidentiary value because
Congress made that conduct one of the two requirements
for removal under subsection (d).
Requiring additional evidence not only second-guesses
the congressional judgment embodied in subsection (d)’s
removal process, but it also second-guesses the judgment
of the Ohio Legislature as expressed in the State’s Sup-
plemental Process. The Constitution gives States the
authority to set the qualifications for voting in congres-
sional elections, Art. I, §2, cl. 1; Amdt. 17, as well as the
authority to set the “Times, Places and Manner” to con-
duct such elections in the absence of contrary congressional
direction, Art. I, §4, cl. 1. We have no authority to dismiss
the considered judgment of Congress and the Ohio Legis-
lature regarding the probative value of a registrant’s
failure to send back a return card. See Inter Tribal, 570
U.S., at 16–19; see also id., at 36–37 (THOMAS, J., dissent-
ing); id., at 42–43, 46 (ALITO, J., dissenting).
For all these reasons, we hold that Ohio law does not
violate the Failure-to-Vote Clause.
III
We similarly reject respondents’ argument that Ohio
violates other provisions of the NVRA and HAVA.
A
Respondents contend that Ohio removes registered
voters on a ground not permitted by the NVRA. They
claim that the NVRA permits the removal of a name for
only a few specified reasons—a person’s request, criminal
conviction, mental incapacity, death, change of residence,
and initial ineligibility. Brief for Respondents 25–26; see
52 U.S. C. §§20507(a)(3), (4). 5 And they argue that Ohio
——————
5 We assume for the sake of argument that Congress has the constitu-
Cite as: 584 U. S. ____ (2018) 17
Opinion of the Court
removes registrants for other reasons, namely, for failing
to respond to a notice and failing to vote.
This argument plainly fails. Ohio simply treats the
failure to return a notice and the failure to vote as evi-
dence that a registrant has moved, not as a ground for
removal. And in doing this, Ohio simply follows federal
law. Subsection (d), which governs removals “on the
ground that the registrant has changed residence,” treats
the failure to return a notice and the failure to vote as
evidence that this ground is satisfied. §20507(d)(1).
If respondents’ argument were correct, then it would
also be illegal to remove a name under §20507(c) because
that would constitute removal for submitting change-of-
address information to the Postal Service. Likewise, if a
State removed a name after receiving a death certificate or
a judgment of criminal conviction, that would be illegal
because receipt of such documents is not listed as a
permitted ground for removal under §20507(a)(3) or
§20507(a)(4). About this argument no more need be said.
B
Respondents maintain, finally, that Ohio’s procedure is
illegal because the State sends out notices without having
any “reliable indicator” that the addressee has moved.
Brief for Respondents 31. The “[f]ailure to vote for a mere
two-year period,” they argue, does not reliably “indicate
that a registrant has moved out of the jurisdiction.” Id., at
30; see also, e.g., Brief for State of New York et al. as
Amici Curiae 13–28.
This argument also fails. The degree of correlation
between the failure to vote for two years and a change of
residence is debatable, but we know from subsection (d)
that Congress thought that the failure to vote for a period
——————
tional authority to limit voting eligibility requirements in the way
respondents suggest.
18 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Opinion of the Court
of two consecutive general elections was a good indicator
of change of residence, since it made nonvoting for that
period an element of subsection (d)’s requirements for
removal. In a similar vein, the Ohio Legislature appar-
ently thought that nonvoting for two years was sufficiently
correlated with a change of residence to justify sending a
return card.
What matters for present purposes is not whether the
Ohio Legislature overestimated the correlation between
nonvoting and moving or whether it reached a wise policy
judgment about when return cards should be sent. For us,
all that matters is that no provision of the NVRA prohibits
the legislature from implementing that judgment. Neither
subsection (d) nor any other provision of the NVRA de-
mands that a State have some particular quantum of
evidence of a change of residence before sending a regis-
trant a return card. So long as the trigger for sending
such notices is “uniform, nondiscriminatory, and in com-
pliance with the Voting Rights Act,” §20507(b)(1), States
can use whatever plan they think best. That may be why
not even the Sixth Circuit relied on this rationale.
Respondents attempt to find support for their argument
in subsection (c), which allows States to send notices based
on Postal Service change-of-address information. This
provision, they argue, implicitly sets a minimum reliabil-
ity requirement. Thus, they claim, a State may not send
out a return card unless its evidence of change of resi-
dence is at least as probative as the information obtained
from the Postal Service. See Tr. of Oral Arg. 56.
Nothing in subsection (c) suggests that it is designed to
play this role. Subsection (c) says that “[a] State may
meet” its obligation “to remove the names” of ineligible
voters on change-of-residence grounds by sending notices
to voters who are shown by the Postal Service information
to have moved, but subsection (c) does not even hint that it
imposes any sort of minimum reliability requirement for
Cite as: 584 U. S. ____ (2018) 19
Opinion of the Court
sending such notices. §§20507(a)(4), (c). By its terms,
subsection (c) simply provides one way—the minimal
way—in which a State “may meet the [NVRA’s] require-
ment[s]” for change-of-residence removals. §20507(c)
(emphasis added). As respondents agreed at argument, it
is not the only way. Tr. of Oral Arg. 53.
C
Nothing in the two dissents changes our analysis of the
statutory language.
1
Despite its length and complexity, the principal dissent
sets out only two arguments. See post, at 7–8 (opinion of
BREYER, J.). The first is one that we have already dis-
cussed at length, namely, that the Failure-to-Vote Clause
prohibits any use of the failure to vote except as permitted
by subsections (c) and (d). We have explained why this
argument is insupportable, supra, at 12–16, and the dis-
sent has no answer to any of the problems we identify.
The dissent’s only other argument is that Ohio’s process
violates §20507(a)(4), which requires States to make a
“reasonable effort” to remove the names of ineligible voters
from the rolls. The dissent thinks that this provision
authorizes the federal courts to go beyond the restrictions
set out in subsections (b), (c), and (d) and to strike down
any state law that does not meet their own standard of
“reasonableness.” But see Brief for United States as
Amicus Curiae 28–29. The dissent contends that Ohio’s
system violates this supposed “reasonableness” require-
ment primarily because it relies on the failure to mail back
the postcard sent to those who have not engaged in voter
activity for two years. Based on its own cobbled-together
statistics, post, at 12–13, and a feature of human nature of
which the dissent has apparently taken judicial notice
(i.e., “the human tendency not to send back cards received
20 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
Opinion of the Court
in the mail,” post, at 13), the dissent argues that the fail-
ure to send back the card in question “has no tendency to
reveal accurately whether the registered voter has
changed residences”; it is an “irrelevant factor” that
“shows nothing at all that is statutorily significant.” Post,
at 13–14, 17.
Whatever the meaning of §20507(a)(4)’s reference to
reasonableness, the principal dissent’s argument fails
since it is the federal NVRA, not Ohio law, that attaches
importance to the failure to send back the card. See
§§20507(d)(1)(B)(i), (d)(2)(A). The dissenters may not
think that the failure to send back the card means any-
thing, but that was not Congress’s view. The NVRA plainly
reflects Congress’s judgment that the failure to send back
the card, coupled with the failure to vote during the period
covering the next two general federal elections, is signifi-
cant evidence that the addressee has moved.
It is not our prerogative to judge the reasonableness of
that congressional judgment, but we note that, whatever
the general “human tendency” may be with respect to
mailing back cards received in the mail, the notice sent
under subsection (d) is nothing like the solicitations for
commercial products or contributions that recipients may
routinely discard. The notice in question here warns
recipients that unless they take the simple and easy step
of mailing back the preaddressed, postage prepaid card—
or take the equally easy step of updating their information
online—their names may be removed from the voting rolls
if they do not vote during the next four years. See Record
295–296, 357. It was Congress’s judgment that a reasona-
ble person with an interest in voting is not likely to ignore
notice of this sort.
2
JUSTICE SOTOMAYOR’s dissent says nothing about what
is relevant in this case—namely, the language of the
Cite as: 584 U. S. ____ (2018) 21
Opinion of the Court
NVRA—but instead accuses us of “ignor[ing] the history of
voter suppression” in this country and of “uphold[ing] a
program that appears to further the . . . disenfranchise-
ment of minority and low-income voters.” Post, at 5.
Those charges are misconceived.
The NVRA prohibits state programs that are discrimi-
natory, see §20507(b)(1), but respondents did not assert a
claim under that provision. And JUSTICE SOTOMAYOR has
not pointed to any evidence in the record that Ohio insti-
tuted or has carried out its program with discriminatory
intent.
* * *
The dissents have a policy disagreement, not just with
Ohio, but with Congress. But this case presents a ques-
tion of statutory interpretation, not a question of policy.
We have no authority to second-guess Congress or to
decide whether Ohio’s Supplemental Process is the ideal
method for keeping its voting rolls up to date. The only
question before us is whether it violates federal law. It
does not.
The judgment of the Sixth Circuit is reversed.
It is so ordered.
Cite as: 584 U. S. ____ (2018) 1
THOMAS, J., concurring
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]
THOMAS, J., concurring.
I join the Court’s opinion in full. I write separately to
add that respondents’ proposed interpretation of the Na-
tional Voter Registration Act (NVRA) should also be re-
jected because it would raise significant constitutional
concerns.
Respondents would interpret the NVRA to prevent
States from using failure to vote as evidence when decid-
ing whether their voting qualifications have been satisfied.
Brief for Respondents 25–30. The Court’s opinion explains
why that reading is inconsistent with the text of the
NVRA. See ante, at 7–18. But even if the NVRA were
“susceptible” to respondents’ reading, it could not prevail
because it “raises serious constitutional doubts” that the
Court’s interpretation avoids. Jennings v. Rodriguez, 583
U. S. ___, ___ (2018) (slip op., at 2).
As I have previously explained, constitutional text and
history both “confirm that States have the exclusive au-
thority to set voter qualifications and to determine whether
those qualifications are satisfied.” Arizona v. Inter
Tribal Council of Ariz., Inc., 570 U.S. 1, 29 (2013)
(THOMAS, J., dissenting). The Voter-Qualifications Clause
provides that, in elections for the House of Representa-
tives, “the Electors in each State shall have the Qualifica-
2 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
THOMAS, J., concurring
tions requisite for Electors of the most numerous Branch
of the State Legislature.” U. S. Const., Art. I, §2, cl. 1.
The Seventeenth Amendment imposes an identical re-
quirement for elections of Senators. And the Constitution
recognizes the authority of States to “appoint” Presidential
electors “in such Manner as the Legislature thereof may
direct.” Art. II, §1, cl. 2; see Inter Tribal Council of Ariz.,
570 U.S., at 35, n. 2 (opinion of THOMAS, J.). States thus
retain the authority to decide the qualifications to vote in
federal elections, limited only by the requirement that
they not “ ‘establish special requirements’ ” for congres-
sional elections “ ‘that do not apply in elections for the
state legislature.’ ” Id., at 26 (quoting U. S. Term Limits,
Inc. v. Thornton, 514 U.S. 779, 865 (1995) (THOMAS, J.,
dissenting)). And because the power to establish require-
ments would mean little without the ability to enforce
them, the Voter Qualifications Clause also “gives States
the authority . . . to verify whether [their] qualifications
are satisfied.” 570 U.S., at 28.
Respondents’ reading of the NVRA would seriously
interfere with the States’ constitutional authority to set
and enforce voter qualifications. To vote in Ohio, electors
must have been a state resident 30 days before the elec-
tion, as well as a resident of the county and precinct where
they vote. Ohio Rev. Code Ann. §3503.01(A) (Lexis 2015);
see also Ohio Const., Art. V, §1. Ohio uses a record of
nonvoting as one piece of evidence that voters no longer
satisfy the residence requirement. Reading the NVRA to
bar Ohio from considering nonvoting would therefore
interfere with the State’s “authority to verify” that its
qualifications are met “in the way it deems necessary.”
Inter Tribal Council of Ariz., supra, at 36. Respondents’
reading thus renders the NVRA constitutionally suspect
and should be disfavored. See Jennings, supra, at ___ (slip
op., at 2).
Respondents counter that Congress’ power to regulate
Cite as: 584 U. S. ____ (2018) 3
THOMAS, J., concurring
the “Times, Places and Manner” of holding congressional
elections includes the power to impose limits on the evi-
dence that a State may consider when maintaining its
voter rolls. See Brief for Respondents 51–55; see also
Art. I, §4, cl. 1 (“The Times, Places and Manner of holding
Elections for Senators and Representatives, shall be pre-
scribed in each State by the Legislature thereof; but the
Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators”).
But, as originally understood, the Times, Places and Man-
ner Clause grants Congress power “only over the ‘when,
where, and how’ of holding congressional elections,” not
over the question of who can vote. Inter Tribal Council of
Ariz., supra, at 29 (opinion of THOMAS, J.) (quoting T.
Parsons, Notes of Convention Debates, Jan. 16, 1788, in 6
Documentary History of the Ratification of the Constitu-
tion 1211 (J. Kaminski & G. Saladino eds. 2000) (Massa-
chusetts ratification delegate Sedgwick)). The “ ‘Manner of
holding Elections’ ” was understood to refer to “the circum-
stances under which elections were held and the mechan-
ics of the actual election.” 570 U.S., at 30 (quoting Art. I,
§4, cl. 1). It does not give Congress the authority to dis-
place state voter qualifications or dictate what evidence a
State may consider in deciding whether those qualifica-
tions have been met. See 570 U.S., at 29–33. The Clause
thus does not change the fact that respondents’ reading of
the NVRA is constitutionally suspect.
The Court’s interpretation of the NVRA was already the
correct reading of the statute: The NVRA does not prohibit
a State from considering failure to vote as evidence that a
registrant has moved. The fact that this reading avoids
serious constitutional problems is an additional reason
why, in my view, today’s decision is undoubtedly correct.
Cite as: 584 U. S. ____ (2018) 1
BREYER, J., dissenting
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 BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
Section 8 of the National Voter Registration Act of 1993
requires States to “conduct a general program that makes
a reasonable effort to remove the names of ineligible vot-
ers from the official lists of eligible voters by reason of . . .
a change in the residence of the registrant.” §8(a)(4), 107
Stat. 82–83, 52 U.S. C. §20507(a)(4). This case concerns
the State of Ohio’s change-of-residence removal program
(called the “Supplemental Process”), under which a regis-
tered voter’s failure to vote in a single federal election
begins a process that may well result in the removal of
that voter’s name from the federal voter rolls. See infra,
at 7. The question is whether the Supplemental Process
violates §8, which prohibits a State from removing regis-
trants from the federal voter roll “by reason of the person’s
failure to vote.” §20507(b)(2). In my view, Ohio’s program
does just that. And I shall explain why and how that is so.
I
This case concerns the manner in which States maintain
federal voter registration lists. In the late 19th and early
20th centuries, a number of “[r]estrictive registration laws
and administrative procedures” came into use across the
2 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
United States—from literacy tests to the poll tax and from
strict residency requirements to “selective purges.” H. R.
Rep. No. 103–9, p. 2 (1993). Each was designed “to keep
certain groups of citizens from voting” and “discourage
participation.” Ibid. By 1965, the Voting Rights Act
abolished some of the “more obvious impediments to regis-
tration,” but still, in 1993, Congress concluded that it had
“unfinished business” to attend to in this domain. Id., at
3. That year, Congress enacted the National Voter Regis-
tration Act “to protect the integrity of the electoral pro-
cess,” “increase the number of eligible citizens who regis-
ter to vote in elections for Federal office,” and “ensure that
accurate and current voter registration rolls are main-
tained.” §20501(b). It did so mindful that “the purpose of
our election process is not to test the fortitude and deter-
mination of the voter, but to discern the will of the majority.”
S. Rep. No. 103–6, p. 3 (1993).
In accordance with these aims, §8 of the Registration
Act sets forth a series of requirements that States must
satisfy in their “administration of voter registration for
elections for Federal office.” §20507. Ohio’s Supplemental
Process fails to comport with these requirements; it erects
needless hurdles to voting of the kind Congress sought to
eliminate by enacting the Registration Act. Four of §8’s
provisions are critical to this case: subsections (a), (b), (c),
and (d). The text of each subsection is detailed and con-
tains multiple parts. Given the complexity of the statute,
readers should consult these provisions themselves (see
Appendix A, infra, at 21–24) and try to keep the thrust of
those provisions in mind while reading this opinion. At
the outset, I shall address each of them.
A
1
We begin with subsection (a)’s “Reasonable Program”
requirement. That provision says that “each State shall”:
Cite as: 584 U. S. ____ (2018) 3
BREYER, J., dissenting
“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 the residence of the registrant, in accord-
ance with subsections (b), (c), and (d).” §20507(a)(4).
This provision tells each State that it must try to remove
ineligible voters from the rolls, that it must act reasonably
in doing so, and that, when it does so, it must follow the
rules contained in the next three subsections of §8—
namely, subsections (b), (c), and (d).
2
Subsection (b)’s “Failure-to-Vote” Clause generally
forbids state change-of-residence removal programs that
rely upon a registrant’s failure to vote as a basis for re-
moving the registrant’s name from the federal voter roll.
Before 1993, when Congress enacted this prohibition,
many States would assume a registered voter had changed
his address, and consequently remove that voter from the
rolls, simply because the registrant had failed to vote.
Recognizing that many registered voters who do not vote
“may not have moved,” S. Rep. No. 103–6, at 17, Congress
consequently prohibited States from using the failure to
vote as a proxy for moving and thus a basis for purging the
voter’s name from the rolls. The Failure-to-Vote Clause, as
originally enacted, said:
“Any State program or activity to protect the integrity
of the electoral process by ensuring the maintenance
of an accurate and current voter registration roll for
elections for Federal office . . . shall not result in the
removal of the name of any person from the official
list of voters registered to vote in an election for Fed-
eral office by reason of the person’s failure to vote.”
107 Stat. 83; see §20507(b)(2).
As I shall discuss, Congress later clarified that “using
4 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
the procedures described in subsections (c) and (d) to
remove an individual” from the federal voter roll is per-
missible and does not violate the Failure-to-Vote Clause.
See §8(b)(2) of the National Voter Registration Act, 107
Stat. 83, and as amended, 116 Stat. 1728, 52 U.S. C.
§20507(b)(2).
3
Subsection (c), which is entitled “Voter Removal Pro-
grams,” explains how “[a] State may meet the requirement
of subsection (a)(4).” §20507(c)(1). Because subsection
(a)(4) itself incorporates all of the relevant requirements of
subsections (b), (c), and (d) within it, see §20507(a)(4),
subsection (c) sets forth one way a State can comply with
the basic requirements of §8 at issue in this case (includ-
ing subsection (b)). A State’s removal program qualifies
under subsection (c) if the following two things are true
about the program:
“(A) change-of-address information supplied by the
Postal Service through its licensees is used to identify
registrants whose addresses may have changed; and
“(B) if it appears [that] the registrant has moved to
a different residence address not in the same regis-
trar’s jurisdiction, the registrar uses the notice proce-
dure described in subsection (d)(2) to confirm the
change of address.” §20507(c)(1).
The upshot is that subsection (c) explains one way a State
may comply with subsection (a)’s Reasonable Program
requirement without violating subsection (b)’s Failure-to-
Vote prohibition. It is a roadmap that points to a two-step
removal process. At step 1, States first identify registered
voters whose addresses may have changed; here, subsec-
tion (c) points to one (but not the only) method a State
may use to do so. At step 2, subsection (c) explains,
States must “confirm the change of address” by using a
special notice procedure, which is further described in
Cite as: 584 U. S. ____ (2018) 5
BREYER, J., dissenting
subsection (d).
4
Subsection (d) sets forth the final procedure, which Ohio
refers to as the “Confirmation Procedure.” Brief for Peti-
tioner 7. The statute makes clear that a State must use
the Confirmation Procedure to “confirm” a change of ad-
dress in respect to any registered voter it initially identi-
fies as someone who has likely changed addresses. It
works as follows: the State must send the registrant iden-
tified as having likely moved a special kind of notice by
forwardable mail. That notice must warn the registrant
that his or her name will be removed from the voter roll
unless the registrant either returns an attached card and
confirms his or her current address in writing or votes in
an election during the period covering the next two federal
elections. In a sense, the notice a State is required to send
as part of the Confirmation Procedure gives registered
voters whom the State has identified as likely ineligible a
“last chance” to correct the record before being removed from
the federal registration list. The Confirmation Procedure is
mandatory for all change-of-residence removals, regard-
less of the method the State uses to make its initial identi-
fication of registrants whose addresses may have changed.
In particular, subsection (d) says:
“A State shall not remove the name of a registrant
from the official list of eligible voters . . . on the
ground that the registrant has changed residence un-
less the registrant [either]—
“(A) confirms in writing that the registrant has
changed residence to a place outside the registrar’s ju-
risdiction in which the registrant is registered; or
“(B)(i) has failed to respond to a notice described in
[subsection (d)(2)]; and (ii) has not voted [in two sub-
sequent federal elections].” §20507(d)(1).
6 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
Subsection (d)(2) then goes on to describe (in consider-
able detail) the “last chance” notice the State must send to
the registrant. In particular, the notice must be sent by
forwardable mail so that the notice will reach the regis-
trant even if the registrant has changed addresses. It
must include a postage-prepaid, preaddressed “return
card” that the registrant may send back to the State to
confirm or correct the State’s record of his or her current
address. And, the notice must warn the registrant that
unless the card is returned, if the registrant does not vote
in the next two federal elections, then his or her name will
be removed from the list of eligible voters.
* * *
In sum, §8 tells States the following:
• In general, establish a removal-from-registration
program that “makes a reasonable effort” to remove
voters who become ineligible because they change
residences.
• Do not target registered voters for removal from
the registration roll because they have failed to
vote. However, “using the procedures described in
subsections (c) and (d) to remove an individual”
from the federal voter roll is permissible and does
not violate the Failure-to-Vote prohibition.
• The procedures described in subsections (c) and (d)
consist of a two-step removal process in which at
step 1, the State uses change-of-address infor-
mation (which the State may obtain, for instance,
from the Postal Service) to identify registrants
whose addresses may have changed; and then at
step 2, the State must use the mandatory “last
chance” notice procedure described in subsection
(d) to confirm the change of address.
• The “last chance” confirmation notice must be sent
by forwardable mail. It must also include a postage-
Cite as: 584 U. S. ____ (2018) 7
BREYER, J., dissenting
prepaid, preaddressed “return card” that the regis-
trant may send back to the State verifying his or
her current address. And it must warn the regis-
trant that unless the card is returned, if the regis-
trant does not vote in the next two federal elec-
tions, then his or her name will be removed from
the list of eligible voters.
B
The Supplemental Process, Ohio’s program for removing
registrants from the federal rolls on the ground that the
voter has changed his address, is much simpler. Each of
Ohio’s 88 boards of elections sends its version of subsec-
tion (d)’s “last chance” notice to those on a list “of individ-
uals who, according to the board’s records, have not en-
gaged in certain kinds of voter activity”—including
“casting a ballot”—for a period of “generally two years.”
Record 1507. Accordingly, each board’s list can include
registered voters who failed to vote in a single federal
election. And anyone on the list who “continues to be
inactive” by failing to vote for the next “four consecutive
years, including two federal elections,” and fails to respond
to the notice is removed from the federal voter roll. Id., at
1509. Under the Supplemental Process, a person’s failure
to vote is the sole basis on which the State identifies a
registrant as a person whose address may have changed
and the sole reason Ohio initiates a registered voter’s
removal using subsection (d)’s Confirmation Procedure.
II
Section 8 requires that Ohio’s program “mak[e] a rea-
sonable effort to remove” ineligible registrants from the
rolls because of “a change in the residence of the regis-
trant,” and it must do so “in accordance with subsections
(b), (c), and (d).” §20507(a)(4)(B). In my view, Ohio’s
program is unlawful under §8 in two respects. It first
8 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
violates subsection (b)’s Failure-to-Vote prohibition be-
cause Ohio uses nonvoting in a manner that is expressly
prohibited and not otherwise authorized under §8. In
addition, even if that were not so, the Supplemental Pro-
cess also fails to satisfy subsection (a)’s Reasonable Pro-
gram requirement, since using a registrant’s failure to
vote is not a reasonable method for identifying voters
whose registrations are likely invalid (because they have
changed their addresses).
First, as to subsection (b)’s Failure-to-Vote Clause,
recall that Ohio targets for removal registrants who fail to
vote. In identifying registered voters who have likely
changed residences by looking to see if those registrants
failed to vote, Ohio’s program violates subsection (b)’s
express prohibition on “[a]ny State program or activity
[that] result[s] in the removal” of a registered voter “by
reason of the person’s failure to vote.” §20507(b)(2) (em-
phasis added). In my view, these words are most naturally
read to prohibit a State from considering a registrant’s
failure to vote as part of any process “that is used to start,
or has the effect of starting, a purge of the voter rolls.”
H. R. Rep. No. 103–9, at 15. In addition, Congress enacted
the Failure-to-Vote Clause to prohibit “the elimination of
names of voters from the rolls solely due to [a registrant’s]
failure to respond to a mailing.” Ibid. But that is precisely
what Ohio’s Supplemental Process does. The program
violates subsection (b)’s prohibition because under it, a
registrant who fails to vote in a single federal election,
fails to respond to a forwardable notice, and fails to vote
for another four years may well be purged. Record 1508.
If the registrant had voted at any point, the registrant
would not have been removed. See supra, at 7; infra, at
11–14.
Ohio does use subsection (d)’s Confirmation Procedure,
but that procedure alone does not satisfy §8’s require-
ments. How do we know that Ohio’s use of the Confirma-
Cite as: 584 U. S. ____ (2018) 9
BREYER, J., dissenting
tion Procedure alone cannot count as statutorily signifi-
cant? The statute’s basic structure along with its lan-
guage makes clear that this is so.
In respect to language, §8 says that the function of
subsection (d)’s Confirmation Procedure is “to confirm the
change of address” whenever the State has already “iden-
tif[ied] registrants whose addresses may have changed.”
§§20507(c)(1)(A), (d)(2). The function of the Confirmation
Procedure is not to make the initial identification of regis-
trants whose addresses may have changed. As a matter of
English usage, you cannot confirm that an event happened
without already having some reason to believe at least
that it might have happened. Black’s Law Dictionary 298
(6th ed. 1990) (defining “confirm” as meaning “[t]o com-
plete or establish that which was imperfect or uncertain”).
Ohio, of course, says that it has a ground for believing
that those persons they remove from the rolls have, in
fact, changed their address, but the ground is the fact that
the person did not vote—the very thing that the Failure-
to-Vote Clause forbids Ohio to use as a basis for removing
a registered voter from the registration roll.
In respect to structure, two statutory illustrations make
clear what the word “confirm” already suggests, namely,
that the Confirmation Procedure is a necessary but not a
sufficient procedure for removing a registered voter from
the voter roll. The first illustration of how the Confirma-
tion Procedure is supposed to function appears in subsec-
tion (c), which describes a removal process under which
the State first identifies registrants who have likely
changed addresses and then “confirm[s]” that change of
residence using the Confirmation Procedure and sending
the required “last chance” notice. §20507(c)(1) (emphasis
added). The identification method subsection (c) says a
State may use is “change-of-address information supplied
by the Postal Service.” §20507(c)(1)(A). A person does not
notify the Postal Service that he is moving unless he is
10 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
likely to move or has already moved. And, as the Regis-
tration Act says, “if it appears from change-of-address
provided by the Postal Service that . . . the registrant has
moved to a different residence not in the same registrar’s
jurisdiction,” the State has a reasonable (hence acceptable)
basis for “us[ing] the notice procedure described in sub-
section (d)(2) to confirm the change of address.”
§20507(c)(1)(B).
The second illustration of how the Confirmation Proce-
dure is supposed to function appears in a portion of the
statute I have not yet discussed—namely, §6 of the Na-
tional Voter Registration Act, which sets out the rules for
voter registration by mail. See §6, 107 Stat. 80, 52
U.S. C. §20505. In particular, §6(d), entitled “Undeliv-
ered Notices,” says that, “[i]f a notice of the disposition of a
mail voter registration application . . . is sent by nonfor-
wardable mail and is returned undelivered,” at that point
the State “may proceed in accordance with section 8(d),”
namely, the Confirmation Procedure, and send the same
“last chance” notice that I have just discussed. §20505(d)
(emphasis added).
Note that §6(d) specifies a nonforwardable mailing—and
not a forwardable mailing, like one specified in §8(d). This
distinction matters. Why? If a person moves, a forward-
able mailing will be sent along (i.e., “forwarded”) to that
person’s new address; in contrast, a nonforwardable mail-
ing will not be forwarded to the person’s new address but
instead will be returned to the sender and marked “unde-
liverable.” And so a nonforwardable mailing that is re-
turned to the sender marked “undeliverable” indicates
that the intended recipient may have moved. After all, the
Postal Service, as the majority points out, returns mail
marked “undeliverable” if the intended recipient has
moved—not if the person still lives at his old address.
Ante, at 6, and n. 3.
Under §6(d), the Registration Act expressly endorses
Cite as: 584 U. S. ____ (2018) 11
BREYER, J., dissenting
nonforwardable mailings as a reasonable method for
States to use at step 1 to identify registrants whose ad-
dresses may have changed before the State proceeds to
step 2 and sends the forwardable notice required under
subsection (d)’s Confirmation Procedure. Specifically,
§6(d) explains that, if a State sends its registrants a mail-
ing by nonforwardable mail (which States often do), and if
“[that mailing] is returned undelivered,” the State has a
fairly good reason for believing that the person has moved
and therefore “may proceed in accordance with” §8(d) by
sending the “last chance” forwardable notice that the
Confirmation Procedure requires. §20505(d). In contrast
to a nonforwardable notice that is returned undeliverable,
which tells the State that a registrant has likely moved, a
forwardable notice that elicits no response whatsoever
tells the State close to nothing at all. That is because, as I
shall discuss, most people who receive confirmation notices
from the State simply do not send back the “return card”
attached to that mailing—whether they have moved or
not.
In sum, §6(d), just like §§8(a) and 8(c), indicates that the
State, as an initial matter, must use a reasonable method
to identify a person who has likely moved and then must
send that person a confirmatory notice that will in effect
give him a “last chance” to remain on the rolls. And these
provisions thus tend to deny, not to support, the majority’s
suggestion that somehow sending a “last chance” notice is
itself a way (other than nonvoting) to identify someone
who has likely moved.
I concede that some individuals who have, in fact,
moved do, in fact, send a return card back to the State
making clear that they have moved. And some registrants
do send back a card saying that they have not moved.
Thus, the Confirmation Procedure will sometimes help
provide confirmation of what the initial identification
procedure is supposed to accomplish: finding registrants
12 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
who have probably moved. But more often than not, the
State fails to receive anything back from the registrant,
and the fact that the State hears nothing from the regis-
trant essentially proves nothing at all.
Anyone who doubts this last statement need simply
consult figures in the record along with a few generally
available statistics. As a general matter, the problem
these numbers reveal is as follows: Very few registered
voters move outside of their county of registration. But
many registered voters fail to vote. Most registered voters
who fail to vote also fail to respond to the State’s “last
chance” notice. And the number of registered voters who
both fail to vote and fail to respond to the “last chance”
notice exceeds the number of registered voters who move
outside of their county each year.
Consider the following facts. First, Ohio tells us that a
small number of Americans—about 4% of all Americans—
move outside of their county each year. Record 376. (The
majority suggests the relevant number is 10%, ante, at 2,
but that includes people who move within their county.)
At the same time, a large number of American voters fail
to vote, and Ohio voters are no exception. In 2014, around
59% of Ohio’s registered voters failed to vote. See Brief for
League of Women Voters et al. as Amici Curiae 16, and
n. 12 (citing Ohio Secretary of State, 2014 Official Election
Results).
Although many registrants fail to vote and only a small
number move, under the Supplemental Process, Ohio uses
a registrant’s failure to vote to identify that registrant as a
person whose address has likely changed. The record
shows that in 2012 Ohio identified about 1.5 million regis-
tered voters—nearly 20% of its 8 million registered vot-
ers—as likely ineligible to remain on the federal voter roll
because they changed their residences. Record 475. Ohio
then sent those 1.5 million registered voters subsubsection
(d) “last chance” confirmation notices. In response to
Cite as: 584 U. S. ____ (2018) 13
BREYER, J., dissenting
those 1.5 million notices, Ohio only received back about
60,000 return cards (or 4%) which said, in effect, “You are
right, Ohio. I have, in fact, moved.” Ibid. In addition,
Ohio received back about 235,000 return cards which said,
in effect, “You are wrong, Ohio, I have not moved.” In the
end, however, there were more than 1,000,000 notices—the
vast majority of notices sent—to which Ohio received back
no return card at all. Ibid.
What about those registered voters—more than 1 mil-
lion strong—who did not send back their return cards? Is
there any reason at all (other than their failure to vote) to
think they moved? The answer to this question must be
no. There is no reason at all. First, those 1 million or so
voters accounted for about 13% of Ohio’s voting popula-
tion. So if those 1 million or so registered voters (or even
half of them) had, in fact, moved, then vastly more people
must move each year in Ohio than is generally true of the
roughly 4% of all Americans who move to a different county
nationwide (not all of whom are registered voters). See
Id., at 376. But there is no reason to think this. Ohio
offers no such reason. And the streets of Ohio’s cities are
not filled with moving vans; nor has Cleveland become the
Nation’s residential moving companies’ headquarters.
Thus, I think it fair to assume (because of the human
tendency not to send back cards received in the mail,
confirmed strongly by the actual numbers in this record)
the following: In respect to change of residence, the failure
of more than 1 million Ohio voters to respond to forward-
able notices (the vast majority of those sent) shows nothing
at all that is statutorily significant.
To put the matter in the present statutory context:
When a State relies upon a registrant’s failure to vote to
initiate the Confirmation Procedure, it violates the Failure-
to-Vote Clause, and a State’s subsequent use of the Con-
firmation Procedure cannot save the State’s program from
that defect. Even if that were not so, a nonreturned con-
14 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
firmation notice adds nothing to the State’s understanding
of whether the voter has moved or not. And that, I repeat,
is because a nonreturned confirmation notice (as the num-
bers show) cannot reasonably indicate a change of address.
Finally, let us return to §8’s basic mandate and purpose.
Ohio’s program must “mak[e] a reasonable effort to remove
the names of ineligible voters” from its federal rolls on
change-of-residence grounds. §20507(a)(4) (emphasis
added). Reasonableness under §8(a) is primarily meas-
ured in terms of the program’s compliance with “subsec-
tions (b), (c), and (d).” §20507(a)(4)(B). That includes the
broad prohibition on removing registrants because of their
failure to vote. More generally, the statute seeks to “pro-
tect the integrity of the electoral process” and “ensure that
accurate and current voter registration rolls are main-
tained.” §§20501(b)(3), (4). Ohio’s system adds to its non-
voting-based identification system a factor that has no
tendency to reveal accurately whether the registered voter
has changed residences. Nothing plus one is still one.
And, if that “one” consists of a failure to vote, then Ohio’s
program also fails to make the requisite “reasonable ef-
fort” to comply with subsection (a)’s statutory mandate. It
must violate the statute.
III
The majority tries to find support in two provisions of a
different statute, namely, the Help America Vote Act of
2002, 116 Stat. 1666, the pertinent part of which is re-
printed in Appendix B, infra, at 25–26. The first is enti-
tled “Clarification of Ability of Election Officials To Re-
move Registrants From Official List of Voters on Grounds
of Change of Residence.” §903, id., at 1728. That provi-
sion was added to the National Voter Registration Act’s
Failure-to-Vote Clause, subsection (b)(2), which says that
a State’s registrant removal program “shall not result in
the removal of the name of any person from the official list
Cite as: 584 U. S. ____ (2018) 15
BREYER, J., dissenting
. . . by reason of the person’s failure to vote.” §20507(b)(2);
see supra, at 3. The “Clarification” adds:
“except that nothing in this paragraph may be con-
strued to prohibit a State from using the procedures
described in subsections (c) and (d) to remove an indi-
vidual from the official list of eligible voters if the in-
dividual—(A) has not either notified the applicable
registrar (in person or in writing) or responded . . . to
the [confirmation] notice sent by the applicable regis-
trar; and then (B) has not voted or appeared to vote in
2 or more consecutive general elections for Federal of-
fice.” §903, id., at 1728 (emphasis added).
This amendment simply clarified that the use of nonvot-
ing specified in subsections (c) and (d) does not violate the
Failure-to-Vote Clause. The majority asks why, if the
matter is so simple, Congress added the new language at
all. The answer to this question is just what the title
attached to the new language says, namely, Congress
added the new language for purposes of clarification. And
the new language clarified any confusion States may have
had about the relationship between, on the one hand,
subsection (b)’s broad prohibition on any use of a person’s
failure to vote in removal programs and, on the other
hand, the requirement in subsections (c) and (d) that a
State consider whether a registrant has failed to vote at
the end of the Confirmation Procedure. This reading finds
support in several other provisions in both the National
Voter Registration Act and the Help America Vote
Act, which make similar clarifications. See, e.g.,
§20507(c)(2)(B) (clarifying that a particular prohibition
“shall not be construed to preclude” States from comply-
ing with separate statutory obligations); see also
§§20510(d)(2) (similar rule of construction), 21081(c)(1),
21083(a)(1)(B), (a)(2)(A)(iii), (b)(5), (d)(1)(A)–(B); 21084.
The majority also points out that another provision of
16 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
the Help America Vote Act, §303. See §303(a)(4), 116 Stat.
1708, 52 U.S. C. §21083(a)(4). That provision once again
reaffirms that a State’s registration list-maintenance
program must “mak[e] a reasonable effort to remove regis-
trants who are ineligible to vote” and adds that “consistent
with the National Voter Registration Act of 1993 . . . regis-
trants 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) (emphasis
added).
The majority tries to make much of the word “solely.”
But the majority makes too much of too little. For one
thing, the Registration Act’s Failure-to-Vote Clause under
subsection (b) does not use the word “solely.” And §303 of
the Help America Vote Act tells us to interpret its lan-
guage (which includes the word “solely”) “consistent with
the” Registration Act. §21083(a)(4)(A). For another, the
Help America Vote Act says that “nothing in this [Act]
may be construed to authorize or require conduct prohib-
ited under [the National Voter Registration Act], or to su-
persede, restrict or limit the application of . . . [t]he Na-
tional Voter Registration Act.” §21145(a)(4).
The majority’s view of the statute leaves the Registra-
tion Act’s Failure-to-Vote Clause with nothing to do in
respect to change-of-address programs. Let anyone who
doubts this read subsection (d) (while remaining aware of
the fact that it requires the sending of a confirmation
notice) and ask himself or herself: What else is there for
the Failure-to-Vote Clause to do? The answer is nothing.
Section 8(d) requires States to send a confirmation notice
for all change-of-address removals, and, in the majority’s
view, failing to respond to that forwardable notice is al-
ways a valid cause for removal, even if that notice was
sent by reason of the registrant’s initial failure to vote.
Cite as: 584 U. S. ____ (2018) 17
BREYER, J., dissenting
Thus the Failure-to-Vote Clause is left with no independ-
ent weight since complying with subsection (d) shields a
State from violating subsection (b). To repeat the point,
under the majority’s view, the Failure-to-Vote Clause is
superfluous in respect to change-of-address programs:
subsection (d) already accomplishes everything the major-
ity says is required of a State’s removal program—namely,
the sending of a notice.
Finally, even if we were to accept the majority’s premise
that the question here is whether Ohio’s system removes
registered voters from the registration list “solely by rea-
son of a failure to vote,” that would not change anything.
As I have argued, Part II, supra, the failure to respond to
a forwardable notice is an irrelevant factor in terms of
what it shows about whether that registrant changed his
or her residence. To add an irrelevant factor to a failure to
vote, say, a factor like having gone on vacation or having
eaten too large a meal, cannot change Ohio’s sole use of
“failure to vote” into something it is not.
IV
JUSTICE THOMAS, concurring, suggests that my reading
of the statute “ ‘raises serious constitutional doubts.’ ”
Ante, at 1 (quoting Jennings v. Rodriguez, 583 U. S. ___,
___ (2018) (slip op., at 2)). He believes that it “would
seriously interfere with the States’ constitutional authority
to set and enforce voter qualifications.” Ante, at 2. At the
same time, the majority “assume[s]” that “Congress has
the constitutional authority to limit voting eligibility
requirements in the way respondents suggest.” Ante, at
16, n. 5. But it suggests possible agreement with JUSTICE
THOMAS, for it makes this assumption only “for the sake of
argument.” Ibid.
Our cases indicate, however, that §8 neither exceeds
Congress’ authority under the Elections Clause, Art. I, §4,
nor interferes with the State’s authority under the Voter
18 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER, J., dissenting
Qualification Clause, Art. 1, §2. Indeed, this Court’s
precedents interpreting the scope of congressional authority
under the Elections Clause make clear that Congress has
the constitutional power to adopt the statute before us.
The Elections Clause states:
“The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed
in each State by the Legislature thereof; but the Con-
gress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Sena-
tors.” U. S. Const., Art. I, §4, cl. 1.
The Court has frequently said that “[t]he Clause’s sub-
stantive scope is broad,” and that it “empowers Congress
to pre-empt state regulations governing the ‘Times, Places
and Manner’ of holding congressional elections.” Arizona
v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 8 (2013).
We have long held that “[t]he power of Congress over the
‘Times, Places and Manner’ of congressional elections ‘is
paramount, and may be exercised at any time, and to any
extent which it deems expedient; and so far as it is exer-
cised, and no farther, the regulations effected supersede
those of the State which are inconsistent therewith.’ ” Id.,
at 9 (quoting Ex parte Siebold, 100 U.S. 371, 392 (1880)).
The words “ ‘Times, Places, and Manner,’ ” we have said,
are “ ‘comprehensive words’ ” that “ ‘embrace authority to
provide a complete code for congressional elections.’ ”
Tribal Council, supra, at 8–9 (quoting Smiley v. Holm, 285
U.S. 355, 366 (1932)). That “complete code” includes the
constitutional authority to enact “regulations relating to
‘registration.’ ” Ibid.; see also Cook v. Gralike, 531 U.S.
510, 524 (2001) (same); Roudebush v. Hartke, 405 U.S. 15,
24–25 (1972). That is precisely what §8 does.
Neither does §8 tell the States “who may vote in” federal
elections. Tribal Council, 570 U.S., at 16. Instead, §8
considers the manner of registering those whom the State
Cite as: 584 U. S. ____ (2018) 19
BREYER, J., dissenting
itself considers qualified. Unlike the concurrence, I do not
read our precedent as holding to the contrary. But see id.,
at 26 (THOMAS, J., dissenting). And, our precedent strongly
suggests that, given the importance of voting in a democ-
racy, a State’s effort (because of failure to vote) to remove
from a federal election roll those it considers otherwise
qualified is unreasonable. Cf. Carrington v. Rash, 380
U.S. 89, 91–93, 96 (1965) (State can impose “reasonable
residence restrictions on the availability of the ballot” but
cannot forbid otherwise qualified members of military to
vote); see also Kramer v. Union Free School Dist. No. 15,
395 U.S. 621, 625 (1969) (“States have the power to im-
pose reasonable citizenship, age, and residency require-
ments on the availability of the ballot” (emphasis added));
Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668
(1966) (“To introduce wealth or payment of a fee as a
measure of a voter’s qualifications is to introduce a capri-
cious or irrelevant factor”).
For these reasons, with respect, I dissent.
20 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER
Appendix A to ,opinion
J., dissenting
of BREYER, J.
APPENDIXES
A
The National Voter Registration Act of 1993
“SEC. 2. FINDINGS AND PURPOSES.
“(a) FINDINGS.—The Congress finds that—
“(1) The right of citizens of the United States to vote is a
fundamental right;
“(2) it is the duty of the Federal, State, and local gov-
ernments to promote the exercise of that right; and
“(3) discriminatory and unfair registration laws and
procedures can have a direct and damaging effect on voter
participation in elections for Federal office and dispropor-
tionately harm voter participation . . . , including racial
minorities.
“(b) PURPOSES.—The purposes of this Act are—
“(1) to establish procedures that will increase the num-
ber of eligible citizens who register to vote in elections for
Federal office;
“(2) to make it possible for Federal, State, and local
governments to implement this Act in a manner that
enhances the participation of eligible citizens as voters in
elections for Federal office;
“(3) to protect the integrity of the electoral process; and
“(4) to ensure that accurate and current voter registra-
tion rolls are maintained.” 107 Stat. 77.
“SEC. 5. SIMULTANEOUS APPLICATION FOR VOTER
REGISTRATION AND APPLICATION FOR MOTOR VEHICLE
DRIVER’S LICENSE.
“(d) CHANGE OF ADDRESS.—Any change of address form
submitted in accordance with State law for purposes of a
State motor vehicle driver's license shall serve as notifica-
tion of change of address for voter registration with re-
spect to elections for Federal office for the registrant in-
Cite as: 584 U. S. ____ (2018) 21
BREYER
Appendix A to ,opinion
J., dissenting
of BREYER, J.
volved unless the registrant states on the form that the
change of address is not for voter registration purposes.”
Id., at 79.
“SEC. 6. MAIL REGISTRATION.
“(d) UNDELIVERED NOTICES. If a notice of the disposi-
tion of a mail voter registration application under section
8(a)(2) is sent by nonforwardable mail and is returned
undelivered, the registrar may proceed in accordance with
section 8(d).” Id., at 80.
“SEC. 8. REQUIREMENTS WITH RESPECT TO ADMINI-
STRATION OF VOTER REGISTRATION.
“(a) IN GENERAL—In the administration of voter regis-
tration for elections for Federal office, each State shall—
“(1) ensure that any eligible applicant is registered to
vote in an election—
. . . . .
“(2) require the appropriate State election official to
send notice to each applicant of the disposition of the
application;
“(3) provide that the name of a registrant may not be
removed from the official list of eligible voters except—
“(A) at the request of the registrant;
“(B) as provided by State law, by reason of criminal
conviction or mental incapacity; or
“(C) as provided under paragraph (4);
“(4) 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) the death of the registrant; or
“(B) a change in the residence of the registrant, in ac-
cordance with subsections (b), (c), and (d);
. . . . .
“(b) CONFIRMATION OF VOTER REGISTRATION.—Any
State program or activity to protect the integrity of the
22 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER
Appendix A to ,opinion
J., dissenting
of BREYER, J.
electoral process by ensuring the maintenance of an accu-
rate and current voter registration roll for elections for
Federal office—
“(1) shall be uniform, nondiscriminatory, and in compli-
ance with the Voting Rights Act of 1965 (42 U.S. C. 1973
et seq.); and
“(2) shall not result in the removal of the name of any
person from the official list of voters registered to vote in
an election for Federal office by reason of the person’s
failure to vote.
“(c) VOTER REMOVAL PROGRAMS.—(1) A State may meet
the requirement of subsection (a)(4) by establishing a
program under which—
“(A) change-of-address information supplied by the
Postal Service through its licensees is used to identify
registrants whose addresses may have changed; and
“(B) if it appears from information provided by the
Postal Service that—
“(i) a registrant has moved to a different residence ad-
dress in the same registrar's jurisdiction in which the
registrant is currently registered, the registrar changes
the registration records to show the new address and
sends the registrant a notice of the change by forwardable
mail and a postage prepaid pre-addressed return form by
which the registrant may verify or correct the address
information; or
“(ii) the registrant has moved to a different residence
address not in the same registrar's jurisdiction, the regis-
trar uses the notice procedure described in subsection
(d)(2) to confirm the change of address.
“(2)(A) A State shall complete, not later than 90 days
prior to the date of a primary or general election for Fed-
eral office, any program the purpose of which is to system-
atically remove the names of ineligible voters from the
official lists of eligible voters.
“(B) Subparagraph (A) shall not be construed to pre-
Cite as: 584 U. S. ____ (2018) 23
BREYER
Appendix A to ,opinion
J., dissenting
of BREYER, J.
clude—
“(i) the removal of names from official lists of voters on a
basis described in paragraph (3)(A) or (B) or (4)(A) of
subsection (a); or
“(ii) correction of registration records pursuant to this
Act.
“(d) REMOVAL OF NAMES FROM VOTING ROLLS.—“(1) A
State shall not remove the name of a registrant from the
official list of eligible voters in elections for Federal office
on the ground that the registrant has changed residence
unless the registrant—
“(A) confirms in writing that the registrant has changed
residence to a place outside the registrar’s jurisdiction in
which the registrant is registered; or
“(B)(i) has failed to respond to a notice described in
paragraph (2); and
“(ii) has not voted or appeared to vote (and, if necessary,
correct the registrar's record of the registrant's address) in
an election during the period beginning on the date of the
notice and ending on the day after the date of the second
general election for Federal office that occurs after the
date of the notice.
“(2) A notice is described in this paragraph if it is a
postage prepaid and pre-addressed return card, sent by
forwardable mail, on which the registrant may state his or
her current address, together with a notice to the following
effect:
“(A) If the registrant did not change his or her residence,
or changed residence but remained in the registrar’s juris-
diction, the registrant should return the card not later
than the time provided for mail registration under subsec-
tion (a)(1)(B). If the card is not returned, affirmation or
confirmation of the registrant’s address may be required
before the registrant is permitted to vote in a Federal
election during the period beginning on the date of the
notice and ending on the day after the date of the second
24 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER
Appendix A to ,opinion
J., dissenting
of BREYER, J.
general election for Federal office that occurs after the
date of the notice, and if the registrant does not vote in an
election during that period the registrant’s name will be
removed from the list of eligible voters.
“(B) If the registrant has changed residence to a place
outside the registrar’s jurisdiction in which the registrant
is registered, information concerning how the registrant
can continue to be eligible to vote.
“(3) A voting registrar shall correct an official list of
eligible voters in elections for Federal office in accordance
with change of residence information obtained in conform-
ance with this subsection.” Id., at 82–84.
 Cite as: 584 U. S. ____ (2018) 25
BREYER
Appendix B to ,opinion
J., dissenting
of BREYER, J.
B
The Help America Vote Act of 2002
“SEC. 303. COMPUTERIZED STATEWIDE VOTER
REGISTRATION LIST REQUIREMENTS AND REQUIRE-
MENTS FOR VOTERS WHO REGISTER BY MAIL.
“(a) COMPUTERIZED STATEWIDE VOTER REGISTRATION
LIST REQUIREMENTS.—
. . . . .
“(4) MINIMUM STANDARD FOR ACCURACY OF STATE
VOTER REGISTRATION RECORDS.—The State election sys-
tem shall include provisions to ensure that voter registra-
tion records in the State are accurate and are updated
regularly, including the following:
“(A) A system of file maintenance that makes a reason-
able effort to remove registrants who are ineligible to vote
from the official list of eligible voters. Under such system,
consistent with the National Voter Registration Act of
1993 (42 U.S.C. 1973gg et seq.), registrants who have not
responded to a notice and who have not voted in 2 consec-
utive general elections for Federal office shall be removed
from the official list of eligible voters, except that no regis-
trant may be removed solely by reason of a failure to vote.
“(B) Safeguards to ensure that eligible voters are not
removed in error from the official list of eligible voters.”
116 Stat. 1708–1710.
26 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
BREYER
Appendix B to ,opinion
J., dissenting
of BREYER, J.
“SEC. 903. CLARIFICATION OF ABILITY OF ELECTION
OFFICIALS TO REMOVE REGISTRANTS FROM OFFICIAL
LIST OF VOTERS ON GROUNDS OF CHANGE OF
RESIDENCE.
“Section 8(b)(2) of the National Voter Registration Act of
1993 . . . is amended by striking the period at the end and
inserting the following: ‘‘, except that nothing in this
paragraph may be construed to prohibit a State from
using the procedures described in subsections (c) and (d) to
remove an individual from the official list of eligible voters
if the individual—
‘‘(A) has not either notified the applicable registrar (in
person or in writing) or responded during the period de-
scribed in subparagraph (B) to the notice sent by the
applicable registrar; and then
‘‘(B) has not voted or appeared to vote in 2 or more
consecutive general elections for Federal office.’’ Id., at
1728.
“SEC. 906. NO EFFECT ON OTHER LAWS.
“(a) IN GENERAL.— . . . [N]othing in this Act may be
construed to authorize or require conduct prohibited under
any of the following laws, or to supersede, restrict, or limit
the application of such laws [including]:
. . . . .
“(4) The National Voter Registration Act of 1993.” Id.,
at 1729.
 Cite as: 584 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
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 SOTOMAYOR, dissenting.
I join the principal dissent in full because I agree that
the statutory text plainly supports respondents’ interpre-
tation. I write separately to emphasize how that reading
is bolstered by the essential purposes stated explicitly in
the National Voter Registration Act of 1993 (NVRA) to
increase the registration and enhance the participation
of eligible voters in federal elections. 52 U.S. C.
§§20501(b)(1)–(2). Congress enacted the NVRA against
the backdrop of substantial efforts by States to disenfran-
chise low-income and minority voters, including programs
that purged eligible voters from registration lists because
they failed to vote in prior elections. The Court errs in
ignoring this history and distorting the statutory text to
arrive at a conclusion that not only is contrary to the plain
language of the NVRA but also contradicts the essential
purposes of the statute, ultimately sanctioning the very
purging that Congress expressly sought to protect against.
Concerted state efforts to prevent minorities from voting
and to undermine the efficacy of their votes are an unfor-
tunate feature of our country’s history. See Schuette v.
BAMN, 572 U.S. 291, 337–338 (2014) (SOTOMAYOR, J.,
dissenting). As the principal dissent explains, “[i]n the
late 19th and early 20th centuries, a number of
2 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
SOTOMAYOR, J., dissenting
‘[r]estrictive registration laws and administrative proce-
dures’ came to use across the United States.” Ante, at 1–2
(opinion of BREYER, J.). States enforced “poll tax[es],
literacy tests, residency requirements, selective purges,
. . . and annual registration requirements,” which were
developed “to keep certain groups of citizens from voting.”
H. R. Rep. No. 103–9, p. 2 (1993). Particularly relevant
here, some States erected procedures requiring voters to
renew registrations “whenever [they] moved or failed to
vote in an election,” which “sharply depressed turnout,
particularly among blacks and immigrants.” A. Keyssar,
The Right To Vote 124 (2009). Even after the passage of
the Voting Rights Act in 1965, many obstacles remained.
See ante, at 2 (opinion of BREYER, J.).
Congress was well aware of the “long history of such list
cleaning mechanisms which have been used to violate the
basic rights of citizens” when it enacted the NVRA.
S. Rep. No. 103–6, p. 18 (1993). Congress thus made clear
in the statutory findings that “the right of citizens of the
United States to vote is a fundamental right,” that “it is
the duty of the Federal, State, and local governments to
promote the exercise of that right,” and that “discrimina-
tory and unfair registration laws and procedures can have
a direct and damaging effect on voter participation . . . and
disproportionately harm voter participation by various
groups, including racial minorities.” 52 U.S. C. §20501(a).
In light of those findings, Congress enacted the NVRA
with the express purposes of “increas[ing] the number of
eligible citizens who register to vote” and “enhanc[ing] the
participation of eligible citizens as voters.” §§20501(b)(1)–
(2). These stated purposes serve at least in part to coun-
teract the history of voter suppression, as evidenced by
§20507(b)(2), which forbids “the removal of the name of
any person from the official list of voters registered to vote
in an election for Federal office by reason of the person’s
failure to vote.” Ibid.
Cite as: 584 U. S. ____ (2018) 3
SOTOMAYOR, J., dissenting
Of course, Congress also expressed other objectives, “to
protect the integrity of the electoral process” and “to en-
sure that accurate and current voter registration rolls are
maintained.” §§20501(b)(3)–(4).* The statute contem-
plates, however, that States can, and indeed must, further
all four stated objectives. As relevant here, Congress
crafted the NVRA with the understanding that, while
States are required to make a “reasonable effort” to re-
move ineligible voters from the registration lists,
§20507(a)(4), such removal programs must be developed in
a manner that “prevent[s] poor and illiterate voters from
being caught in a purge system which will require them to
needlessly re-register” and “prevent[s] abuse which has a
disparate impact on minority communities,” S. Rep. No.
103–6, at 18.
Ohio’s Supplemental Process reflects precisely the type
of purge system that the NVRA was designed to prevent.
Under the Supplemental Process, Ohio will purge a regis-
trant from the rolls after six years of not voting, e.g., sit-
ting out one Presidential election and two midterm elec-
tions, and after failing to send back one piece of mail, even
though there is no reasonable basis to believe the individ-
ual actually moved. See ante, at 14 (BREYER, J., dissent-
ing). This purge program burdens the rights of eligible
voters. At best, purged voters are forced to “needlessly
reregister” if they decide to vote in a subsequent election;
at worst, they are prevented from voting at all because
they never receive information about when and where
——————
* The majority characterizes these objectives as ones to “remov[e]
ineligible persons from the States’ voter registration rolls,” ante, at 2,
but maintaining “accurate” rolls and “protecting the integrity of the
electoral process” surely encompass more than just removing ineligible
voters. An accurate voter roll and fair electoral process should also
reflect the continued enrollment of eligible voters. In this way, the
NVRA’s enhanced-participation and accuracy-maintenance goals are to
be achieved simultaneously, and are mutually reinforcing.
4 HUSTED v. A. PHILIP RANDOLPH INSTITUTE
SOTOMAYOR, J., dissenting
elections are taking place.
It is unsurprising in light of the history of such purge
programs that numerous amici report that the Supple-
mental Process has disproportionately affected minority,
low-income, disabled, and veteran voters. As one example,
amici point to an investigation that revealed that in Ham-
ilton County, “African-American-majority neighborhoods
in downtown Cincinnati had 10% of their voters removed
due to inactivity” since 2012, as “compared to only 4% of
voters in a suburban, majority-white neighborhood.” Brief
for National Association for the Advancement of Colored
People et al. as Amici Curiae 18–19. Amici also explain at
length how low voter turnout rates, language-access prob-
lems, mail delivery issues, inflexible work schedules, and
transportation issues, among other obstacles, make it
more difficult for many minority, low-income, disabled,
homeless, and veteran voters to cast a ballot or return a
notice, rendering them particularly vulnerable to unwar-
ranted removal under the Supplemental Process. See
Brief for Asian Americans Advancing Justice | AAJC et
al. as Amici Curiae 15–26; Brief for National Disability
Rights Network et al. as Amici Curiae 17, 21–24, 29–31;
Brief for VoteVets Action Fund as Amicus Curiae 23–30.
See also Brief for Libertarian National Committee as
Amicus Curiae 19–22 (burdens on principled nonvoters).
Neither the majority nor Ohio meaningfully dispute that
the Supplemental Process disproportionately burdens
these communities. At oral argument, Ohio suggested
that such a disparate impact is not pertinent to this case
because respondents did not challenge the Supplemental
Process under §20507(b)(1), which requires that any re-
moval program “be uniform, nondiscriminatory, and in
compliance with the Voting Rights Act.” Tr. of Oral Arg.
23. The fact that respondents did not raise a claim under
§20507(b)(1), however, is wholly irrelevant to our assess-
ment of whether, as a matter of statutory interpretation,
Cite as: 584 U. S. ____ (2018) 5
SOTOMAYOR, J., dissenting
the Supplemental Process removes voters “by reason of the
person’s failure to vote” in violation of §20507(b)(2). Con-
trary to the majority’s view, ante, at 20–21, the NVRA’s
express findings and purpose are highly relevant to that
interpretive analysis because they represent “the assumed
facts and the purposes that the majority of the enacting
legislature . . . had in mind, and these can shed light on
the meaning of the operative provisions that follow.” A.
Scalia & B. Garner, Reading Law 218 (2012). Respond-
ents need not demonstrate discriminatory intent to estab-
lish that Ohio’s interpretation of the NVRA is contrary to
the statutory text and purpose.
In concluding that the Supplemental Process does not
violate the NVRA, the majority does more than just mis-
construe the statutory text. It entirely ignores the history
of voter suppression against which the NVRA was enacted
and upholds a program that appears to further the very
disenfranchisement of minority and low-income voters
that Congress set out to eradicate. States, though, need
not choose to be so unwise. Our democracy rests on the
ability of all individuals, regardless of race, income, or
status, to exercise their right to vote. The majority of
States have found ways to maintain accurate voter rolls
without initiating removal processes based solely on an
individual’s failure to vote. See App. to Brief for League of
Women Voters of the United States et al. as Amici Curiae
1a–9a; Brief for State of New York et al. as Amici Curiae
22–28. Communities that are disproportionately affected
by unnecessarily harsh registration laws should not toler-
ate efforts to marginalize their influence in the political
process, nor should allies who recognize blatant unfairness
stand idly by. Today’s decision forces these communities
and their allies to be even more proactive and vigilant in
holding their States accountable and working to dismantle
the obstacles they face in exercising the fundamental right
to vote.