Husted v. A. Philip Randolph Institute (16-980)

argument 16-980

Husted v. A. Philip Randolph Institute

Supreme Court of the United States 1h 6m 5 speakers 6 chapters transcribed 6 days ago official recording ↗

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What is the NVRA and how does it balance voter registration goals?

John G. Roberts 0:00

We'll hear argument this morning in Case 16-980, Houston v. the A. Philip Randolph Institute. Mr. Murphy?

Alan Charles Raul 0:10

Mr. Chief Justice, and may it please the Court, Congress passed the NVRA to serve competing goals, increasing the number of eligible registered voters but decreasing the number of ineligible ones. And this congressional compromise is evident in the statute's conflicting mandates. It both requires states to undertake general programs to remove ineligible individuals, but at the same time places limits on those federally mandated removal programs, including that states may not remove individuals for changed residents unless they fail to respond to a notice and to vote over to federal elections.

Unknown 0:48

I know you have the exceptions clause in B-2. Would your case have been stronger today? Without the enactment of Section B? Without the – In

Alan Charles Raul 1:01

other words, could you rely just on A and D? If there was no – If there were no B at all. I think, certainly, I think that if there is no failure to vote clause, that's one of the main prohibitions on which they're relying. But I think you have to interpret B in light of D, of course. And D clearly indicates that we, if we, so long as we send individuals a notice and so long as we wait two federal elections before we remove them, that that is acceptable.

Elena Kagan 1:37

So why bother?

Alan Charles Raul 1:38

Because of the accept clause. Well, because you have to interpret the substantive provision in B-2, the failure to vote clause, in a way that reconciles it with the use of failure to vote. And only our position interprets B in a way that allows the back-end use of non-voting in D.

Unknown 1:57

Mr. Murphy, the act itself gives a safe harbor provision that triggers the confirmation, the notice. Yes. And that safe harbor provision doesn't rely at all on failure to vote. It relies on post office change of address form. So isn't that some clue, the safe harbor, that Congress didn't want failure to vote to be a trigger for this procedure?

Alan Charles Raul 2:30

I don't think so, Your Honor, because I think that is a safe harbor for something completely different. They treat it as a safe harbor for meeting an implicit element in deed that a state have objective evidence that an individual has moved. But that element is not there. In fact, the Postal Service provision is a safe harbor on the other side of the balance between removing ineligible voters and keeping eligible voters on the roll. This

Elena Kagan 2:53

is a very complicated system for a very simple position. If you have any reason to believe someone has changed address, just send them a notice. And after two election cycles, disqualify them. Why have the post office provision at all? Why have any other provision? As it is, I understand Ohio now is not waiting for people to miss two election cycles. They're waiting — every year they're purging, right?

Alan Charles Raul 3:23

No. We run the notices every year, but we

Elena Kagan 3:29

still wait the — Any time, any place, and if someone fails to respond to it, you can purge them. Isn't that your position?

Alan Charles Raul 3:44

No, no. Our position is the notice gets sent out. If they respond, then obviously you can't out- My

Elena Kagan 3:51

point is you don't even need the failure to vote two years to use the notice.

Alan Charles Raul 3:56

That's right, because a statewide canvas would not be based on failure to vote whatsoever. And so that's why they have to read into D- an element that they just make up from whole cloth, which is that they have objective evidence of a move for sending the notice.

Elena Kagan 4:12

The Senate report that supported the NVRA explicitly says that what they wanted to avoid was a mailing that is unresponded to, being a cause for removing someone. So if that was its purpose — Why wouldn't it make sense that the only reason that you can send the notice is if you have some reasonable basis to believe someone has moved? Failure to vote can't be it because the Senate report says that they believe that failure to vote was a constitutional right. You have a right not to vote.

Alan Charles Raul 4:52

So there's a couple points there. The first was, what if people do not respond to the notice? I agree that there is a Senate report suggesting that they were concerned that people would be removed merely for failing to respond, but Congress did not put an objective evidence element into the D procedure in response to that concern.