16980 husted versus the a. Randolph institute. Mr. Murphy . Mr. Chief justice and may it please the court. Congress passed evra to serve competing goals increasing number of registered voters and decreasing the number of ineligible ones and this congressional compromise is evident in the statutes 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 from changed residents unless they fail to respond to a notice or to move federal elections. I know you have the exceptions clause in b2. Would your case have been stronger without the enactment of section b . Without the in other words, can you rely just on a and d . If there was no if there were no b at all. Certainly, i think if there was no failure to vote clause that was one of the main prohibitions andio you have to interpret b in light of d, of course and d clearly indicates that 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. So why bother because of the except clause . Well, because you have to interpret the substantive provision in b2, the fall you are to vote clause. Right. And the way it reconciles it with the failure to vote and only our position interprets b in a way that allows the back end use of nonvoting in d. Mr. Murphy, the act itself has a stave issuer provision that triggers the confirmation and notice and that Safe Harbor Provision doesnt rely at all on failure to vote. It relies on post office change of address form. So isnt that some clue, the safe harbor which congress didnt want failure to vote to be a trigger for this proceed snur. I dont think so, your honor because that is safe harbor for something completely different. It was d that the state have objective evidence that the 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 them on the roll. This is a 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. Every year theyre purging, right . No. We run the notices every year, but we still wait you have taken the position in your brief that you really dont need anything. You need you could send out a notice any time, any place and if someone fails to respond to it you can purge them. Isnt that your position . No. No. Our position is the notice gets sent out. If they respond then obviously, you can my point is you dont even need the failure to vote two years to use the noteis. Thats right. Because a statewide canvas would not be based on failure to vote whatsoever and thats why they have to read into d an element that they make up from whole cloth which is that they have objective evidence of a move for sending a notice. 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 wouldnt it make sense that the only reason you can send the notice is if you have some reasonable basis to believe someone has moved . Failure to vote cant be it because the Senate Report says that they believe the failure to vote is a constitutional right. You have a right not to vote. The first is what if the people dont respond to a notice. There was a Senate Report suggesting that people would be removed merely for failure to respond, but congress did not put objective evidence in response to that concern. They put in the safe harbor with the fail safe vote ok the back end. So if an individual doesnt respond they still have two federal elections in which they can show up to vote. So thats how they dealt with that provision. With respect to failure to vote, i think the legislative history is quite clear that the concern was removing individuals, mainly for failure to vote in the recent election and thats what the report says on page 17. What are the three provisions having to do with the post Office Notice . That seems like a very reasonable why is that because that is the minimal effort on the other side of the balance. As i was trying to mention to justice ginsburg, that is the safe harbor for the states obligation to engage in maintenance efforts. A4 says that the states have a duel to remove ineligible voters and c begins by saying you can meet your obligations to remove ineligible voters. Its the minimum on the one side of the balance. But general, if i can take you back to Justice Ginsburgs question because it seems you are effectively turning hd1 into a kind of safe harbor in this sense. 181 says stho these confirmation procedures is a permissible part of the program even though theyre about not voting so thats good that ad1s that and youre trying to convert it to something bigger and broader. If you use the procedures your entire program will be insulated from criticism even though there is another part of your program that explicitly relies on nonvoting, and i dont see that in any way being the point of hd1 which says sure, you can have a part of the program that does this and turn it into a much bigger and broader safe harbor for everything that you do. My response is you have to invoke the fail our vote clause in a way that would not prohibit what 8d requires and it would have the use of nonvoting and we have the proximate cause argument for why the failure to response to the notice breaks the causal link and there was this debate in the 1990s. I must say i dont understand. I think this is a little bit of a different question, but since you raised it, the proximate cause argument i dont understand because essentially what the ohio program does is it says nonvoting, failure to respond, nonvoting and youre trying to pick out the middle piece of that and say thats the only prok mximate cause and tha not what we think of proximate cause in any area. The proximate cause is a flexible. No argument on that. Sure, there is a proximate cause test and there could be more than one proximate cause in the world. Sure, the court says you have to pick the proks cximate causet picks the statute. The failure to vote and the best way to reconcile b and d is to say that the failure to response to the notice breaks any causal prohibition between failure to vote and removal. Why do you need the proximate cause argument at all . What the statute says is someone may not be removed from the west by reason of the persons failure to vote . It cant mean, but for cause because then it would run it and the statute itself takes failure to vote into account in d. Thats one of the things that is necessary in rd order for someone to be removed from the list, so it cant be but for, and in the hava, congress used the term solely, so why isnt the best interpretation of this that one cannot be removed from the list solely because of failure . Thats absolutely correct. The court said one component of a proximate cause test was the sole isnt that just adding a word into the statute that congress wrote . Congress said by reason to vote. There are multiple places in the u. S. Code where Congress Wants to say solely by reason and Congress Says it. It means Something Different because there are lots of situations in which two components together caused something and so to add that word solely is to change the meaning of the statute and that word is not in this provision. We think its the best reading to reconcile the two provisions. The solely and the hava and the nvra . No, the b and d, to reconcile the two provisions and solely clause from hava was not the only provision adopted and hava, when it added that clause, also added the clarifying agreement. Everybody is looking for a way to reconcile these two provisions and theyre, like, okay. What do we do with these . But why isnt the obvious way to reconcile the two provisions to say, look, youve got this failure to vote clause, but dont think that this failure to vote clause bars a state from using the confirmation procedures. It doesnt bar the state from using a confirmation procedure and that could be a part of the state program and thats a way to reconcile the two things. Taken on its own, the failure to work clause bars the confirmation procedures. The confirmation procedures says no, not these. That may be one way to reconcile it. Our way is one way to reconcile it. The states debated the federal government on this precise issue throughout the 1990s and then congress intervened and reconciled it with the addition of the solely clause and the lava provision. So the clause in hava is completely independent provision and a completely individual statute and its not the clarifying commitment that we talked about and its a part of a different provision and a different statute and dealing with the related and different subject matter and there would be no reason to take one provision that takes solely sxsz because that provision says solely, were going to treat this provision to also say solely, in fact, we have a rule against that in statutory interpretation. Usually, we say Congress Knows how to do a solely provision, but it didnt do it here. In the same law, in the hava law in the computerized list maintenance for statewide programs that uses solely and with respect to the failure to vote clause and the nvra it adopted a clarification amendment that said except that nothing in this provision shall be construed from using the provisions from c and d and you have to interpret the claire if i kagz amendment. Thats exactly what the clarifying amendment says. Youre exactly right. It says dont interpret the failure to vote clause as preventing use of the confirmation procedures and thats my point about how these two things are reconcilable. The clarifying amendment says how theyre reconcilable. Im sorry. Dont interpret the failure to vote clause as barring the confirmation procedures. States can use the confirmation procedures and that doesnt mean that they can do anything else that they want to on top of the confirmation procedures. Its a rule of clarification. So it says you have to construe b2 and combined with the solely clause makes quite clear that you have to interpret the language in some way to break the causal link between voting and removal that is required and d, i and interpreting it to be the sole cause is the way to accomplish that feat. I think thats why there was a clarification amendment on the one hand, and b, in the solely clause, and i also think the public context is important here. Did we get to the essence of this case . It appears that what youre reading is the failure to vote is enough evidence to suggest that someone has moved. That seem to be your position. Because it can be the only one, but is that a reasonable effort to draw that conclusion when you do results in disenfranchising, disproportionately certain cities where large groups of minorities live, where large groups of Homeless People live and across the country theyre the group that votes the least in large measure because many of them work many long hours and without the golden week that ohio rescinded, many of them cant vote because the polls are not open while theyre not working and places like cleveland have very, very long lines of of voters trying to vote. All of these impediments result in large numbers of people not voting in certain spots in the state. So if the word reasonable effort has any meaning, with the congress who said that the failure to vote is a constitutional right how can we read this statute to permit you to begin a process of disenfranchising solely on the basis of that with no independent evidence whatsoever that the person has moved. You can use the post office, they tell you that. You can use certified mail. You could use juror change of addresses. You can use driver license, Motor Vehicle change of addresses. There are dozens of other ways that you could verify a change of address, yet youre suggesting that using a failure to appear at an election or elections as evidence of moving when people have a right not to vote if they choose. Many have, and others like the veteran who is a plaintiff in this case explains the reason yes he failed to vote in two elections. I have to give the meaning the words that Congress Said. Dont use the failure to vote that results in someone being disenfranchised. I dont understand how you can say that the failure to vote can be used as the sole basis for sending out notices. Its not a reasonable inference, so how can it be a reasonable effort . The failure to vote clause says failure to vote cannot be the sole basis for removal and the notice, and it says nothing about sending a notice and within subsection d congress identified the minimum evidence that it thought was sufficient for the states to remove individuals for failure to respond. So if thats minimal, dont you think that maximum should see something a little bit more than the failure to vote . Well, it does. A change in the residence in accordance with b, c and d, and b has you using the post office, correct . C. C has you using the post office. B says shall not be removed shall not result in the removal of the name of a person from any official list registered to vote in election for federal office by reason of the persons failure to vote. Thats correct and if you interpret that to be a sole proximate cause test then ours does not satisfy it because nobody is removed solely when . Exactly. Theyre removed if they fail to respond to a notice and fail to vote for six years which is more than the so please, plain to me why a change of address is reasonable. What are the statistics that show that the vast majority of people that you disenfranchise from voting that you strike from the election roles have actually moved. There is no statistical evidence that is necessary because congress made a determination of what evidence is necessary and that determination. No, when it gave you an example it gave you an example. And that was meeting our minimum duty on the other side, to know there say minimum duty and minimum amount of voters so there is a minimum requirement on the voter who gets your notice to respond. Absolutely the statute places a requirement on the voter. But thats after you have evidence that theyve actually moved . No. Theres nothing in the statute that suggests there are limitations on the trigger. With respect to minorities, i would add, by the way, that our position is not at all b1 Congress Responded to that concern and suggesting that the process must be uniform and nondiscriminatory thats the problem. There is a strong argument that the impact is discriminatory. I understand that some dont believe in impact, but you have to look at it to determine but they didnt raise a b1 claim. We are under here today under the failure to vote clause. Ill give you a couple more minutes so you can get more of your argument out. Thank you, your honor. I would really like to get back to the public context of which the hava provision was evidence because it is quite powerful. On the one hand you had states from 1994 all of the way up to the hava amendment, debating the department of justice and whether the process is just like ohios were permissible. On the other hand, you had nobody. There was nobody that made the argument that b could somehow be read to make d inoperative. Under our view the clarification in hava was designed specifically to address the longstanding debate that started even before the statute became effective and states were suggesting that they should engage in approaches like ohios and all of the way to the final fec report where south dakota suggested clarifying the nvra thats helpful to the states here and hava was passed and it had two provisions and it had the clarifying amendment on the one hand and it had the related provision stealing with statewide maintenance which is effectively a comparable decision. I think we have both of those together. You get the notice, as i understand it, if you miss just one collection. Thats incorrect. If you have no voter activity over a twoyear period which would include one general election and one offyear election and any primary elections, as well. Are there other states who do it just like ohio . There are many states who i think around eight, that use failure to vote as the trigger for the notice. I dont some use two. Some use three years some use four years, and the problem about my friends position on the other side is it would not only outlaw on other states and those who use failure to vote, it would outlaw any state that takes into account fail our vote on the front end and that includes many states that target individuals who have not voted recently with a nonaffordable mailing and respond to that nonaffordable mailing with the confirmation notice for any individuals who the nonaffordable mailing has bounced back to. That would be equally prohibited under the logic of their argument here today because they are say anything frontend use of nonvoting would be illegal. Thank you, counsel. You have a couple of minutes for rebuttal. General francisco. Mr. Chief justice and may it please the court and if i can begin with Justice Kennedys question. We think that ohios process was permissible before congress enacted the clarification amendment in 2002 and the it made it clearer for two basic reasons. First, sections 8c and 8d, thats the Postal Service process and the notice process require thats nonvoting be the immediate cause for removal. The only way you can construe 8b2 is not prohibiting that is if 8b2 is limited by solely by reason of their failure to vote and second, this reflected a significant shift in the federal state balance at the time. Prior to the nvra, many states remove people solely for failure to vote and others had processes that were far less protective than ohios notice process and none of them had a fouryear waiting period and what the nvra did was require everybody to improve their processes well beyond what they were before the nvra was passed and beyond that, the states flexibility and theres nothing in the statute that reflects within the flexibility states are barred from using a nonvoting trigger in conjunction with the process. General, can you tell me, there is a 24year history of solicitor generals of both Political Parties under both president s of both Political Parties who have taken a position contrary to yours. Before the amendment and after the amendment. In fact, the federal Election Commission when it wrote to congress with respect to the help america vote act took the position the old solicitor generals were taking and everybody but you today come in and say the act before the clarification said Something Different. It seems quite unusual that your office would change its position so dramatically and i might accept it if you thought that the help america vote act in fact clarified something that was ambiguous, but youre taking a very different position. You are saying even before that act it was clear you could do it this way. Your honor, what im saying is i think that the help america vote act and the clarification amendment made it even clearer and after that so please explain the change of position. Sure. After that many president s and that many solicitor generals and this many years, the vast majority of states and over 35, over 40, actually, who read it the way your opponents read it, most people readed it that way. How did the solicitor general change his mind . Do you believe this doesnt have an impact, a negative impact on certain groups in this society . Your honor, i believe that after Congress Passed the clarification amendment it clarified what was at the time an ongoing debate between the department of justice and the states and the only plausible way to read that public context and with respect to some members of this court, public context is not legislative where in the legislative history people say that with absolute clarity. As i understand the legislative history, both sides are saying in its history this helps us. And, your honor its as ambiguous as the language may be. Public context is not legislative history and the most die hard texturalists and i would refer to branch versis smith and what provides texturists and that public context makes clear that the only thing that was in need of clarification at the time that the clarification amendment was passed was precisely this question, whether states like ohios could use a nonvoting trigger in conjunction with the 8d process and theres nothing in this statute that bars that. I think it reflects the balance that congress was trying to strike in the mbra between on the one hand dramatically increasing the number of voters on the voter rules, but on the other, giving states the flexibility they need to manage the issues that arise when you have overinflated voter rules. Was it the position of the United States. I thought it was, but correct me if im wrong. I thought the United States was taking the position consistently that nonvoting was nota a reliable indicator of residents change . Thats partly correct. Our prior position was based on an understanding of the statute that read into it a reliable evidence requirement and we said that nonvoting was not that kind of reliable evidence. Our current position is that when you look at the statute theres simply no way to read into it and a reliable evidence requirement thats found nowhere in the text and that congress, in fact, rejected and again, it reflects this federal state balance where 8b2 and 8d set a very protective floor and required everybody to be far more protective of voters than before the act was passed and they left the states with flexibility over the management of the list Maintenance Programs precisely so they could address the other side of the compromise which was giving states the flexibility they need to address the issues that arise when you have bloated voter rules. General, it would be right i think you acknowledge this that if your position is correct that the failure to vote clause simply doesnt apply to removal programs for a change of residence, is that correct . Your honor of course, all of those programs have to use the confirmation procedures and your position is that if you use the confirmation procedures thats basically thats an out for everything . Thats correct, but it does have much broader application. Not much broader application because how could you possibly use failure to vote for, you know, mental incapacity or criminal convictions. What broader application does it have . It does a couple of things and once of the principal issues at the time the nvra was passed was this states with a use it or lose it mentality to the right to vote. You either exercise it or you lose it. They definitely wanted to take that off the table. The other thing they wanted to do is make sure you couldnt use failure to vote to conclusively i guess what im asking general is two related questions. Number one, if the effect of your position is to say, look, we dont need this failure to vote clause to apply for programs for change of residence, why didnt Congress Just say that . Number one. And number two, i can see the point that it doesnt make the failure to vote clause completely meaningless, but im still looking for the place where it has some real impact on anybodys voting programs. I think and this comes out in some of the legislative history, prior to nvra, states used failure to vote as proxy for the whole grounds of removal. They didnt tie it to this basis or that basis and congress was very concerned about simply relying on failure to vote. So they wanted to take it completely off the board and b2 is the only provision in the statute that takes it completely off the brord aoard and says no can ever be removed merely for their failure to vote but when you combine it with the very protecti protective process that congress set and to require everyone to improve procedures, there is nothing to clarify that and the with due respect, general, i dont think you answered any of the two questions that i asked you. I will try again. Why wouldnt they just have said the failure to vote clause doesnt apply to where a state uses the failure to vote procedures. I dont know. And i would say the nvra isnt something i would use up for a paradigm. Okay, so the second question is, what is left for the failure to vote clause practically speaking . It takes completely off the table using failure to vote as a conclusive prezujs for any other ground of removal. What other ground are we talking about . Nobody used it as prezujs for mental incapacity. Legislative history makes it clear that prior to nvra they used it for presumption well, didnt they say, if you didnt use it for a certain amount of time, that makes your name off the grounds of eligibility list. Thats true. And thats why it is meant to address both issues. Those states with the use it or lose it mentality, you cant do that. The states that conclusively resume some other basis has been met. Here, ohio joins the initial ve failure to vote with the very process that congress established for determining whether someone has been removed from voter roles. With respect to the notion that somehow 8d1b sets apart, it clearly does. If you look at section 8d, there are two provisions. 8d1a which allows to you remove somebody if they notified you to move. Clearly standalone process. Simply the core larry to that, if you havent notified us, there is another process states can use to make that determination. Thank you, general. Thank one mr. Chief justice. Mr. Smith . May it please the court, i think it is important to recognize that it violate section 8 in two distinct ways. This also violate 8a. There slas of fois four bases a it bar estates from doing it under any other circumstances. In the supplemental process the way it is design said assures that many indeed probably most of the people who purged have not moved let alone move to a different county or state which are the only moves that justify purge mr. The plaunder the plai terms of the nvra. Is that what ohio does, does it say failure to vote is ground for removal or does it say that moving out of the district is a ground for removal and failure to vote plays a part a part in determination of whether or not the person moved out of the jurisdiction. It is evidentiary. Not the ground for removal in and of itself p. They do say they use chains of rez diprovision of 8a and thats what they are trying to justify the supplemental process with. If in fact it doesnt do that then it becomes illegal. The reality is that the failure to vote for two years tells us almost nothing about whether or not anyone moved. Ohio voters routinely dont move over two years. I understand that. Suppose the stat statute says if you havent voted for 20 years then we will send out the notice. Would you say that violate this act . Plainly violate the act, your honor. The act says you cant use failure to vote as the reason for perthing somebody prt roles. The supplemental process says we think the reason this person move said because they havent voted. It is the only person of evidence they have when they purge someone is that they moved. You think if someone hasnt voted for 20 years that that doesnt raised the inference that person moved . In the legislative history they rejected amendments like that. Even rejected a 100year rule. They said we dont want failure to vote to be the basis for why people are perthed. That isnt even enough to spark inquiry by sending a postcard . Saying, if in fact, you have just decided you didnt want it vote for 20 years but keep your name on the list and youre still in the district, send this back. That would be illegal . Were talking about the people who dont send it back which is the large majority of people. When you dont get the notice back that tells you nothing about whether the person moved. The only evidence they have that the person has move said that they arent voting. It is the sole reason they are purged. If not getting notice back tells you nothing, why did Congress Make that part of the determination . A safeguard, notice provision, warning to the voter that their registration status is at risk and it gives them two options. They can send it back, if they havent moved and want to tell them im still there. Or it says, you dont have to send it back. You can just vote some time in the next four years. Reality is, most people dont send it back. The statistics ohio provided, they do this every two years, page 63, they say, here is what happens to the confirmation notices. In 2011, sending out 1. 5 million of these confirmation notes. What are they supposed to do . Every year, a certain number of people die and every year a certain number move to california. All right . We dont want them on the voter role. That used to be a big problem voting dead people. Okay . What should the state do . The dead people arent a problem. They are an authoritative list. They went in died in hawaii, or alaska, or tasmania. Is rhode island supposed to look at tasmanian voting records or hospital records . This is a serious question. I dont think there is no answer to it. Realistic about the death issue, there are ways that people are informed. What . Lists maintained by the federal government. They dont defend this as a way to i want to know where they are. Im very ignorant of this. Im in rhode island. I see the statute. I know some people have died. Maybe in rhode island. Maybe outside. Maybe they moved to california. I dont want them voting in my state or people pretend tock them voting in my state. What do i do . I do not have a detailed understanding of this. It wasnt part of the issue for this case. I understand there is national dwrat ba data baits in the United States that show the people who have died. The department of Motor Vehicles has a way to update your drivers license. If you move from cincinnati to cleveland, youre fine. How often do people change their drivers license . Well if they move, they have ten days. When they move to another county or state they post forwarding address with the post office. That address on an annual basis gets compared to the statewide data base and those people get taken care of long before is that statistics or just common sense argument. Does that show that . Show what, your honor . When you move it no, just common experience. Certainly the state does not have statistics they ever suggested. Im sorry, mr. Smith. I thought i read 40 or 50 . Statistic is that 40 of the mail is returned as undeliverable is because people have not posted a forward address. It is more likely to be a smaller percentage of people who dont do that when they move to a different county or state. Under your interpretation, could ohio send address notification to the entire electorate and do what it is doing . Affordable ones under the confirmation process, if they did that to the entire electorate, it wouldnt violate, but it would violate 8a. So using general mail to everybody wouldnt effect the outcome in your view . No. Because what happens is if 70 of the people dont return them. Thats what statistics show about notices in 2011. 20 returned undeliverable. 1. 2 million through them in the circular file. The reason im asking these questions is because i dont believe congress would have passed a statute that would prevent a state from purging a role of people that have moved out of the state. What does the state do for the latter objective and suppose they send a card which says, no forwarding. Dont forward. And their theory of that is if the person has moved, and they wait long enough, and send it a couple of times, the post office will send it back. Thats the precise system that 14 or so states use to identify people have moved. It is not forwardable because it comes back and you think thats okay . The Justice Department do you think thats okay . I think its okay too. Okay. I got my answer. Can i add one thing to it . I would like it add that because they dont want to send nonforwardable cards to anyone since its expensive in a state like california might cost several tens of millions of dollars. What they do is send the nonforwardable cards to people who havent voted for three or four years. Now is it okay . If they only proceed to purge people when it comes back and says no longer at this address. Undeliverable. I think it is fine. It is not based on nonvoting. It is con greet reliable evidence. I would have thought that it is inconsistent with the rest of your argument that says whats wrong with this case is that they use failure to vote to trigger sending of the notice. I think that you could different reasonable people could differ about this. I think when have you an intervening cause that says this person moved, just as when they return and then it is okay. The reason they got the notice is nonvoting. You have concrete information that says this person moved. The response is really just the substance of your argument which is still triggered by the failure to vote and law says you cannot use failure to vote in one of these processes. I think the law says failure to vote cant be the reason youre purging them. When the only evidence you have at all when they havent moved is nonvoting then that is clearly the reason youre purging them. The reason they are purging them is they want to protect voter rules from people who have moved and are voting in the wrong district. Thats the reason. What we are talking about are the best tools to implement that reason to implement that purpose. Congress thought the worst thing to do is not look at who is voting. Congress knew that there are vast numbers of people who choose not to vote. And that that was there for a terribly inaccurate way to identify people who have move end it also said very specifically people, so it is unfortunate for people not to vote but they have the right not to vote. While voting is a right people have an equal right not to vote. Is that true . You think there is a constitutional right not to vote . This is a stat story right here, your honor. There are many democracies that allow you to vote. You get a fine if you dont vote in other places. A good idea given the low voter turnouts in our country that we adopt Something Like that as well. You think that is unconstitutional. In the nonlibertarian brief filed, a First Amendment act, and just as you have a right to vote, protected by the First Amendment, a right not to vote because you dont want to vote for any of those candidates would be protected as well, i would think. W we have safe harbor, you use the post office in change of address, what else do be the trigger . Theres the nonforwardable mail. The noational change of address. Dmv records. People reregister. Thats required by section 5 of nvra. Ohio does that before it gets to ncoa process. There are interstate data bases. The eric system is the state of the art interstate data base that lists everybody who goes somewhere else and registers or a drivers license and some other state. All of that is available to the state of ohio. And i think it is important, as well, to understand the small number of people that they say they are looking for with the supplemental process. This is very important subject. There are strong arguments on both sides. Congress struck a compromise. What we have before us is a question of statutory interpretation. Not a question of what we think would be the ideal system. For eye chiefing the result or removing people who have moved from the voter lists. And you havent said very much about the language of the statute. Yes, your honor. If by reason of a persons failure to vote is not but for cause, how do you get around the language of b2 . The language of b2 i think strongly supports our position because what it says is you cant use a system using nonvoting are for the reason for purging somebody except you can use c and d which is to say you can use the process so nonvoting can come into play at end of the process and not the beginning of the process. Thats not what b2 says. It doesnt say you cant use failure to vote except that you can do what is set out in c and d. What it says is that the principle that you cant use failure to vote and may not be construed to prohibit. So it tells you how to interpret the first part of d2. It is an an exception no the first part of b2. It is an explanation that one kind of consideration of nonvoting, is the nart comes in at the end of the process and they went on to emphasize the sequence. Saying a, they have not responded and then, they have not voted for two consecutive elections. Thats very clearly what congress was trying to preserve and to eliminate the tension, perceived tension between b and d. It says that it is all right if you follow either c or d. C and d, your honor. Well, it says you think you have to follow c and d . Thats not what it says. You have follow Something Like c. Clearly congress anticipated there would be something to tell you they have moved before you go into confirmation process. Theres confirmation process because if they dont get the notice back, of no evidence at all, about whether they move from the notice, and four more years of nonvoting. Precisely the thing Congress Said shouldnt be the reason you purge somebody. The whole system only makes sense if you assume there is Something Like the ncoa process or some other indication that they have moved before you put them into the process. If you dont have that, you will vastly overpurge people. Which is what ohio does. They are put into the process where 70 of them dont send back the notice and four more years of nonvoting, you end up with you just told me it doesnt matter how many years is required by the trigger. It could be 10, could be 20. Yes, thats what the statute says. Where . It says two things. A, dont purge people unless you think they have good reason to think they moved . Not voting for 20 years is good reason to think they moved . I dont believe so. Lots of people stay registered for longer than 20 years and dont move for 20 years. Not unusual in our country, i would believe. In any event the statute we deal with here says that the reason you are purging them cannot be there nonvoting. The the end of the supplemental process, that is the only way they know they moved. So the entire process it doesnt tell them nothing. It tells them they did not respond to a notice that says youre going to lose registration if you dont vote through two years to elections. It tells them something. There is more evidence than just that they havent voted. The method of the notification as we have in the states that you referenced in pages 14 to 15 that that is okay even though it triggered solely by failure to vote. I dont think you can maintain in have a little id tvalidity i the positions here. You cant just attack this on the basis that it is failure to vote. You have to say failure to vote plus method of notification that you think is not sufficient. Because you do think in other situations failure to vote plus is okay in those positions. It cant be just based on the fact of failure to vote weeg be the trigger. We are talking about people who dont return the notice. I dont think ohio thinks if someone doesnt return it, they dont know whether or not they moved. They dont know if the trash can it was thrown in was at that address or a forwarded address. Theyve gotten notice and havent voted in subsequent elections. Right. In the end of the day they have six years of nonvoting that tells them they say thats some evidence they moved. It is some evidence. Weak evidence but it is some evidence but the statute says you need better evidence than that. And the one thing we dont want you to use is nonvoting. Some people dont vote and we dont want them punished for it. Maybe we are both just repeating ourselves. You dont have the failure to vote you have failure to vote plus notification that you need to do something because you havent voted. In some situations, you think it is sufficient. So in those, not just failure to vote. So it is just failure to vote. When you get Something Back from the post office, undeliverable, no longer at this address, and you get nothing back is different. But the argument turns on the adequacy of the notice and not the fact the notice is triggered by failure to vote. The notice thats in the statute, forwardable notice that congress specifies has to be forwardable, is not designed to be a test of whether or not to tell if someone moved. They have to return it or vote sometimes pretty soon or they lose ledge straregistration sta. The state says we could give this to everybody. And purge people when they dont return the notice on the assumption they havent moved if they dont return the notice and dont vote for four years. The thing about that kind of notice is when 70 of the p people dont return it which is what happened in 2011 in ohio, the ones who dont return it, have you no idea there they moved or not moved. This does seem at the moment to boil down to an imperial question. You think that sending a notice which is forwardable is not going to tell you not much when it comes back because so many people dont return notice. When it doesnt sorry, i misspoke. You think returning a notice thats forwardable when it doesnt come back tells you virtually nothing. Because people just throw things in the waste basket. It tells you next to nothing. It doesnt tell you if its been forwarded. You dont know if they got it at the new address or it was forwarded. You dont know. If it wasnt forwardable you get it from the post office that tells you quite a lot. Yes your honor. Got it. Now thats what youve just said. If youre right on the first then we have next to nothing left but the not voting. Thats your point. Right. His point is we have something else. We do have the fact that notice didnt come back and that means more than you think it means. Okay . Thats their point. If thats so, all im asking is is there any place in the record that i can look for some numbers or surveys or something hard that will either support you or support them . Your honor, there is no evidence about whether or not people who fail to return the notice that moved because they have never claimed it was evidence they have moved their only claim in this case is that we are targeting there may be polls on how many people throw things in the waste paper basket, which sometimes i do. Which is what most people do. Is there hard evidence most people throw it way. 70 . Exhibit i from trial court. Their report to Elections Assistance Commission on 2011 1. 5 million confirmation noti notices, 1. 2 ignored, 20 undeliverable, 20 returned. Mr. Smith, there is one thing, and maybe i should have asked this of the state, but once you dont return the notice you get put on the inactive list, correct . Correct. That means you no longer does it mean you no longer get mailings about elections . Yes, you can still vote but youre not notified of where your polling place is. Youre not sent any more remind sners. Thats my understanding. One notice in six years. You disappear and you disappear from any other mailings. Thats my understanding. I couldnt swear. Im sure you would be corrected if its wrong. Let me talk, if i could, about the concept of proximate cause. The term that the congress used multiple time is reason. And reason has to be causally linked to the underlying reason which is that they think you moved to a different county or state. The only part of that is nonvoting. They dont claim that 7 p 7 of people that dont return anything,p 7 of people that dont return anything, 7 of people that dont return anything,7 of people that dont return anything, it is not the reason for purging in the jununderlyin reason. Even if you want to do the proximate cause concept, and as Justice Kagan pointed out, three things have to happen p three years of not voting, failure to return a notice and four more years of not voting. Three years of not voting, failure to return a notice and four more years of not voting. This is like saying when you strike out, the only proximate cause is strike two. It doesnt make sense. So the only thing i can think of thats left is but for. I think the analysis ought to be based on the term reason, not cause, your honor. Its not a tort law. I dont theres it is proximate cause. Strike one, strike two, strike three. All proximate causes of the strikeout. I agree with that as well. But thats not the right way to think about it. The reason they are identified as having moved is because theyre not voting. How does congress use the term solely . That says that states shall include provisions. Thats mandatory. To have a system of file maintenance that makes a reasonable effort to remove eligible voters. And under this system, registrants who have not responded to a notice and who have not voted in two consecutive general elections for federal office shall be removed from the list of eligible voters. That seems pretty clear. How do you get around that . I think the except clause is the same principle set forth in b2. Which is to say the reason you get put into the purge cant be simply not voting. But it goes ton to say no registra registrant can be moved solely for failure to vote. Can anyone be removed solely by failure to vote . Yes, sir. If somebody doesnt vote forever, but returns that notice the person would be removed from the list . Were talking about people who dont return the notice. The case is only about people who dont return the notice. I understand that but i dont understand how thats solely. The only evidence theyve had, the permissible category is nonvoting. Congress when it wrote that, it didnt think of the confirmation process as a reason to remove people. And certainly didnt think nonreturn of the notice is a reason to return people when someone returns the notice, they never vote could they return the notice. If they say i moved to main street, they are on the list. If they say, we moved to oklahoma, then they are removed from the list. The problem we have here is that this kind of notice, which says you dont have to return it. Just choose to vote sometime in the next four years, most of the time doesnt get returned. It doesnt give you evidence at all on whether or not the person needs to be purged. Then is looks like the old ohio use it or lose it system. Which is one notice that dont dont return and we will throw you off the roles. The other fact in the record is the small number of people that supplemental process is supposedly trying to find. We have evidence of how many people move to a county or state each yarear. This is in District Court and shows that about 3 of people in this country move to a different county or state. Outside of the registrars jurisdiction. And 3 a year. And thats a small number by itself. But the supplemental process is triggered to try to find some sliver of those people who have not already been identified because they changed their address with the bureau of Motor Vehicles or because they posted a forwarding address with the post office. Mr. Smith, could you give me concrete numbers . How many voters have been purged as a result of this system . I cant give you exact numbers. I would refer you to the buy enal reports that look at detail in all of the states processes with respect to purge. Two things i can tell you, it is in the hundreds of thousands in many years. Two things i can tels in the hundreds of thousands in many years. Purge. Two things i can tell you, it is in the hundreds of thousands in many years. Two things i can tels in the hundreds of thousands in many years. You gave me 3 of people nationally moved. Moved to a different county. About how many people in michigan actually moved . The statistics that were put in were national. Sorry, i misspoke. Ohio thinks the national staist statisti statistics represent ohio. Thats the statistics they put in. Or thats not in the record. But 3 is roughly the right amount. I dont know, 3 of what . People move in each year. I understand. But 3 of what greater number . Of all people in the country. Of all people in the country. So we have to divide it up and do all that. 97 of people do not move to another county or state in any gi given year. Most of the 3 are located presumably in one of the other ways. We are talking about a relatively tiny group of people. The process is 50 or 60 of people that dont vote in two years. The process is vastly overbroad in its design to try to find this relatively small group of people. Starting with 50 or 60 in an offyear election that dont vote. 70 dont return the notice. You just end up with a lot of false positives in the end and that is in fact how the system is operating. It finds a lot of people that supposedly have moved who simply havent moved. I think ill leaf it at that, your honor. Okay. Council. Two minutes, mr. Murphy. Thank you. First i would like to address the percentage of people that dont move. 40 of individuals dont notify individuals. 395 is the page number in the District Courts docket. It shows why the Service Provision is a safe harbor for meeting the states obligation to remove individuals because it is woefully insufficient for that task. States have to do other efforts if they actually want to maintain adequate rolls rather than just the threat of ensued of the other side of side of the compromise at issue here. This in the end was a statute balancing competing purposes on the one hand trying to remove ineligible voters and to ensure protection for eligible voters and came up with a compromise. A lot of room for states in our federal system to adopt the procedures that are best in that state. With respect to sending information i would say that my frind on the other side mentioned the eric program. Ahead of 2016 election ohio sent Something Like 1. 6 million letters to potentially eligible yet unregistered voters. Many were removed under our process could have received this notice from eric ahead of registration deadline, encouraging them to register. Sorry, they dont give people dont get notice theyve been struck. They get one notice they are put on the inactive list . Under the ncra, minimum requirement under ohios law, they get only one notice . Not a notice when they are purged. They dont know when they are purged. They have to go to the polls to find that out. Thats why i mention the eriksson. Would you answer my question. Is anyone ever sent a notice, put on the inactive notice, are they sent any voting information outside of this eric process . The declaration, 382 , suggest the state of ahead of election sent absentee ballot elections. It would have gone to any individuals sent this notice and voted in the previous election 2012. Thank you, counsel. The case is submitted. The first is im fond a of saying and youll get a lot of my favorite sayings because its free and you cant get a refund. But im fond of saying how good it feels to stop. And i dont know