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Husted v. A. Philip Randolph Institute

United States Supreme Court

June 11, 2018

JON HUSTED, OHIO SECRETARY OF STATE, PETITIONER
v.
A. PHILIP RANDOLPH INSTITUTE, ET AL.

          Argued January 10, 2018

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

         The National Voter Registration Act (NVRA) addresses the removal of ineligible voters from state voting rolls, 52 U.S.C. §20501(b), including 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 subsection (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 preaddressed, postage prepaid "return card" containing statutorily prescribed content and then fails to vote in any election during the period 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 program "shall not result in the removal of the name of any person ... 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 removing registrants who fail to return the card and fail to vote for the requisite time. Since one of the requirements for removal under subsection (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 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 process 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 presumed 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 registrant, 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 context 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 explanation of how the clause is to be read, i.e., in a way that does not contradict subsection (d). Pp. 9-12.
(3) Respondents' and the dissent's alternative reading is inconsistent with both the text of the Failure-to-Vote Clause and the clarification 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 the Court's interpretation render the Failure-to-Vote Clause superfluous; the clause retains meaning because it prohibits States from using nonvoting both as the ground for removal and as the sole evidence 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 congressional judgment found in subsection (d). Congress clearly did not think that the failure to send back a return card was of no evidentiary value, having made that conduct one of the two requirements for removal 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" provision, §20507(a)(4). Even assuming that this provision authorizes federal 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 standard of "reasonableness, " Ohio's process cannot be unreasonable because 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.

          OPINION

          ALITO, JUSTICE

         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.

         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 regulation 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 registration 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). 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 written 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 "return 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 may be sent. Accordingly, States take a variety of approaches. 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 §230:15-1 l-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 obviously 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)." Subsection (d) treats the failure to return a card as some evidence-but by no means conclusive proof-that the voter has moved. Instead, the voter's name is kept on the list 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 requirements, the NVRA also imposes two general limitations 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 program "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 voters." §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 return 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 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 consecutive general elections for Federal office shall be removed, " it adds that "no registrant may be removed solely by reason 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 "identifies] 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 consecutive 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 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 "continu[e] to be inactive for an additional period of four consecutive 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 consecutive years" of nonvoting after notice, Record 1509. Thus, a person remains on the rolls if he or she votes in any election 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 (respondents 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: Failure 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 Supplemental Process "mirror[s] the procedures established 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 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" (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 mandatory. §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 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." Webster'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 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 registrant did not send back a return card and also failed to vote during a period covering two successive general elections 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 causation. 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 undefined causation requirement, we look to context to decide whether the statute demands only but-for cause as opposed 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).

         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 causation. 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 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). 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. 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). Respondents 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 procedures described in subsections (c) and (d)"-as an exception 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 "'exceptions 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 procedures 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 does not narrow the language that precedes it; it clarifies what that language means. That is precisely what Congress 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 language 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 interpreted by respondents, the amended Failure-to-Vote Clause prohibits any use of nonvoting with just two narrow 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 nonvoting 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 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 omitted). It clarifies the meaning of the prohibition against removal by reason of nonvoting, a matter that troubled some States prior to HAVAs 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, subsection (d) already prohibits States from removing registrants because of a failure to vote alone. See §20507(d)(1). To have meaning independent of subsection (d), respondents 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, "[cancellation 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 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 incapacity, or a criminal conviction resulting in prolonged imprisonment.

         D

         Respondents put forth one additional argument regarding 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 conclusion 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 Supplemental Process. The Constitution gives States the authority to set the qualifications for voting in congressional elections, Art. I, §2, cl. 1; Amdt. 17, as well as the authority to set the "Times, Places and Manner" to conduct 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 Legislature regarding the probative value of a ...


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