Courthouse Steps: Husted v. A. Philip Randolph Institute Decided

Free Speech & Election Law Practice Group Teleforum

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With more than 10 percent of Americans moving each year, how can states ensure that their voting lists are kept up to date and that ineligible persons are removed? In Husted v. A. Philip Randolph Institute, the Court held that states can look at failure to vote as evidence to identify people who may have moved, but that it can’t be the sole factor used to remove a voter from the rolls. By a 5-4 vote, the decision upheld an Ohio law that removes from the voter rolls voters who don’t vote in any election for two years, fail to respond to a return card mailed to their registered address, and then don’t vote in any election for another four years. That scheme, according to the advocacy groups that challenged it, violated a section of the National Voter Registration Act that provides that failure to vote “shall not result in the removal of the name of any person” from the rolls. But, as Justice Alito’s majority opinion explained, another section provides that states may mail a “return card” to registered voters and, if they don’t respond, remove them if they fail to vote in the next two federal elections. And nothing in the statute says that states can’t rely on failure to vote as a basis to send out return cards. What states can’t do, the Court concluded, is rely on nonvoting as the sole criterion for removing a voter from the rolls. The majority’s decision preserves the tools that states have used for years to remove ineligible persons from voter-registration rolls and may spur more states to adopt approaches like Ohio’s. It also has important things to say about the courts’ respect for the policy judgments made by Congress and the states.


Mr. Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute


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