Ohio and several other States have long used a registrant’s failure to vote for a specified period of years as grounds for sending an address-verification notice under 52 U.S.C. 20507(d)(2). That practice does not violate the NVRA.
A. It is undisputed that Section 20507(d) itself does not restrict the grounds on which States may send address-verification notices. Instead, the court of ap- peals held that sending notices based on nonvoting violates Section 20507(b)(2)’s prohibition on removing a registrant “by reason of the person’s failure to vote.” That is not the best reading of Section 20507(b)(2) as originally enacted, and it is foreclosed by the clarifying clause that Congress added in HAVA. . . .
C. The NVRA’s history and purpose reinforce the conclusion that States may send Section 20507(d)(2) notices based on nonvoting. Before the NVRA, most States removed registrants who had failed to vote for specified periods. Most of those States notified registrants and allowed them to avoid removal or re-register, but the notice procedures could be burdensome—and a few States failed to provide any notice at all. The NVRA eliminated the practice of removing nonvoters without notice and required States to use more protective notice procedures. But the legislative history indicates that Congress did not require States to abandon entirely the widespread practice of treating nonvoting as an indication that a registrant may have become ineligible.
Allowing States to send Section 20507(d)(2) notices based on nonvoting is also consistent with Congress’s objective of ensuring accurate voter rolls while leaving the States substantial flexibility. Ohio and other States have determined that the most appropriate way to maintain accurate voting lists is to use nonvoting as an indication that a registrant may have moved, and to seek to verify the registrant’s continued residence using the procedure in Section 20507(d). Under the flexible structure Congress adopted in the NVRA and clarified in HAVA, that judgment is left to the States.The new attorneys at the Department of Justice are doing excellent work evaluating the law and reversing the politicized positions of the Obama DOJ when necessary. It is imperative the Senate swiftly confirm Trump's DOJ nominees so that this important work can continue.