Black and White Make Gray: Common Cause v. Kemp, What's the Trigger for Purging Voters?

• Citation: Vol. 69 No. 3
• Publication year: 2018

Black and White Make Gray: Common Cause v. Kemp, What's the Trigger for Purging Voters?

Caitlin Wise

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Black and White Make Gray: Common Cause v. Kemp, What's the Trigger for Purging Voters?^*

I. Introduction

Imagine showing up to the voting poll, eager to vote and to show support for a candidate, and waiting in a long line, possibly in the cold. Then imagine handing your identification over only to be told you were not on the voter registration roll. This is what happened to 100,000 voters in the 2016 presidential primary election when they were purged from the voter registration rolls. Because of the voter purging, they were unable to cast their vote in a controversial and close election.¹ ABC News reported many voters who were removed from voting registration rolls were from low-income neighborhoods or neighborhoods that tended to vote Democratic.² The New York Times referred to purging statutes as a "malicious pattern" sweeping the country.³ The question in Common

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Cause v. Kemp⁴ is whether this is a malicious pattern stripping voters of federal protection or a state's right of protecting the integrity of the voting system.

Recently, voters have filed suits claiming states' voter purge statutes violate the 1993 National Voter Registration Act (NVRA).⁵ However, there is a dearth of precedent that provides guidance on the trigger provision in the NVRA.⁶ The trigger provision in the NVRA gives states the right to remove voters in order to decrease voter fraud by using the identity of the deceased or a non-resident only after providing notice.⁷ This provision, however, has created disputes regarding the silence and whether abstaining from voting can be a trigger. Courts differ on how to interpret the silence of the trigger provision in the NVRA. Common Cause differs from the United States Court of Appeals for the Sixth Circuit in its opinion of what the silence of the NVRA conveys about the trigger provision.⁸ Congress believed it created a black and white law that provided safeguards for the right not to vote and balanced the interests of the state. These black and white lines of the statute bled together when states began to interpret it.⁹ It is now gray, and the Supreme Court of the United States or Congress will have to try and draw the lines again. However, for now, it is important for Georgia voters to recognize they have a right not to vote, but if a voter confirmation notice comes in the mail, a reply is necessary to remain on the voter registration rolls.¹⁰

II. Factual Background

On February 10, 2016, Common Cause and the Georgia State Conference of the National Association for the Advancement of Colored People (NAACP) filed suit against Georgia's Secretary of State, Brian Kemp, in his official capacity and personally. The two non-profit organizations claimed the removal procedure under Section 21-2-234 of the Official Code of Georgia Annotated (O.C.G.A.)¹¹ violated the NVRA,

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Help America Vote Act (HAVA),¹² and the First Amendment¹³ right of eligible voters who chose not to vote.¹⁴

Georgia enacted the voter purge statute, O.C.G.A. § 21-2-234, in 1994.¹⁵ In 1997, Georgia amended the section regarding voter removal procedures and enacted the language at issue in Common Cause.¹⁶ The change was subjected to the Department of Justice for preclearance under the 1964 Voting Rights Act.¹⁷ The Department of Justice approved the changes made to O.C.G.A. § 21-2-234, concluding it did not violate section five of the Voting Rights Act.¹⁸

In Common Cause, the United States submitted a statement of interest to the court that said, "The United States sides with [Common Cause and the NAACP] and argues that the voter-removal program violates federal voting-rights laws."¹⁹ Georgia's Secretary of State Brian Kemp argued that the residency confirmation cards are not triggered by a voter not voting, but instead, by a voter's failure to have any contact with election officials for three years.²⁰

Common Cause and the NAACP contended that the removal of a voter for failure to vote violates citizens' First Amendment right not to participate in the electoral process. They further argued that O.C.G.A. § 21-2-234 violates the NVRA because the trigger provision to receive a confirmation card was the failure to vote. Further, they contended the voting removal procedure did not apply to the entire jurisdiction, but rather, only applied to voters who had not voted in the past three years. Lastly, Common Cause and the NAACP argued that because Georgia's removal statute considers the voting history of voters, the ultimate cause of the removal will have been the failure to vote, which violates the NVRA.²¹ The United States District Court for the Northern District of Georgia ultimately held that Georgia's purge statute did not infringe on people's right to vote.²²

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III. Legal Background

A. Life Before Gray

Prior to the enactment of the NVRA, voters relied on common law to protect them from being removed from voter registration lists solely for not voting. The courts have continuously held that the right not to vote is a First Amendment right under the United States Constitution.²³ Courts, however, differ on whether "voter purge" statutes violate this right.²⁴ The 1993 NVRA provides protection to individuals from being removed from voter registration lists solely based on not voting.²⁵ At the same time, it created a "safe harbor" provision for removing voters but not for failure to vote.²⁶ The NVRA, as noted in Common Cause v. Kemp, is silent regarding what can be the trigger for putting a voter on notice of removal from the voter registration list.²⁷

B. The Right Not to Vote—Can It Be Infringed Upon?

In 1972, the Michigan Supreme Court held in Michigan State UAW Community Action Program Council v. Secretary of State²⁸ that a Michigan purging statute was unconstitutional and should be suspended from use.²⁹ In that case, Michigan State UAW Community Action Program Council sued on behalf of themselves and other citizens affected by Michigan's voter purge statute.³⁰ Section 168.509 of Michigan Compiled Laws Annotated³¹ provided:

During the month of December in each year, the clerk shall examine the registration records and shall suspend the registration for all electors who have not voted, continued their registration, reinstated their registration, or recorded a change of address on their registration within a period of 2 years. Each such elector shall be sent a notice . . . [that provides] [a]fter the expiration of 30 days, the clerk shall cancel

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the registration of all electors thus notified who [had] not applied for continuations.³²

The court found that the removal of qualified citizens from voter registration rolls—based on not voting—affected their right to vote as guaranteed by the United States Constitution.³³ According to the court, if there is a right to vote, there must be a right not to vote as well.³⁴ Therefore, for a law to restrict the right to vote, the State must demonstrate a compelling state interest for the restriction.³⁵ The State argued that removal from the registration roll was a small price to pay in order to prevent abuse of the voting system.³⁶ The court disagreed that the prevention of voter fraud was a compelling state interest that justified the limitation on the right to vote.³⁷

Contrary to Michigan State UAW Community Action Program Council, the United States Court of Appeals for the Fourth Circuit upheld a voter purge statute.³⁸ In Hoffman v. Maryland,³⁹ the court held in 1991 that Maryland's voter purge statute did not violate voters' First Amendment right by removing them for not voting.⁴⁰ The Maryland voter purge statute provides that "registered voters who [had] not voted in the last five years be removed from the rolls by cancellation of their registration."⁴¹ The plaintiffs, Thomas Hoffman and Timothy Ulrich, alleged the five-year voter purge statute violated the First and Fourteenth Amendments of the United States Constitution⁴² by restricting eligible voters' right to vote and by burdening voters' right to free speech.⁴³ Hoffman and Ulrich were victims of the voter purge statute after failing to vote since 1984.⁴⁴

Under the Maryland statute, before removal of a voter from the roll, a notice was sent to a voter's last known address informing the voter of the

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impending action of removal.⁴⁵ In its decision, the court recognized a right not to vote just as much as there was a right to vote.⁴⁶ However, the court stated that Hoffman and Ulrich's right not to vote was not infringed when they were removed from the voter registration list because they could still choose not to vote regardless.⁴⁷ According to the court, the statute was not designed to abridge free speech, but rather, to support a governmental interest of preventing voter fraud.⁴⁸ Further, the court was concerned that "[w]ithout removing the names, there exists the very real danger that impostors will claim to be someone on the list and vote in their place."⁴⁹ The court concluded that "re-registration may be somewhat burdensome, [but] it is a small price to pay for the prevention of vote fraud" and therefore, this small price compared to the government interest sustained the statute as not infringing on Hoffman and Ulrich's First Amendment right of free speech.⁵⁰

C. Protecting the Right Not to Vote

In 1993, Congress enacted the National Voter Registration Act.⁵¹ Generally, the NVRA prohibits the removal of voters based solely on their failure to vote in elections.⁵² However, the NVRA provides a safe-harbor permitting voter removal in order to keep accurate voting registration records.⁵³ The NVRA provides a procedural guideline on how to remove voters who have not voted or appeared in two elections for federal office.⁵⁴ For a state to remove a voter, it must comply with the notice requirements outlined in 52 U.S.C. §§ 20507(c) and (d).⁵⁵ The statute requires the...