Husted v. A. Philip Randolph Institute — To Vote, or Not to Vote: That is the Question.
Associate Professor, University of Baltimore School of Law
In William Shakespeare’s most famous soliloquy, Hamlet ponders whether it is better to live or to die. He wonders if death would ease the pressures of the present day, which he describes as a type of sleep. He asserts that the only power one has over the tumultuous battle of life is to sleep. He argues that the only reason we endure the pains of life is the fear of death. He asks the question of whether it is better to live or to die. While rather dramatic, the juxtaposition of life and death seems appropriate in analyzing the Supreme Court’s decision in Husted v. A. Philip Randolph Institute. In this case, the Court analyzed whether the National Voter Registration Act prohibited Ohio’s process of using the practice of not voting as a death knell to the right to vote. The state administered what it called the Supplemental Process to clean up its voter rolls. In this process, if you failed to vote in a two-year period, or the equivalent of missing a mid-term election—as a large swath of American citizens choose to do—you would face the distinct possibility of losing the right to vote because you made the choice not to vote.
Husted posits a number of interesting questions and contradictions, including how legislation with a stated purpose of increasing participation can actually punish those who choose not to vote and remove them for inactivity It also is important to consider the impact and import of the case in the context of recent attempts to place the right to vote in a dream state, where it is not accessible but available to those who may awaken and endure the “sea of troubles” and obstacles to regain the right to vote.
Shortly after the election of the nation’s first African American President, Barack Hussein Obama, the fight to vote began anew. Since the election of President Obama, forces have been laser-focused on eliminating the large-scale impact of voters of color through new laws that diminish the right to vote through restrictive voter-identification requirements, laws and practices that permit and encourage voter challenges, laws and practices that promote voter deception, and overly punitive felon disenfranchisement laws. Between 2010 and 2018, Republican legislatures have attempted slowly but surely to pass legislation that restricts access to the ballot box. All are important pieces in the disenfranchisement puzzle. The effort to displace and disenfranchise voters of color was not as obvious as the Southern Strategy employed during a different time in our history. Nonetheless, the impact continues to be just as effective.
In Part I of this essay, we will wade through some of the historical hurdles to obtain the right to vote. In Part II, we will review the National Voter Registration Act and challenges to the enforcement of this legislation. In Part III, we will discuss the Supreme Court’s decision in Husted. Finally, we will consider Husted’s impact and how to mitigate its effects for those who may or may not choose to vote.
I. The Fight to Vote
The right to vote is the lynchpin of our democratic process; without it, our democracy dies. It is the right to vote that separate us from other forms of governance. Due to its import, our Constitution has more amendments that address the fundamental right to vote than any other right--more than speech or assembly, and more than the ability to own a gun. In fact, the ability to vote is also one of the most regulated rights in this democracy. So much so, that age, economic circumstances, and ability to read and to understand English can in many ways determine whether you have an effective right to vote. Throughout our history, we have seen forces deliberately disenfranchise groups of citizens—e.g., voters of color, women, and persons who do not speak English—in an effort to predetermine electoral outcomes. This type of political gamesmanship tears the democratic fabric of our country. Courts have both prevented and permitted these efforts. From its founding, our country has considered the ideal of who should vote and who should not vote.
The Founding Fathers realized the significance of the right to vote and the ability to elect representatives—so much so, that one of the country’s first compromises involved limiting the right to vote and representation in states that had large numbers of persons who were enslaved and could not enjoy the benefits of citizenship. The three-fifths compromise was one of the first constitutional actions that recognized the less-than-human, less-than-equal-status of the slave and canonized it for perpetuity. The founders recognized that question could someday lead to the demise of the country. Yet, they found the compromise necessary to ensure the continued progress of the new republic. Consequently, their decision to provide less-than-equal representation was the price paid to ensure that the new country could continue.
As a few of the Founders feared, the question of slavery would tear the country apart. The Civil War took a toll on this country’s soul. Those who fought to continue to treat and mistreat those of a darker hue as less than human, thankfully, lost the war. Out of the ashes of the war rose the Civil War Amendments that provided certain freedoms for the formerly enslaved population. The Civil War Amendments prohibited enslavement, provided equal protection under the law, and prohibited discrimination in the right to vote.
The amendments and emancipation of the former slaves delivered a glimpse into a true democratic state. Indeed, during a short period in American history, after the passage of the Civil War Amendments, we witnessed newly enfranchised citizens voting and electing representatives to local, state, and federal offices. Voter participation, turnout, and involvement continued in glorious levels, until it stopped. The former slaves’ newfound independence intimidated and threatened Southern whites. Accordingly, they negotiated yet another compromise and removed the federal protections in the South that made new citizens able to participate in the franchise. Once the Southern states and the federal government negotiated a deal that removed military protection, whites began eliminating blacks from elected positions in legal and illegal ways. During this period of “redemption,” whites used violence as the primary means of ensuring that blacks did not participate in the voting process. The diminishing presence of black elected officials ensured that whites would return to the three-fifths compromise of sorts. New disenfranchisement methods—e.g., literacy tests, poll taxes, felon disenfranchisement, and grandfather clauses—began stripping the right to vote from its new citizens. The Jim Crow laws and violence effectively killed the right to vote for the newly enfranchised citizen. The right to vote was no longer a reality; and democracy, a government for the people and by the people, ceased to exist. It would take almost a century before the descendants of the former slaves would overcome the many obstacles set before them prohibiting access to the ballot in a meaningful way.
Interestingly, the period between the great equalizers—the Civil War Amendments and the Voting Rights Act (VRA)—took approximately one hundred years. America needed the VRA because of the anemic ability of the constitutional amendments to protect its citizens from nefarious voting regulations meant to disenfranchise, frustrate, and intimidate voters of color. U.S. Attorney General Nicholas Katzenbach deemed the Act necessary to combat the many disenfranchising devices and methods that were prevalent throughout the South. President Lyndon B. Johnson considered the VRA a “monumental” piece of legislation. In a speech to Congress introducing the VRA, he stated:
Every American citizen must have an equal right to vote. There is no reason which can excuse the denial of that right. There is no duty which weighs more heavily on us than the duty we have to insure that right. Yet, the harsh fact is that in many places in this country men and women are kept from voting simply because they are Negroes. . . . For the fact is that the only way to pass these barriers is to show a white skin. . . . We have all sworn an oath before God to support and to defend that Constitution. We must now act in obedience to that oath.
The VRA provided the second entrée for African Americans to the ballot box in a century. The impact of the Act cannot be overstated. Black and white voters achieved parity in voter registration rates in less than twenty years in most Southern states after passage of the Act. The VRA woke the country from a dream state and into the continual and ongoing battle to ensure that all persons were free to engage in the electoral process.
After passage of the VRA, once again the country witnessed the truth of its promise, an inclusive government, by the people and for the people. The country imagined a new reality, where access to the ballot was not subject to racial or economic discrimination. Clearly, we endured countless stops and starts with litigation over the VRA’s constitutionality and implementation, as well as the reach of the Civil War Amendments in securing the right to vote. While this country has made great strides in the decades after passage of the VRA, Congress would once again seek to enlarge the franchise.
II. The NVRA and the Right to Vote
In spite of the overwhelming success of the VRA, our democracy needed more legislation to elevate voter registration and participation. In 1993, Congress passed the National Voter Registration Act (NVRA), commonly referred to as the “Motor Voter Law.” The purpose of the NVRA is:
(1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;
(2) to make it possible for Federal, State, and local governments to implement [the NVRA] in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;
(3) to protect the integrity of the electoral process; and
(4) to ensure that accurate and current voter registration rolls are maintained.
In developing the law, Congress surveyed best practices across the country and surmised that implementing a few fundamental reforms could increase voter participation. Congress was deliberate and intentional in its decisions to require states to provide voter-registration opportunities at, inter alia, the Department of Motor Vehicles, public assistance agencies, and veterans’ facilities. Nonetheless, states argued that the NVRA was an unfunded mandate. In the NVRA, Congress used its authority provided in the Civil War Amendments and the Elections Clause to justify its imposition on the states. It provides uniform registration procedures at federal agencies, a uniform mail-in voter-registration form, and standards for removal from the voter rolls. The NVRA explicitly refers to the right to vote as fundamental. It also includes list-maintenance procedures that allow removal in limited circumstances, such as mental incompetency and felony conviction. The NVRA was constitutional and its purposes clear: to increase registration and participation and to keep voters on the voter rolls, removing them for a small set of circumstances, but never for failing to vote. Additionally, it explicitly warned that persons should not get penalized for not voting, finding that citizens “have an equal right not to vote, for whatever reason.” Significantly, in enacting the NVRA Congress recognized that states utilized purges disproportionately against minority voters.
In 2002, after the Bush v. Gore debacle, Congress once again attempted to provide guidance and assistance to the states to improve voter participation and confidence. It passed the Help America Vote Act (HAVA) to provide resources for antiquated election systems and established the Election Assistance Commission as the clearinghouse for information on election systems. As mentioned, the NVRA’s purpose was to simplify voter registration and to increase voter participation. The NVRA also included a list-maintenance requirement to allow election officials the ability to remove certain voters, but explicitly forbade removal for not voting. Ten years after the NVRA’s passage, Congress enacted the HAVA as a means to provide clarity on list maintenance. It is the combination of list-maintenance functions in the NVRA and the HAVA that stands at the pinnacle of yet another attempt to reduce the voter rolls and, in particular, the number of voters of color. While these were laws meant to encourage citizens to vote, the Supreme Court and legislatures across the country are using them to make it easier for people to lose the right to vote.
III. The Making of Husted
I earned the right to vote . . . . Whether I use it or not is up to my personal discretion. They don't take away my right to buy a gun if I don't buy a gun.
When I joined the Department of Justice (DOJ) as a staff attorney after the passage of the NVRA, I had the assignment to defend it against claims that it was an unconstitutional unfunded mandate. States across the country argued that the NVRA required them to spend funds they did not have, and that it was an unconstitutional congressional act. DOJ attorneys in the Civil Rights Division, Voting Section, argued that Congress had the authority under the Civil War Amendments and the Elections Clause to enact the NVRA. This litigation was consistent with the first wave of cases challenging the VRA’s constitutionality, followed with attempts to strip away protections contained within the Act.
Years later, as I served in the George W. Bush administration as a Deputy Chief in the Voting Section, the narrative of bloated voter rolls and the propensity for widespread voter fraud was presented as an Orwellian fact that supported plans for voter suppression. We have, unfortunately, watched this narrative grow exponentially in its reach across the country. Moreover, jurisdictions have utilized these unsupported charges to advocate for stricter voter-ID and proof-of-citizenship laws, among others. Accordingly, we have seen an extensive increase in the number of election-related cases. Prior to 2000, election-related cases averaged less than 100 per year. In the period from 2000 to 2016, the average number of cases has increased to more than 250 each year.
The politicization that began in a previous administration has exponentially advanced in this present age. The Attorney General of the United States serves as a chief enforcer of these and other federal voting-rights statutes. For more than two decades, the Department of Justice consistently interpreted the “Failure to Vote Clause” in the NVRA as explicitly prohibited using the failure to vote as a rationale for removal from the voter rolls. In the lower courts’ decisions in the Husted litigation, the Department of Justice consistently argued that Ohio violated the NVRA by removing voters from the rolls because they did not vote in three consecutive federal elections and failed to return a state mailer.
After the 2016 election, the DOJ, led by Attorney General Jeff Sessions, switched its position in the case and urged the Supreme Court to reverse the Sixth Circuit Court of Appeals’ decision that Ohio’s voter-removal scheme violated the NVRA and allow Ohio to remove voters from the rolls. This change was consistent with other positions the DOJ took under Attorney General Session against increasing voter access and championing various voter-removal strategies. Former DOJ managers filed an amicus brief that explained to the court the longstanding position that the NVRA not only protected the fundamental right to vote, but also the right not to vote. The Trump administration did a complete reversal on the meaning of the clause. Astonishingly, the Department cited only “the change in administration” as the impetus for the shift.
With this newfound advocate of voter removal, the state of Ohio sharpened its scheme that allowed it to remove voters for inactivity. In continuance of this effort to make voting less accessible and in the name of voter integrity, Ohio election officials interpreted the NVRA in conjunction with the HAVA to allow the removal of voters for the failure to vote. Ohio’s decision, however, affects real voters. For example, Ohio resident and Navy veteran Larry Harmon decided not to vote in the 2012 presidential election. He regularly voted in presidential elections. However, when he decided not to vote in 2012, after voting in 2008, the state of Ohio initiated the removal process. As part of its Supplemental Process, Ohio sends notifications to those persons who choose not to vote within a two-year period. Ohio uses the notification to determine if persons have moved from their previous place of residence. Mr. Harmon had not moved. Actually, he had maintained the same residence for more than sixteen years. He does not recall receiving a notice, nor did he return a notice. When he decided to vote against a ballot initiative seeking to legalize marijuana, he learned that the state of Ohio had removed him from the voter rolls for inactivity. He maintained, "I earned the right to vote . . . . Whether I use it or not is up to my personal discretion. They don't take away my right to buy a gun if I don't buy a gun." Notwithstanding his declaration, the Supreme Court of the United States decided to examine the process.
A. Supreme Court Review
The Supreme Court granted certiorari in Husted to decide whether Ohio’s Supplemental Process violated federal voting statutes. Specifically, the Court considered whether the NVRA allowed Ohio’s list-maintenance process to remove voters from the state’s voter rolls for not voting. The Ohio Secretary of State argued that a combined reading of the NVRA and HAVA permitted the Ohio Supplemental Process. The A. Philip Randolph Institute (APRI), however, maintained that the Supplemental Process violated both the NVRA and HAVA in that it used not voting as a trigger for removal. The Sixth Circuit agreed, holding that the Ohio Supplemental Process used HAVA to bypass the requirements of Section 8 of the NVRA. Conversely, the district court previously disagreed, reasoning that the federal statutes allowed Ohio’s process. Indeed, the district court accepted the argument that the failure to respond to the notice, not the failure to vote, served as the proximate cause for removal under the Ohio Supplemental Process.
1. The Majority Rules
It has been estimated that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate. And about 2.75 million people are said to be registered to vote in more than one State.
Justice Alito’s opening lines for the majority of the Court set the stage for the demise of the NVRA. The tension between voter access and voter integrity was at the forefront of the Husted case and Ohio’s plan for removing voters for failure to vote. It is consistent with the political framework that was set decades ago in a previous administration.
The majority in Husted opined that the primary issue was whether the failure to vote served as the sole reason for removal. Justice Alito wrote, “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.’” The Court then engaged in a formalist jurisprudential exposition and referred to the plain meaning of the word “solely,” referring to several dictionaries. It landed on the proposition that a jurisdiction violates the NVRA if not voting served as the only reason for removal: “[A] State violates the Failure-to-Vote Clause only if it removes registrants for no reason other than their failure to vote.” The Court approached the case as merely one of statutory interpretation. As such, it spent a considerable amount of time determining the level of causation intended in the NVRA and HAVA regarding the Failure-to-Vote Clause. It finally landed on “sole causation,” finding that such a reading “harmonize[d] 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.” Accordingly, it found, as the district court before, that the failure to vote combined with the failure to return the notice card permitted the state to remove eligible voters from the voter rolls without violating the NVRA.
2. Dissenters Are Dismissed
[T]he majority does more than just misconstrue the statutory text. It entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.
Clearly, Justice Alito completely disregarded the historical and contemporaneous facts surrounding the implementation of Ohio’s removal process. In fact, he criticized Justice Sotomayor’s dissent as ignoring the language of the NVRA and focusing on the history of voter suppression. He further contended that her characterization of Ohio’s Supplemental Process as discriminatory was misplaced, because APRI did not assert a claim under the NVRA’s discrimination prohibition. Justice Alito disregarded the need for protections to ensure the right to vote, in favor of a cramped, overly formalistic statutory interpretation, to the detriment of eligible, registered voters. Moreover, his comrade, Justice Thomas, took the opportunity to champion states’ rights and his view that the United States Constitution provides a wide breadth of authority for states to freely determine the times, place, and manner for persons to exercise the right to vote. Essentially, he, too, overlooks how states have created laws that limit the fundamental right to vote and maintains that the Ohio Supplemental Process does not deviate from the state’s right to disenfranchise voters in whatever manner it chooses.
Conversely, Justice Breyer’s dissent found that Ohio’s Supplemental Process violated the NVRA’s prohibition against “removing registrants from the federal voter roll ‘by reason of the person’s failure to vote.’” Justice Breyer stressed that Congress originally intended that the NVRA would “protect the integrity of the electoral process,” “increase the number of eligible citizens who register to vote in elections for Federal office,” and “ensure that accurate and current voter registration rolls are maintained.” Importantly, Justice Breyer argued that Congress forbade removal for failure to vote, because it was “mindful that ‘the purpose of our election process is not to test the fortitude and determination of the voter, but to discern the will of the majority.’” Further, he recognized that the Court erred in its attempt to reconcile the NVRA and HAVA to justify the practice of removing eligible voters for spurious reasons.
Additionally, Justice Breyer considered the impact of Ohio’s process on the removal of eligible citizens. He referred to amici arguments and statistics that demonstrated that the notification process was severely flawed. The data indicate that: when most registered voters move they remain in their county of registration; large numbers of registered voters choose not to vote in every election; most registered voters who fail to vote also do not respond to the state’s “last chance” notice; and the number of registered voters who fail to vote and fail to respond to the “last chance” notice far exceeds the number of registered voters who move outside of their county each year. According to the state of Ohio, nationwide only four percent of Americans actually move outside of their county annually, and in 2014, around fifty-nine percent of Ohio’s registered voters failed to vote. Even more disturbing,
[i]n 2012 Ohio identified about 1.5 million registered voters—nearly 20% of its 8 million registered voters—as likely ineligible to remain on the federal voter roll because they changed their residences. Ohio then sent those 1.5 million registered voters subsection (d) “last chance” confirmation notices. In response to those 1.5 million notices, Ohio only received back about 60,000 return cards (or 4%) which said, in effect, “You are right, Ohio. I have, in fact, moved.” In addition, Ohio received back about 235,000 return cards which said, in effect, “You are wrong, Ohio, I have not moved.” In the end, however, there were more than 1,000,000 notices—the vast majority of notices sent—to which Ohio received back no return card at all.
Under Ohio’s process, these 1,000,000 registrants could now find themselves removed from the voter rolls. Basically, despite many registrants failing to vote and only a small number actually moving, under Ohio’s Supplemental Process, using a registrant’s failure to vote to identify that registrant as a person whose address has been changed amounts to an unreasonable (and inaccurate) determination of registrants who have actually moved.
Likewise, in her dissent, Justice Sotomayor emphasized that the explicit purpose of the NVRA was to increase the registration and enhance the participation of eligible voters in federal elections. She reminded the Court that the NVRA sought to correct against the substantial efforts by states to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections. Justice Sotomayor pointed to the importance of this history when interpreting the text of the statute and the majority’s ultimate sanctioning of the very purging that Congress expressly sought to avoid. Justice Sotomayor highlighted a number of amici briefs that emphasized the inaccuracies and the impact of Ohio’s flawed process, including a brief that I helped draft on behalf of the National Association for the Advancement of Colored People (NAACP) and the Ohio NAACP discussing the disproportionate impact of purges on voters of color.
IV. Cases Have Consequences
In Husted, the Court discussed cause without considering the effects of the Ohio Supplemental Process. Irrefutably, the Court’s fundamentalist approach to jurisprudence ignores the discriminatory impact and results of this law. Still, the NVRA is clear: states should not use the failure to vote as a reason to remove eligible persons from the voter rolls. Should a citizen choose to vote or not to vote, that is their prerogative. Moreover, choosing not to vote should not serve as a reason, proximate or otherwise, to remove an eligible citizen from the voter rolls. The Court ignored the question of whether the Supplemental Process served as an effective mechanism for determining how states should maintain their lists of eligible voters. The majority chose to advance a number of jurisprudential propositions while ignoring the accuracy of the state’s actions and refusing to preserve and protect the fundamental right to vote.
A. Impact on Voters
Unfortunately, the majority’s decision gives a green light to states to purge a voter without confirmation that the person merits removal pursuant to the constraints of the NVRA. Justice Alito’s dismissal of the dissenters’ cautions against the shameful practice of unregistering lawful voters emboldens other jurisdictions anxious to rid their voter rolls of citizens who regularly opt-out of elections, which essentially purges voters for not voting. The Court is correct that the Ohio Supplemental Process does not solely remove voters for not voting. The process uses not voting as a trigger for sending a confirmation and then on a second swipe will remove a voter for not voting in additional years. Ohio’s Supplemental Process and its implementation, however, are at odds with the primary purposes of the NVRA: the expansion and simplification of voter registration processes designed to increase registration and participation in federal elections. Ohio’s history of disenfranchising voters of color through purges, incomplete or inaccurate voter rolls, voter challenges, overuse of provisional ballots, poll-worker error, and long lines are only a few of the barriers that voters of color experience. The voter removal two-step permits yet another opportunity for the state to shrink not only the voter rolls but also the number of voters of color who enjoy the opportunity to vote or not vote.
1. Aggressive Purge Process
Husted invites states to engage in the risky and disenfranchising behavior present in Ohio’s Supplemental Process. Recent experience is informative; after the Shelby County v. Holder decision states almost immediately began implementing laws meant to disenfranchise certain voters. In fact, since Shelby County, the nation has seen an increase in the number of purges, particularly in jurisdictions once covered under Section 5 of the Voting Rights Act. According to a Brennan Center report, from 2014 to 2016, states removed nearly sixteen million voters from the voter rolls. This represents a four-million-person increase, or thirty-three percent, when compared to 2006 to 2008. This increase exceeds the increase in registered voters and total population.
Similarly, in the wake of Husted, voting rights advocates are concerned that jurisdictions will increase the level of purges, resulting in a widespread discriminatory process divesting voters from registration. In Georgia, registrants are placed on the inactive list for “not vot[ing], updat[ing] their voter registration information, fil[ing] a change of name or address, sign[ing] a petition or respond[ing] to attempts to confirm their last known address for at least the past three years.” In Georgia, approximately 750,000 additional names were removed from 2012 and 2016 than between 2008 and 2012. In Texas, more than 350,000 registrants were removed between 2012 and 2014, and in Virginia approximately 380,000 were removed from 2012 to 2016. The result of heeding Justice Thomas’s proclamation that states should be given the flexibility to implement any and all voting laws pursuant to the Elections Clause and without federal supervision is higher rates of purging voters in previously covered jurisdictions.
2. Inaccuracies and Burdens
Justice Alito’s lack of focus on the inaccuracy of voter rolls is consistent with the Republican mantra of undocumented and unproven voter fraud or bloated voter rolls from past eras. While proponents argue for accuracy in the voter rolls, they have little appetite to ensure that the removal lists are accurate. Removal devices like Crosscheck are riddled with errors. Yet removed voters are given the burden of demonstrating that they should remain on the rolls, instead of states having the duty to ensure that the removal of any and every voter accurately captures those persons who have moved, died, are incompetent, or committed a disenfranchising felony. Battleground states like Wisconsin, Georgia, and Pennsylvania have similar removal processes and will remove hundreds of thousands of voters for not voting. Clearly, this was not the intent of the NVRA.
Moreover, Post-Shelby, voters do not have the protection of federal oversight, and the DOJ under the current administration has, in fact, aligned itself with those seeking to limit voter access. The DOJ has even sent letters to jurisdictions encouraging them to “clean up” their voter rolls, which will lead to more purges. Actions, such as those exhibited in Ohio and Georgia, do not necessarily “clean” the registration lists. It usually strips large swaths of eligible voters from the voter lists, causes confusion, and encourages voter apathy. Purge proponents have wholeheartedly accepted the false notion that it is best to utilize a process that disenfranchises eligible voters instead of investing in an accurate removal system. Notwithstanding these obstacles, we have weapons to contest these formidable assaults on the right to vote.
B. Protection from Purges
1. Federal Protection in the NVRA
The NVRA provides uniform standards and protections for purged voters. However, Husted makes it easier for states to remove people without confirmation that they have moved or are otherwise ineligible. Additionally, more states will use a failure to vote as the trigger to place voters on an inactive list, which prematurely makes them susceptible to a purge. These voters are those who may only vote in presidential elections. If registrants continue the practice of only voting in presidential elections or in those elections where they feel compelled to vote, they run the risk of having to re-register every six years. For example, an Ohio voter who voted in the 2012 presidential election and did not vote in 2016 will find herself removed from the voter rolls if she attempts to vote in the 2018 midterms and did not return the notice. Likewise, voters who sit out the 2018 midterms and have a dislike for the 2020 crop of presidential candidates would also find themselves on the outside looking in to the electoral process. In both examples, these voters would find themselves, effectively, unable to cast a ballot without re-registering to vote.
Accordingly, voters could find themselves required to re-register simply for choosing not to vote in a midterm election. This creates a nightmare for election officials, who already have inaccuracies on the list of voters. The constant removal and updating of voters could lead to duplicate entries, removal of eligible voters, and voter apathy. We already know the harder states make it to vote, the lower the turnout. Additionally, if a voter does not know that she is on the voter rolls, she is less likely to participate or have confidence in the electoral process. A lack of voter confidence leads to voter apathy. Politicians would then get what many of them want, i.e., a select few voters determining the outcomes of important local, state, and federal elections.
The NVRA contains federal standards for the purge process and requires that states notify voters. Voter access advocates should petition election officials to ensure that removed persons are notified and instructed on how to regain the right to vote. Additionally, the NVRA includes a private right of action. Thus, private citizens can bring claims under the NVRA. While the Supreme Court has now authorized removal for reasons that the statute did not intend, because of the racial discriminatory impact of purges, advocacy groups should consider challenging voter purges that violate the anti-discrimination prohibition in the NVRA and Section 2 of the Voting Rights Act.
While the NVRA prescribes federal standards, states are encouraged to develop even more protections than the federal government provides. States that have constitutions with an affirmative right to vote may find it harder to remove citizens for not voting. Purges of the type in Ohio and Georgia could find states facing litigation for violation of their state constitutions.
2. Compulsory Voting
With the decision in Husted, the Court has essentially developed a system of de facto compulsory voting in states that disenfranchise voters for not voting in short periods, i.e., every two years. Compulsory voting would make voting mandatory. If a citizen chose not to vote in an election, he would receive a penalty. Australia has mandated voting for its citizens since 1924, and voter turnout has never fallen below ninety percent. The penalty for not voting in Australia is a monetary fine. After Husted, the penalty in places like Ohio for not voting is removal from the voter rolls. In this way, Husted could have the unintended consequence of increasing voter participation.
3. Same Day/Election Day Registration
An additional way to offset the impact of rabid purges is to allow same-day registration, which would permit citizens to register to vote on the same day that they cast a ballot. Same-day registration could eliminate the thirty-day preregistration requirement in most states and blunt the force of inaccurate purges. Approximately seventeen states and the District of Columbia allow same day registration, while two states permit Election Day registration. If adopted, states increase the ability for citizens to participate in the electoral process. Conversely, we have seen states reverse course in providing same day registration, resulting in lower turnout.
4. Remove Residency Requirements
The early voting process has demonstrated the antiquated nature of mandating that voters only cast ballots in their district of residence. During primary and general elections, early voting allows voters to provide their current address and to cast ballots in a central location like a courthouse or community center. Ohio’s out-of-district requirements result in more provisional ballots if a voter does not provide the appropriate documentation in the specified period. Consequently, during federal elections, the state discards the entire ballot, including ballots for those contests that do not require district residency, e.g., state-wide and federal elections. If residency requirements are removed, election officials should accept voters’ ballots with an attestation or affirmation of residency, which will in turn increase the number of votes cast and counted.
Husted highlights the reality that the Supreme Court has been complicit in the disenfranchisement war. From Crawford v. Marion County to Husted v. A. Philip Randolph Institute, with Shelby County v Holder  in between, the right to vote is surely and emphatically being compromised, and with it our democracy. Like Hamlet, the United States must confront the quandary: will we allow the vote to live, or will it slumber as “flights of angels sing [it] to [its] rest?” The forces of voter access and voter integrity are in a battle to allow citizens to vote, a battle for the soul of our democracy. We fight against those who work to make it harder for certain demographics to cast a ballot. The battle between these two forces will either be or not be. These are cyclical battles that ebb and flow throughout our history. Dr. Martin Luther King advised, “The [voting] rights issue is not an ephemeral, evanescent domestic issue that can be kicked about by reactionary guardians of the status quo; it is rather an eternal moral issue which may well determine the destiny of our nation.” The question is who will win the war? Onward.
* Gilda R. Daniels is an Associate Professor at the University of Baltimore School of Law. She also serves as the Director of Litigation at the Advancement Project, a national nonprofit civil rights organization in Washington, D.C. She is a former Deputy Chief in the United States Department of Justice Civil Rights Division, Voting Section. She is writing a book on voter suppression for NYU Press forthcoming Fall 2019. Many thanks to the University of Baltimore School of Law and the Advancement Project. Additionally, she would like to thank Clarence Okoh for his research assistance in completing this work.
 William Shakespeare, Hamlet act 3, sc. 1.
To be, or not to be: that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them? To die: to sleep;
No more; and by a sleep to say we end
The heart-ache and the thousand natural shocks
That flesh is heir to, ’tis a consummation
Devoutly to be wish’d. To die, to sleep…
 Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018).
 U.S. Const. amends. XV, XIX, XXIV, XXVI.
 U.S. Const. amend. I.
 U.S. Const. amend. II.
 See, e.g.,Voting Rights Act of 1965, 52 U.S.C. § 10101 et seq. (2016).
 See Gilda R. Daniels, A Vote Delayed Is a Vote Denied: A Preemptive Approach to Eliminating Election Administration Legislation that Disenfranchises Unwanted Voters, 47 U. Louisville L. Rev. 57 (2008); Joshua A. Douglass, Is the Right to Vote Really Fundamental?, 18 Cornell J.L. & Pub. Pol’y 143 (2008); see also Daniel S. Goldman, Note, The Modern-Day Literacy Test?: Felon Disenfranchisement and Race Discrimination, 57 Stan. L. Rev. 611 (2004); Royster v. Rizzo, 326 S.W.3d 104, 110 (Mo. Ct. App. 2010).
 The Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution are commonly referred to as the Civil War Amendments. The Thirteenth Amendment abolished slavery and involuntary servitude. U.S. Const. amend. XIII, § 1. The Fourteenth Amendment prohibits states from denying “any person within [their] jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Fifteenth Amendment grants the right to vote to citizens of the United States regardless of “race, color, or previous condition of servitude.” U.S. Const. amend. XV, § 1.
 See Xi Wang, Black Suffrage and the Redefinition of American Freedom, 1860-70, 17 Cardozo L. Rev. 2153 (1996).
 See id. at 2168–74.
 See generally James W. Fox Jr., Imitations of Citizenship: Repressions and Expressions of Equal Citizenship in the Era of Jim Crow, 50 How. L.J. 113 (2006).
 See id. at 156-58.
 See generally George Brooks, Felon Disenfranchisement: Law, History, Policy and Politics, 32 Fordham Urb. L.J. 851 (2005).
 The Fifteenth Amendment was ratified in 1870, and the Voting Rights Act was passed into law in 1965.
 In South Carolina v. Katzenbach, 383 U.S. 301 (1966), the court noted the need for a national approach to end voter discrimination instead of the piecemeal approach that the Department of Justice was forced to employ.
Congress has repeatedly tried to cope with the problem by facilitating case-by-case litigation against voting discrimination. The Civil Rights Act of 1957 authorized the Attorney General to seek injunctions against public and private interference with the right to vote on racial grounds. . . . [T]he Civil Rights Act of 1960 permitted the joinder of States as defendants, gave the Attorney General access to local voting records, and authorized courts to register voters in areas of systematic discrimination. Title I of the Civil Rights Act of 1964 expedited the hearing of voting cases before three-judge courts and outlawed some of the tactics used to disqualify Negroes from voting in federal elections.
Despite the earnest efforts of the Justice Department and of many federal judges, these new laws have done little to cure the problem of voting discrimination.
Katzenbach, 383 U.S. at 313.
 See David J. Garrow, Protest at Selma: Martin Luther King, Jr., and the Voting Rights Act of 1965 132 (1978).
 President Lyndon B. Johnson, We Shall Overcome (Mar. 15, 1965).
 The VRA helped to close the voter registration disparities in the South. See Bernard Grofman, Lisa Handley and Richard G. Niemi, Minority Representation and the Quest for Voting Equality (Cambridge University Press 1992).
 See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966) (holding that the VRA was a constitutionally sound exercise of Congress’s grant to use “full remedial powers” of the Fifteenth Amendment to secure the franchise for Black citizens); Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193, 210-11 (2009) (holding that the district in question was eligible to “bail out” of Section 5 preclearance under the VRA, however the Court declined to rule on the merits of Section 5 itself).
 See generally Gilda R. Daniels, Unfinished Business: Protecting Voting Rights in the Twenty-First Century, 81 Geo. Wash. L. Rev. 1928 (2013).
 52 U.S.C. § 20501 et seq. (2016).
 52 U.S.C. § 20501.
 “[T]he right of citizens of the United States to vote is a fundamental right.” See 52 U.S.C. § 20501(a)(1).
 See 39 U.S.C. § 3629; 52 U.S.C. §§ 20501 - 20511.
 S. Rep. No. 103-6, at 17 (1993).
 See id. at 18.
 Bush v. Gore, 531 U.S. 98 (2000).
 Help America Vote Act of 2002, 52 U.S.C. 20901 et seq. (2018) (providing robust federal investments into local voting infrastructure to facilitate access to the franchise and set basic standards for election administration).
 Nina Totenberg, Supreme Court Upholds Controversial Ohio Voter Purge Law, NPR (June 11, 2018, 10:30 AM), https://www.npr.org/2018/06/11/618870982/supreme-court-upholds-controversial-ohio-voter-purge-law.
 See, e.g., Condon v. Reno, 913 F. Supp. 946, 949 (D.S.C. 1995).
 See, Richard L. Hasen, The 2016 Voting Wars: From Bad to Worse, 26 Wm. & Mary Bill Rts. J. 629, 630 (2018) (Figure 6.2 “Election Challenge” Cases Per Year: 1996-2016).
 I served as amici in Brief for Eric H. Holder, et al., filed September 22, 2017 (arguing that for almost three decades, through Republican and Democratic administrations, the Department of Justice had maintained the position that the NVRA prohibited removal for not voting). See Brief for Eric H. Holder, Jr. et al. as Amici Curiae Supporting Respondents at 8-9, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 4483918.
 Brief for the United States as Amicus Curiae Supporting Petitioner at 10, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 3485554.
 Brief for Eric H. Holder, Jr. et al. as Amici Curiae Supporting Respondents at 8-9, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 4483918.
 See, Brief for the United States as Amici Curiae Supporting Petitioner at 14, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 3485554.
 Ohio has a sordid history in the area of voting rights. It has attempted to employ a number of disenfranchising methods through the years. See, e.g., Stewart v. Blackwell, 356 F. Supp.2d 791 (N.D. Ohio 2004); Ne. Ohio Coalition for the Homeless v. Husted, 837 F.3d 612 (6th Cir. 2016), cert. denied, 137 S. Ct. 2265 (2017); see also James Dao, Ford Fessenden, and Tom Zeller Jr., Voting Problems in Ohio Spur Call for Overhaul, N.Y. Times (Dec. 24, 2004), https://www.nytimes.com/2004/12/24/us/voting-problems-in-ohio-spur-call-for-overhaul.html.
 Totenberg, supra note 29.
 Husted, 138 S. Ct. 1833.
 Id. at 1833.
 Id. at 1841.
 A. Philip Randolph Inst. v. Husted, 838 F.3d 699 (6th Cir. 2016).
 Brief for Petitioner at 14, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 3412011.
 Husted, 138 S. Ct. at 1838.
 Id. at 1842 (citing 52 U.S.C. § 21083(a)(4)(A) (emphasis added)).
 Id. (“‘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).”) (citations included).
 Id. at 1843.
 Id. at 1865.
 Id. at 1861 (“shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965 (42 U.S.C. § 1973 et seq.) [now 52 U.S.C. § 10301 et seq.].”).
 Husted, 138 S. Ct. at 1848-50 (Thomas, J., concurring).
But, as originally understood, the Times, Places and Manner Clause grants Congress power “only over the ‘when, where, and how’ of holding congressional elections,” not over the question of who can vote. The “‘Manner of holding Elections’” was understood to refer to “the circumstances under which elections were held and the mechanics of the actual election.” It does not give Congress the authority to displace state voter qualifications or dictate what evidence a State may consider in deciding whether those qualifications have been met. The Clause thus does not change the fact that respondents’ reading of the NVRA is constitutionally suspect.
Id. at 1850 (citations omitted).
 Id. at 1849 (“As I have previously explained, constitutional text and history both ‘confirm that States have the exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied.’”).
 Id. at 1850 (Breyer, J., dissenting).
 Id. at 1850-51.
 See Brief of the League of Women Voters et al. as Amici Curiae Supporting Respondents at 16, n.12, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 6939164.
 Husted, 138 S. Ct. at 1856 (Breyer, J., dissenting) (citations omitted).
 Id. at 1863 (Sotomayor, J., dissenting).
 See Brief of the Nat’l Assoc. for the Advancement of Colored People and the Ohio State Conference of the NAACP as Amici Curiae Supporting Respondents, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 4387145. As one example, amici point to an investigation that revealed that in Hamilton County, “African-American-majority neighborhoods in downtown Cincinnati had 10% of their voters removed due to inactivity” since 2012, as “compared to only 4% of voters in a suburban, majority-white neighborhood.” Id. at 18. Amici also explain at length how low voter turnout rates, language-access problems, mail delivery issues, inflexible work schedules, and transportation issues, among other obstacles, make it more difficult for many minority, low-income, disabled, homeless, and veteran voters to cast a ballot or return a notice, rendering them particularly vulnerable to unwarranted removal under the Supplemental Process. See Brief of Asian Americans Advancing Justice | AAJC et al. as Amici Curiae Supporting Respondents at 15–26, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 4387148; Brief of National Disability Rights Network et al. as Amici Curiae Supporting Respondents at 17, 21–24, 29–31, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 4483919; Brief for VoteVets Action Fund as Amicus Curiae Supporting Respondents at 23–30, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 4386883. See also Brief for Libertarian National Committee as Amicus Curiae Supporting Respondents at 19–22, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), 2017 WL 4308366 (arguing that Ohio’s rule places weighty burdens on principled nonvoters).
 Common Cause of Colo. v. Buescher, 750 F. Supp. 2d 1259, 1274 (D. Colo. 2010).
 Shelby Cnty. v. Holder, 570 U.S. 529 (2013) (holding that Section 4 of the Voting Rights Act of 1965 was unconstitutional, and effectively stripping federal protections found in Section 5 of the Act, using a states-rights rationale). See generally Gilda R. Daniels, Unfinished Business: Protecting Voting Rights in the Twenty-First Century, 81 Geo. Wash. L. Rev. 1928 (2013).
 Jonathan Brater, Kevin Morris, Myrna Pérez, & Christopher Deluzio, Brennan Ctr. for Justice, Purges: A Growing Threat to the Right to Vote 3-5 (2018), https://www.brennancenter.org/sites/default/files/publications/Purges_Growing_Threat_2018.pdf.
 Kristina Torres, Georgia Cancels Registration of More than 591,500 Voters, Atlanta Journal-Constitution (July 31, 2017, 3:32 PM), https://politics.myajc.com/news/state--regional-govt--politics/georgia-cancels-registration-more-than-591-500-voters/ozSuX227UpNe18YGQ0hYUJ/.
 Jacqueline Thomsen, Study: States with Racial Discrimination History Purge Voter Rolls More Aggressively, Hill (July 20, 2018, 10:40 AM), http://thehill.com/homenews/campaign/398038-report-states-with-history-of-racial-discrimination-more-aggressively.
 See, e.g., Brater et al., supra note 62.
 42 U.S.C. § 1973 (2016). Section 2 of the VRA prohibits voting practices and procedures that discriminate on the basis of race or color. Traditionally, Section 2 cases have involved challenges to at-large methods of election. However, Section 2’s nationwide prohibition against racial discrimination in voting applies to any voting standard, practice, or procedure, including redistricting plans.
 See generally Gilda R. Daniels, Voting Realism, 104 Ky. L. J. 583 (2016).
 Waleed Aly, Voting Should Be Mandatory, N.Y. Times (Jan. 19, 2017), https://www.nytimes.com/2017/01/19/opinion/voting-should-be-mandatory.html.
 Compulsory Voting in Australia, Australian Election Commission (Feb. 14, 2011), https://www.aec.gov.au/About_Aec/Publications/voting/index.htm.
 If an Australian fails to vote, he would receive a $20 fine for a first offense and $50 fine for a subsequent offense. See, Failure to Vote, Western Australian Election Commission, https://www.elections.wa.gov.au/vote/failure-vote.
 Same Day Voter Registration, Nat’l Conf. of State Legislatures (Mar. 27, 2018), http://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx.
 See, e.g., id. (“There is strong evidence that same day and Election Day registration increases voter turnout.”).
 For example, Ohio requires voters to live in the district where they vote. See Ohio Rev. Code Ann. § 3503.01(A) (West Supp. 2017); see Voting by Nonresidents, Nat’l Conf. of State Legislatures (June 20, 2018), http://www.ncsl.org/research/elections-and-campaigns/non-resident-and-non-citizen-voting.aspx.
 Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) (upholding Indiana’s voter-ID requirement).
 Husted, 138 S. Ct. at 1833.
 Shelby Cnty. v. Holder, 570 U.S. 529 (2013).
 Shakespeare, supra note 1, act 5, sc. 2.
 Dr. Martin Luther King, Jr., Give Us the Ballot (May 17, 1957).