No Voting For You: Ohio, Voter Rolls, and But-for Causation

This will be a short post on the case itself, but will also introduce you to one of the law's more difficult concepts: causation.  But once you get some idea of causation, this case, and many others, might be a bit more understandable.  Challenging, but worth it.  First, the case (the "Plus One" of my 'Big Seven Plus One" Supreme Court cases).

November 8: Husted v. A. Philip Randolph Institute

Ohio has a voter list-maintenance process, through which you are sent a notice if you have not voted for two years.  The notice asks you to confirm your eligibility to vote.  If you fail to respond over the next four years, you are taken off the rolls: your voter registration is canceled.  

There are two federal statutes involved here.  The National Voter Registration Act (NVRA) prohibits any state from implementing any program that would "result" in the removal of a person from the voter rolls "by reason of a person's failure to vote."  The Help America Vote Act (HAVA) requires states to remove voters who do not respond to a confirmation notice and do not vote in the next two general federal elections but prohibits states from removing voters "solely by reason of a failure to vote."  Does Ohio's list-maintenance program violate either statute?  The Federal District Court said no.

The Sixth Circuit Court of Appeals reversed and said yes: Ohio's program violates the NVRA because Ohio uses a failure to vote as a trigger for sending a notice.  The Sixth Circuit reasoned that a person's ultimate removal from the rolls "results" from a person's failure to vote, a violation of the NVRA, and the HAVA does not authorize Ohio's practice because the trigger for the confirmation notice is based solely on the person's failure to vote.

Husted (the Secretary of State of Ohio who keeps the voter rolls) says no: in order for a practice to violate the NVRA/HAVA, failure to vote must be both a but-for and a proximate cause of removal.  While failure to vote is a but-for cause of removal under Ohio's system, the proximate cause is the voter's failure to respond to Ohio's confirmation notice.  Under Ohio's theory of the case, because a voter is removed for not completing the form, they are not removed "solely" for failure to vote.

Confused?  Well, the concept of causation has occupied the minds of lawyers and judges (to say nothing of philosophers) ever since there was law and philosophy.  LII has a one-page description of the but-for test and its problems. but I have to say you almost have to know the answer to the question beforehand to get it.  Causation is by its nature very hard to understand in the abstract, so I'll put it in terms of this case.  

The plaintiffs, voters in Cuyahoga County (think Cleveland), were purged from the voter rolls.  They (both named plaintiffs and the A Phillip Randolph Insitute) say their failure to vote was the but-for cause of their being purged.  In other words, their choice not to vote led to the purging and, but-for that, there would have been no purging.  You could also think of it as a chain: don't vote → confirmation notice → (if not filled out) → purging.  But none of this would have happened if the choice not to vote didn't start the whole process rolling: not voting is thus the but-for cause of being purged, which they say is in violation of the NVRA/HAVA.

Ohio brings another causation theory into play: proximate causation.  The term "proximate" may provide a clue as to how this theory works.  Think of the thing that caused the event that is closest (in time or distance) to that event.  For Ohio, that would be the failure to fill out and return the notice.  It is more proximate (closer in time) to the purging than the non-voting that gave rise to the notice.  And since it is closest, it is the cause, even though not voting was the reason for the notice in the first place.  And, following Ohio's theory of how the two statutes should be interpreted, the failure to vote has to be both a but-for and a proximate cause of purging to be a violation of the laws.  Since if you filled out the form, you wouldn't be purged, not voting is not (causally) related; only failing to fill out the form is.

Don't be upset if it makes your head spin a bit.  Courts are still wrestling with these two definitions of "cause" (and there are in fact others; see LII) as they (and legislatures) try to figure out issues of who is liable for an accident or responsible for a crime.  But now you know two types of cause and at least some idea of how they work.  And of course, I'm always ready for questions and comments.  And if you want to read the Sixth Circuit's opinion, the certiorari petition (which as you know by now attracted 4 votes) or other case documents, you can find them here.  [Note: the Brennan Center is a great resource, but in the interests of fairness, they have filed an amicus brief on behalf of the A Phillip Randolph Institute].

Next up: the last case.  There is cake, but it's hardly about that.


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