at issue in this case is whether the ohio secretary of state and deprive eligible ohio citizens voters who remain eligible have not moved have taken the time and made the effort to register to vote i can hear you but you just don't seem to be projecting very well i wonder if there is a mikey she were no i was got got it's all i mean i can hear you it just seemed quieter than usual ok i'll try to speak up this at better but is a big ok so we're talking about voters who haven't moved remain eligible to vote maybe effort to register and have voted in the past and the question is whether ohio can strike them from the rolls and deprive them of their right to participate in the democratic process based on a system that begins with the voters failure to vote under the national voter registration act the answer is clear secretary cannot remove these voters and situation i just described is exactly the situation that was faced by our client larry harmon last november when he attempted to vote in the two thousand and fifteen statewide election and like many voters mr harmon doesn't vote in every election in two thousand and twelve he looked at the candidates and didn't like either of them so he stayed home as a form of protest when he feels strongly about something he wants to be able to go to the polls and cast a ballot a count and he done that many times in the past but last year mr harmon went to the polls and learned that he had been stricken from the rolls if the state had decided that it had been too long since he voted and it had purged notices or were sent notices and didn't respond and yet they remained eligible voters they hadn't moved and many went to the polls in november of two thousand and fifteen and many went to the polls in the primary this year in two thousand and sixteen they attempted to vote they cast a ballot a provisional ballot and it wasn't counted and there's no question that these voters are eligible voters that the voters were talking about and we identified in the discovery in this  case cast provisional ballots under ohio law those provisional ballot acted as voter registration applications so ohio determined that these voters were eligible it put them back on the rolls at the very same address where they had been registered before but  in another way or do we actually know the answer to that we do know we know both from voter history records provided by portage county where he resides and we also in this state has conceded that that is the case they stipulated to that fact the supplemental process violates the only reading of the national voter registration that makes sense of all of the statutes parts and i'll explain why that is so what issue this case is essentially a case of statutory construction and the question at the core of the case is a simple one what does it that states efforts to maintain their voter rolls quote shall not result in the removal of the name of any person from the official list of persons registered to vote and i will action for federal office by reason of the person's failure to vote and  so the general rule is that the state can't that failure to vote can't be the basis for removing a voter from the voter rolls and it can't be the basis of any system that results in the removal of the voter from the voter rolls with  is what they say your honor and that is insufficient to give them grounds to remove the voter from the voter rolls so the exception to this rule against removing voters for failure to vote is for a two step process that's laid out in section c and d of the statute under which when the state has evidence that a voter has changed residence the state even with that evidence must still confirm that the voter has actually moved and that is what the notice is supposed to be sent for and if the voter fails to respond to that notice and then doesn't vote in the next two federal election cycles then the voter and only then can the voter be removed and that is the only circumstance in which failure to vote can be relevant to the state's decision to remove the voter from the voter rolls and even before you get to that step you have to have evidence that the voter moved at step one of this two step process l that the state should implement some procedure that shows that the person the subject to being purged from the rolls or losing the registration because that person is moved or is not maintaining the registration currently but that failure to vote can be taken into account without violating the failure to vote cannot so when i describe this two step process where you have to have evidence of a move and then you have to confirm it using a mailing and then you can that circumstance failure to vote can be considered as part of that confirmation process failure to vote cannot be used at the first step to say what we think because you failed to vote you've moved they need better evidence than that in the model avenue model procedure laid out in the statute is using information from the postal service what's wrong with the supplemental process is that the big to vote is used early in the process of deciding whether to remove the person from the rolls since you can validly remove the person taking into account the you devote  proceed you so you can be taken into account correct and there's a moment in with the statue is that what you're saying correct your honor it can't failure to vote cannot be used as the initial evidence that the voter has this statute does not say so leave the n p r it doesn't contain that word there is in there is language in the help america vote act we consider both together or you do consider both together your honor and under the help america vote act it refers to the end the ira it says that when you're mean you know the states now mandated to keep a statewide voter registration list and it needs to maintain that list in accordance with the n p r a it compliments it and it compliments it well it doesn't it i mean by its terms it doesn't add to it but it compliments it and it says you know you can use this procedure where you when you have evidence of a move you can purge someone if they fail to respond to a notice and then fail to vote but you cannot purge them solely for failure to vote that's the  the first point if you read the statute as meaning as long as you send a notice and way to election cycles you're fine no matter what the reason for sending the notice was then you don't have he you haven't attributed any meaning to the provision that says you can't use failure to vote because the section section subsection d of the statute which lays out that confirmation procedure it already says that so if that's all the prohibition on using failure to vote means why would you need it you forgot you're covered with the confirmation absolutely correct your honor and you know it's it's insufficient because as the evidence in our case shows there are lots of people who fail to vote and haven't moved and sometimes they still come out a little bit about  a little bit about the record i mean we were obviously under a great deal of time pressure as we're all to prepare for the top be a little bit about what what what the record doesn't absolutely your honor and we would like to thank the court for expediting this case the record the evidence in the record is evidence from voter history files that were obtained from the counties and the discovery process and in some counties in the records vary from county to county but in some counties that you could tell when the person was removed and for what reason and you could tell what address they were registered at prior to being removed and we compared that those records to the provisional ballots that were cast in the two thousand and fifteen zero general election in the two thousand and sixteen primary and identified the voters that we have discussed this over six hundred voters we discussed to cast a provisional ballot and the list of exactly the same address where they had been registered prior to the two thousand and fifteen purge and in some cases they were purty even before that but they continue to live at the same address  response to that is pretty much as i read it that the statute doesn't require the sort of evidence that klein well this statu requires that you that people cannot be removed and lest they become ineligible and failure to vote doesn't give the state sufficient information to believe that the person has become ineligible so there is a i'm just trying to make sure i've got this yes absolutely your honor it is analytically corrected from your point of yes it unreasonable because it doesn't it's in its insufficiently connected to eligibility were quire meant is that the state make a reasonable effort to remove ineligible voters it's not that it you know has to make some effort to remove voters it's got to remove it's going to be targeting ineligible voters and failure to vote doesn't do that and one of the purposes of the statute was to ensure that eligible voters register and that they stay registered as long as they remain eligible and allowing the state to remove people because they haven't voted is does not ensure that injunction and the relief we're seeking is that if one of these voters of the voters who came out and november two thousand fifteen in two thousand and sixteen of voters like that come out they cast a provisional ballot they list on that ballot  the same address where they were registered before and the state can confirm that in the states confirming their eligibility anyway because it treats that as a voter registration application so the state is already determining that they're eligible and all we are asking for is that if that happens in future man please the court my friend and i here agree on one thing that this is a statutory interpretation i think we part has there because the question is where in the statute is there a requirement as he said that voting cannot be considered to start t in three distinct parts of the statute here this is the two parts that are in the n v are a as amended by the help america vote act as well as in the help america vote act itself so just play the part you were just quoting from goes on to say it but nothing shall be construed in this paragraph to prohibit the state from using the process seize it was to blow in some paragraph c and d and then it lists the same two bits of non activity that are consistent across the statutes here not responding to a request to confirm and then not voting into party to follow these perks rose they are removed through this process because the states remember the structure of the statute as to why i mean because you're hearing moving them their your failure to respond to that notice i am not aware that that is an adequate basis for purging somebody from the rows either and so our rasmussen fouls that seems to be with says that states shall cancel the registrations of those who have won not responding to his confirmation and then to not voted in two consecutive federal elections then there is a comma except that future of failure to vote salt in removal so that except clause tells us not to take that shall looking at those two nine activities the failure to respond to confirmation notice and the failure to vote but don't read that just outlier i think your honor and if you look at footnote two of the reply brief that my friends file then i think we agree that georgia and tennessee have very similar systems to ohio so it's certainly not a one off outlier in that sense i would not that ohio is using with it would have to take into account the meaning that you or you're arguing for we're going around saying that that sub hereafter is a standalone command to the states the com states is over and in some paragraph a the says the states must make an effort to maintain accurate voter rules then it sets off in subgraph b c in the various restrictions on the programs of the states have the discretion to set up be set certain general ground rules subparagraph see as a safe harbor and then a specific ninety day time limit and some paragraph d describes the end part of the process and perhaps the best way to see this is in language that was added  help america vote act this is it fifty two u s c twenty one hundred five in this says the specific choices are left to the states discretion about how to comply with the mandate that they have a member both of these statutes impose dual mandates on the state on the one hand to make registration more available on the other hand to maintain accurate voter registration s and that means the states are caught in between but congress did not put them on a knife's edge between those competing mandates  think that shows why it's not connected to voting in the way that my friend would have you say it would be entirely permissible under these acts to simply say a million people in ohio move every year and so every two years instead of limiting it for cost in h congress says over and over in three different places this is confirmed by what was in the senate report on this bill as well as the identical bill that failed before this became law in  there that are using procedure other than the postal service type of probation that's referred to in this country using other procedures other information to begin  ensure removal process i believe some states are answer i don't have a catalog for i believe some states do begin with an all voter mailing and then that but it's not identical to the hypothetical i just described the judge claimed they begin with an  proceed with that to the ones that did that that is my understanding how those states to proceed with that just how in both the postal service process and that process you start with indication of a change of address that's absolutely right and if you look across these three different parts of the statute it says over and over these two activities especially if you look at the language in twenty one zero eight three a ford says the state as part of the minimum standards it must meet to maintain accurate voter rolls it shall remove the registrations of those who do not respond to confirmation and do not vote in two consecutive federal elections and then there is that accept but don't read that language congress has done me that language to say that sole something that's peaceable or what situation that you want to understand the are going about the service is signing things like nominating petitions or local local election issues the issue there was there were originally brought a challenge saying that ohio's process was not uniform because of how it treated those who signed petitions does that count like going in voting as a voter activity in this total six year period sandwiched around not responding to confirmation notice and that don't review them is still pushing that argument but it is still uniform and for this reason your honor in those counties some counties when they're looking at a list of say you need a thousand signatures for an issue when they get to signature one thousand they simply stop counting other counties go through and verify all of the signatures in a uniform or proced point to the same two non actions look at what the department of justice says they said there is one case in the country that has ever considered this issue is a california case from the one nine hundred ninety s this is exhibit eight to the department of justice amicus brief and it reads the statute although it approved it california a process that is different from ohio's it rejected the idea that a pair of non activities confirmation plus not voting was canceling a registration based only on voting and that is the core of the plane of sargon if you can't start the process with non voting that is left as hard as self says that choice is left to the discretion of the states it is it could be an all voter mailing it could be as it makes sense here a subset because those who vote every three doors down and certainly within a precinct and i think there was litigation of this four years ago yes within a precinct you're still allowed to go even moving from say columbus to cleveland you're still able to vote a provisional ballot so but doesn't change your ability to vote that moving there so we're all of this is driven by this entire process just like the safe harbor process in subparagraph c one is maintaining accurate voter registration list that's what congress was concerned about hundred two when they passed the national voter registration act and again in two thousand and two and that's why as i mentioned there are these dueling mandates placed on the states to make registration more available from the one direction and then to maintain accurate list from the other direction and ohio like is why congress left space for the states to operate on a high was doing here with the supplemental process does exactly what the statute says over a period of six years non voting around failure to respond to a confirmation  it describes the back end of the process but does not describe the front end structurally that shows why the front end of the process is left to the choice of the states and some of the question he reveals states do take different approaches as to how to start this process kind of outline for me the time frame when adversary counsel was asked about the exact nature of the adjusted release add was not sure after i heard of an election and as we get closer to ninety days before this general election then that affects being able to do that in two thousand and twenty one terms of the timing of injunctive relief here is what they're asking for i read on what i hear my friend saying here right now ballots to have cared if they are still where they used to be even though you're perfect of those that are to figure out if they are still where they used to be there has to be information in the database that they are that's their actual address i'd like to i'd like to address a couple of points that were raised first on the question of whether failure to respond to the notice provides additional additional basis for considering that the person has moved or something that would take it outside of the restriction on purging for failure to vote one could view sending a notice and not having that notice be returned by the postal service you know if that notice is delivered as addressed one could use one could see that as evidence that the person had not moved just as well as evidence that the person had moved  and that is why that procedure on its own that's noticed and the filed subsequent failure to vote is not a procedure a standalone procedure for removing voters as as the state seems to suggest they're there all of the provisions section eight d of the of the n b r a and the provision and hava that has been referenced presume that the notice has been sent so that in the people who fail to respond to the notice and fail to vote for two election cycles but it's presuming that the notice has already been sent and there's got to be a reason to send that notice and while that it is true that the state has some discretion about who it's going to send those notices to it can use the postal service information if it wants to it can use return mail it can use other sources of change of address information but the statute specifically says it can't use failure to vote at that stage and it can't use a process it can't use and my opponents concedes that section b puts restrictions on who can be sent a notice it can't be discriminatory it can't be non uniform they leave out the part about it can't be based on failure to vote so just as they couldn't mail notices only to women they can't mail notices to people on the basis of failure to vote the first would violate section eight b one the second violates section eight b two the only place they can consider failure to vote under the exception to be two is in the confirmation process and if you read the confirmation process as as long as you sent a notice in a way to the two election cycles there would be no point in the restriction on purging for failure to vote because it's contained in section d and the confirmation procedure that restriction and there would also be no need to set forth a safe harbor because any reason for sending on the books that say they can comply and that way i don't know that any of them are actually doing that it's a lot of work but yes that was me that would be a valid basis for believing that the batson sort of mail return receipt requested that ok if you  certified mail return receipt requested and it got delivered to be the letter that yes and i think i care you know it is a it is a very factual question does it does you know it does if the voter signs it and it gets and the return receipt gets sent back well i would think that's evidence the voters still there so even if they don't respond to the notice you do you don't you can't purge them on the basis of not responding to the notice and you know it may not be delivered because there is no one home when the postal service tries to deliver it and they only try a certain number of times so then you know i mean it becomes you know there are a lot of factual issues that might become relevant there buddy i mean ask about this relief that you're requesting that the secretary indicates that they would but i think what he's saying is that they need would need records to show where the person used you know where they were registered before any conceded that back to two thousand and fourteen they have those records so anyone purged in two thousand and fifteen which was you know what the larger still if they're when well they show they still live there i mean partly by such by showing up at the polls and signing an affidavit that says this is my address and then the question is can you can you figure out does that address match where they were registered before they were purged and according to the state anyone purged in two thousand and fifteen the state has that information on a statewide basis anyone courage prior to two thousand and fourteen it would have to go to the county databases and you'd have to determine whether the counties had that information but you know i think we could i think we could agree that as long as the county can verify that that's where the person lived before they were removed you would that the county would have to be able to verify that as part of the injun outcome of the arguments between the two of you hinge on whether we think that the correct interpretation of those statutory provisions aboard the way this was used in the supplemental process  meaning that all the state has to do is send a notice and way to election cycles you haven't given any meaning to the actual prohibition on using failure to vote you have given it because that you know what does that mean beyond those you know what does the rule mean beyond its exception and that's so that's the question that we're asking right there's a rule that says you can't use failure to vote vote there's an exception that says you can do this process to confirm a change of address but there's the rule prohibit anything that isn't permitted by the exception and i think according to their reading of the statute the answer is no there's nothing prohibited by that prohibition on failure to vote other than what is permitted by the exception so then you don't have a prohibition on use of failure to vote if you read the of people who failed to vote you've got evidence sort of following that you've got evidence that the person has moved so you're not triggering the removal process on the basis of the failure to vote your triggering it on the basis of the evidence that the person no longer lives there  property yes and it really the failure to vote in that circumstance is kind of irrelevant the you mean they could send it if they could send someone around every house in the district it's the fact that they sent someone there and found that the person didn't live there and that evidence becomes the evidence that triggers the removal process with that alone be sufficient no they would be going to the house would not be sufficient this stood the statute subsection d which is the confirmation process says even when you know it says you can't remove someone on the basis that they've moved unless you do this i mean yes absolutely they're knocking on the door and finding that you know this person doesn't live here anymore that would be sufficient to trigger it absolutely