serve competing goals increasing the number of eligible registered voters but decreasing the number of a knowledgeable ones and this congressional compromise is evident in the statutes conflicting mandates that both require states to undertake general programs to remove and eligible individuals but at the same time places limits on those federally mandated removal programs including that states may not remove individuals for change think certainly i think that if there is no failure to vote cause that's one of the main prohibitions on which they're realigned but i think you have to interpret b and white of the of course you know the clearly indicates that we if we so long as we send a safe harbor for something completely different they treat it as a safe harbor for meeting an implicit element and be that a state have objective evidence that individual has moved but that element is not there and fact the postal service provision is a on the other side of the balance between removing an eligible voters and keeping eligible voters on the roll this is a very complicated system for a very simple position if you have any reason to believe someone has changed address just a notice and after two election cycles disqualified them why have the post office provision at all why have any other provision as it is i understand ohio now is not waiting for people to don't need anything you need you could send out a notice any time any place and if someone fails to respond to it you can purge them isn't that your position no no our position is  notice gets sent out if they respond than obviously you can't are my point is you don't even need the family had to vote two years to use the no that's right because a statewide canvass would not be based on failure to vote whatsoever and so that's why they have to read into de an element that they just make up from whole cloth which is that they have objective evidence of a move well singling let the notice of the senate report that support at the end the ari explicitly says that what they wanted to avoid was a mailing that is on responded to being a cause for removing someone so if that was its purpose why wouldn't it make sense that the only reason you can chain send the notice is if you have some reasonable basis to believe someone has well you to vote can't be here because the senate report says that they believe they had a vote was a constitutional right you have a right not to go so there's a there's a couple points there the first was what if people do not respond to the notice i agree that there is a senate report suggesting that they were concerned that people would be removed merely for failing to respond but congress did not put in objective evidence element into the d procedure in response that concerned they put in the safe harbor what they called the fail safe voting on the back end so i individual doesn't respond they still have two federal elections in which they can show up to vote so that's how they dealt with that provision with respect to failure to vote i think the legislative history is quite clear that the concern was  removing individuals merely for failing to vote in a recent election that's what the report says at page seventeen and that's not what i would have three provisions having to do with the post office notice because that's a very  reasonable why why do you need it because that islam minimal effort on the other side of the balance as i was trying to mention to justice ginsburg i think that is a safe harbor for the states obligation to engage in maintenance effort a force says that the states have a duty to remove and eligible voters and see says begins by saying you can meet your obligations remove an eligible voters by going through this process it's the minimum on the one side of the balance the general if i can take you back to justice ginsburg's question because it seems as though you are effectively turning eighty one into a kind of safe harbor in this sense eighteen one says that these confirmation procedures are a permissible part of the program even though part of the confirmation procedures are about not voting so that's clear that eighty one says that but your time trying to take that and convert it into something bigger and broader essentially saying if you use these confirmation procedures your entire program is going to be insulated from criticism even though there's another part of  program that explicitly relies on voting and i don't see that as in any way being the point of eight the one you're trying to take eighty one which says sure you can have a part of the program that does this and use of non voting over to federal elections we have the proximate cause argument for why the failure to response to the notice breaks the causal link and there was this debate in the one nine hundred ninety s i must say i don't understand i think this is a little bit of a different question but since you've raised that the proximate cause argument i don't understand because essentially what the ohio program does is it says nonfood in failure to respond non voting and you're trying to pick out no argument on that sure there's a proximate cause test but there's more you know there's more there can be more than one proximate cause in the world exactly and the court has said that you have to pick the proximate cause test that fits the statute and this statute full blast cause undoubtedly is failure to vote that's why i think the best way to reconcile b and d is to say that a failure to respond to the notice breaks any causal prohibition between failure to vote and removal and i think there was this debate why do you need the proximate cause argument at all what the statute says is that someone may not be removed from the us by reason of the person's failure to vote it can mean but for cause because then it would run it because this the statute itself takes failure to vote into account in the that's one of the things  is necessary in order for someone to be removed from the list under d so it can't be but for and in the ha v i i congress used the term slowly so why isn't the best interpretation  adding a word into the statute that congress wrote statutes congress said by reason to vote there are multiple places in the us code where congress wants to say sole you know soley by reason and congress says it it means something different because there are lots of situations in which two components together cause something and so to add that word solely is to change the meaning of the statute and that word is not in this harvard was not the only provision that was adopted and harborough in addition however when it added that saw it clause also added the clarifying amendment to the fate of general everybody is looking here for a way to reconcile these two provisions i mean you're right these two are ok what do we do with this but why isn't the obvious way to reconcile the two provisions just to say look you got this failure to vote clause but don't think that this failure to vote clause bars  state from using the con from and procedures it doesn't bar a state from using a confirmation procedures that can be a permissible part of the state program so that's your way to reconcile the two things taken on its own the failure to vote clause looks  though it might bar confirmation procedures the confirmation procedures says no not these so look i think that may have been one record so one way to reconcile it our way may have been one way to reconcile what the state's the bait of the federal government in a completely independent statute i mean it's not the clarifying amendment which we can talk about in the soul the causes it's a part of it but different provision in a different statute dealing with a related but different subject matter so there would be no reason to take one provision that says soli and says because that provision says so late we're going to treat this provision is also saying solely when this provision does not say soley in fact we have a rule against that and statutory interpretation then with respect to the failure to vote cause in the in the air a adopted a clarification a minute that said except that nothing in this provision shall be construed to prohibit the state from using the perfect procedures in my point about how these two things are rep style above the clarifying amendment says how there reconcilable where i'm going and i don't interpret the failure to vote clause as barring the confirmation procedures states can use the confirmation features but that doesn't mean that they can do anything else that they want to on top of the confirmation procedures so you so it's a rule of clarification so it says you have to construe be two and i think that with that combined with the s makes quite clear that you have to interpret by reason of language and some way to break the causal link between voting and removal that is required in the i think interpret it to be the sole cause is the way to accomplish that feat i think that's why there was a clarification amendment on the one hand and b and in the soil cause i also think the public card text is really important here at the public eye to the essence of this case it appears as if what you're what you're reading is that the failure to vote is enough evidence to suggest that someone has moved that seems to be your position because it can be the only one but is that a reasonable effort to draw that conclusion when you do results in disenfranchising disproportionately certain cities where large groups of minorities live where large groups of homeless people live and across the country they're the group the least measure in large measure because many of them work very long hours and without the golden week that ohio rescinded many of them can't vote because the polls are not open while they're not working places like cleveland have very very very long lines of of voter red voters trying to impediments result in large numbers of people not voting in certain spots in the state so if the word reasonable effort has any meaning with  congress who said that the failure to vote is a constitutional right how can we read this statute to permit you to begin a process of disenfranchising soley on the basis of that with no independent evidence whatsoever that the person has moved you can use the post office they tell you that you can use certified mail you could use juror change of addresses you can use driver license motor vehicle change of addresses there are dozens of other ways that you could verify a change of address yet you're suggesting that using a failure to appear at an election or elections as evidence of moving have to give the meaning the words that congress said don't use the failure to vote as a result that results in someone being disenfranchised i don't understand how you can say that the failure to go can be used as the so basis for sending out notices we don't it's not a reasonable inference so how could it be a reasonable effort so the in the residence in accordance with b c and d and b has you using the postoffice correct c c has you using the post office b says  shall not be removed shall not result in the removal of the name of the person from any official list register to vote in election for federal office by reason of the person's failure to respond to a notice and felt a vote over six years which is more than the minimum please explain to me why a change of address is reasonable what one of the suits is sticks that show that the vast majority of people that you just enfranchise from voting that you strike from the election rules have actually moved so so there was no statistical evidence that is necessary because congress made the determination of what evidence is necessary and that determination now when it gave you an example i gave you an example of that was an example really meaning in our minimum duty on the other side to there's a minimum duty a minimum amount of protections for eligible voters and a minimum requirement on the states to undertake a minimal there's a minimum requirement on the food or who gets your notice to respond absolutely if a statute places a requirement on the voters but that's after you have evidence that they've actually no there's no there's nothing in the statute that sex suggests that there's limitations on the trigger with respect to minorities i would add by the way that our position is not at all  he one congress responded that concerned that suggesting that the process must be uniform nondiscriminatory and in compliance with the vote well that's a problem but that would there's a strong argument this is at least an impact this is discriminatory i understand that argument ok thank you ana so i really would like to get back to the public context in which the ha provisions were in active because i think that public context is quite powerful on the one hand you had states from one thousand nine hundred ninety four all the way up minute debating the department of justice whether the process is just like ohio's were permissible on the other hand you had nobody there was nobody who made the argument that b could somehow be read to actually make d an operative under our view the clarification in hava was designed specifically to address the long standing debate that started even before before before the statute became affective states that they should engage in approaches like ohio's all the way to the final i report where south to the code i suggested clarifying the interviewer a in a way that's quite helpful to the state here and how the was passed and it had t like there are several many states who i think around eight that use failure to vote as the trigger for the notice i don't know some some use to some use three years some use for years but the problem with my my my friends position on the other side is it would not only outlaw all of those states those who use very devote as the trigger for sending that notice it would outlaw any state that takes into account failure to vote on the front end and that includes many states that target individuals who have not voted recently mailing and then respond to that non fordable feeling with confirmation notice for any any individuals who the non fordable mailing is bounced back to that would be equally prohibited under the logic of their argument here today  because they are saying any front end use of non voting would be illegal and thank thank you hans will you have a couple minutes for rebuttal general francisco mr chief justice and may it please the court if i could begin with justice kennedy's question justice kennedy we think that ohio's process was permissible before congress and acted the clarification amendment in two thousand and two but the clarification amendment made it even clearer for two basic reasons first sections eight c and eight d that's the postal service process and the notice process require that the non voting be the immediate cause for removal the only way you can you can construe it be to is not prohibiting that is if it be too was limited to removing people only soley by reason of their failure to vote and second this reflected a significant shift in the federal state balance at the time prior to the n p r a many states removed people soley for failure to vote others had notice processes that were far less protective than ohio's notice process none of them had a four year we're waiting period what the n v ari did was required everybody to improve their processes well beyond what they were before the n p r it was passed but beyond that let the states with flexibility and there's nothing in the statute that says that within that range of flexibility states are barred from using a non voting trigger in conjunction with eight days protective generals process so me there's twenty four year history of solicitor generals both political parties under both presidents of both political parties who have taken a position contrary to yours before the amendment and after the and in fact the federal election commission when it wrote to congress with respect to the help america vote act took the position the old solicitor generals were taking everybody but you today come in and say the act before the clarification said something different seems quite unusual that your office with change its princess in so dramatically i might accept that if you thought the health america vote act in fact clarified something that was ambiguous but you're taking a very different position you're saying even before that act it was clear you could do it this way or you are what i'm saying is i think that the help america vote act in the clarification amendment made it even clearer and after that clarification and so please explain the change of position sure after that many presidents that many solicitor generals this many years the vast majority of states over thirty five over forty actually who read it the way your opponents read it most people read it that way how did the solicitor general change its mind do you believe this doesn't happen in packed a negative impact on certain groups in the society well your honor i believe that after congress passed the clarification amendment it clarified what was at the time an ongoing debate between the department absolute clarity what i understand legislative history both sides are saying in its history this helps us and your honor so lets is ambiguous says the language may be public context is not legislative history even the most die hard textualists look to the public context in which a law was enacted i refer you to justice scalia's opinion in branch vs smith and professor manning's article in what divides textural is from purpose of ists and that public context makes clear that the only thing that was in need of clarification at the time the clarification memo was passed was precisely this question whether states like ohio is could use a non voting trigger in conjunction with the process and there's nothing in this statute that bars that i think it reflects the balance that congress was trying to strike in the n b r e between on the one hand dramatically increasing the number of voters on the voter rolls but on the other giving states the flexibility they need to manage the issues that arise when you have over inflated voter rolls of the united and i thought it was correct me if i'm wrong i thought that the united states was taking a position consistently with not a reliable indicator of residence change your honor that's partly correct our prior position was based on an understanding of the statute that read into it a reliable evidence requirement and we said that non voting was not that kind of reliable evidence our current position is that when you look at the statute there's simply no way to read into it a reliable evidence requirement that's found nowhere in the text and that congress in fact rejected and again it reflects this federal state balance where it be too decent a very protective floor required everybody to be far more protective of voters than they were before the act was passed but beyond that floor left the states with flexibility over the management of the list maintenance programs precisely so they could draw address the other side of the compromise which was giving states the flexibility they need to address the issues that arise when you have bloated voter rolls general it would be right isn't it i think you acknowledge this that if your position is correct that the failure to go and close simply doesn't apply to removal programs for change of residence is that correct your honor as of course all those programs have to use the confirmation procedures and your position is that if you use the confirmation procedures that's basically that's an out for everything that's correct but it does have much broader application so if not much broader application because you know how could you possibly use failure to vote for you know mental incapacity or criminal convictions what broader application does it have what i think it is it does a couple of things one of the principal things issues at the time the n p r was passed was what you put your finger on this practice among some states of having a kind of use it or lose it mentality to the right to vote you either exercise it or you lose it and they definitely wanted to take that off the table  the other thing they wanted to do is make sure that you could never use failure to vote conclusively presume that any other piece of rape but i guess what i'm asking general is sort of two related questions number one if the effect of your position is to say look we don't mean for this failure to vote close to apply to programs about change of residence why didn't congress just say that that's number one and number two i mean i can see the point that it's not it doesn't  make the failure to vocalize completely meaningless but i'm still looking for the place where it has some real impact on anybody who works and i don't program think it's because and this comes out in some of the legislative history prior to the end the already states simply use failure to vote as a proxy for the whole panoply of grounds for removal and they didn't necessarily tie it to this basis or that basis and congress was very concerned about simply relying on the failure to vote so they wanted to take it completely off the board and be to is the only provision in the statute that takes it completely off the board and says nobody can ever really be removed merely for their failure to vote but when you combine non voting with  the process the very protective process that congress set that required everybody to improve their procedures there's simply nothing in the statute that prohibits that and the clarification amendment leeks that even clear it with respect general i don't think you answered either of the two questions that i say that the n p r is not one of these statutes that i would hold up as a paradigm for legislative draft no case for the second question is what is left of the failure to vote clause practically speaking it takes completely off the a they used it as a presumption for meeting the whole panoply of different bases for removal lesson and was in itself considered to be a ground for being removed it wasn't necessarily the states didn't regard it necessarily as a proxy for anything else they just took the position that it was use it or lose it if you didn't vote for a certain period of time that was grounds for taking your name off the eligibility lists that's absolutely correct and that's why it meant to address both of those issues those states that had a use it or lose it mentality you can never do that and those seats that used to conclusively presume that some other basis for removal has been met but here ohio joins the initial failure to vote with the very process that congress established for determining whether somebody has been removed from the voter rolls and with respect to the notion that somehow eight d one b does not set forth a separate process apart from the eight c postal service process it clearly does if you look at section eight d there are two provisions there's a de one day which allows you to remove somebody if they've notified you that they've moved clearly a standalone process eight d one b is simply the corollary to that if you haven't notified us that you've move here's another process that states can use to make that determination thank you general thank you mr chief justice violates eight because eight a sets out an exclusive list of four bases that can be used for purging people from the rolls and bar states from doing it under any other circumstances and the supplemental process the way it is designed it that many indeed probably most of the people who are purged have not moved let alone moved to a different county or state which is the only moves that can justify a purge under the plain terms of the n v already it simply doesn't provide adequate evidence to come to the conclusion that the person has moved at all or your argument is that failure to vote is not one of the listed grounds for being removed right that's why that's the argument you've just made  failure to vote is a ground for removal or doesn't say that moving out of the district is a ground for removal and failure to vote plays a part in the determination of whether a person has moved out of the district it's it's not that the ground for removal in and of itself of course they do say that they are there using the change of residency provision of a day and that's what they're trying to justify the supplemental process with but it if in fact it does not do that then it becomes illegal and the reality is that the for the failure to vote for two years tells you almost nothing about whether or not anybody has moved fifty or sixty percent of the voters in ohio routinely don't vote over a two year period i understand that my i wonder what your answer would be to this supposed to state statute said that if you have not voted for twenty five years then we're going to send out the notice when you say that that violates this act plainly violates the actual right or because the access you can't you failure to vote is the reason for purging somebody from the rolls and what the supplemental process does is it says we the reason we think this person has moved is because they haven't voted it is the only piece of evidence that they have when they purged somebody that they have moved only you could have somebody hasn't voted for twenty years that doesn't raise an inference that the person has moved you under it in the legislative history they rejected amendments precisely like that they've been rejected one hundred year rule they said we don't want failure to vote to be the basis for which people are perched in and of itself but i mean that isn't enough even to spark an inquiry by sending  postcard saying if in fact you just decided you didn't want to vote for twenty years but you really want to keep your name on the list and you're still in the district send this back i would be illegal we're talking about the people who don't send it back which by the way i large majority of people and when you don't get the notice back what that tells you is absolutely nothing about whether the person has moved and so when you get to the end of the three stages of the process two years of non voting not getting the notice back you have no idea why or where and four more years of non voting the only evidence that they have that the person is moved is they're not voting so it is in fact the sole reason that they're being purchased if not getting the notice back tells you nothing why did congress make that part of the determination it is a safeguard your honor it is a notice provision it is a warning to the voter that there that their registration status is at risk and it gives them two options they can send it back if they want if they haven't moved in they want to tell them here's i'm still there or it says you don't have to send it back you can just vote sometime in the next four years but reality is most people don't send it back and the statistics are in the record your honor we have exhibit i i to the states initial brief in the district court our statistics ohio provided to do this every two years to the election assistance commission at page sixty three and they say here's what happens to these confirmation notices and what it shows is in one thousand in two thousand and eleven they sent out one point five million of these confirmation that we were they supposed to do that is  every year a certain number of people die in every year a certain number move to california why we don't want them on the boat a rule that used to be a big problem voting dead people ok what should the state do the dead the dead people are the problem here are their authoritative lists of both states in the federal government when died in no why i don't know they went and died in alaska they went and died in the tasmanian is rhode island supposed to look at the that are maintained by the federal government in the states and they don't even defend this is a way to you know i want to know what they are i am very ignorant in this well i'm i'm in rhode island i see the statute i know some people have died maybe in rhode island maybe outside maybe they've moved to california i don't want them voting in my state or people pretending to be them voting in my state what do i do i do not have a detailed understanding of this since it was really part of the issue for this protest but i understand that there is a national database maintained by the federal government with information provided by all the states that listens died in the past year and you know what about people just a surprise question also included people who move them people who move there are a variety of ways that you you find them if they move within the state the first thing that happens is the bureau of motor vehicles has a change of address process and under the n p r and under ohio process if you change your driver's license address or your registration is automatically updated you're registered for move from cincinnati to cleveland your would how often do you change your driver's side well when people move it to a different place in ohio they're required to do that to notify them within ten days that's the law whether people do that i don't know but then you have the n c o a process when people move to another county or state the odds are they e and then do what is going the confirmation affordable ones that they do want to the confirmation process and they did that the entire electorate it would not violate be two but it would most assuredly violate eight eight be present so the fact that they use a general ma mail to everybody wouldn't affect the outcome in your view no it wouldn't your honor because what happens is if seventy percent of the people don't return and that's what the statistics show about the notices and twenty eleven ten percent were returned as undeliverable twenty percent were returned and one point two million people just threw them in the circular file by sending a card look the reason i'm asking these questions is because i don't believe congress would have passed a statute that would prevent a state from purging the voting rolls of people who have died or have moved out of the state so i'm trying to reconcile the two and therefore i ask you what the state supposed to do with that latter objective and suppose they send a card which says no forwarding don't go forward and their theory of that is if the person has moved they wait long enough and they send a couple of times the post office they'll send it back and then they'll know the person's vote you know that is the precise system that fourteen or so states used to identify people have moved in the key feature of it is that it's not fordable because then it comes back to write a movie and you think that's to everyone since it's expensive in a state like california might cost several tens of millions of dollars what they do is they send those non forward bill cards to people who haven't voted for three or four years ok now is it ok if they only proceed to purge people when it comes back and says no longer at this dress address undeliverable i think it's fine your honor because it's not based on non voting at that point it's based on concrete reliable evidence so the triggering event can be the failure to vote i would have thought that's inconsistent with the rest of your argument which says that it's wrong with this case is that they use failure to vote to trigger the sending of the notice well your honor i would i think there that you could be different reasonable people could differ about this whether that is that is illegal but i think when you have an intervening cause that very clearly says this person is moved just as when they return a confirmation notice and they say they moved then it's ok if the reason they got the notice was non voting you have then some concrete information that says this person is but i mean that i would do the response is really the substance of your argument which is still triggered by the failure to vote and the law says you cannot use failure to vote in one of these i think that that what the law says is failure to vote can't be the reason you're purging them and when you win that when you the only evidence you have at all is that they have moved is not voting then that's clearly the reason that you're purging them and that's what the supplemental process does for the people that  virgins them as they want to protect the voter rules from people that have not the mood in their voting in the wrong decision that's the reason we're talking about are they the best tools to to implement that reason to implement that purpose and congress thought the worst thing you could do to try to find people who have moved is just look at who isn't voting because there were two problems with it congress knew there were vast numbers of people who simply choose not to vote and that that was therefore a terribly inaccurate way to identify people who have moved and it also said very specifically people and so fortunate the people don't vote but they have a right not to vote this is the senate report many states can the committee recognizes that while voting is a right people have an don't vote in other places and i've certainly seen it proposed it would be a good idea given the low voter turnouts in our country that we adopt something like that as well and you think that would be unconstitutional but i think it's pretty persuasive argument to that effect in the national libertarian brief filed in this case of this in the fall by woman i think basically they said it's a first amendment act and just as you have a right to vote protected by the first amendment right not to vote because you don't want to vote for any of those candidates would be protected as well i would think in any event i are the d m v records which come into play for their operate continuously people people are reregister and that's required by section five of the n p r in ohio does that before you can gets to the n c o a process there are statewide the interstate databases the eric system is the sort of state of the art interstate database that list everybody who go somewhere else and registers or gets a driver's license in some other state all of that stuff is available to the state of  ohio and i think it's important as well to understand the small number of people that they say they're looking for with this supplemental process i mean this is a very it's a very important subject it's a sensitive subject there are as a policy matter there are strong arguments on both sides congress had struck a compromise what we have before us is a question of statutory interpretation not a question of what we think would be the ideal system for achieving the result of removing people who have moved from the voter lists and you haven't said very much about the language of the statute how do you get the if by reason of a person's failure to vote have a system that uses a non voting as the reason for purging somebody except you can you see in the which is to say you can use the confirmation process and so non voting can come into play at the end of the process not at the beginning of it but actually isn't would be to says it doesn't say you can't use your to vote as a reason for removing someone except that you can do what is set out in in in c and d what it says is that the principle that you can't use failure to vote as a reason for removing someone may not be construed to prohibit so if it tells you how do interpret the first part of b two it is not an exception to the first part of b to rebut it is just an explanation that the one kind of consideration of non voting that that should not be construed to prohibit is that with the part that comes in at the end of the process and then they went on to emphasize that the sequence say they have not responded to the notice and then they have not voted for two consecutive elections that is very clearly what congress was trying to preserve and to eliminate the tension perceived tension between b and d anticipated that there would be something that would tell you that they have moved before you go into the confirmation process there's a confirmation process because if they don't get the notice back of no evidence all about where they moved from the notice and four more years of non voting precisely the thing congress said should not be the reason that you purge somebody so that the whole system only makes sense if you assume they're something like the n c o a process or some other in indication that they have moved before you put them into the process and if you don't have that you're going to vastly over purge people that's precisely what ohio does because so many people don't vote for two years and they get put into this process where seventy percent of them don't send back the notice and then for four more years of non voting you're going to end up like you just tell me that it doesn't matter how many years is required by the trigger it could be ten it could be twenty yes your honor because that's what the statute says and that's that we're just the sack where's the says you says two things it says a don't personally people unless you have good reason to think they've moved that's a years isn't a good reason to think that they've moved well it might be i don't believe so i mean lots of people in the us probably stay registered much longer than twenty years ahead and don't move for twenty years that's not an unusual thing in our country i would believe in any event the statute that we're dealing with here says that the the reason you are purging them cannot be their non voting and when they get through the end of the supplemental process that is the only evidence they have that anybody has moved week as it is it's six years of non voting and a notice that doesn't get returned was tells them nothing and so the entire process doesn't tell them nothing it counts them that they did not respond to a notice that says you're going to lose the registration if you don't follow through two years to elections so it tells them something they have more evidence than just that they haven't voted and you've indicated that under some circumstances the method of the notification is we have in this the states that you reference in pages forty to fifty if that is ok even though it's triggered solely by the failure to vote so i i don't think you can maintain in a principled way the acceptance of the validity of those states positions and and your argument against the position here now you may say well it makes a difference because of the the the quality of the information you get from one researcher another but you can't just attack this on the basis  triggered by the failure to vote you have to say failure to vote plus a method of notification that you think is not sufficient because you do think in other cases failure vote plus a different method or notification would be ok but maybe your position still is the same but it can't it's just based on the fact of failure to vote being the trigger we're talking about the people who don't return the notice and i think it's clear that nobody would claim ohio doesn't claim when they don't get anything back from the person that that tells them anything about whether they're still living in the same place where they sent a notice where they moved to some other place in their fordable they have no idea which trash can it was thrown in at the original address or some other address it simply doesn't give them any information on the alternative they they get more information it's not just that it's not you know it's not returned but that they've gotten a notice and they haven't voted in the subsequent right right so the in the end of the day they have six years of non voting that tells them what they say that some evidence that they've moved  it is some evidence is pretty weak evidence but it's some evidence but the statute says you need a lot better evidence than that and the one thing we don't want you to do is is use non voting because people have a right not to vote or we don't want to pose well maybe i'm just repeating myself but you don't rea but we're both just repeating we don't you don't just have the failure to vote you have the failure to vote plus the notification that you need to do something because you haven't voted now in some situations you think the notification is sufficient so you would say in those it's not just the failure to vote but in this case you say the notification is not sufficient so it is just a failure to vote it's a fundamental difference between when you get back something the post off from the post office is an underling well no longer at this address and when you get nothing back yeah i understand that but the point is that your argument then really turns on the adequacy of the notice and not simply the fact that the notice is triggered by a feel your vote well i think you're on to the notice that in the statute the fordable notice that congress specifies has to be was not designed to be a test of whether people have moved it was designed to be a safeguard a notice process telling people their rights were at risk and they either have to have to return it or they need to vote sometimes pretty soon they're going to lose their registration status to turn it into  the thing about that kind of notice is when it when seventy percent of the people don't return it which is what happened in two thousand and eleven in ohio the ones who don't return it you have no more idea whether they've moved or not moved was no more like any stat on the i mean this does seem at the moment to boil down to an empirical question you think that sending a notice which is forwardable is not going to tell you not much when it comes back because that tells you next to nothing doesn't tell you whether they it's good for the new address or you don't know where you don't know if they just got it at the old address or they had to for you don't know but if it wasn't forwardable you get it from the post office that tells you quite a lot got it got it going out that's what you've just said and if you're right on the first then we have nothing left here or next to nothing left but the not voting that's your point right his point is we have something else we do have the fact that that notice didn't come back and that means more than you think it means ok that's their point they don't actually know if they had so all i'm asking is is there any place in this record that i can look for some numbers or surveys or something hard it will either support you or will support them your honor there is no evidence whether or not people who were a fail to return the notice have moved because they have never claimed it was evidence that they have moved their only claim in this case is that we are we are we are targeting these people because there might be surveys about how many people throw everything in the wastebasket i confess to doing that sometimes and most people do i know that what your opinion is i'm asking is is there any hard evidence of that one way or the other the evidence we have in the record is that most people throw it in the waste basket seventy percent she's the age that's exhibit to their brief in the trial court their report to the election assistance commission on their twenty eleven one point five million confirmation notices one point two million were simply ignored ten percent were turned undeliverable twenty percent were were turned that's the data on this no i think the other important issue smith there is one thing about i not maybe i should have asked this of  state but once you don't return the notice you get put on the in act if this right that means that you no longer doesn't mean you no longer get mailings about elections yes your honor it means you can still vote but you can't you're misplaced concept here because the term that the congress used multiple times was reason and i think the reason has to be something that is causally linked to the underlying reason which is that i think you move to a different county or state and the only evidence they have at the end of the supplemental process of that is the non voting they don't even claim that the people of the seventy percent of people who don't return a notice that that's evidence of anything it is a hoop they have to go through it is that it is a safeguard it is requirement that congress imposed but it's not the reason that anybody is being purged in terms of the underlying issue of whether they've they've moved but even if you want to do this proximate cause concept as justice kagan pointed out there are three things that have to happen two years of non  voting the failure to return a notice of four more years of non voting and calling the non return of the notice the proximate cause is like saying when you strike out the only proximate cause of strike two just doesn't it doesn't really make sense so what is your standard of just it's proximate cause but both it strike one strike two strike three they're all proximate causes of the strike out i agree with that your honor is well you i just think that that's not that's not the right way for me to think about it here the reason that they're being identified as having moved just because they're not voting that well in hava congress used the term solely could you say something about about that provision of hava that says that states shall include provisions it's mandatory to have a system of file maintenance that makes a reasonable effort to remove ineligible voters and goes on to say under this system registrants who have not responded to a notice and who have not voted in two consecutive general elections for federal office shall soley because of failure to vote yes your honor absolutely so the notices that there's no requirement if somebody doesn't vote for ever but returns that notice the person would be removed from the list we're talking about people who don't return the notice the cases only about people who don't return the notice not only understand that but i don't see how that how that's only will because the only evidence that they have that you've moved which is the permissible category is your non voting and so congress wrote that would have thought that the the supplemental process with people soley for not voting it didn't think of the confirmation process as a reason to remove people and it certainly didn't think non return of the notice was a reason to remove people it was looking at the returns  they never vote but they return the notice are they removed from less the know it when they return a notice the question is what do they say do they say i'm still living on main street like i always have and they they stay on the list if they said moved to oklahoma then they get perched  the state then has direct information about where they live and can take whatever action it should to the problem we have here is that this kind of notice which by the way says you don't have to return it you can just choose to vote sometime in the next four  years most of the time isn't going to get returned and so it doesn't provide you any evidence at all on which to decide that these people should be purged and you end up with a system which looks an awful lot like the old ohio use it or lose it system which is some period of non voting one notice that most people don't return and we're going to we're going to throw you off the rolls and the other thing that the other fact it's in the record is the small number of people that work that the supplemental process supposedly is trying to find we have in the record evidence about how many people move to a different county or state in each year this is evidence the state put in a record exhibit each of their main brief from the district court and it shows that about three percent of people in this country move to a different county or state outside of the registrars jurisdiction to use the term terminology in the in the statute three percent a year that's a small number by itself but then the supplemental process only is triggered with to try to find that's some sliver of those people who have not already been identified because they change their address with the bureau of motor vehicles or because they posted a forwarding address with the post office and so mr smith could you give me concrete numbers how many voters have been purged as a result of this system we're on or i can't give you exact numbers but i would refer you to the biennial election assistance commission reports that look in detail at all the states processes with respect to registration and perjury purge i do know that two things i can tell you your honor is certainly in the hundreds of thousands in many years it was something like several hundred thousand and twenty fifteen according to the more recent report that's not in the record and i can also tell you that the evidence show gave me three percent of apparently thinks it's pretty the national distance the statistics represent ohio because that's the districts they put in i don't think the census does these mobility statistics by state or at least that's not in the record but three percent is roughly the right amount but then you'd have to reduce the i don't know three do not move to another county or state in any given here that's that's what the district is and then you know that most of those three percent are going to be located presumably in some one of the other ways so we're talking about a relatively tiny group of people which they then the process that they then use begins with fifty or sixty percent of people who don't vote for two years i think you could have a couple that it's been so you know the process is vastly over broad in its design to try to find this relatively small group of people  starting with fifty six percent in an off year election but don't vote seventy percent don't return a notice you're just going to end up with a lot of false positives in the end and that is in fact how the system is operating it finds a lot of people that supposedly have moved who simply haven't moved i think i'll leave it at that you know thank you counsel two minutes mr murphy thank you mr chief justice the first question i'd like to answer is about the statistics of the number of people who move without notifying the post office that is in the record there's an inspector general report that suggests that forty percent of individuals don't notify the post office that's doc thirty eight dash six page id number three nine five in the have to do other efforts if they actually want to maintain adequate rules rather than just worry about the threat of getting sued on the other side of the compromise that it that is at issue here and i think this goes to that this in the end was a  statute that was balancing competing purposes on the one hand trying to remove ineligible voters on the other hand trying to ensure protections for eligible voters and it came up with a compromise and that compromise that a lot of room for states in  federal system to adopt the procedures that are best and that states and with respect to sending information i would say that my friend on the other side mentioned the erik program ahead of the two thousand and sixteen election  ohio sent something like one point six million letters to potentially eligible yet unregistered voters many of those if they were removed under our process could have received this notice from eric ahead of the registration deadline encouraging them to register damn sure others declaration a dock thirty eight dash to suggested that the state ahead of the two thousand and sixteen election sent absentee ballot applications so you could vote because we have no excuse voting that would have gone to many of these individuals not everybody would have gone to any of the individuals who had been sent this notice and had voted in the previous election two thousand and twelve thank you counsel the case you submit