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The meeting is being called to discuss whether to sign on as an amicus in Husted v. APRI
Date: Tuesday, August 8, 2017
Time: 9:30 p.m. Eastern / 6:30 p.m. Pacific
Guest Pin Code: 396415
All of the briefings are linked from the Scotusblog page here:
6th Circuit opinion:
Petitioner’s brief for certiorari:
Respondent’s brief opposing certiorari:
The DOJ has shifted their argument in this case since the grant of cert. It’s worse now. See: https://twitter.com/_justinlevitt_/status/894692213564690432
This is the email from Chair Sarwark that prompted this meeting:
The Supreme Court has granted certiorari in Husted v. APRI,challenging Ohio’s practice of purging voters from the rolls when they don’t vote in two successive election cycles, allegedly in violation of HAVA, the Help America Vote Act. Background on the case can be found at: http://www.scotusblog.com/case-files/cases/husted-v-philip-randolph-institute/
We have an opportunity to be an amicus in support of not purging voters from the rolls, noting especially that it has a negative effect on political parties that may have been prevented from fielding candidates for an election cycle or two.
Our financial obligation would be limited to printing costs or less, as we’ve already lined up an attorney willing to draft the brief without cost to the LNC.
I intend to ask the Executive Committee to approve joining as an amicus in this case, but wanted to answer any questions any LNC members have about the case first. Mr. Hall is also on the list and
may be able to answer questions that I cannot.
Summary from the meeting:
Oliver Hall gave a brief summary. This case arises out of the 6th Circuit Federal Court of Appeals involving a challenge to the Ohio Secretary of State’s practice of purging their voter roles by sending out notification cards to voters who have not voted, and if they fail to respond or vote in the subsequent four-year period, they will be removed from the voter rolls. The 6th Circuit ruled this was unlawful and enjoined the practice. The Supreme Court took the case. The brief that the LNC is being asked to submit is an amicus brief supporting the Plaintiff (APRI- a non-profit). APRI has recruited a law firm that would handle the preparation of the brief and the costs, so the LNC’s obligation would only be to approve this action and not any costs. Oliver Hall is familiar with the firm and has trust in their competence. Hall’s non-profit The Center for Competitive Democracy will likely file a brief on the issue of voters being punished for not voting. The LNC’s brief would have to do with ballot access laws — the restrictive ballot laws makes it difficult for candidates of third parties on the ballot, and this could be a reason that Libertarian voters in particular choose not to vote in certain elections. There is a potential for this brief to be filed on behalf of other state parties that this would affect.
Chair Sarwark stated that the DOJ changed their position that they no longer need any evidence that the person moved, but only if they do not respond to the inquiry.
Arvin pointed out that the right not to vote is a free speech issue and central to libertarian and anarchist thought. Even though the LP encourages principled non-voters to vote, we need to stand up for their right not to.
Tim Hagan feels we need to support the Ohio affiliate by supporting the brief.
Alicia Mattson pointed out that this is a dual-edged sword. There are times that it helps us, and here are time that it hurts out. There are good reasons to want to keep the voter records clean as it reduces fraud, and there are times when reducing the number of voters on the roll helps the LP because certain criteria may be based on a percentage of registered voters. Mattson does not believe there is a solid principled reason to oppose this and would like to know if non-voting is not a good trigger for purging rolls then what will we argue is an appropriate trigger, because certainly we can’t take the position that rolls should never be purged.
Oliver Hall stated that this has not yet been discussed and the Committee could certainly state a position, but giving an alternative is not necessarily within the scope of an amicus curiae brief.
The current procedure is that if a voter does not vote for two Federal election cycles and then doesn’t answer a mailed inquiry coupled with not voting for the next two Federal election cycles, the voter would be purged.
Chair Sarwark mentioned that this could disproportionately affect the homeless since they do not have a stable mailing address. Also you cannot require someone to have a fixed residence in order for them to exercise their right to vote. However, the general issue is that Ohio purges faster than most other states.
Bill Redpath inquired that if a voter does not have a fixed residence how is it decided which district they will be voting for. Chair Sarwark said that fixed addresses are not required. Oliver Hall also pointed out that residence is often determined by the intention of the voter.
Dr. Lark stated that he is uncomfortable that this does not seem that there is any clear principled position in this case, and he would want to see the brief first. Sam Goldstein mentioned that it appears that our issue would revolve around the impact that it has on minor parties-a limited scope. Oliver Hall confirmed this is the case and that Libertarian voters could be disproportionately affected. Sam Goldstein also said that he welcomes any opportunity to stick it to the Ohio Secretary State.
Hall stated that it might be beneficial for him to go back to the attorneys to get further clarification on the arguments that they would make and circulate an outline of the proposed brief.
Chair Sarwark summarized the two ways that this hits Libertarians more than it hits other voters, particularly in Ohio. He believes this is the basic thrust that the amicus authors will pursue. Also there is a huge petitioning effort in which the validity is done at the end, not during the drive, and potentially valid signatures could become invalid during the process due to being purged by the Secretary of State. These rules are designed the purge less people that are likely to vote Republican than other parties. Redpath spoke in support and said the Ohio Republican Party is shameless in its maneuvering which is obvious when the briefs in prior and ongoing litigation is read. Lark stated that even though we know we are being dealt with in a dirty manner, we have to rise above that and be sure our arguments are from a principled position with a believe in the integrity of elections.
Mattson noted that Libertarians can easily prevent themselves from being purged by simply responding to the inquiry, and also that these current rules stem from a prior suit in which the complaint was that Ohio was not purging often enough.
Vohra noted the psychology of voter registration makes it likely that voters will take care of any outstanding issues closer to the deadline, it is just the way it works. He believes this is part of a nationwide scheme to make the petitioning process more difficult. It is more likely to cause people to become or be unregistered during the time of petitions.
Aaron Starr was heard without objection. He is presently going through his own petitioning action right now in Oxnard and wants to know if there is anything preventing our petitioners in Ohio from registering people to vote on the spot. Wes Benedict noted over 34,000 signatures, he has only seen this happen 8 or so times, and petitioners don’t get paid for that extra burden. Michael Chastain noted that while it is legally permissible to register on the spot, the logistical arguments noted by Benedict are valid.
Paul Frankel was heard without objection. He noted that he has registered people on the spot, but people often think they are registered because they do not know they were purged, and people can come up as being registered at the time of signature but purged by the time that the petitions are filed.
Redpath spoke in support of the extreme logistical problems. Petitioners are standing there with three clipboards, how can they feasibly check?
Vohra moved that the LNC sign on to an amicus brief for the effect discussed during this meeting. Hagan seconded.
Lark asked if the LNC would have an opportunity to object to the amicus brief after its preparation. Sarwark indicated that it is his intention that the brief would be circulated for comments but the final decision would be up to Sarwark after conferring with Hall.
Hall stated that he could get further information as he indicated prior very quickly regarding the concerns raised today. They need us more than we need them.
Redpath said that since the LNC meeting is coming up that perhaps they should wait until they meeting to allow thoughts to be crystalized and receive an outline. Sarwark suggested perhaps a Motion to Table. Mattson suggested a better form would be the Motion to Postpone.
Lark moved to postpone this motion and be taken up either with another Executive Committee meeting or the next LNC meeting.
Sarwark – Abstain
Vohra – Yes
Mattson – Yes
Hagan – Yes
Lark – Yes
Redpath – Yes
Goldstein – Yes
Redpath encouraged everyone to proactively think about what we want the amicus brief to say.
Redpath moved to adjourn.