IN THE SUPREME COURT OF THE STATE OF MONTANA
No. OP 13-0808
MEA-MFT, the Montana State AFL-CIO, the Montana Public Employees
Association, the Montana Human Rights Network and the American Federation of
State, County and Municipal Employees, Montana Women Vote and Western
Native Voice,
Petitioners,
v.
State of Montana Honorable Tim Fox, in his capacity as Attorney General,
Respondent.
BRIEF OF AMICI CURIAE
AARP, MONTANA LEAGUE OF WOMEN VOTERS
AND MONTANA CONSERVATION VOTERS
SUPPORTING PETITIONERS
Appearances:
W. WILLIAM LEAPHART
1772 University Street
Helena, MT 59601-5950
Tel. (406) 438-6219
[email protected]
DANIEL B. KOHRMAN (admitted Pro Hac Vice)
AARP Foundation Litigation
601 E Street, NW, Room B4-205
Washington, DC 20049
Tel. (202) 434-2064
[email protected]
i
TABLE OF CONTENTS
TABLE OF CONTENTS........................................................................................ i
TABLE OF AUTHORITIES ................................................................................. ii
INTERESTS OF AMICI CURIAE .........................................................................1
INTRODUCTION AND SUMMARY OF ARGUMENT.......................................2
ARGUMENT .........................................................................................................5
I.
THE NVRA’S TEXT AND LEGISLATIVE HISTORY
LEAVES NO DOUBT OR CONFUSION THAT THE
LAW’S EXEMPTION PROVISION NEVER HAS OR
WILL APPLY TO MONTANA REGARDLESS
OF THE STATE’S ENACTMENT OR REPEAL
OF SAME-DAY REGISTRATION..............................................................5
A.
Section 4(b)(2) of the NVRA Plainly Only
Exempts States, Unlike Montana, with a Same-Day
Registration Regime “In Effect Continuously On
And After August 4, 1994.” ................................................................5
B.
Multiple Readily Available Reports Issued by
Federal Agencies Responsible for NVRA
Implementation Confirm that Montana Has Always
Been Covered by the Act, Regardless of Its
Adoption of Same-Day Registration After August 4, 1994 .................7
C.
The Legislative History of the NVRA Confirms that
Congress Quite Intentionally Restricted the Scope of
the Law’s Exemption Provisions So As to Remove
An Incentive for States to Adopt Same-Day Registration .................12
i
II.
BECAUSE THE NVRA DIRECTLY REGULATES STATE
VOTING OPERATIONS, NO STATE LAW IS NEEDED
TO “ENSUR[E] COMPLIANCE” WITH THE NVRA,
AS LR-126 SUGGESTS.............................................................................17
CONCLUSION ....................................................................................................19
CERTIFICATE OF COMPLIANCE ....................................................................20
ii
TABLE OF AUTHORITIES
CASES
ACORN v. Edgar, 56 F.3d 791 (7th Cir. 1995)......................................................18
Bassiouni v. FBI, 436 F.3d 712 (7th Cir.),
cert. denied, 549 U.S. 1051 (2006) .............................................................13
Dept. of Health and Welfare v. Block, 784 F.2d 895 (9th Cir. 1986) .....................13
Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (2005) ..............................12
Garcia v. United States, 469 U.S. 70 (1984) .........................................................13
Gonzalez v. Ariz., 677 F.3d 383 (9th Cir. 2012), aff’d on other grounds sub nom.
Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013) .........12
New York v. United States, 505 U.S. 144 (1992) ...................................................17
NW Forest Res. Council v. Glickman, 82 F.3d 825 (9th Cir. 1996) ................. 12-13
Wilson v. United States, 878 F. Supp. 1324 (N.D. Cal. 1995) ...............................18
Zuber v. Allen, 396 U.S. 168 (1969)......................................................................13
STATUTES
Federal
The National Voter Registration Act of 1993,
Publ. L. 103-31, 107 Stat. 77,
codified at 42 U.S.C. §§ 1973gg, et seq. (Lexis 2013) (NVRA).......... 2, 4-19
42 U.S.C. § 1973gg-2 (notes)..................................................................................7
SIMULTANEOUS APPLICATION FOR VOTER REGISTRATION
AND APPLICATION FOR [A] MOTOR VEHICLE
DRIVER’S LICENSE,” 107 Stat. 77, 78, Pub. L. 103-31
(May 20, 1993), § 5, codified at 42 U.S.C. § 1973gg-3.................................6
iii
Pub. L. 103-31 § 4 (b)(1), 107 Stat. 77, 78,
codified at 42 U.S.C. § 1973gg-2(b)(1).........................................................6
Pub. L. 103-31 § 4(b)(2), 107 Stat. 77, 78,
codified at 42 U.S.C. § 1973gg-2(b)(2)...................................................6, 11
Pub. L. 103-31 § 5, 107 Stat. 77, 78,
codified at 42 U.S.C. § 1973gg-3..................................................................6
Pub. L. 103-31 § 9(a), 107 Stat. 77, 87,
codified at 42 U.S.C. § 1973gg-7..................................................................8
Pub. L. 104–91, title I, §10 1(a), Jan. 6, 1996, 110 Stat. 11,
amending Pub. L. 104–99, title II, §211, Jan. 26, 1996, 110 Stat. 37.............7
Montana
Mont. Code Ann. § 13-27-312(4)............................................................................3
Mont. Code Ann. § 13-27-316 ................................................................................2
Mont. Code Ann. § 13-27-501(2)............................................................................3
Mont. Code Ann. § 13-27-501(3)............................................................................3
Mont. Code Ann. § 61-5-107 ..................................................................................4
REGULATORY MATERIALS
74 Fed. Reg. 37520 (July 29, 2009) ........................................................................9
Election Assistance Commission, 11 CFR Part 9428, [EAC-1010-0025],
National Voter Registration Act, Notice of Proposed Rulemaking,
75 Fed. Reg. 47729 (August 9, 2010)............................................................9
LEGISLATIVE MATERIALS
Federal
139 CONG. REC. H495 (daily ed. February 4, 1993)
(statements of Rep. Livingston and Rep. Sanders) ......................................16
139 CONG. REC. H1823 (daily ed. April 1, 1993)
(statement of Rep. Roberts)................................................................... 15-16
iv
139 CONG. REC. H2264 (daily ed. May 5, 1993)
(statement of Rep. Kleczka)........................................................................16
139 CONG. REC. S2738 (daily ed. March 11, 1993)
(statements of Sens. Gramm, McConnell and Wellstone) ...........................16
139 CONG. REC. S5677 (daily ed. May 7, 1993)
(statement of Sen. McConnell).............................................................. 14-15
139 CONG. REC. S5746 (daily ed. May 11, 1993)
(statement of Sen. Durenberger) .................................................................15
H.R. REP. 103-66 (1993) (Conf. Rep.),
reprinted at 1993 U.S.C.C.A.N. 140..................................................... 13-14
Montana
LR-126 ................................................................................................ 1-5, 7, 17-19
House Bill 30..........................................................................................................5
SB 405 ....................................................................................................................2
SB405, §6 ...............................................................................................................3
FEDERAL AGENCY REPORTS (AND OTHER MATERIALS)
ROYCE CROCKER, CONG. RESEARCH SERV., R40609, THE NATIONAL VOTER
REGISTRATION ACT OF 1993: HISTORY, IMPLEMNTATION,
AND EFFECTS (2013), available at
https://www.fas.org/sgp/crs/misc/R40609.pdf...............................................8
FED. ELECTION COMMISSION, NATIONAL CLEARINGHOUSE ON ELECTION
ADMINISTRATION, IMPLEMENTING THE NATIONAL VOTER REGISTRATION
ACT OF 1993: REQUIREMENTS, ISSUES, APPROACHES, AND EXAMPLES
(January 1, 1994), available at http://www.eac.gov
/assets/1/Page/Implementing%20the%20 NVRA%20of%201993%
20Requirements%20Issues%20Approaches%20
and%20Examples%20Jan%201%201994.pdf ...............................................9
v
FED. ELECTION COMMISSION, THE OFFICE of ELECTION
ADMINISTRATION, IMPLEMENTING THE NATIONAL VOTER REGISTRATION
ACT: A REPORT TO STATE AND LOCAL ELECTION OFFICIALS ON
PROBLEMS AND SOLUTIONS DISCOVERED 1995-96, (March 1998),
available at http://www.eac.gov/assets/1/Documents/
Implementing%20the%20NVRA-Report%20to%20State%20and%20
Local%20Election%20Of.pdf .......................................................................9
U.S. Department of Justice, “The National Voter Registration Act of 1993
(NVRA), Questions and Answers,”
available at http://www.justice.gov/crt/ about/vot/ vra/nvra_faq.php ............8
U.S. ELECTION ASSISTANCE ADMINISTRATION, THE IMPACT OF THE
NATIONAL VOTER REGISTRATION ACT OF 1993 ON THE ADMINISTRATION
OF ELECTIONS FOR FEDERAL OFFICE, 2003-04, A REPORT TO THE
U.S. CONGRESS (June 30, 2005), available at http://www.eac.gov/assets/
1/Page/NVRA%20Reports%20and%20Data%20Sets%202003%20%202004.pdf ..............................................................................................10
U.S. ELECTION ASSISTANCE ADMINISTRATION, THE IMPACT OF THE
NATIONAL VOTER REGISTRATION ACT OF 1993 ON THE ADMINISTRATION
OF ELECTIONS FOR FEDERAL OFFICE, 2005-06, A REPORT TO THE 110th
U.S. CONGRESS (June 30, 2007), available at http://www.
eac.gov/assets/1/Page/NVRA%20Reports%20and%20.Data%
20Sets%202005-2006.pdf ..................................................................... 10-11
U.S. ELECTION ASSISTANCE ADMINISTRATION, THE IMPACT OF THE
NATIONAL VOTER REGISTRATION ACT OF 1993 ON THE ADMINISTRATION
OF ELECTIONS FOR FEDERAL OFFICE, 2009-10, A REPORT TO THE 112th
U.S. CONGRESS, (June 30, 2011), available at
http://www.eac.gov/assets/1/Documents/2010%20NVRA%20
FINAL %20REPORT.pdf..................................................................... 11-12
vi
INTERESTS OF AMICI CURIAE
Amicus curiae AARP is a nonpartisan, nonprofit organization with a
membership that helps people turn their dreams into real possibilities, strengthens
communities and fights for issues that matter most to families, such as voting
rights. AARP supports state efforts to design and adopt systems to encourage
voting and engagement in public affairs, such as expanding the range of choices
how and when voters may register to vote. AARP-Montana has worked hard to
preserve rights and opportunities of all voters, including older voters, in Montana.
For 95 years, the League of Women Voters has worked to ensure that every
eligible voter has equal and easy access to the voting booth. Hence, amicus curiae
Montana League of Women Voters has strongly supported Election Day
Registration, which has proven to increase voter turnout and to be convenient and
secure. The Montana League believes that if state voters understand that LR-126
would take away a right they have had since 2005, they would oppose it.
Amicus curiae Montana Conservation Voters is a non-profit, non-partisan,
grassroots organization with over 18,000 members that strives to protect
Montana’s clean air and water, world-class fish and wildlife, and wild country by
involving people in government. MCV favors policies and programs that foster
civic engagement so that citizens have a voice in decisions at the local, statewide
and national level affecting conservation and the environment. Since it began 15
1
years ago, MCV has supported policies that provide Montana citizens with
effective tools to assure their participation in government, including same-day
voter registration.
Amici are deeply committed to furthering robust, well-informed electoral
participation. Thus, each has supported same-day voter registration, and opposed
LR-126. Further, each devotes major resources to engaging with voters on policy
issues, focusing on providing accurate information so that citizens can make
knowledgeable judgments in the voting booth. Amici are concerned that LR-126 is
inaccurate and misleading by suggesting that it would resolve a non-existent issue
of State compliance with the National Voter Registration Act of 1993, 42 U.S.C. §
1973gg (Lexis 2013) (NVRA).
INTRODUCTION AND SUMMARY OF ARGUMENT
Amici curiae discuss below a very limited proposition:
the fundamentally
inaccurate and misleading words in the title of LR-126 referring to the NVRA.
The passage at issue asserts that LR-126 is a measure “ENSURING
COMPLIANCE WITH THE NATIONAL VOTER REGISTRATION ACT.” SB
405 (Authorized Print Version) (Exhibit 1 to Petition Challenging Legal
Sufficiency of LR-126 (“Petition”)) at 1.
The premise of amici’s argument is simple: that the accuracy of LR-126’s
title is highly relevant to its “legal sufficiency.” See Mont. Code Ann. §13-27-316.
2
Thus, amici assume this point, without addressing, as do the parties, why (or why
not) it is sound: i.e., because SB 405 itself, in §6, declares LR-126 “shall be
submitted to the qualified electors of Montana . . . by printing on the ballot [its] full
title,” Petition, Exh. 1 at 1; or because “[t]he title of SB-405/L-126 is required to
be included as part of the statements presented to voters on the ballot,” Petition at 5
(citing Mont. Code Ann. § 13-27-501(2), (3)); or because in Montana, referenda
“ballot statements must [be] true and impartial” and “may not be . . . written so as
to create prejudice for or against the issue,” id. § 13-27-312(4), or for other reasons
altogether.
It follows that amici also do not take on the charge that “bill titles are not a
part of th[e] process” of “legal sufficiency review.” Attorney General’s Response
to Petition Challenging the Legal Sufficiency Review of LR-126 (“Response”), at
7. Nor do amici discuss the contention that “the bill title is not part of the ballot
statement” that all concede is subject to review (even if, as here, “the Legislature
did not provide [a ballot statement]”). Id. at 6. And finally, amici take no position
regarding the scope of this Court’s authority in this case or regarding the standard
of review that applies “[t]o judge the accuracy of the bill title” in this instance.
Response at 11. Amici simply identify grounds to conclude that LR-126’s title is
inaccurate and misleading and leave to the Court what flows from that fact.
3
The crux of amici’s argument is that there is no legitimate basis for the
State’s contention that LR-126 “contain[s] language regarding the NVRA that is
accurately summarized in the referendum’s title.” Response at 4. That language is
brief. Currently, the State Code provides that “voter registration form[s] for mail
registration . . . must be attached to each driver’s license application” and also must
be “as prescribed by the secretary of state.” Mont. Code Ann. § 61-5-107. If LR126 passes and same-day registration is thereby repealed, the State Code also
would provide that such “motor voter” registration forms must be “in compliance
with the National Voter Registration Act of 1993, Public Law 103-31, 42 U.S.C.
[§] 1973gg, et seq.” Petition, Exhibit 1 at 3. This is the only language in the text
of LR-126 to which the Montana Legislature could have been referring in asserting
in the title of the referendum that it is a measure “ENSURING COMPLIANCE
WITH THE NATIONAL VOTER REGISTRATION ACT.” Id. at 1.
The State’s rationale is as straight-forward as it is misguided. A motor-voter
registration-form NVRA-compliance clause is needed, it is said, to dispel
“[c]onfusion” and “doubt” regarding “Montana law’s interaction with [the]
NVRA,” and specifically, “the applicability of NVRA to a state [such as Montana]
that had adopted same-day voter registration after NVRA’s August 1, 1994
deadline only to eventually repeal the same-day voter registration law at a later
date.”
Attorney General’s Response to Petition for Review at 9, 10.
4
This
supposed “confusion” is ascribed to “a legislative staffer in the drafting notes for
House Bill 30, which Senate Bill 405 (LR-126) was based on.” Response at 9.
And it allegedly concerns “whether Montana’s [motor-voter registration] forms
were [or are] in compliance with NVRA.”
Id. at 10.
But importantly, the
supposed source of or reason for doubt is left wholly unexplained.
Amici explain below that the legislative text at issue, while inoffensive, is
wholly unnecessary. No “confusion” or “doubt” as to whether the NVRA applies
to Montana is plausible absent a determined disinclination to consult countless
readily available, authoritative federal sources.1 The NVRA always has applied to
Montana. That did not change when Montana enacted same-day registration in
2005; nor will it change if same-day registration is repealed.
ARGUMENT
I.
THE NVRA’S TEXT AND LEGISLATIVE HISTORY LEAVES NO
DOUBT OR CONFUSION THAT THE LAW’S EXEMPTION
PROVISION NEVER HAS OR WILL APPLY TO MONTANA
REGARDLESS OF THE STATE’S ENACTMENT OR REPEAL OF
SAME-DAY REGISTRATION.
A.
Section 4(b)(2) of the NVRA Plainly Only Exempts States, Unlike
Montana, with a Same-Day Registration Regime “In Effect
Continuously On And After August 4, 1994.”
1
Amici also believe that there is voluminous evidence at the State level demonstrating that there
is no legitimate basis for “confusion” or “doubt” that the NVRA always has applied to Montana
and further, that it will continue to do so, regardless of the outcome of LR-126, if it is allowed to
proceed. Amici do not address these sources, as they expect petitioners will.
5
As originally enacted, and as soon after amended, the NVRA exempted and
continues to exempt a very few states, not including Montana, whose voter
registration schemes had, and continue to maintain, one of two very specific
features. These narrow provisions, as of 1994 and to this day have relieved just six
states, other than Montana, from NVRA coverage. They and they alone are free to
ignore Congress’ mandate that states implement “motor voter” programs, i.e.,
measures
to
assure
REGISTRATION
“SIMULTANEOUS
AND
APPLICATION
APPLICATION
FOR
[A]
FOR
MOTOR
VOTER
VEHICLE
DRIVER'S LICENSE,” 107 Stat. 77, 78, Pub. L. 103-31 (May 20, 1993), § 5,
codified at 42 U.S.C. § 1973gg-3.
At the outset, Congress exempted states from the NVRA if they had “in
effect continuously on and after March 11, 1993,” either “no voter registration
requirement for any voter in the State with respect to any election for Federal
office” (the “no voter registration” exemption), or a rule that “all voters in the State
may register to vote at the polling place at the time of voting in a general election
for Federal office” (the “same-day” or “election day” registration exemption). Id.,
§§ 4(b)(1), (2), codified at 42 U.S.C. §§ 1973gg-2(b)(1), (2).2 The latter exemption
is at issue in this case. The next Congress amended the NVRA to extend the
2
The second exemption provision also applied to any state that had enacted such a regime “on or
prior to March 11, 1993, and [which] by its terms is to come into effect upon the enactment of
this Act, so long as that law remains in effect … .” Id., § 4 (b)(2), 42 U.S.C. § 1973gg-2(b)(2).
6
exemption provisions’ operative date to August 4, 1994. See Pub. L. 104–91, title
I, §101(a), Jan. 6, 1996, 110 Stat. 11, amending Pub. L. 104–99, title II, §211, Jan.
26, 1996, 110 Stat. 37. Neither exemption has been amended since. See 42 U.S.C.
§ 1973gg-2 (notes).
The plain language of the NVRA thus leaves no doubt or confusion. States
like Montana—that only enacted same-day registration after the 1994 deadline—
do not benefit from the NVRA exemption; they are covered by the statute. This is
so regardless of such states’ subsequent embrace of same-day registration (in
Montana’s case, more than a decade too late). Indeed, nothing in the text of the
law gives any indication that a state, by enacting same-day registration after
August 4, 1994, or by doing so and then repealing it, as LR-126 promises, can
change whether the NVRA applies to that state.
B.
Multiple Readily Available Reports Issued by Federal Agencies
Responsible for NVRA Implementation Confirm that Montana Has
Always Been Covered by the Act, Regardless of Its Adoption of
Same-Day Registration After August 4, 1994.
A survey of materials readily available from multiple federal agencies with
responsibility for interpreting and implementing the NVRA confirms that the list of
states exempt from the NVRA has not changed since 1996, and does not include
Montana. The only states originally exempted from the NVRA due to their having
“same-day” or “election day” registration systems are Minnesota, Wisconsin and
Wyoming. Two additional states, New Hampshire and Idaho, enacted same-day
7
registration after March 11, 1993, but by August 4, 1994, and thus benefitted from
the 1996 NVRA amendment extending the extension deadline. The “no [voter]
registration [system]” exemption applied and still applies to only one state, North
Dakota.
See, e.g., ROYCE CROCKER, CONG. RESEARCH SERV., R40609, THE
NATIONAL VOTER REGISTRATION ACT
OF
1993: HISTORY, IMPLEMNTATION,
AND
EFFECTS (2013), at 3 (available at https://www.fas.org/sgp/crs/misc/R40609.pdf).
See also U.S. Department of Justice, “The National Voter Registration Act of 1993
(NVRA), Questions and Answers” (available at http://www.justice.gov/crt/
about/vot/ vra/nvra_faq.php).3
Section 9(a) of the NVRA first assigned the duty of implementing the law to
the Federal Election Commission (FEC). See 107 Stat. at 87, originally codified at
42 U.S.C. § 1973gg-7.
The U.S. Election Assistance Commission (EAC)
succeeded to the oversight responsibilities of the FEC in 2009. See 74 Fed. Reg.
37520 (July 29, 2009). Early reports issued by the FEC, still available on the
website of the EAC, identify the same few states noted above, other than Montana,
3
This website includes a discussion of “What states are covered by the NVRA’s requirements?”:
The requirements of the NVRA apply to 44 States and the District of
Columbia. Six States (Idaho, Minnesota, New Hampshire, North Dakota,
Wisconsin, and Wyoming are exempt from the NVRA because, on and after
August 1, 1994, they either had no voter-registration requirements or had
election-day voter registration at polling places with respect to elections for
federal office.
8
as exempt from the NVRA.
A January 1994 report listed North Dakota,
Minnesota, Wisconsin, and Wyoming.
NATIONAL CLEARINGHOUSE
ON
ELECTION ADMINISTRATION, IMPLEMENTING
NATIONAL VOTER REGISTRATION ACT
APPROACHES,
AND
See FED. ELECTION COMMISSION,
OF
1993:
THE
REQUIREMENTS, ISSUES,
EXAMPLES, (January 1, 1994), at 1-2 (available at
http://www.eac.gov/assets/1/Page/Implementing%20the%20NVRA%20of%20
1993%20Requirements%20Issues%20Approaches%20and%20Examples%20Jan%
201%201994.pdf). A 1998 report added Idaho and New Hampshire to the list. See
FED. ELECTION COMMISSION, THE OFFICE of ELECTION ADMINISTRATION,
IMPLEMENTING
AND
THE
NATIONAL VOTER REGISTRATION ACT: A REPORT
LOCAL ELECTION OFFICIALS
1995-96,”
(March
ON
PROBLEMS
1998),
at
AND
TO
STATE
SOLUTIONS DISCOVERED
1-1
(available
at
http://www.eac.gov/assets/1/DOcuments/Impementing%20the%20NVRA--Report
%20to%20State%20and%20Local%20Election%20Of.pdf).
Proposed NVRA regulations issued by the EAC in 2010 identify the very
same six states as exempt. See Election Assistance Commission, 11 CFR Part
9428, [EAC-1010-0025], National Voter Registration Act, Notice of Proposed
Rulemaking, 75 Fed. Reg. 47729, 47730 (August 9, 2010) (North Dakota is
exempt under Section 1973gg-2(b)(1), and Idaho, Minnesota, New Hampshire,
Wisconsin, and Wyoming are exempt under Section 1973gg-2(b)(2)). Once again,
9
the exclusion of Montana confirms its NVRA coverage since the law’s enactment.
This particular omission is especially significant, coming as it does several years
after Montana enacted same–day registration. Plainly, this enactment did not alter
the EAC’s view that Montana had no entitlement to an exemption from the NVRA.
Likewise, both the FEC and EAC have issued biennial reports to Congress,
mandated by the NVRA, identifying in narrative text and charts the same six states
recognized since 1994 as exempt from the NVRA. Moreover, several of the most
recent reports note that additional states, including Montana, have enacted sameday registration since 1994. But these reports further observe that such lateadopting states are not exempt from the NVRA. See U.S. ELECTION ASSISTANCE
ADMINISTRATION, THE IMPACT
OF THE
1993
OF
ON THE
ADMINISTRATION
NATIONAL VOTER REGISTRATION ACT
ELECTIONS
FOR
OF
FEDERAL OFFICE, 2003-04, A
REPORT TO THE U.S. CONGRESS (June 30, 2005), at 6, 8 (sixth report to Congress
pursuant to the NVRA, and first submitted by EAC, declaring: “Six states, Idaho,
Maine, Minnesota, New Hampshire, Wisconsin, and Wyoming, have Election Day
registration, and five of these six states are not subject to NVRA. … The sixth
state, Maine, is subject to NVRA.”) (available at http://www.eac.gov/
assets/1/Page/NVRA%20Reports%20and%20Data%20Sets%202003%20%202004.pdf); U.S. ELECTION ASSISTANCE ADMINISTRATION, THE IMPACT OF THE
NATIONAL VOTER REGISTRATION ACT
OF
10
1993
ON THE
ADMINISTRATION
OF
ELECTIONS FOR FEDERAL OFFICE, 2005-06, A REPORT TO THE 110th U.S. CONGRESS
(June 30, 2007), at 3, n.4 (“Seven States—Idaho, Maine, Minnesota, Montana, New
Hampshire, Wisconsin, and Wyoming—now have Election Day Registration
(EDR), and five of these seven States are not subject to the NVRA. Minnesota and
Wisconsin had EDR in effect before March 11, 1993, when the NVRA was
enacted, and were exempted under the original Section 4(b)(2) of the Act.
Wyoming was also exempt under that section because, before March 11, 1993, the
State enacted legislation that had the effect of implementing EDR at the polls.
Idaho and New Hampshire enacted legislation subsequent to the NVRA, but the
legislation implemented EDR retroactive to March 11, 1993. Idaho and New
Hampshire were exempted by a 1996 amendment to the NVRA.”) (emphasis
supplied)
(available
at
http://www.eac.gov/assets/1/Page/NVRA
%20Reports%20and%20Data%20Sets%202006-2005.pdf);
U.S.
ASSISTANCE
NATIONAL VOTER
ADMINISTRATION,
REGISTRATION ACT OF 1993
OFFICE, 2009-10, A REPORT
THE
ON THE
IMPACT
OF
THE
ELECTION
ADMINISTRATION OF ELECTIONS FOR FEDERAL
TO THE
112th U.S. CONGRESS (June 30, 2011), at 9
(stating: “Nine States including the District of Columbia, Idaho, Iowa, Minnesota,
Montana, New Hampshire, North Carolina, Wisconsin, and Wyoming indicated
that they had Election Day Registration or Same Day Registration for the
November 2010 general election.”), and 1 n.2, 10 (identifying just the same six
11
states, not including Montana, as exempt from the NVRA, and explaining that
“[t]hese States have an asterisk in the tables included in this report as a reminder
that
they
are
exempt
from
the
NVRA”)
(available
at
http://www.eac.gov/assets/1/Documents/2010%20NVRA%20FINAL%20
REPORT.pdf).
C.
The Legislative History of the NVRA Confirms that Congress Quite
Intentionally Restricted the Scope of the Law’s Exemption Provisions
So As to Remove An Incentive for States to Adopt Same-Day
Registration.
Legislative history generally is recognized as being useful in construing the
meaning of a statute when the legislative text itself is ambiguous. See, e.g., Exxon
Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005). Even though the
NVRA plainly applies to Montana, and thus, statutory ambiguity is not present in
this case, amici submit that in this instance, legislative history confirms the clear
intent of Congress in the statutory text and further, explains that intent in terms that
illuminate the legal issue presented.
To the extent the judiciary is still of the view that legislative history remains
useful, in regard to federal laws generally and the NVRA in particular, the HouseSenate Conference Report “is the most authoritative and reliable legislative
material.” Gonzalez v. Ariz., 677 F.3d 383, 403 n.29 (9th Cir. 2012), aff’d on other
grounds sub nom. Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247
(2013). See NW Forest Res. Council v. Glickman, 82 F.3d 825, 835 (9th Cir. 1996)
12
(“a congressional conference report is recognized as the most reliable evidence of
congressional intent because it ‘represents the final statement of the terms agreed
to by both houses.’”) (quoting Dept. of Health and Welfare v. Block, 784 F.2d 895,
901 (9th Cir. 1986)); Bassiouni v. FBI, 436 F.3d 712, 716 (7th Cir.), cert. denied,
549 U.S. 1051 (2006) (Conference Report accompanying Privacy Act represents
“the most definitive record of the legislative history and intent of the law as
enacted.”).
Accord Garcia v. United States, 469 U.S. 70, 76 (1984) (“the
authoritative source for finding the Legislature’s intent lies in the Committee
Reports on the bill, which ‘represen[t] the considered and collective understanding
of those Congressmen involved in drafting and studying proposed legislation.’”)
(quoting Zuber v. Allen, 396 U.S. 168, 186 (1969), brackets in original)).
The published report of the Conference Committee of the U.S. House of
Representatives and Senate that accompanied the NVRA as originally enacted
makes clear Congress’ intent to restrict the exemption of states from NVRA
coverage to states with existing regimes of same-day registration (or no
registration), and further, to preclude extension of the exemption to other states
(like Montana) that might enact same-day registration in the future. The House bill
would have exempted “any State that permits registration at the polling place at the
time of voting in a Federal election.” H.R. REP. 103-66, at 16 (1993) (Conf. Rep.),
reprinted in 1993 U.S.C.C.A.N.140, 141. In response, the Senate adopted an
13
amendment in the nature of a substitute bill that “limit[ed] the exemption to States
that had enacted[a no registration or same-day registration regime] on or prior to
March 11, 1993 and in effect continuously on and after that date.”
Id.
Congressional conferees “agreed to the Senate amendment.” Id. Thus, Congress
specifically rejected the House approach, which would have allowed Montana to
become exempt from the NVRA by adopting same-day registration in 2005.
The NVRA’s legislative history makes equally plain the reasons for
Congress’ specific rejection of an open-ended same-day registration exemption.
Prominent Congressional opponents of the NVRA, including House and Senate
members appointed to the Conference Committee, and who served as bill
managers for the NVRA on behalf of bill opponents, feared that an open-ended
exemption provision provided a strong incentive for states to adopt same-day
registration, a step they also opposed. For one thing, they believed the NVRA
would impose significant compliance costs on states, which some might be
tempted to avoid by adopting same-day registration (or a no registration regime).
Senator McConnell (R., Ky.), a NVRA manager and conferee for his party,
declared after issuance of the Conference Report on April 28, 1993:
Although the prospect of this bill passing is appalling to me, . . . it
[is] a better bill than it was originally . . . .
[We] slammed the escape-hatch shut. No longer is this bill a
backdoor means of forcing States into adopting election day
registration or no registration whatsoever. Under the original bill, any
14
State . . . would be exempted from the bill altogether-if they adopted
election day registration or no registration. Republicans succeeded in
grandfathering in the five States that would have qualified for the
[same-day registration] exemption prior to March 11, 1993. . . . the
effect would have been to push States into adopting extremely liberal
registration systems that they otherwise would not adopt.
As the [bill] was being negotiated in conference, I was contacted by
the secretaries of state of Michigan and South Dakota, both of whom
wanted the escape hatch option left open. Officials in Illinois also
urged that they be allowed to opt out through election day registration.
These State officials wanted the escape hatch because their States
cannot afford the unfunded mandates in this bill.
139 CONG. REC. S5677, S5680 (daily ed. May 7, 1993) (statement of Sen.
McConnell). Senator Durenberger (R., Minn.) also praised the bill’s final form:
My home State . . . allow[s] voters to register on election day, as a
result of which . . . My State . . . is specifically exempted from
coverage under motor-voter.
...
The conference report . . . remove[s] the loophole that would allow
States to adopt same-day registration in the future solely to escape the
mandates of motor-voter.
139 CONG. REC. S5746 (daily ed. May 11, 1993) (statement of Sen. Durenberger).
Members of the House heard similar statements during a debate on
instructions to be given to their NVRA conferees. Rep. Roberts (R., Kan.), urged
(unsuccessfully) adoption of an instruction to
end a loophole in the legislation to allow States to opt out of the
mandatory registration program if a same-day registration program is
enacted. House conferees would be directed not to support the
creation of this exception Instead, States with existing universal
15
programs would be allowed to continue. However, States would not
be allowed to opt out by creating new universal registration programs.
See e.g., 139 CONG. REC. H1823, H1825 (daily ed. April 1, 1993) (statement of
Rep. Roberts). After issuance of the Conference Report, Rep. Kleczka (D., Wis.),
a House conferee, lamented adoption of just such a provision.
I am troubled by the way the conference agreement deals with States
which may in the future implement same-day registration-a policy I
strongly favor. In the original House version of the bill, States that
currently have, or in the future would enact, same-day registration
would be exempt from the motor-voter provisions. I believe this
would have been a strong incentive for States to move toward this end
....
However . . . the conference agreed to grandfather this provision,
making the exemption apply only to States that had same day
registration as of March 11, 1993.
139 CONG. REC. H2264, H2267 (daily ed. May 5, 1993) (statement of Rep.
Kleczka).
These observations are far from the only evidence of Congressional concern
about the scope of the same-day registration exemption from NVRA coverage. On
the contrary, this issue arose repeatedly during House and Senate debates. See,
also, e.g., 139 CONG. REC. S2738, S2845 (daily ed. March 11, 1993) (statements of
Sens. Gramm, McConnell, and Wellstone); 139 CONG. REC. H495, H501 (daily ed.
February 4, 1993) (statements of Rep. Livingston and Rep. Sanders). It is simply
implausible to argue that Congress did not squarely face and fully resolve this
issue. Hence, Federal agencies have a clear, consistent position on the restricted,
16
time-bound nature of the NVRA’s same-day registration exemption. No doubt or
confusion exists on which the State Legislature or the Attorney General can rely to
defend the “ENSURING COMPLIANCE” language of LR-126.
II.
BECAUSE THE NVRA DIRECTLY REGULATES STATE VOTING
OPERATIONS, NO STATE LAW IS NEEDED TO “ENSUR[E]
COMPLIANCE” WITH THE NVRA, AS LR-126 SUGGESTS.
In addressing another case more directly implicating the “the proper division
of authority between the Federal Government and the States,” the U.S. Supreme
Court explained that while the Supremacy Clause is powerfully capable of
ensuring compliance with federal law, Congress is limited in the means at its
disposal. New York v. United States, 505 U.S. 144, 149 (1992). In particular, “the
Supremacy Clause makes federal law paramount over the contrary positions of
state officials,” and thus requires federal and state courts to direct state officials to
comply with federal laws and regulations; however, “[n]o comparable
constitutional provision authorizes Congress to command state legislatures to
legislate.” Id. at 179. In other words, “[w]here a federal interest is sufficiently
strong to cause Congress to legislate, it must do so directly; it may not conscript
state governments as its agents.” Id. at 178. In short, Montana must comply with
the NVRA, but the State Legislature need not enact laws to “ensure” that outcome.
In federal suits shortly after the NVRA’s enactment disputing their duty to
comply, California and Illinois lost. But in neither case did the courts mandate
17
enactment of state laws or regulations. Rather, in both, the courts declared the
NVRA constitutional and binding on the state, and enjoined the states “from failing
to comply” with federal law. Wilson v. United States, 878 F. Supp. 1324, 1329
(N.D. Cal. 1995). Accord ACORN v. Edgar, 56 F.3d 791, 797 (7th Cir. 1995)
(upholding injunction provisions “declar[ing] all provisions of Illinois law that
conflict with the [NVRA] invalid; and enjoin[ing] state officials . . . together with
all persons acting in concert with them, from failing or refusing to comply”).
Judge Posner struck various other injunction provisions in Edgar, reasoning that
they “merely restate[d] individual provisions of the [NVRA].” Id. He concluded:
“until it appears that the state will not comply with . . . an injunction, there is no
occasion [to] require it to do even more than the ‘motor voter’ law requires.” Id.
The NVRA is binding on Montana, and its provisions directly require state
officials to comply.
There is no need to include in the State Code parallel
mandates to implement specific NVRA requirements. It is flatly misleading and
inaccurate to suggest otherwise in the title of LR-126.
18
CONCLUSION
The title of LR-126 suggests to voters that casting a ballot in its favor is a
choice to encourage voter participation by resolving doubt regarding Montana’s
compliance with the NVRA. This is completely misleading. There is no doubt
about Montana’s duty to comply with the NVRA. Under the Supremacy Clause of
the U.S. Constitution, the NVRA always has applied, and always will apply to
Montana irrespective of a vote on LR-126.
For the reasons set forth above, amici curiae AARP, Montana League of
Women Voters, and Montana Conservation Voters urge this Court to grant the
Petition Challenging the Legal Sufficiency of LR-126 and issue an Order
prohibiting said referendum from being presented to the voters of the State of
Montana at the election to be held in November 2014.
Dated: January 21, 2014
Respectfully submitted,
______________________________
W. William Leaphart
1772 University Street
Helena, MT 59601-5950
Tel. (406) 438-6219
[email protected]
Daniel B. Kohrman
(Admitted Pro Hac Vice)
AARP Foundation Litigation
601 E Street NW, Room B4-205
Washington, DC 20049
Tel. (202) 434-2064
19
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 11(e) of the Montana Rules of Appellate Procedure, I
certify that this brief of amicus curiae AARP is printed with a proportionately
spaced Times New Roman text typeface of 14 points; double spaced; and the word
count calculated by Microsoft Word 2010 is 4420 words; excluding caption,
certificate of compliance and certificate of service.
By:
__________________________
W. William Leaphart
CERTIFICATE OF SERVICE
I certify that on January 21, 2014, a true and correct copy of the foregoing
was served on the following:
(Via Hand-Delivery)
John M. Morrison
Frederick F. Sherwood
Scott Peterson
MORRISON, SHERWOOD, WILSON & DEOLA
401 North Last Chance Gulch
Helena, MT 59624-0557
(406) 442-3261
Attorneys for Petitioners
(Via Overnight Mail)
James Park Taylor
ACLU of MONTANA
322 W. Spruce Street
Missoula, MT 59802
(406) 721-6159
Attorney for Amicus Curiae
ACLU of Montana
(Via Hand-Delivery)
Timothy C. Fox, Attorney General
Lawrence Van Dyke, Solicitor General
Jon Bennion, Deputy Attorney General
Office of the Montana Attorney General
Justice Building
215 N. Sanders Street
Helena, MT 59601-1401
(406) 444-2026
Attorneys for Respondent
__________________________
W. William Leaphart
Counsel for Amici Curiae AARP, et al.
20