Not removing individuals who changed residence unless they failed to respond to change notice. I know you have the exceptions clause. Would your case have been stronger without the enactment of section be . In other words, can you rely just on a and d. . If there were no b at all. Certainly, if there was no clause, thats one of the main prohibitions on which they are lying. But you have to interpret in light of the, d clearly indicates, so long as we send notice and so long as we went to federal elections, that is acceptable. So why bother . Because of the except clause. Because you have to interpret the provision in a way that reconciles with the use of failure to vote and only our position interprets b in a way that allows the back and use of nonvoting and d. The act itself is a safe harbor position. That triggers confirmation. That Safe Harbor Provision doesnt rely on at all on failure to vote. It relies on post office change of address form. So isnt that some clue that safe harbor that congress didnt want them to vote to be a trigger for these proceedings . I dont think so because i think thats a safe harbor for something completely different. They treated as a safe harbor as d, they have objective evidence. That element is not there. In fact, the Postal Service provision is a safe harbor for the other side of the balance between removing an eligible voters and keeping voters on the role. This is a complicated system for a simple position. If you have any reason to believe somebody has changed address, just send them a notice and after two election cycles, disqualify them. Why have the post Office Division at all . Why have any other provision . As it is, i understand ohio now is not waiting for people to list two election cycles. They are waiting every year to purge it, right . No. You can send out a notice anytime and anyplace, isnt that your position . No. If its sent out and they respond my point is, you dont need the failure to vote two years thats right because the state right canvas would not be based on the right to vote whatsoever. Thats why they have to read into d and elements they make up from whole cloth, meaning the have objective evidence. The Senate Report that supported this explicitly says that what they wanted to avoid was a mailing that was an responded to being a cause for removing someone. Its purpose, why would it it makes sense wouldnt it make sense that the only reason you cant send the notice is if you have reasonable basis to believe someone has moved . Failure to vote cant be it because the set report says they believe the failure to vote was a constitutional right. You have a right not to vote. There is a couple points here. The first is, what if people dont respond to the notice . I am i agree there is a Senate Report. Not put ins did objective evidence into the procedures in response to that concern. They put in the failsafe voting on the back end, so if an individual doesnt respond, they still have to federal elections they can show up to vote. Thats how they dealt with that provision. Vote,espect to failure to the history is quite clear that the concern was removing vote,duals for failing to thats what the report says, thats not what ohio does having to do with the post office notice. Because thats why do you need because thats a minimal effort on the other side of the balance as i was trying to mention to justice ginsburg. Stash safesais harbor for state obligation to engage in maintenance effort is. It has a duty to remove ineligible voters and it begins by saying, you can meet your obligations to remove in eligible voters by going through this rss. Its the minimal this process. Toif i can take you back Justice Ginsburgs position. It seems like you are effectively turning it into a safe harbor in this sense. Says that these confirmation procedures are a permissible heart of the permissible part of the program even though part of the procedures are about not voting. So thats clear. You are trying to take that and converted 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 is another part of your program that exquisitely relies on nonvoting. And i dont see that as, in any way, being the point of it. , sure youying to take can have a part of a program that does this and turn it into a much bigger, broader safe harbor for everything you do. My response there would be, you have to interpret the words in a way that would not prohibit what it requires. It requires nonvoting over to federal elections. We have the argument for why the failure to response to the notice breaks the length. There was a debate in the 1990s i think this is a different question, since you raised it, i dont understand. Essentially, what the Audio Program does the ohio program does, nonvoting, failure to respond, nonvoting. You are trying to take the middle piece and saying thats not proximate cause. Thats not what we think of proximate cause in any area. This court has appeal he said it is a possible no argument on that. Sure there is a proximate cause test, but there can be more than one accident cause. But the court said you have to pick the proximate cause and this statute, the last cause undoubtedly is failure to vote. The best way to reconcile b and d is that failure to respond to the notice breaks any prohibition between failure to vote and removal. I think there was this debate why do you need the proximate cause argument at all . With the statute says is that somebody may not be removed from the list by reason of the persons failure to vote. Causet mean but for itself then the statute takes failure to vote into account in d. Thats one of the things that is necessary in order for someone to be removed from the list under d. So it cant be but for and the hav a congress used the term solely, so why isnt the best interpretation of this that one cant he removed solely because of failure to vote . Thats absolutely correct and the courts have one component about parchment cause test, a malleable phrase isnt that just adding a word into the statute congress wrote . Congress said reason to vote. There are multiple places where congress once to say wants to say solely by reason and Congress Says it because there are lots of situations in which two components together causes something. So to add that word solely is to change the word meeting of the statute and that word is not in this provision. Best think its the reading to reconcile the two provisions. The solely. And d to reconcile the two provisions. Theddition, hava added clause and the terrifying amendments. Everybody is looking at a way to reconcile the eminence. You are right, what do we do with these reconcile the amendments. You are right, what to do with these . \ you have these failure to vote clause, but dont think this failure to vote clause bars the state from using the confirmation procedures. It doesnt bar the state from using the confirmation procedures. That can be a permissible part of the state program. Thats your way to reconcile the two things. Taken on its own, it looks like it might our confirmation procedures. The procedures say no, not these. That may have been one way to reconcile it. Our weight might have been one way. On thises debate precise issue threat the 1990s and Congress Intervenes and reconcile it with the solely clause and the hobbit hava provision. Its a completely independent provision and statute. Its not the clarified amendment and the clause is a part of the different provision in a different statute dealing with a related but different subject matter. There are be no reason to take one provision and say because that provision says soli, we will treat solely, we will treat this position as solely. In fact, we have a rule against that. Usually we say, Congress Knows how to do a solely provision and we didnt do it here. But what it did have in the same law, maintenance that uses solely, and with respect to the failure to vote clause, it adopted a clarification amendment that said, nothing in this provision shall be construed to prohibit the states from using the procedures in c and d. Thats exactly what the clarifying amendment says. Dont interpret the failure to vote clause as preventing use of the confirmation procedures. And thats my point about how these two things are reconcilable of it reconcilable. Dont interpret the failure to vote clause as barring the confirmation procedures. States can use the procedures that it doesnt mean they can do Everything Else they want to do on top of the confirmation procedures. Its a rule of clarification. Its as you have to construe b2. With that, combined with the clause makes it clear that you have to interpret by reason of link which to break the causal link between voting and her mobile required in d. Interpreting it to be a part of the soul clause is why you have a clarification amendment in b and the solely clause. It appears as if what you are reading is that the failure to 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 s in disenfranchising disproportionately certain cities where large groups of minorities live, where large groups of Homeless People live and across the country, they are the groups that vote the least. In large measure because many of them work very long hours and ohiothe golden rescinded, many of them cant vote because the polls are not open while they are not working. Places like cleveland have very, very, very long lines of voters trying to vote. All of these 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 the 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 solely 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. Change ofuse juror addresses. You can use drivers license, Motor Vehicle change of addresses. There are dozens of other ways that you could verify a change of address. Yet you are suggesting that using a failure to appear at election or elections, as evidence of moving, when people have a right not to vote if they choose, many have. And others, like the veteran whose of plaintiff in this case, explains the reasons why he failed to vote in two elections. Meeting ofive the the words that Congress Said, dont use the failure to vote as a result that results in someone being disenfranchised. I dont understand how you could say that the failure to vote can be used as the sole basis for sending out notices. Its not a reasonable inference, so how could it eat a reasonable effort . The failure to vote clause says it cant be that sole basis for removal, not setting a notice says nothing about sending a notice. Subsection d, congress identified a minimum that they thought was sufficient for state to remove individuals for failure to respond. Thats minimal. That you think the maximum should be something more than the failure to vote . It does because a change in the residence in d,ordance with b, c, and and d has you using the post office. C. C has you using the post office. D says it shall not result in the name of the removal of the person in any election i reason of the persons failure by reason of the persons failure to vote. Thats correct if you interview that to be a soul proxim it contest, then ours proximate sole contest, then ours does not qualify. Failure to vote over six years, which is more than so please ask plain to me why a change of address is reasonable to read explain to me why a change of address is reasonable. The vast majority that people you just disenfranchised from voting, that you strike from the election rolls have actually moved. So, there is no statistical evidence necessary because congress made the determination of what evidence is necessary know, when it give you an example that was an example of meeting our duty on the other side of it there was other side. There was a minimum requirement in the states so there was a minimum requirement on the voter who gets your notice to respond . Absolutely it places the requirement on voters after you have evidence that they moved. No, with respect to minorities, i would add, our response is not that the process must be nondiscriminatory and everything thats the problem. There is a strong argument that this is discriminatory. I understand that they dont believe in impact, you have to look at it but they didnt raise a b1 claim. We are only here i will give you a couple of minutes so you give your argument out. I would like to get back to the public contest where it is quite powerful. On one hand, you have states from 1994 all the way up to the hava amendment debating the department of justice just like where ohio was permissible. On the other hand, you had nobody that made the argument as made ind be read operative. In our narrative, it was designed to address the longstanding debate that started even before the statute became effective. States suggested they should engage in approaches like ohios. All the way up where south dakota suggested clarifying in a way that is helpful to the was passed and hava and it had two provisions. Then it had the related provisions dealing with statewide maintenance, which is effectively a comparable decision. I think you need other states do it this way. You get the notice if you missed just one election. Thats incorrect. If you have no voter activity over a twoyear period, which includes one general election and an off year election. Other states do it like ohio . There are many states, i think around eight, the use failure to vote as a trigger for the notice. Some use two, some use three, some use four years. They would not only outlaw all those states, those who use failure to vote, it would allow outlaw any state would take people to vote on the front end. Peoplecludes people with refusing to vote recently. They get a notice for any individuals through the mailing is bounced back to. And that would be equally prohibitive under the argument today because they are saying any fun and use of nonvoting would be illegal. Thank you, counsel. You have a couple minutes for rebuttal. Mr. Chief justice, if i can begin with Justice Kennedys question. Justice kennedy, we think ohios process was permissible before they enacted the amendment in 2002, but the amendment made it clear for two reasons. 8d, theections 8c and Postal Service process and the notice process, require that nonvoting be the immediate cause of removal. The only way you can construe 8 b2 in removing that is removing people solely by reason for failure to vote. Second, this affected a shift in the state balance at the time. Prior, many states removed people solely for failure to vote. Others had processes far less protective than ohios. None of them had a fouryear waiting period. It required everybody to improve their processes well beyond they were before it was passed. Beyond that, left the states with flex ability to read there is nothing ability flex ability. States are barred from using a trigger with a notice process. You tell me there is a 24 year history of solicitor generals of both Political Parties under both president s of both medical parties who have taken a position of president s of both clinical parties who have taken a position that when they wrote to congress with respect to the help america vote act, took the position the old solicitor generals were taking. Everybody but you today have come in and say the act before the clarification says something different. That youre unusual office would change its position so dramatically. I might accept it if you thought the help america vote act in fact clarified something that was ambiguous, the are taking a very different position. Even before that act, it was clear you could do it this way. What im saying is that i think the act and the amendment made it clearer and after the clarification please explain the change of position after that many president s, that many solicitor generals, this many years, the vast majority of states, over 40 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 believe this doesnt have in impact, a negative impact on certain groups in the society . I believe after Congress Passed the clarification amendment, it clarified what was an ongoing debate between the department of justice and the state. The only plausible way to read that public context and in response to the point me where in the legislative history people say that with actual absolute clarity. Both sides are saying it helps us. Its as ambiguous as the link which may be. Public context is not legislative history. Even contact list look to the text. Look at justices opinion and professor mannings article. That public contest makes clear the only thing need of verification was precisely this question, whether states like ohio can use a nonvoting trigger in conjunction with the process. There is nothing that bars that. I think it reflects the Balance Congress was trying to strike between on the one hand, dramatically increasing the number of voters and on the other, giving states the flex ability they need to manage the issues they need to rely on overinflated roles. Was it the position of the United States, i thought that the United States were taking a position consistently that nonvoting was not a reliable indicator of residence change . Thats partly correct. Our prior position was based on an understanding of the statute that read into the reliable evidence requirement. Nonvoting was not that kind of reliable evidence. Our current position is when you look at the statute, there is no way to read into it for reliable evidence requirement in the text and congress rejected. It reflects a state balance 8d set a and protective floor. They are far more protected passed, but a was left the states with flexibility over the list Maintenance Programs precisely so they could address the other side of the compromise, which was giving states the flexibility they need to address issues that arise when you have loaded voter rolls. I think you acknowledgment. If your position is correct, that the failure to vote clause simply doesnt apply to removal programs for change of residence. Is t