Statutes enacted in 1870, 1871, 1957, and 1960 had all been unsuccessful attempts to counteract state and local government tactics of using, among other things, burdensome registration requirements to disenfranchise African-Americans. See Condon v. Reno, 913 F.Supp. 946, 949-50 (D.S.C. 1995). This latest addition to federal law was "necessary to sweep away such tactics as disqualifying an applicant who failed to list the exact number of months and days in his age."

We therefore fail to see how any unregistered ACORN member has suffered a distinct and palpable injury as a result of the appellees' conduct. ACORN claims that in Condon v. Reno, 913 F. Supp. 946 (D. S.C. 1995), a federal district court determined that eligible but unregistered voters have standing to bring NVRA implementation suits. ACORN mischaracterizes the district court's holding in Condon, however.

Id. (citing Condon v. Reno, 913 F. Supp. 946, 949-50 (D.S.C. 1995)). The Materiality Provision—enacted in the same era in which Congress addressed literacy tests—"was necessary to sweep away such tactics as disqualifying an applicant who failed to list the exact number of months and days in his age.

The NVRA provides a detailed method of enforcement which is exclusive, and as a result private persons cannot support a Section 1983 claim based upon an alleged violation of the NVRA.").Condon v. Reno , 913 F. Supp. 946, 960 (D.S.C. 1995) ("[T]he notice section is a prerequisite to filing a suit directly under the NVRA, but [the NVRA's savings clause] specifically provides that such rights and remedies established in the NVRA do not abrogate other rights, and here the private plaintiffs are also exercising their rights under 42 U.S.C. § 1983...."); Assoc. of Cmty. Orgs. for Reform Now v. Miller , 912 F. Supp. 976, 982 (W.D. Mich. 1995) ("NVRA creates an enforceable right under § 1983.... [T]he statute contains no express provision limiting a plaintiff's remedy for violations of the act to the remedy created by the act."). The leading authority on this issue is City of Rancho Palos Verdes, Cal. v. Abrams , 544 U.S. 113, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005).

Additionally, Congress's choice for the Materiality Provision to cover facially neutral, but nonetheless immaterial, post-registration requirements is an appropriate and necessary approach to remedy voter discrimination, particularly because States used what appeared to be facially neutral voting requirements to disenfranchise certain voters. See Condon v. Reno, 913 F. Supp. 946, 950 (D.S.C. 1995) (describing the requirement for a voter to calculate his age in exact months, which disparately affected Black voters in the Jim Crow South, and which Congress sought to eradicate by way of the Materiality Provision); cf. Nev. Dep't of Hum. Res. v. Hibbs, 538 U.S. 721, 721-22, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (observing in the analogous Fourteenth Amendment context that "Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct in order to prevent and deter unconstitutional conduct"). In any event, an amicus has cited a report finding that the types of errors and omissions that occurred in this case disproportionately disenfranchised minority voters.

While considered on the whole to be a successful tool in eliminating the more obvious discriminatory voting procedures, see NAMUDNO, 129 S.Ct. at 2511, the VRA failed to address voter registration procedures, which imposed a "complicated maze of local laws and procedures, in some cases as restrictive as the out-lawed practices, through which eligible citizens had to navigate in order to exercise their right to vote," H.R. Rep. No. 103-9, at 3 (1993), 1993 U.S.C.CA.N. 105, 107. Between 1988 and 1993, Congress held a series of hearings focused on reforming the voter registration process to address the increasingly pressing issue of low voter turnout in federal elections. Condon v. Reno, 913 F.Supp. 946, 949 n. 2 (D.S.C. 1995). Congress found that, while over eighty percent of registered citizens voted in Presidential elections, only sixty percent of eligible voters were registered.

This provision was intended to address the practice of requiring unnecessary information for voter registration with the intent that such requirements would increase the number of errors or omissions on the application forms, thus providing an excuse to disqualify potential voters. See Condon v. Reno, 913 F.Supp. 946, 949-50 (D.S.C. 1995). For example, one "such tactic [was to] disqualify an applicant who failed to list the exact number of months and days in his age." Id.

The foundation cites Condon v. Reno, 913 F.Supp. 946, 962 (D.S.C. 1995), for the proposition that Congress relied on the Fourteenth Amendment to enact the NVRA, but even if that is correct, it does not matter. The court of appeals has already held that the NVRA was a valid exercise of Congress's authority under the Elections Clause.

A statute requiring a signature or an expiration date on a voter ID is a long way away from "tactics [such] as disqualifying an applicant who failed to list the exact number of months and days in his age on his or her registration application." Condon v. Reno , 913 F. Supp. 946, 949–50 (D.S.C. 1995). But the text of § 10101(a)(2)(B) isn't limited to race discrimination or voter registration.

Historically, when NVRA violations have been suitably proven, as they have been here, courts have not hesitated to compel states to submit plans for full and prompt compliance. See, e.g. , Condon v. Reno , 913 F.Supp. 946, 949, 960 (D.S.C.1995). Even so, where the degree of noncompliance remains disputed, it can rarely be said as a matter of law that this most intrusive of remedies should be imposed.