Wednesday, September 26, 2012

District Court Declines to Enjoin Florida Early Voting Change

Judge Timothy J. Corrigan (M.D. Fla.) ruled in Brown v. Detzner that the plaintiffs failed to show that they were substantially likely to succeed on their statutory and constitutional claims challenging Florida's 2011 changes to its early voting law.  Judge Corrigan thus rejected the plaintiffs' motion for a preliminary injunction.

The ruling means that Florida's 2011 changes to its early voting law--and the counties' rules and regulations as to early voting days and times--will almost certainly stay in place for the upcoming election.  But if Judge Corrigan is right, the changes will have little effect on access to the ballot.

(One issue that Judge Corrigan didn't touch: the plaintiff's argument that the disparate voting days and times in the various counties violated the Equal Protection Clause.  Judge Corrigan wrote that the plaintiffs failed to plead this claim.) 

The case arose in response to Florida's 2011 changes to its early voting laws.  Florida reduced the number of early voting days, but gave local elections supervisors the discretion to allow voting on certain other days and to offer up to 12 hours of voting each day.  On net, the 2011 changes didn't necessarily mean fewer total voting hours--and several counties intend to offer the same number of hours as they did under the old law, 96 hours in all--but it does mean fewer total days.  (There's a nice chart in the last six pages of the linked file that gives each county's voting days and times and total available voting hours.)

Here's the old law:

Early voting shall begin on the 15th day before an election and end on the 2nd day before an election. . . .  Early voting shall be provided for 8 hours per weekday and 8 hours in the aggregate each weekend at each site during the applicable periods.  Early voting sites shall open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day.

And here's the new one:

Early voting shall begin on the 10th day before an election that contains state or federal races and end on the 3rd day before the election, and shall be provided for no less than 6 hours and no more than 12 hours per day at each site during the applicable period.

The plaintiffs, including Congresswoman Corrine Brown, the SCLC Jacksonville Chapter, and the Duval County Democratic Executive Committee, challenged the new law, arguing that it violated Section 2 of the Voting Rights Act and the Equal Protection Clause by burdening the rights of African Americans to vote.  (Because five Florida counties are covered jurisdictions under the VRA, those counties had to seek preclearance under Section 5 before implementing the change.  The Section 5 court originally declined to preclear, but said that "Florida would likely satisfy its burden of proving that the overall effect of its changes in law would be nonretrogressive" (and thus satisfy the Section 5 preclearance standard) if the covered counties opened their polls for the maximum allowable time--thus ensuring that the total available voting hours under the new law would equal the total available hours under the old one.  That's exactly what they did.)

Judge Corrigan ruled that the plaintiffs failed to show a substantial likelihood of success on either the VRA or the Equal Protection claim.  In particular, he ruled that the plaintiffs couldn't show that Florida enacted the change with discriminatory purpose.  Looking to the Arlington Heights factors, he said that the change will have a disproportionate effect on minority voters (although this effect will be mitigated if counties implement the full 96-hour voting plan allowable under the new law); nothing in the historical background of the change suggests a racial intent; irregularities in the process of enacting the new law were insufficient to suggest a racial intent; and the legislative history didn't suggest a racial intent (although some statements from the history suggested otherwise). 

SDS

September 26, 2012 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 25, 2012

Supreme Court Validates Constitutionality of West Virginia's Redistricting Plan

In a per curium reversal of a three judge court, the United States Supreme Court today issued its brief opinion in Tennant v. Jefferson County Commission. 

The issue was not whether West Virginia itself was unconstitutional - - - as some have entertained - - - but whether the latest redistricting plan of its state legislature was constitutional.  The constitutional argument centered on the “one person, one vote” principle the Court has held to be "embodied" in Article I, §2, of the United States Constitution.  

Reversing, the Court held that the three judge court misapplied the standard of Karcher v. Daggett, 462 U. S. 725 (1983), requiring first, that the parties challenging the plan bear the burden of proving the existence of population differences that “could practicably be avoided," and then if so, the burden shifts to the State to “show with some specificity” that the population differences “were necessary to achieve some legitimate state objective.”

West_Virginia_CountiesThere was no dispute that the new plan had a population variance of 0.79%, the second highest variance of the plans the legislature considered.  Instead, there was disagreement over whether this was necessary to achieve some legitimate state objective. The state had several other objectives, including not splitting county lines, redistricting incumbents into the same district, or requiring dramatic shifts in the population of the current districts.  

As to county lines, the Court noted:

With respect to the objective of not splitting counties, the [Three Judge] District Court acknowledged that West Virginia had never in its history divided a county between two or more congressional districts. The court speculated, however, that the practice of other States dividing counties between districts “may portend the eventual deletion” of respecting such boundaries as a potentially legitimate justification for population variances.

[emphasis in original].  As those who have ever resided in West Virginia know, counties are quite important as demographic markers in the state.  The Court thus seems to nod to the state's individual circumstances, as well as also acknowledging its relatively small population. 

A good source for all the background of the redistricting of West Virginia is available on LawProf Justin Levin's  "All about Redistricting" website.

RR
[image: West Virginia counties map via]

September 25, 2012 in Elections and Voting, Opinion Analysis | Permalink | Comments (2) | TrackBack (0)

Thursday, September 20, 2012

Supreme Court Rejects Effort to Block Texas's Interim Districting Maps

In perhaps the final chapter of the long-running saga involving Texas's congressional and state legislative districting maps, the Supreme Court yesterday denied a motion to stay the maps drawn by the Texas court after remand from the Supreme Court earlier this year in Perry v. Perez.

Here's our last post for background.  Here's a thumbnail version (with links to many of our earlier posts):

The League of United Latin American Citizens asked Justice Scalia for an emergency stay.  The Court yesterday rejected that request, without comment or dissent.

The ruling puts an end to the litigation and leaves the most recent Texas Court maps in place for the fall elections.

SDS

September 20, 2012 in Cases and Case Materials, Elections and Voting, Federalism, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 18, 2012

D.C. Circuit Reverses Disclosure Ruling, Passes to FEC

A three-judge panel of the D.C. Circuit today vacated the district court ruling in favor of plaintiff-Representative Chris Van Hollen over the FEC's disclosure regulation in Van Hollen v. FEC.  The ruling sends the case back to the FEC either to reissue its regs or to reargue that its current reg is a permissible construction of the statute, the Bipartisan Campaign Finance Reform Act.  The district court retains jurisdiction.

Recall that Representative Van Hollen sued the FEC over its reg, which required disclosure of corporate and labor union contributors as follows:

If the disbursement were made by a corporation or labor organization pursuant to 11 CFR Sec. 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corporation or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering electioneering communication.

11 CFR Sec. 104.20(c)(9).  The problem, according to Van Hollen, was that the italicized limit on the disclosure requirement violated the plain language of the BCRA, which requires disclosure as follows:

(E) If the disbursement were paid out of a segregated bank account which consists of funds contributed . . . directly to this account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to that account . . .; or

(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.

2 USC Sec. 434(f)(2).   

Van Hollen argued that BCRA's (E) and (F) required disclosure of "all contributors," but the FEC reg limited that to only contributions "made for the purpose of furthering electioneering communication."

The district court ruled that the FEC reg violated the plain language of the BCRA.  FEC's amici, but not the FEC itself, appealed.  The D.C. Circuit denied an emergency stay of the district court ruling pending appeal.  And finally today the D.C. Circuit vacated the district court ruling and remanded the case.

The court ordered the district court to retain jurisdiction while the FEC decides whether to re-write its regulation or to re-argue its case--this time focusing on whether its regulation was a permissible construction of the statute. 

(The district court originally ruled that the statute violated the plain language of BCRA--at Chevron's step 1.  It didn't even get to Chevron's step 2.  Because the D.C. Circuit ruled that the district court got it wrong on Chevron's step 2, the FEC may, if it chooses, reargue at the district court that the reg satisfies Chevron's step 2--that it's a permissible interpretation of the statutory language.)

SDS

September 18, 2012 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tenth Circuit Rejects Challenge to the Kansas Judicial Nominating Commission

A three-judge panel of the Tenth Circuit ruled in Dool v. Burke that the election procedure for attorney members of the Kansas Judicial Nominating Commission did not violate the Equal Protection Clause.  The ruling affirms a lower court decision and means that the procedure remains in place.   We posted on the complaint and motion for preliminary injunction here.

The Judicial Nominating Commission is comprised of nine-members--a chairperson (who is a lawyer licensed and residing in Kansas) and one attorney and one non-attorney from each of the state's four congressional districts.  The attorney members are elected by licensed attorneys residing in the respective congressional districts; the chairperson is elected by Kansas attorneys voting at large.  The non-attorney members are appointed by the governor.

Whenever a state appellate court vacancy arises (including a vacancy in the state supreme court), the Commission generates a short list of candidates based on a competitive application process.  The governor then selects the appointee to fill the vacancy from among those on the short list.  Still, all judges--including those appointed by way of the Commission--are subject to periodic retention elections in which Kansas voters may vote them out.

The plaintiffs, non-attorneys, argued that the election procedure for attorney members of the Commission closed the attorney seats to non-attorneys in violation of the one-person-one-vote principle set out in Reynolds v. Sims

The Tenth Circuit disagreed.  In a very brief, per curiam opinion, the court rejected the plaintiffs' claims and upheld the lower court's ruling denying preliminary relief and dismissing the case.

Judge O'Brien concurred, arguing that the Commission didn't possess the kind of general government functions and direct government power that would trigger strict scrutiny analysis of its election procedure under Avery v. Midland Cnty. Tex.--the post-Reynolds case that said that Reynolds applied with equal force to officials of a county government who exercised "general governmental powers over the entire geographic area served by the body."  Judge O'Brien also noted that the Commission serves a separation-of-powers function (insulating the judiciary from threats of control and threats to its integrity by the executive)--that it was created in direct response to an embarrassing episode in which the governor engineered his own appointment as Chief Justice--and that the federal Constitution does not prescribe any particular structure of government on the states.

Judge Matheson went a step further in a separate concurrence, arguing that the Commission satisfied the Salyer/Ball exception to Reynolds: that Reynolds doesn't apply to elections for limited-purpose bodies exercising narrow government functions and operating to the burden or benefit of one group of constituents more than others.  Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.; Ball v. James.

Judge McKay dissented, arguing that the Commission's work is quintessential governmental--the appointment of judges--even if it's indirect and mediated by the governor's independent appointment (from the Commission's short list).

SDS

September 18, 2012 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Pennsylvania Supreme Court Remands Voter ID Law

Applying the Pennsylvania Constitutional provision that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” PA. CONST. art. 1, § 5, in its opinion in Applewhite v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court today remanded the question of the constitutionality of Pennsylvania's new "Voter ID" law back to the trial judge. 

 

SupCourt2010
Standing L-R: Justice McCaffery, Justice Baer, Justice Todd, Justice Orie Melvin {on suspension}
Seated L-R: Justice Saylor, Chief Justice Castille, Justice Eakin


 

In its 7 page ruling, the per curium majority stressed that the affected population involves "members of some of the most vulnerable segments of our society (the elderly, disabled members of our community, and the financially disadvantaged)."   As the ruling makes clear, the statute's original plan - - - that persons needing voter ID could easily obtain it from the Pennsylvanian Department of Transportation, PennDOT - - - was unworkable given PennDOT's rigorous requirements.  A bit less clearly, the opinion states:

Upon review, we find that the disconnect between what the Law prescribes and how it is being implemented has created a number of conceptual difficulties in addressing the legal issues raised. Initially, the focus on short-term implementation, which has become necessary given that critical terms of the statute have themselves become irrelevant, is in tension with the framing of Appellants’ challenge to the Law as a facial one (or one contesting the Law’s application across the widest range of circumstances). In this regard, however, we agree with Appellants’ essential position that if a statute violates constitutional norms in the short term, a facial challenge may be sustainable even though the statute might validly be enforced at some time in the future. Indeed, the most judicious remedy, in such a circumstance, is the entry of a preliminary injunction, which may moot further controversy as the constitutional impediments dissipate.

Absolutely clear, however, is the Supreme Court's remand to the Commonwealth Court and its vacating of that court's "predictive judgment" that there would be no voter dienfranchisement.  Instead, the lower court must "consider whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards," and if not, issue a preliminary injunction against the voter ID law.  The Supreme Court ordered the lower court to issue its opinion on or before October 2.

There were two vigorous dissents, both arguing that the Supreme Court should not remand the issue. 

In her dissenting opinion, Justice Todd stated that in her view, "the time for prediction is over":

Forty-nine days before a Presidential election, the question no longer is whether the Commonwealth can constitutionally implement this law, but whether it has constitutionally implemented it. Despite impending near-certain loss of voting rights, despite the Commonwealth's admitted inability thus far to fully implement Act 18 and its acceptance that, presently, “the Law is not being implemented according to its terms,” and despite the majority's concession that the “most judicious remedy” in such circumstances would be to grant an injunction, the majority nonetheless allows the Commonwealth to virtually ignore the election clock and try once again to defend its inexplicable need to rush this law into application by November 6, 2012.

And in a dissenting opinion as long as the per curium, and in which Todd joined, Justice McCaffery made clear that not only should the court decide the matter, but that there was "no doubt that the record, as it is, establishes the immediate and irreparable harm required for the injunction." McCaffery also had some especially pointed words about the political process:

While I have no argument with the requirement that all Pennsylvania voters, at some reasonable point in the future, will have to present photo identification before they may cast their ballots, it is clear to me that the reason for the urgency of implementing Act 18 prior to the November 2012 election is purely political. That has been made abundantly clear by the House Majority Leader. Exhibit 42 at R.R. 2073a. I cannot in good conscience participate in a decision that so clearly has the effect of allowing politics to trump the solemn oath that I swore to uphold our Constitution. That Constitution has made the right to vote a right verging on the sacred, and that right should never be trampled by partisan politics.

Thus, it seems that at least two of the six sitting Justices would immediately enjoin the voter ID law, and four are waiting for a lower court judge to make additional findings but lean towards an injunction. [UPDATED INFO: Recall that Justice Orie Melvin is not on the court at present; Order of Suspension here.

RR
[image: Pennsylvania Supreme Court Justices via]

 

September 18, 2012 in Elections and Voting, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Thursday, September 6, 2012

Court Orders FEC to Reconsider Ruling on Access to Debates

Judge Rudolph Contreras (D.D.C.) ruled in La Botz v. FEC that the Commission's decision upholding a private organization's standards that kept the plaintiff out of the organization-sponsored U.S. Senate debates in Ohio in 2010 were not supported by substantial evidence.  Judge Contreras sent the case back to the FEC for further consideration.

La Botz, a member of Ohio's Socialist Party, didn't get an invitation to the U.S. Senate debates sponsored by the Ohio News Organization (ONO), a consortium of eight newspapers in Ohio.  He complained to the FEC that the ONO failed to use "pre-established, objective criteria" in determining who got to participate, as required by FEC regs.  The FEC dismissed the complaint with no more than a conclusory sentence of analysis (based on a single, flawed affidavit of an editor of one of the ONO newspapers) concluding that the ONO's standards satisfied FEC regs.  La Botz sued.

Judge Contreras ruled that La Botz had standing, and that the case was not moot (because it was capable of repetition yet evading review).  Then he sent the case back to the FEC for a more complete analysis, supported by substantial evidence.

The ruling means that the FEC will have another crack at it.  But even a ruling for La Botz (obviously) won't have a direct impact on his 2010 Senate run.  At most, it'll tell the ONO what kinds of criteria it needs to adopt the next time around. 

SDS

September 6, 2012 in Cases and Case Materials, Courts and Judging, Elections and Voting, Mootness, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Sunday, September 2, 2012

Western District of Texas Keeps Court-Drawn Maps in Place for Election

Following an earlier ruling last week by a three-judge panel of the D.C. District denying Section 5 preclearance to Texas legislature's redistricting plans, a Western District of Texas panel ruled on Friday that the most recent court-drawn plans will remain in place for the upcoming elections.

The ruling means that the court-drawn plans will govern the upcoming elections--even though at least one of those plans, the congressional district plan, was based closely on the Texas legislature's original plan that was denied preclearance earlier in the week.

This can all seem confusing, so let's sort it out from the beginning.  The Texas legislature redrew maps for its congressional, state senate, and state house seats in response to its ballooning and shifting population in the 2010 census and to maintain one-person-one-vote in its districts.  But Texas was required to gain preclearance under Section 5 of the VRA before it implemented those plans.  So it sought preclearance from a three-judge panel of the U.S. District Court for the District of Columbia.  (It could have alternatively sought preclearance from DOJ, but it didn't.)

While the Section 5 case was pending, plaintiffs challenged the plans in the United States District Court for the Western District of Texas, alleging that the plans violated Section 2 of the VRA.  The Texas court, recognizing that the Section 5 case was pending but that the D.C. court had not yet ruled, ruled in favor of the plaintiffs and redrew the maps.  Texas appealed to the Supreme Court, and the Court invalidated the maps, in Perry v. Perez.

The Texas court went back to the drawing board and came up with new court-drawn maps, more closely based on the Texas legislature's original maps.  (The original maps were still pending Section 5 preclearance in the D.C. court.)  Nobody challenged the newly redrawn maps by the Western District court--at least not yet.

Earlier last week, the D.C. District finally ruled that the Texas legislature's original redistricting maps did not merit preclearance under Section 5 of the VRA.  The ruling didn't touch the most recent court-drawn maps by the Western District, however.  Those maps seemed to stay in place.  (Texas announced later last week that it would appeal the Section 5 ruling to the Supreme Court.  That announcement doesn't affect the Western District's maps--at least until the Supreme Court rules.)

After the D.C. court ruling last week, the Western District set a status conference for Friday to sort it all out.  According to the order, the court preliminarily assumed that its own most recent maps would govern the 2012 elections, but it offered parties an opportunity to argue otherwise.  Only one plaintiff in the original Section 2 case argued that the most recent court-drawn maps shouldn't govern:  the League of United Latin American Citizens argued that the court's congressional map was invalid, because it was based too closely on the Texas legislature's original congressional map, which failed preclearance earlier in the week.

The Western District rejected that argument and ruled from the bench that its own redrawn maps would govern the 2012 elections.  It also asked the parties for proposals by December 1 on how to move forward.

Unless there are any surprise moves--and they'd have to be a real surprise, and real quick, given the timing--the latest court-drawn plans will govern the upcoming elections.  

Meanwhile, the Texas legislature's plans may go to the Supreme Court.  But even if they do, the application of Section 5 will hardly be the most interesting issue related to the VRA before the Court.  That's because the Court is almost certain to grant cert. to a challenge to the constitutionality of Section 5.  If so, and if the Court, as expected, overturns Section 5, the Texas legislature's original plans may go back into place--but only after the 2012 elections.

SDS

September 2, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Friday, August 31, 2012

Federal District Judge Issues Preliminary Injunction Against Ohio's Differential Early Voting Deadlines

332px-Flag_Map_of_Ohio.svgIn a 23 page opinion and order today, United States District Judge Peter Economus issued a preliminary injunction in Obama for America v. Husted, enjoining the enforcement of new Ohio legislation and specifically restoring in-person early voting on the three days preceding Election Day for all eligible voters.

Recall that Obama for America and other plaintiffs filed a complaint and motion for preliminary injunction in July, arguing that the Ohio scheme violated the Equal Protection Clause.  The Complaint summed up the problem thusly:

Taken together, [Ohio] Amended Substitute House Bill Number 194 (“HB 194”), Amended Substitute House Bill Number 224 (“HB 224”) and Substitute Senate Bill Number 295 (“SB 295”), all enacted by the 129th Ohio General Assembly, impose different deadlines for in-person voting prior to Election Day (“early voting”) on similarly situated voters. Prior to the enactment of these laws, there was a single uniform deadline of the Monday before Election Day for in- person early voting. After the enactment of these laws, voters using the Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”) may vote early in-person at a board of elections office up through the Monday before Election Day, while non-UOCAVA voters can vote early in-person at a board of elections office (or designated alternate site) only up until 6 p.m. on the Friday before Election Day.

Judge Economus' opinion expands on the facts, including the relevancy of weekends, as well as the legislative ambiguities, but recognizes the differential for UOCAVA and non-UOCAVA voters.  In his analysis of the constitutional inquiry, he stresses that the right to vote is a fundamental right, and quotes from Bush v. Gore, 531 U.S. 98 (2000):

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. It must be remembered that the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.

(bolding in Obama for America v. Husted Opinion).

Judge Economus easily finds that there is a classification and a burdening of the right to vote, and indeed, Ohio did not vigorously assert otherwise.   As to Ohio's argument that this is "justified to address the needs of Ohio elections boards as they prepare for Election Day" and that it the classification into two groups is justified "to serve the particular needs of the military and, albeit to a lesser extent, overseas voters," Judge Economus found the evidence did not support these justifications.  The lack of evidence is attributable to the county boards of elections and their various responses.  As to the "military voters," the Judge found that the prospect of sudden deployment could have constituted a supporting rationale for the state's scheme, except that "whether a service member— or overseas voter—can actually vote during those three days is up to each county elections board," with almost all counties not allowing voting on Sunday.  The Judge finds Ohio's justification "completely eviscerated, county by county."

Given these weak justifications, Judge Economus easily finds that the burden on voting outweighs any state interests, again citing Bush v. Gore:

The issue presented is the State’s redefinition of in-person early voting and the resultant restriction of the right of Ohio voters to cast their votes in person through the Monday before Election Day. This Court stresses that where the State has authorized in-person early voting through the Monday before Election Day for all voters, “the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). Here, that is precisely what the State has done.

(bolding in Obama for America v. Husted Opinion).

The decision comports with well-established Equal Protection principles, including those articulated by the Court in Bush v. Gore, and although sure to be appealed, should withstand review.

RR

August 31, 2012 in Current Affairs, Elections and Voting, Equal Protection, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, August 30, 2012

Court Permanently Enjoins Enforcement of Florida's Third Party Voter Registration Laws

Judge Robert L. Hinkle (N.D. Fla.) permanently enjoined Florida officials from enforcing certain state third party voter registration laws after the state issued new emergency regulations to comply with Judge Hinkle's earlier preliminary injunction.  The ruling ends the legal challenge to the laws and their enforcement in favor of the plaintiffs; it also means that Florida's new (and less harsh, more forgiving) emergency regulations will now govern third party voter registration efforts--for the 40 days until the October 9 deadline in Florida for voter registration for the general election.  (Thanks to the Brennan Center for links to the docs.  The Brennan Center case page is here.)

The case, League of Women Voters of Florida v. Detzner, involved the plaintiffs' constitutional and statutory challenges to Florida's excessively restrictive third party voter registration laws enacted in 2011.  Those laws erected major barriers to third party voter registration efforts, stymieing those efforts in this 2012 battleground state.

Judge Hinkle issued a preliminary injunction back in May, writing that there was no substantial state interest in certain of the law's requirements, including these: 

  • that registration organizations turn in voter-registration applications within 48 hours after completion;
  • that registration organizations must file the names of every officer and employee and volunteer who is a "registration agent," including those who merely solicit applications;
  • that each registration agent file a sworn statement that he or she will obey registration laws, on a form that incorrectly suggests that a registration agent commits a felony and could be imprisoned for five years for sending in a voter-registration application that includes false information;
  • that registration organizations must account for all registration forms and file certain onerous reports.

In response, the state issued new emergency regulations for third party voter registration organizations.  After the plaintiffs agreed that the new regs were consistent with Judge Hinkle's injunction, the parties filed a joint motion for a permanent injunction against enforcement of the old laws.  Judge Hinkle granted that injunction yesterday.

(Judge Hinkle styled his ruling as "indicative," because the state's appeal of his preliminary injunction is still pending at the Eleventh Circuit.  That appeal will die, leaving in place the permanent injunction against enforcement of the old laws and the state's new emergency regs.)

SDS

August 30, 2012 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0) | TrackBack (0)

Three Judge Court on Texas Voter ID Law

In State of Texas v. Holder, a well-reasoned opinion today from a three judge court denied Texas' motion for declaratory judgment that its new voter identification law, SB 14, satisfied section 5 of the Voting Rights Act, 42 U.S.C. §§ 1973 et seq.  Although the  court ordered the parties to provide a proposed schedule to the court on the constitutional issue, the Voting Rights Act (VRA) issue was intertwined with constitutional ones, as is so often the case in VRA cases.

For example, the parties disagreed about the import of Crawford v. Marion County, (2008), in which the Court upheld Indiana's voter ID law against a facial equal protection challenge.  Texas contended that Crawford controlled, while the United States argued Crawford was "largely irrelevant."  For the three-judge court, "the correct answer lies somewhere between these two positions." Contrary to Texas’s argument, in Crawford itself, the Court noted that it was “consider[ing] only the statute’s broad application to all Indiana voters," and the Texas' SB14 poses different questions - - - "does SB 14 have discriminatory purpose or retrogressive effect?" - - - and requires focus "on the limited subset of voters who are racial and language minorities."  And, perhaps most importantly, unlike Indiana in Crawford involving a constitutional challenge, Texas bears the burden of proof under the VRA. Contrary to the position taken by the United States, however, Crawford informs the analysis of SB 14 in two important ways: purpose and effect.  

Much of the 56 page opinion discussed the evidence, with the court including this summary:

We pause to summarize the evidentiary findings we have made so far. Contrary to Texas’s contentions, nothing in existing social science literature speaks conclusively to the effect of photo ID requirements on voter turnout. Moreover, scant lessons, if any, can be drawn from Indiana and Georgia, largely because SB 14 is more restrictive than the photo ID laws adopted by either of those states. Finally, no party has submitted reliable evidence as to the number of Texas voters who lack photo ID, much less the rate of ID possession among different racial groups.  Given this, we could end our inquiry here. Texas bears the burden of proving that nothing in SB 14 “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise" [citation omitted].  Because all of Texas’s evidence on retrogression is some combination of invalid, irrelevant, and unreliable, we have little trouble concluding that Texas has failed to carry its burden.

But the court went further, stating that the "record evidence suggests that SB 14, if implemented, would in fact have a retrogressive effect on Hispanic and African American voters."

This conclusion flows from three basic facts: (1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty. Accordingly, SB 14 will likely “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.”

300px-Texas_population_map2The three judge court carefully considered Texas and distinguished SB14, as well as other laws and conditions, from other states. One distinguishing feature was Texas' size.  The court's opinion attempts to strike a note of humor when discussing the requirement that would-be voters lacking photo identification would have to apply for a "election identification certificate" (EIC) at a Texas Department of Public Safety (DPS) office, and "almost one-third of Texas’s counties (81 of 254) lack" such an office:

This means that many would-be voters who need to obtain an EIC—individuals who by definition have no valid driver’s license—will have to find some way to travel long distances to obtain one. This is hardly an insignificant concern, especially given that “everything is bigger in Texas.” See, e.g., Rick Perry, Amid a Dim National Economy Texas Remains in the Spotlight, October 31, 2008, available at http://www.tradeandindustrydev.com/region/texas/amid-a-dim-national- economy-texas-remains-spotlight-554 (last visited August 28, 2012).

 The opinion then resorts to another interesting citation: 

Even the most committed citizen, we think, would agree that a 200 to 250 mile round trip— especially for would-be voters having no driver’s license—constitutes a “substantial burden” on the right to vote. Our own Federal Rules of Civil Procedure support this conclusion, specifying that witnesses are unavailable to testify if they must travel more than 100 miles to do so. See Fed. R. Civ. P. 45(c)(3).

 The court found tremendous deficiencies in the United States' evidence and arguments, but Texas' deficiencies were ultimately much more serious, even without the burden of proof.   The court found it worth detailing some of these problems:

during closing arguments, Texas’s counsel complained that they had been shouldered with an “impossible burden” in this litigation. This may well be correct, but Texas’s lawyers have only their client to blame. The State of Texas enacted a voter ID law that—at least to our knowledge—is the most stringent in the country. That law will almost certainly have retrogressive effect: it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty. And crucially, the Texas legislature defeated several amendments that could have made this a far closer case.

Ignoring warnings that SB 14, as written, would disenfranchise minorities and the poor, the legislature tabled or defeated amendments that would have:

  • waived all fees for indigent persons who needed the underlying documents to obtain an EIC,
  • reimbursed impoverished Texans for EIC-related travel costs,
  • expanded the range of identifications acceptable under SB 14 by allowing voters to present student or Medicare ID cards at the polls,
  • required DPS offices to remain open in the evening and on weekends,
  • and allowed indigent persons to cast provisional ballots without photo ID.

Put another way, if counsel faced an “impossible burden,” it was because of the law Texas enacted—nothing more, nothing less.

[Record citations omitted].
The opinion is worth reading in full.  Its import is that Texas SB 14 voter identification law will not be in effect in November, unless the United States Supreme Court acts exceedingly quickly.
RR

August 30, 2012 in Elections and Voting, Equal Protection, Federalism | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 28, 2012

Federal Court Declines to Preclear Texas Electoral Districts Under Voting Rights Act

In the latest chapter of the Texas redistricting saga, a three-judge panel of the D.C. District ruled in Texas v. United States that Texas's redistricting maps failed to merit preclearance under Section 5 of the Voting Rights Act.

The ruling means that the Texas legislature's original redistricting maps fail.  But the ruling doesn't touch the interim maps most recently drawn by the Western District of Texas in the companion Section 2 suit.  Those maps have not been challenged.

The ruling also doesn't say anything about the constitutionality of Section 5.  That's the topic of a cert. petition now before the Supreme Court.

Recall that the case arose when Texas sought preclearance for its redrawn State House, State Senate, and Congressional districts from the three-judge panel in the D.C. District (and not the DOJ).  (Texas redrew its districts to account for its ballooning population and to meet the one-person-one-vote standard.  But Texas, as a covered jurisdiction under Section 4 of the VRA, had to receive preclearance under Section 5 before it could finalize and implement the new maps.)  Soon after Texas filed its Section 5 preclearance case, opponents of the maps filed a claim under Section 2 of the VRA in the Western District of Texas.  While the Section 5 case was pending in the D.C. District, the Western District drew its own maps that, it said, complied with the VRA so that Texas could move ahead with its scheduled primary elections.

The Western District maps went to the Supreme Court in Perry v. Perez, where the Court invalidated them.  After Perry, the Western District redrew the maps, and they haven't been challenged.

Meanwhile, the Section 5 case in the D.C. District moved forward, and that court ruled today that the state's original maps--the ones for which it originally sought preclearance--did not merit preclearance.  As a result, the only maps out there seem to be the Western District's redrawn maps.

Today's case says nothing about the constitutionality of Section 5.  The D.C. Circuit recently ruled on that question, and said that Section 5 is constitutional.  The cert. petition in that case, Shelby County v. Holder (and a related, companion case), is now before the Supreme Court.

The Texas redistricting case is something of a side-show, now that the more central issue in Shelby County is on cert.--with the Supreme Court almost surely to grant review.  But even if the Court overturns Section 5, as seems likely, any maps still have to pass muster under Section 2--the original cause of action in the Western District case.  Shelby County doesn't challenge Section 2.

SDS

August 28, 2012 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (2) | TrackBack (0)

Ohio Federal District Judge Enjoins Portions of State Provisional Voting Scheme

496px-1850_Mitchell_Map_of_Ohio_-_Geographicus_-_Ohio-m-50A federal district judge has enjoined specific provisions of Ohio’s election code that disqualify provisional ballots cast in the wrong precinct or cast with deficiencies in the ballot envelope form, when the ballot’s deficiency is the result of an error by the poll worker.  In the 61 page opinion in the consolidated case, SEIU v. Husted, Judge Algenon Marbley first describes the "turbulent saga of Ohio’s provisional voting regime." The bulk of the opinion is a carefully reasoned application of equal protection principles to the various provisions as part of the likelihood of success on the merits prong for granting a preliminary injunction. 

Marbley's opinion considers four equal protection challenges: the Wrong-Precinct Ballot Prohibition;  Ballot Envelope Deficiencies; Disparate Impact of Poll-Worker Error by County; and Unequal Treatment of Provisional Voters.  The most extensive analysis focuses on the wrong precinct issue, especially given the part that poll workers play in the process resulting in errors.

The Judge does cite Bush v. Gore several times, including quoting the statement that "[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05.  As expected, the Sixth Circuit case of Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) (“Hunter I”) is also prominent, not only for its adoption of Bush v. Gore language but because many of the same issues are involved. The opinion is sure to be quickly appealed to the Sixth Circuit, even as a complaint challenging Ohio's early voting regime on the basis of equal protection is also being litigated.

All the documents in the case can be found over at  ElectionLaw@Moritiz blog, as well as an analysis by Prof Edward Foley.

RR
[image: 1850 map of Ohio via]

August 28, 2012 in Due Process (Substantive), Elections and Voting, Equal Protection, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 1, 2012

Federal District Judge Declares Virginia's Residency Requirements for Petition Circulators Unconstitutional

Too late for Republican Presidential Candidates Perry, Gingrich, Huntsman, and Santorum - - - who challenged the Virginia regulation in January - - - Federal District Judge John Gibney has declared Virginia's restrictions on petition circulators unconstitutional.  Recall that the candidates had challenged the regulations requiring petition circulators to be state residents, but because the candidates had waited until they were disqualified from being on the ballot, Judge Gibney found their claim was barred by laches and the Fourth Circuit agreed.

Now, revisiting the substance of the argument in the opinion in Libertarian Party of Virginia v. Judd, Judge Gibney easily concluded that the plaintiffs had standing and almost as easily concluded that the Virginia provision violated the First Amendment.

Screen Shot 2012-08-01 at 5.25.15 PM
Judge Gibney found that the prohibition of nonresidents from circulating petitions to collect signatures and thus satisfy the requirement of a petition with a minimum number of signatures for candidates to appear on the ballot was directed at political speech.  While the judge found the state interests of preventing fraud and protecting the integrity of elections compelling, he concluded that the state residency restriction was not narrowly tailored.  There was no connection between in-state and out-of-state residents with regard to fraud.  Moreover, the state's argument that it needed to have a subpoena power was insufficient; the state presented no evidence that it was unable to prosecute a fraudulent circulator because he or she was a non-resident.

As Judge Gibney had intimated earlier, if Perry, Gingrich, Huntsman, and Santorum had challenged the provision in a timely fashion, they would have been successful - - - and perhaps on the ballot in Virginia.

RR

August 1, 2012 in Elections and Voting, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, July 23, 2012

Shelby County, Nix Take Voting Rights Act Challenge to Supreme Court

Petitioners Shelby County and John Nix filed two separate cert. petitions late last week seeking Supreme Court review of a D.C. Circuit decision upholding the preclearance provisions of the Voting Rights Act.  Shelby County's petition is here; Nix's petition is here.  More on the differences below.

The petitions put the preclearance provisions of the Voting Rights Act squarely before a Supreme Court that seems chomping at the bit to take them on--and to overturn them.

The move was expected.  With the Supreme Court's statement three years ago in Northwest Austin Municipal Utility District v. Holder that the preclearance provisions "raise serious constitutional questions," the Court's reiteration more recently in Perry v. Perez, and the spate of challenges now percolating in the lower courts, Shelby County v. Holder was the first circuit ruling dealing squarely with the 2006 reauthorization of the VRA.  A split three-judge panel upheld the provisions and ruled that another, related case (Nix's case) was moot.  The ruling teed the challenge up for Supreme Court review.

At issue: Section 5 of the VRA, which requires covered jurisdictions to obtain "preclearance" from the Department of Justice or a three-judge panel of the United States District Court for the District of Columbia before making changes to their voting standards, practices, or requirements; and Section 4(b), which provides the formula for determining which jurisdictions are covered.

Recall that the D.C. Circuit in Shelby County upheld Section 5 and Section 4(b) of the VRA.  But that court also ruled that Nix's case--challenging the new reauthorization standards that Congress put into place in the 2006 reauthorization--was moot, because the DOJ reversed course and cleared the voting change at issue.

The two cert. petitions cover two distinct issues.  Shelby County's cert. petition argues that the D.C. Circuit erred in upholding Sections 5 and 4(b).  In short, Shelby argues that the preclearance requirement in Section 5 exceeds congressional authority to enforce the provisions the Fourteenth and Fifteenth Amendments--that it's not "proportional and congruent" to the "evil" that it seeks to remedy--and that Congress neglected to change the coverage formula in Section 4(b) in response to changed conditions.

Nix's cert. petition argues that the substantive changes to the preclearance standard that Congress enacted in 2006 exceed congressional authority.  Nix says that Congress, in reauthorizing Section 5 in 2006, changed the preclearance standard in response to two Supreme Court decisions that narrowed that standard, thus exceeding its authority.  Nix claims that before 2006, preclearance could be denied only if the jurisdiction failed to prove that its voting change did not have the "purpose" or "effect" of causing "a retrogression" in minorities' "effective exercise of the electoral franchise," as determined by "all the relevant circumstances."  (Citing and quoting Georgia v. Ashcroft and Reno v. Bossier Parish School Board.)  But Nix argues that Congress changed this standard in the 2006 reauthorization by eliminating the "all relevant circumstances" flexibility and by requiring covered jurisdictions to "prove that even a change that does not make minorities worse off lacks the 'discriminatory purpose' of not making them better off."  These changes, say Nix, exceed congressional authority.

Because the D.C. Circuit ruled Nix's case moot, Nix has the additional burden of arguing that his case isn't really moot.  He does this by claiming that the DOJ cleared the jurisdiction only to avoid judicial review of his arguments.

With two strong statements from the Court about the questionable constitutionality of VRA preclearance, look for the Court to grant these petitions--and likely overturn these key provisions of the VRA.

SDS

 

July 23, 2012 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 18, 2012

Obama Campaign Files Complaint Alleging Changes in Ohio Early Voting Law Violate Equal Protection

461px-1827_Finley_Map_of_Ohio_-_Geographicus_-_Ohio-finley-1827The Obama Campaign, Democratic National Committee and Ohio Democratic Party filed a complaint in the Southern District of Ohio today arguing that Ohio's recent changes to its early voting laws violate the Equal Protection Clause.

The complaint in Obama for America v. Husted sums up the problem thusly:

Taken together, [Ohio] Amended Substitute House Bill Number 194 (“HB 194”), Amended Substitute House Bill Number 224 (“HB 224”) and Substitute Senate Bill Number 295 (“SB 295”), all enacted by the 129th Ohio General Assembly, impose different deadlines for in-person voting prior to Election Day (“early voting”) on similarly situated voters. Prior to the enactment of these laws, there was a single uniform deadline of the Monday before Election Day for in- person early voting. After the enactment of these laws, voters using the Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”) may vote early in-person at a board of elections office up through the Monday before Election Day, while non-UOCAVA voters can vote early in-person at a board of elections office (or designated alternate site) only up until 6 p.m. on the Friday before Election Day.

As the accompanying Motion for Preliminary Injunction and supporting memo argues, eliminating the last three days of early voting for non-UOCAVA voters only was most likely the result of legislative confusion.  Yet such legislative error cannot form even a rational basis supporting the classification.  Additionally, the Motion argues,

to the extent the disparity was motivated by a bare desire to obtain partisan advantage in the election contest, that motivation cannot justify the disparate treatment. Early voting in Ohio has been most prevalent among groups of voters believed to vote Democratic including women, the elderly, and those with lower levels of income and education. But a voting restriction motivated in part by partisan considerations must also have an independently sufficient justification to survive.

Motion for PI at 23 [citations omitted]

Some might wonder if the Obama attorneys cite Bush v. Gore?  Yes and No.
In its explanation of equal protection doctrine application to the fundamental right to vote, the memo cites Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011), and twice includes Hunter's quotations from Bush v. Gore

The fundamental right to vote is not limited to “the initial allocation of the franchise,” but includes “the manner of its exercise.” Hunter, 635 F.3d at 234 (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)). . . . Of course, states have substantial latitude to design and administer their elections; for example, they may choose to allow or not to allow early voting. But “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Hunter, 635 F.3d at 234 (quoting Bush, 531 U.S. at 104- 05) (emphasis added)).

The equal protection argument seems compelling, unless the legislature can demonstrate some justification for the difference between UOCAVA voters and non-UOCAVA voters who are both voting in-person before the election.

RR
[image: 1827 map of Ohio via]

July 18, 2012 in Current Affairs, Elections and Voting, Equal Protection, News | Permalink | Comments (0) | TrackBack (0)

Monday, June 25, 2012

Supreme Court Strikes Montana Campaign Finance Restriction

A sharply divided Supreme Court today in American Tradition Partnership v. Bullock summarily reversed an earlier Montana Supreme Court ruling and held the Montana restriction on independent campaign expenditures unconstitutional in violation of the First Amendment speech clause.  The ruling wasn't a huge surprise, as the Court previously stayed the Montana ruling pending its consideration of the case.

The ruling affirms the Court's commitment to Citizens United--the case holding that restrictions on independent electioneering expenditures violated the First Amendment--even in the midst of massive independent spending and the arrival of influential super-PACs this election cycle.  The ruling means that the Court will allow no breathing room for regulation of independent electioneering expenditures--even when a state, like Montana, can show that it had a history of corruption through independent expenditures, and even when the restrictions don't seem all that onerous.

The ruling also means that the Court isn't in the mood to reconsider Citizens United--anytime soon, at all.  If anything, this ruling only strengthens Citizens United, illustrating that there really is no breathing room for regulations on independent electioneering expenditures.

Recall that the Montana Supreme Court earlier upheld the state's restriction on independent electioneering expenditures, holding that Montana's history of political corruption through independent expenditures justified the restriction even under Citizens United.  The court also held that Montana's restrictions weren't as onerous as the federal restrictions at issue in Citizens United.  

In short, the Montana court held that the Montana restriction was distinguishable on the facts from Citizens United, and the court therefore could thread the Citizens United needle and enact its restriction.

The Supreme Court's ruling today means that there's no eye in the Citizens United needle--not even a small one.

Montana's law says that a "corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party."  The five-Justice majority, in a remarkably brief per curiam opinion, said that "Montana's arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case."

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote in dissent that they'd reconsider Citizens United, and that even under Citizens United Montana showed that independent expenditures did lead to corruption and were therefore regulable.  (These four did not vote to grant cert., however, because, as Justice Breyer wrote, "given the Court's per curiam disposition, I do not see a significant possibility of reconsideration.  Consequently, I vote instead to deny the petition."  Under Court rules, these four votes could have put the case before the Supreme Court, but they understood that the Court wouldn't reconsider Citizens United or its application here--and that Court consideration might only serve to strengthen Citizens United even more.)

SDS

June 25, 2012 in Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Friday, June 8, 2012

D.C. Circuit: No Right to Ballot Count for Third Party

A three-judge panel of the D.C. Circuit ruled today in Libertarian Party v. D.C. Board of Elections and Ethics that the Board did not violate the Libertarian Party's First Amendment speech and association rights and its Fifth Amendment equal protection rights by declining to produce an exact count of the votes received by Bob Barr, the Libertarian candidate in the 2008 presidential election.

The Libertarians claimed that the Board's failure to provide an exact count of votes received meant that they couldn't tell how much support they had in D.C. and that they couldn't determine whether they met the 5 percent national threshold to qualify for public funding in the next election.  Here's the gist:

[A] voter who casts a valid write-in ballot for a declared candidate like Barr is entitled to know whether she has acted in concert with other like-minded voters or whether her vote is a lone statement in the political wilderness.  The voting public is entitled to know how Barr fared at the polls.  The Libertarian Party is entitled to know whether its stature has grown or been diminished by the votes cast for Barr.  None of this vital information, laden with associative and communicative value, is available if the Board fails to count and report the Barr vote.

The court rejected the claims.  It ruled that the Board's failure to provide an exact count was a reasonable, nondiscriminatory restriction on the constitutional rights of voters and therefore valid with only an "important regulatory interest."  The court said that the Board had a sufficient interest in saving money by not counting votes of a candidate for reasons other than determining the winner of an election.  Moreover, the court said that the Libertarians could always get the ballots via the FOIA, and count them themselves.

SDS

June 8, 2012 in Association, Cases and Case Materials, Elections and Voting, Equal Protection, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Thursday, May 31, 2012

Florida Federal Judge Grants Preliminary Injunction Against Law Regulating Voter Registration

In his opinion today in League of Women Voters of Florida v. Browning, Northern District of Florida Judge Robert Hinkle held that the plaintiffs had a likelihood of prevailing on the merits of their claim that Florida Statutes § 97.0575, as amended in 2011, and its  implementing rule, Florida Administrative Code Rule 1S-2.042, violate the First Amendment. 

Map of FloridaJudge Hinkle found that the "statute and rule impose a harsh and impractical 48-hour deadline for an organization to deliver applications to a voter- registration office and effectively prohibit an organization from mailing applications in. And the statute and rule impose burdensome record-keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional."

The judge applied a relatively low standard, finding that "an election-code provision of this kind must serve a legitimate purpose that is sufficient to warrant the burden it imposes on the right to vote."  And perhaps a well-crafted law could survive such judicial review.  But Judge Hinkle stated:

This statute and this rule are not well crafted. To the contrary, they are virtually unintelligible, close to the point, if not past the point, at which a statute—especially one that regulates First Amendment rights and is accompanied by substantial penalties— becomes void for vagueness.

Rejecting Florida's argument that certain issues in the statute's application "will need to be worked out,"  Judge Hinkle was dismissive.  Not only would a voter-registration organization be "ill advised to risk significant fines—and the attendant damage to the organization’s reputation—that would result from failing to comply with provisions this difficult to parse,"  but it is also " not too much to ask the state to work out the issues in advance," when "rights of this magnitude are at stake."  

Judge Hinkle's opinion provided several different practical scenarios.  For example,

Another substantial flaw in the statute and rule—and a clearer violation of controlling law—is their disregard of a voter-registration organization’s interest in mailing in completed voter-registration applications rather than hand delivering them. The statute makes no provision for mailing at all. If the statute means what it says—that an application must be received in the voter-registration office within 48 hours after the applicant signs it—a prudent voter-registration organization can never mail in an application. This is so because even if the organization delivers the application to the Postal Service immediately after the applicant signs it—and this in itself would be virtually impossible—the organization cannot be assured that the Postal Service will deliver it within 48 hours.

Judge Hinkle found the constitutional arguments more pertinent that those under the National Voting Rights Act, and did sustain a few of the Florida provisions.  But this is certainly a substantial set back for the controversial Florida statute and administrative rule that severely curtailed voter registration activities.

RR

May 31, 2012 in Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Friday, May 18, 2012

D.C. Circuit Upholds Key Provisions in Voting Rights Act

A divided three-judge panel of the D.C. Circuit today affirmed a lower court decision and upheld key provisions in the Voting Rights Act.  The majority in Shelby County v. Holder held that Section 5, the so-called pre-clearance provision, and Section 4(b), the section that designates covered jurisdictions under Section 5, fell within congressional authority under the Fifteenth Amendment and thus were constitutional.  We covered the case in the lower court here and here; those posts contain more thorough background.

The ruling tees up the case for Supreme Court review.  The high Court has strongly suggested that it was just waiting for a good case to take on the constitutionality of these key provisions of the VRA.  It dodged the constitutional question three years ago in Northwest Austin Municipal Utility District v. Holder.  This case gives it a second crack, with the constitutional question unavoidably front-and-center.

When the case goes to the Supreme Court--and it's all but certain a "when," not "if"--it'll turn on how the Court treats and scrutinizes congressional findings (as it did in the D.C. Circuit).  In particular: Do congressional findings adequately support Sections 5 and 4(b)?  If we want a preview of those arguments, we can simply look to the arguments over methodology and congressional conclusions in this case--most or all of which are thoroughly vetted in the 100-page opinions.  

But there's another question to watch for: By what measure will the Court scrutinize congressional findings?  In other words: How much leeway will the Court give to Congress, if congressional findings don't exactly line up with Section 5 and 4(b).  This Court has suggested that it won't give much.

Congress had a thorough record when it reauthorized the VRA in 2006.  The question is whether it was thorough and precise enough for this Court.  Based on what we've seen from this Supreme Court, the answer is probably no; and we should brace ourselves for a sharply divided ruling that the VRA exceeds congressional authority.

In the D.C. Circuit, Judge Tatel started the majority opinion with a hat-tip to Northwest Austin and the Court's statement there that there were serious constitutional questions with the VRA--showing the court's full recognition of the importance of this case.  The ruling then uses the framework in Northwest Austin to analyze the constitutionality of Section 5:

First, emphasizing that section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs," the Court made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." . . .  Second, the Act, through section 4(b)'s coverage formula, "differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty."

Op. at 14.

In a ruling that claimed deference to congressional judgments--but nevertheless included scores of pages of scrutiny of those judgments--the court held that Congress had satisfied both questions in reauthorizing the VRA in 2006.  (Along the way,the court held that the Fourteenth Amendment's "proportional and congruent" test is also the appropriate one for the Fifteenth Amendment.)

Judge Williams dissented, writing that Section 4(b), the section setting criteria for designation as a covered jurisdiction, was too rough a cut to meet the demands of the Fifteenth Amendment.  This illustration summarizes the point:

Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana?  A glimpse at the charts shows that Indiana ranks "worse" than South Carolina and Texas in registration and voting areas, as well as in black elected officials . . . .  As to federal observers, Indiana appears clearly "better"--it received none . . . .  As to successful Section 2 suits South Carolina and Texas are "worse" than Indiana, but all three are below the top ten offenders, which include five uncovered states . . . .  This distinction in evaluating the different states' policies is rational?

Dissent, at 32.

SDS

May 18, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)