2014

NC Supreme Court Recount Could Be Legal Focal Point

by

One to watch very closely.

From an election law perspective, the biggest potential development I’ve seen early Wednesday morning after Election Night is not in U.S. Senate races, or even gubernatorial ones, but rather the fight for a seat on North Carolina’s Supreme Court.

The reason is that before Election Day North Carolina already was the focus of intense federal court litigation concerning changes in that state’s voting rules, particularly those concerning the elimination of same day registration during early voting and a new requirement to invalidate provisional ballots cast in the wrong precinct.  The U.S. Court of Appeals for the Fourth Circuit preliminarily indicated that those changes violated the federal Voting Rights Act.  Although the U.S. Supreme Court put that Fourth Circuit decision on hold for the purpose of administering ballot-casting procedures yesterday (Election Day), the Supreme Court did not decide the merits of the federal-law claims.  Consequently, the Supreme Court did not rule on the status of any provisional ballots cast in North Carolina as a consequence of the state’s changes to its voting rules.  As Josh Douglas and I addressed in our op-ed yesterday, the supremacy of federal law means this: assuming the Fourth Circuit adheres to its position on the invalidity of the new North Carolina rules under the federal Voting Rights Act, then North Carolina may not reject a provisional ballot solely because of noncompliance with its new law.

Thus, the status of provisional ballots may become important in a recount over the state’s supreme court seat.

Ten years ago, North Carolina had major litigation over provisional ballots in a statewide race for its chief education officer.  That led to a big decision in the North Carolina Supreme Court, James v. Bartlett, 607 S.E.2d 638 (2005), only for that decision to be subsequently reversed in the state’s legislature, with additional state-court litigation thereafter.

It is obvious that litigation over a state supreme court seat is a matter more difficult for the state supreme court itself to resolve that litigation over a separate statewide office, like superintendent for public instruction.  The apparent conflict of interest is obvious.  The last time an election for a state supreme court seat was seriously disputed was in 1994, over Alabama’s Chief Justice election.  That dispute ultimately was resolved in federal court, in the important precedent-setting case of Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995), which ruled that it violates Due Process to change the rules for counting ballots after they are cast.

Since there already is pending litigation over North Carolina’s voting rules, it would not be at all surprising if the election for this state supreme court seat was resolved in federal rather than state court.  Indeed, it could become the crucible for litigating the merits of the pending federal claims.

Imperfect Remedies for Election Problems

by

By Steven F. Huefner

Extending voting hours in response to polling place irregularities may be appropriate, but is far from ideal.

With polls in some states already closed or soon to close, it is fair to say that Election Day 2014 has gone off without many major polling place problems. In part, we can thank the fact that this is a “midterm” election, which lacks the substantially larger turnout of a presidential election that creates significant additional stress on polling place operations. That said, a number of small glitches still have occurred around the country throughout the day (not surprising, really, given the over a hundred thousand polling places throughout the country, staffed by volunteers). These problems have primarily included equipment malfunctions and incomplete polling place preparations, and though they have been fairly localized, they still have the potential to effect close races.

In response to these problems, courts in at least three states have in the last few hours ordered some polling places to remain open beyond their scheduled closing times. In Georgia, it is a 15-minute extension in one polling location. In Connecticut, it is a thirty-minute extension in two polling locations. In Illinois, it is a 60-minute extension in five polling places. While admirable in their attempt to remedy problems early in the day, these voting extensions ought to remind us of how imperfect our voting processes are.

We hold elections in order to allow each eligible citizen to have an equal voice in their government. We structure them with advance notice and various procedural requirements designed to provide for a smooth and fair administration of the election, intended to enfranchise all voters who wish to vote. But when a particular voter is prevented or dissuaded from voting because a polling place opens 15 minutes late, or because an unanticipated line develops when polling books are not ready for use, it presumably does little to assist that particular voter to offer additional minutes of voting time in the evening. (Voters in-line at the designated time for polling places to close already are allowed to stay and vote.)

Instead, it is by far preferable to allow voters experiencing a problem to cast a provisional ballot at the moment they are experiencing the problem. As my election law colleagues Ned Foley and Josh Douglas noted in a New York Times Op-Ed today, in any federal election, federal law requires poll workers to offer provisional ballots to any voter who wants to vote but is unable to vote a regular ballot. Meanwhile, a separate provision of federal law also now requires that any voter who votes as a result of a court order that extends the scheduled voting hours must also vote a provisional ballot.

A provisional ballot cast as a result of an extension is likely more vulnerable to being excluded from the count, if in a subsequent judicial contest a reviewing court determines the extension was unwarranted. A provisional ballot cast during regular voting hours because a poll book was not available, or regular ballots were in short supply, or lines to use regular equipment were too long, presumably will be counted once election officials can verify the voter’s eligibility.

Thus, as the evening draws on and a few polling sites remain open beyond their scheduled close this evening, it bears noting the imperfection of this remedy. Although extending polling place hours may sometimes be a warranted response to Election Day problems, we are far better off, first, by doing all we can to prepare for Election Day, and second, by taking better advantage of provisional ballots.

Could New Voting Restrictions Determine Control of the Senate?

by

By Daniel P. Tokaji

All eyes tonight – and quite possibly afterwards – will be on which party will control the Senate. The latest polling suggests that it will come down to eight states:  Alaska, Colorado, Georgia, Iowa, Kansas, Louisiana, New Hampshire, and North Carolina.   Republicans will control the Senate if they prevail in four or more of these states, while Democrats need at least five to maintain control.*

Of the eight states in play, four have seen litigation over voting rules or practices this year: North Carolina, Georgia, Kansas, and Iowa.  All of these cases involve voter registration.  The courts stopped restrictions in Kansas and Iowa, but ultimately declined to do so in North Carolina and Georgia. This comment considers the possibility that voting restrictions – or court orders stopping them – could make the difference.

North Carolina is the state where new voting rules are most likely to affect a Senate race. A law enacted by the Republican-controlled North Carolina legislature last year adopted the broadest set of voting restrictions in recent history.  The law eliminated same-day registration, reduced the early voting period, mandated rejection of provisional ballots cast out–of-precinct, ended the pre-registration of 16 and 17 year olds, and made challenges to voter eligibility easier.  The state also adopted a voter ID requirement, although that won’t take effect until 2016. North Carolina’s voting restrictions came shortly after the Supreme Court’s decision in Shelby County v. Holder, which struck down the Voting Rights Act’s coverage formula – relieving North Carolina and other covered states of their obligation to preclear voting changes with the federal government.

The NAACP sued to stop North Carolina’s voting restrictions, but the Supreme Court allowed them to take effect.  The Fourth Circuit Court of Appeals had intervened to stop two provisions:  the elimination of same-day registration and the rejection of out-of-precinct ballots.  The preservation of same-day registration was especially important, given the evidence that this practice tends to increase turnout.   But last month, the Supreme Court issued a stay of the Fourth Circuit’s order, allowing North Carolina’s new rules to take effect.

In Georgia, another state that was covered by the Voting Rights Act before Shelby County, the NAACP sued the Secretary of State in state court alleging that election officials were failing to add voters to the rolls in a timely manner.  The trial judge dismissed the lawsuit, finding that state and local election officials were complying with state law.  Plaintiffs claim that 40,000 registrations have gone missing.  This allegation may not be true – but if it is, those votes could make the difference in a close race.

In two other states, courts intervened to stop registration restrictions this election cycle. Kansas’ Secretary of State sued to the U.S. Election Assistance Commission, seeking an order that would require documentary proof of citizenship for new registrants for people using the federal registration form.  A district court agreed with Kansas, but the Tenth Circuit stayed the district court’s order.  Thus, Kansas’ registration requirement wasn’t in effect for voters using the federal form this election cycle.

In Iowa, the ACLU sued the Secretary of State to stop new rules allowing people believed to be foreign nationals to be removed from the rolls.  A state trial court found the new state rules invalid under state law, stopping them from going into effect.

So could control of the Senate hinge on the voting restrictions challenged in North Carolina and Georgia, or the court orders stopping restrictions in Kansas and Iowa? It depends, as usual, on how close things are.  The odds are against it, but the litigation could turn out to be outcome-determinative if control of the Senate hinges on a small number of votes in one or more of these states.  And if it’s close enough, we may never know for sure.

With those caveats, the chances of election rules making a difference are greatest in North Carolina, given the breadth of that state’s voting restrictions. While this scenario is unlikely, if Republicans win control of the Senate due to a narrow victory in North Carolina, they should thank the Supreme Court.

* The Independent candidate in Kansas, Greg Orman, hasn’t said who he’ll caucus with if he defeats Republican incumbent Pat Roberts.

More on Connecticut Registration List Issues [Updated]

by

By Steven F. Huefner

Thoughts on Connecticut’s voter registration list issues.

Many reports have been coming in about voting difficulties this morning in Connecticut, including both ballot shortages at some polling places, and a complete lack of the list of registered voters at others. Although we are still short on complete facts about these problems, it’s not too early to worry about their potential impact on a close race. The gubernatorial contest is the most closely watched, and has the potential to be a nail-biter.

The spokesperson for the Connecticut Secretary of State is reported to have said, quite aptly: “I don’t know how many polling places were affected. [Having the voter lists ready] really, really must be done before the election…. This is Election 101.” He then also said: “Once we get this situation under control, our next goal after election day is to investigate what happened and hold accountable those who are responsible.”

Unfortunately, that skips over the fact that in the event the problems affected more voters than the apparent margin of victory in a race that is too close to call, these morning difficulties could have an immediate impact on the way in which the race plays out. By midmorning, many were contemplating the possibility of extending voting hours this evening to accommodate voters who abandoned their efforts to vote this morning because of long delays triggered by the absent poll books. [Update: by midday, the Democratic Party had filed suit  to extend voting hours.] If hours are extended, federal law will require that voters casting their ballots in the extended period cast a provisional ballot, to permit courts to sort out after the fact whether the extended hours were appropriate, and whether to count the votes cast during that time.

Meanwhile, voters who, in lieu of signing the poll book, instead signed blank sheets of paper this morning to obtain a ballot, will be scrutinized to determine if they in fact were eligible to vote. Though discrepancies here are not likely to be many, they will pose a much more difficult problem if the voters in question were given regular ballots rather than provisional ballots. If so, these ballots given to these voters this morning will already have been counted, and will not be easily subtractable from the tallies. (The reporting so far has not been specific on this point, but certainly suggests that these voters were allowed to vote regular ballots. Provisional ballots also should have been readily available and offered to any voter for whom a regular ballot was not available or for whom other problems impeded their ability to vote, as Ned Foley and Josh Douglas pointed out in a NYTimes Op Ed today. None of the Connecticut reporting so far has indicated that provisionals were deployed in this way as a remedy for the morning problems.)

These are just a few quick reactions to the preliminary reports of the Connecticut difficulties. At the end of day (literally and figuratively), it may be that the problems are of insufficient magnitude to affect the outcome of any of the races on today’s ballot. In that case, the spokesperson is right that there will be time enough to determine responsibility and take steps to prevent this in the future. But that hope ignores the possibility, slim but real, that problems like these can make determining the outcomes a mess.

I Experienced Poll Worker Error [Updated]

by

A report from the field.

I voted this morning at my neighborhood polling place.  No line, small but steady flow of voters.  In other words, routine conditions for poll workers.

In the space of my brief visit, my own interaction with the poll workers produced two errors on their part.  I write this not to disparage them.  In fact, afterwards, I praised both for doing their civic duty.  Their mistakes were entirely innocent and human, and show just how vulernable the voting process is to routine good-faith human error.

The first mistake occurred at the check-in table where a youthful poll worker asked me to sign the poll book.  (He was participating in Youth at the Booth, or something like that moniker, and that’s a wonderful way to get teens involved with democracy.)  He pointed to the line for me to sign in the poll book.  Except it wasn’t the line next to my name and the photocopy of my signature.  Instead, it accidently was the line below.  If I had signed that line, I would have created a serious problem if that eligible voter later today had showed up to cast a ballot.  In fact, something like this problem may be what happened during early voting in New Mexico.

This particular error could have been worse, if I had wished to take advantage of it.  I happen to know that the line right below mine in the pollbook was my adult son, who is away in college and wouldn’t be voting at the polls today.  (I’m not sure he even cast an absentee ballot, but that’s another matter.)  I could have tried to forge his signature on the line the poll worker told me to sign, and then this evening before the polls close come back and vote in my own name.  A risky move perhaps, if the same poll worker was doing the check-in at the same table.  And of course it would have been just one vote.  For what it’s worth, I didn’t even think of the possibility in the moment, only after I was driving to work.  What can say, I don’t have a quick enough mind for voter fraud?  And of course a stricter voter ID law wouldn’t have made a difference: I presented my valid photo driver’s license, and still was given the opportunity to sign someone else’s name.  I’m not saying such mistakes have the capacity to swing an election, but a mistake it was, creating a potential vulnerability.

The second mistake was arguably worse, presenting the risk of disenfranchising the voter (in this case, me).  A new poll worker took the “eligible to vote” slip I received at the check-in table after signing my own name (having pointed out the first mistake to the youngster who was very apologetic).  The new poll worker took me to a DRE touchscreen machine, which she activated.  The first screen to appear showed three or four precincts–all the ones that were voting in the same polliing location (a synagogue).  The poll worker accidently pressed the icon for the wrong precinct.  I happened to catch it, because I know my precinct.  But if I hadn’t, I would have been forced to vote a provisional ballot.  Ohio law invalidates wrong-precinct provisional ballots, and it used to apply this rule even in the case of mult-precinct polling locations, like where I was.  The federal court of appeals for the Sixth Circuit in 2012 held that in this context, such invalidation caused by poll worker error would be unconstitutional.  Presumably, compliance with that new rule would have protected my own ballot this year (except for any particular precinct-level matter, like a local liquor rule).  But what if similar innocent mistakes affect voters in states not governed by the Sixth Circuit?

The particular poll worker was not elderly.  She did not make a mistake reading addresses, thereby “assigning” me to the wrong precinct.  Her mistake was just a slip of a finger.  Do we ever want an innocent slip of a poll worker’s finger to cause the disenfranchisement of an otherwise eligible voter, who has turned out at the polls to participate in the great exercise of popular sovereignty in a democracy?

 

UPDATE: An astute reader alerted me that, in describing the second poll worker error that I encountered, I made a mistake of my own.  As a consequence of the poll worker tapping the touchscreen icon for the wrong precinct, I would not have been required to cast a provisional ballot.  Instead, I would have cast a “wrong precinct” regular ballot.  It would have counted without detection, in which case I would have been permitted to vote on precinct-specific matters for which I might have been ineligible (like the aforementioned local liquor rule), as well as deprived of any precinct-specific matters for my own precinct.

The fact that a poll worker would have inadvertently let me vote a regular wrong-precinct ballot in this way underscores the question why a voter should ever be disenfranchised by a similar wrong-precinct poll worker error.  One wrong-precinct ballot would count when caused by a slip of the poll worker’s finger at a touchscreen machine, as I experienced, while another wrong-precinct ballot would not count under state law if the poll worker error was misreading the voter’s address (more like the first error I experienced).  If both ballots have the exact same wrong-precinct flaw, should they not receive the same treatment under Equal Protection (which, again, is what the Sixth Circuit requires, and hopefully will become a uniform national standard).

Summary of Selected Election Day Issues in Key States

by

By Terri L. Enns

A quick summary of election day issues in key states.

Election Issues Possibly Leading to Litigation

Governor’s Races

AK – Alaska permits all voters to return ballots online, but not problems reported.

http://www.usatoday.com/story/opinion/2014/11/04/barbara-simons-online-voting-problems/18461679/

Hand-counting of ballots in 137 precincts, then sent in via modem: http://www.nbcnews.com/politics/elections/why-election-day-could-drag-beyond-tonight-n241066

CT – 2 polling locations in Hartford had extended hours due to ‘delays and other problems’

http://time.com/3556828/voting-rights-ballot-problems/

KS – Voter Registration Issues: http://www.kansas.com/news/politics-government/article3504228.html — Over 21,000 voters’ registrations may not be counted due to a lack of proof of citizenship. A law that went into effect Jan. 1, 2013 requires people registering to vote for the first time to provide proof of citizenship, such as a birth certificate or passport. Voters could vote provisionally; however, a provisional ballot cast by anyone who had not provided proof of citizenship by the day before the primary election would not have counted. Server Crash causes delay: http://www.kansas.com/news/politics-government/election/article3548449.html   Read more here: http://www.kansas.com/news/politics-government/article3504228.html#storylink=cpy   Read more here: http://www.kansas.com/news/politics-government/article3504228.html#storylink=cpy A server crash in Sedgwick County prevented votes to be counted for a short amount of time Tuesday night. Results were able to be printed minutes later. The voting experience crawled by thanks to dead touch screens or machines that logged their voting choices incorrectly. More issues have been reported with the electronic voting machines on Tuesday in Kansas than in recent elections. Rejection of Voters without ID: http://kcur.org/post/will-voting-problems-give-kansas-election-night-limbo Because of the Secure and Fair Elections Law in Kansas, many voters were turned away from the polls leading up to and including Tuesday night. In 2010, Kansas rejected .03 percent of voter registration applications. To compare, in 2014, Kansas has suspended or rejected almost 20 percent.

Call to Action for KS Secretary of State: http://www.americanprogress.org/press/release/2014/11/04/100372/release-following-reports-of-barriers-to-voting-cap-issues-letter-to-kansas-secretary-of-state-calling-for-immediate-action/ The letter is within the article for viewing. Read more here: http://www.kansas.com/news/politics-government/election/article3548449.html#storylink=cpy

MA – No significant issues reported.

MD – Some reports of flipped votes due to calibration issues:

http://dailysignal.com/2014/11/04/maryland-republicans-lookout-voting-machines-flip-democrat/

http://www.wboc.com/story/27269391/maryland-voters-report-25-vote-flipping-machines

http://dailycaller.com/2014/11/04/vote-flipping-reported-machines-taken-out-of-service-in-maryland/

ME – Snow storms forced some polling places to change location at the last minute–these changes were listed on their state website and a sign hung on the door.

–http://www.centralmaine.com/2014/11/03/thousands-still-in-the-dark/

VT – No significant issues reported.

 

Senate Races

AK – Alaska permits all voters to return ballots online, but not problems reported.

http://www.usatoday.com/story/opinion/2014/11/04/barbara-simons-online-voting-problems/18461679/

Hand-counting of ballots in 137 precincts, then sent in via modem: http://www.nbcnews.com/politics/elections/why-election-day-could-drag-beyond-tonight-n241066

NH – No significant problems reported.

VA – Virginia: Voting Machine Problems in over 40 precincts http://www.13newsnow.com/story/news/politics/elections/2014/11/04/rep-rigell-voting-machine-problems-in-2nd-d/18455653/ http://wavy.com/2014/11/04/rigell-campaign-demands-paper-ballots-in-va-beach/ http://washington.cbslocal.com/2014/11/04/va-gop-voting-machines-malfunctioning-in-several-precincts/ Representative Scott Rigell and the state GOP are calling on the Virginia Beach Supervisor of Elections to switch to paper ballots at the precincts where problems have been reported, including switching votes upon review of the ballot. Rigell’s campaign have said if the election is close, they will explore all legal options to ensure there weren’t any miscast ballots. Any voting machines showing signs of issues or problems were taken out of service immediately

Reshaping the Rules for Voting: How Two Different Eras Compare

by

By David Stebenne

Professor of History and Law
Moritz College of Law

Fifty years ago, an eight – year period of innovation in voting rules began with ratification of the 24th Amendment to the Constitution. Formally adopted on January 23, 1964, it put an end to the practice (in several of the Southern and Border States) of requiring payment in order to vote in federal elections. Two years later, a U.S. Supreme Court ruling known as Harper v. Virginia Board of Elections interpreted the Constitution’s Equal Protection Clause so as to apply the ban to state elections as well. In 1965, Congress passed and President Lyndon Johnson signed into law a Civil Rights Act known less formally as the Voting Rights Act. It established federal registrars in Southern states where local registrars had long denied the right to vote to black residents. That measure was followed by Congress’s passage and the states’ ratification of the 26th Amendment to the Constitution. This amendment prohibited denying the right to vote to citizens who had reached age eighteen. Part of a trend to establish that age as the mark of adulthood, rather than the older standard of twenty-one years, the 26th Amendment was formally adopted on June 30, 1971. And, of course, during that same eight – year time period, the U.S. Supreme Court handed down landmark reapportionment rulings that required state legislative bodies to reapportion themselves (and U.S. House districts) promptly after each federal census, and to do so in accordance with the principle of one person, one vote. By the end of 1972, that reapportionment process was complete, and had produced some far reaching changes for voters at the ballot box. For example, in Maryland, where I mostly grew up, representation of the rural and conservative Eastern Shore counties greatly diminished in the Maryland General Assembly (and in Maryland’s U.S. House delegation), while that of the Baltimore metropolitan area greatly increased.

From the vantage point of more than four decades later, what all of those changes meant for the American electorate has become clear. The impact of the poll tax ban and introduction of federal registrars into the South substantially increased the number of black women voters. (The rise in felony disfranchisement among black men nationally over the past forty years meant that gains among black men voting in the South were offset by losses among black men voting elsewhere.) Voters between the ages of eighteen and twenty seldom turned out in large numbers, and so giving them the right to vote didn’t change much in terms of who voted with any regularity. Thus, the one major gain in terms of participation came among black women. At the same time, the propensity of people in the middle three fifths of the income distribution living outside the South to vote fell substantially over those forty years, among whites especially, a shift that was most pronounced from 1972 to 1996. (The decline of labor unions was the single most important reason for that.)

Those changes in who voted regularly had significant implications for national politics. Black women tend to be among the most strongly liberal voters in the country, in the contemporary sense of that word. Most self – described moderates are middle class white people. Substantially more voting by black women has tended to push the more liberal of the two major parties leftward, while substantially less participation by middle class whites has tended to push both major parties away from the moderate middle.

With this history in mind, consider the new eight – year period of reshaping voting rules that began around 2006 and has continued through the present. The major changes have been in the direction of making voting somewhat harder to do, thanks to new requirements to provide identification, restrict early voting, eliminating same – day registration, and barring votes cast in the wrong precinct from being counted at all, to give only four examples. North Carolina has recently been a leader in that regard, but those same kinds of changes have played out in many other states as well. Those changes in voting rules appear likely to reduce voter participation by the one group that gained a lot from the changes of the earlier era, i.e., black women, and the poorer of them especially. (Felony disfranchisement continues to keep voting by black men low irrespective of these changes in voting laws.) At the same time, interest in voting among middle class whites has increased substantially over what it was in the 1970’s, ‘80’s, and ‘90’s. They appear much better able to navigate the current system of voting requirements because middle class whites are significantly more likely to have the forms of identification, flexible schedules, literacy skills and familiarity with local governance needed to do so.

What this suggests is that whatever the intent of recent changes in voting rules, one of its most important consequences will be to strengthen the political power of the center, by discouraging voting somewhat among black women (and the majority among them with low incomes especially), who tend to be strongly liberal, while voting by middle class whites, who tend to be moderate, increases. Strengthening the center, in and of itself, is not so troubling in a country that seems excessively polarized. What is troubling is a way of revitalizing the center that follows, however unintentionally, from reducing access to voting by eligible citizens.

The Voting Rights Act & Judicial Equity

by

A tentative thought, building on Rick Hasen’s and Justin Levitt’s analysis of how the equitable powers of the federal judiciary apply in the context of the new Texas voter ID ruling, in comparison to the recent equitably trilogy in SCOTUS (OH, NC & WI).

The Voting Rights Act as a statute specifically designed to alter the equitable powers of the federal judiciary in voting cases, potentially calls for a somewhat different inquiry than Purcell applied solely to Equal Protection claims.  Preclearance under the VRA is, arguably, Purcell-like presumption-against-change-in-voting-rules on steroids (and, to be sure, it applies not just to “last-minute” changes).  Thus, a judicial order that a state needs to be “bailed in” to preclearance raises, to my mind, additional equitable considerations under Purcell (along the lines of what Justin writes, but with a bit more emphasis on the VRA’s statutory structure).

One thing I haven’t thought through is a “last-minute” decision to “bail in” a state, which is arguably what yesterday’s Texas ruling is.  (I haven’t had a chance to study the decision.)  One might be able to make the argument—I don’t know—that a federal judge has a window of opportunity to make a bail-in ruling before a November general election (when was the bail-in request filed, etc?), but by mid-October the time for federal judicial alteration of the electoral status quo has passed.  From SCOTUS’s perspective, a kind of laches doctrine might apply to the exercise of a federal district judge’s discretionary exercise of equitable powers: don’t wait until Oct. 9 to write a 100+ opinion on what you’re doing for this November’s election; instead, any federal order affecting the state’s rules for this election should come earlier, even at the expense of reasoning in an opinion.  (look at SCOTUS’s own preference for speed over writing in OH, NC & WI).

Finally, Justin wrote that he’s unaware of SCOTUS precedents dealing with last-minute equitable considerations in the context of intentional race discrimination in voting.  So am I, but I’d want to look back at the Warren Court’s handling of these sorts of cases in the 1960s, etc.   My impression from Reynolds v. Sims is that the Warren Court was sensitive about implementing new judicial rulings on the eve of an election, even when those rulings were designed to eradicate systemic biases in the electoral system.  (Obviously, Reynolds was a Equal Protection case, not a Fifteenth Amendment case.)  But it wouldn’t surprise me if in some circumstances the Warren Court delayed enforcement of an injunction to bar even a Fifteenth Amendment violation, depending on the timing and particular circumstances.  I’m certainly willing to stand corrected on what the Warren Court did (assuming it confronted this situation); I just think it’s worth investigating before determining how Purcell ought to apply to the Texas case.  And, again, the relevance of those Warren Court precedents would depend on whether they were pre- or post -VRA enactment, and thus the extent to which the VRA itself should be understood as a congressional adjustment in the structuring of the federal judiciary’s equitable powers.

Law Students: Preparing to be Stewards of the Civic Trust

by

By Ben FC Wallace

President, Moritz Election Law and Democratic Debate Society, at The Ohio State University Moritz College of Law

It is a most exciting time to be at the Moritz College of Law and to be studying election law. Moritz offers students exceptional opportunities to study the suite of legal fields that govern political and democratic processes, and boundless possibilities to put their skills to work in the capital of the state that has long been recognized as one of the keystones of electoral politics in the United States.

Moritz students should take advantage of these opportunities. As future attorneys, Moritz students should prepare themselves to be stewards of civic trust. As leaders, we can help to deepen popular engagement in public life. As budding legal professionals, our expertise will help to grow and shape the public institutions of Ohio and of the nation.

One arena in which Moritz students can have the greatest impact is in election administration. Election officials (maybe you know them as poll workers) exist at the complex nexus of election law, administrative procedures, and customer (voter) service. Election officials are the gatekeepers of democracy in our nation. Despite this fact, Ohio struggles to hire talented and motivated individuals for these all-important roles. I would encourage all Moritz students to consider a day of public service this November or in the future by enlisting as a precinct election official.

As a perennial battleground state, Ohio offers many opportunities for law students to become engaged in election work both partisan and non-partisan. Incoming students will be privileged to experience the heat of the 2016 presidential race during their time at Moritz, when the eyes of the nation and the world are turned to the Buckeye State. But there are also statewide elections this fall and there is a great need for motivated and leadership-minded students to engage in the electoral process.

But Moritz students, as both current and future leaders, should also make their own opportunities. Moritz boasts a plethora of political and public policy-oriented student organizations in which students can make their mark. Additionally, students can start their own blogs focusing on personal policy interests, seek meetings with state or federal elected officials, organize voter registration drives on campus and in the community, develop state or local ballot initiatives, and run for office themselves. Current and former Moritz students have successfully pursued all of these avenues of political engagement. The sky is the limit.

Moritz graduates are the future leaders of Ohio. Whether they exercise that leadership in law firms, non-profits, as prosecutors or public defenders, in state agencies or in the Statehouse, Ohioans will look to former Moritz students for their professionalism, expertise, and wisdom as the state and the nation grapple with legal and policy questions. Even while they are still occupied with the hard work of studying the law, Moritz students should begin to embrace their role as leaders, and the elections arena is one good place to start.

Ben FC Wallace is president of the Moritz Election Law and Democratic Debate Society, a student organization at The Ohio State University Moritz College of Law.

Judge Easterbrook on the Voting Rights Act: Asking Good Questions, Making Bad Law

by

By Christopher Elmendorf

Professor of Law, UC Davis School of Law

Judge Easterbrook’s opinion upholding Wisconsin’s voter ID requirement asks the right questions.

Earlier this week Rick Hasen blasted Judge Easterbrook’s opinion upholding Wisconsin’s voter ID requirement as cavalier with the facts and “heartless and dismissive” in tone. But in one respect the opinion is extremely helpful: it asks the right questions.

Three questions foregrounded by Easterbrook are particularly important to the future of the Voting Rights Act:

  • What limiting principle keeps the Section 2 “results test” from obligating every state to tinker with its election machinery until rates of voter participation by race have been equalized?
  • Insofar as Section 2 conditions state obligations on past or present societal discrimination, how does this square with the 14th and 15th Amendments, which by their terms reach only state action?
  • To what extent are the “fact” questions in Section 2 cases questions that district judges should try to answer on the basis of expert testimony, as opposed to questions of belief, faith, or policy that ought to be settled by appellate courts as a matter of law?

As this post will explain, Judge Easterbrook’s answers to these questions are not convincing. But unless proponents of robust voting rights protections come forth with better answers—answers that a conservative judge can appreciate—Easterbrook’s opinion is likely to prove a harbinger of things to come at the Supreme Court.

  1. Does the “results test” of Section 2 obligate states to adjust their election rules so as to equalize rates of voter participation across racial groups?

For Judge Easterbrook this question is rhetorical. An affirmative answer would be “implausible,” he says. Perhaps more to the point, but unstated: an affirmative answer would make Section 2 a powerful voting wars weapon for the Democratic Party. This much conservative jurists are likely to resist.

But what limiting principle would permit a court to strike down Wisconsin’s voter ID law, or Ohio’s or North Carolina’s recent rollbacks of early voting and same-day registration, without also compelling states to adopt every feasible election administration reform that would tend to equalize political participation across racial groups?

Ruling in the Ohio and North Carolina cases, liberal panels of the Sixth and Fourth Circuits suggested that the reach of Section 2 depends on “social and historical conditions.” The argument, in a nutshell, is that blacks and Latinos faced substantial disparate-treatment discrimination in the past; that some societal discrimination continues in the present day; that the lower socioeconomic status of blacks and Latinos is due in part to such discrimination; and that Section 2 therefore obligates the states to remove any barrier to voting which in practice limits participation by low-SES voters relative to high-SES voters. This argument, though plausible as a matter of statutory construction, is less a limiting principle than a principled basis for no limits. There is a history of discrimination against racial minorities almost everywhere.

Judge Easterbrook offered a different and severely limiting principle: Racial inequalities in rates of voter participation violate the results test only if the state has made registration and voting very difficult for a class of citizens, defined by race or color, that is under-represented in the voter turnout statistics.

Easterbrook’s rule is dubious as a matter of statutory construction and ironic to boot. His rule would make the Section 2 redundant with the equal protection clause in election administration cases. Yet when Congress enacted the Section 2 results test, Congress was responding to a Supreme Court decision that read equal protection too narrowly. The whole point of the results test was to sweep more broadly, to provide a cause of action where minorities have formally equal opportunities to participate but too little “voting strength” in practice. It is also clear that the enacting Congress saw racial disparities in voter participation as a Section 2 problem, at least where there’s a pattern of official and societal discrimination.

So if Easterbrook’s limit is bad, and that of the Fourth and Sixth Circuits illusory (though principled), what else might do the job? One possibility is to treat Section 2 as reaching even minor voting barriers with a racially disparate impact, insofar as plaintiffs show that it is at least “significantly likely”—a relaxed evidentiary standard—that the voting requirements at issue (1) were enacted to diminish the number of votes cast by the racial minority, or (2) enable or encourage disparate-treatment discrimination by front-line election administrators, such a poll workers. Section 2 could also reach voting requirements that give electoral effect—via impacts on voter participation—to (3) disparate-treatment discrimination by state actors outside of the electoral realm (e.g. school or prison administrators); or even (4) discrimination in the larger society. However, if the significant likelihood test is to serve as a limit in practice, plaintiffs whose claims are predicated on societal discrimination should probably be expected to differentiate conditions in the defendant jurisdiction from typical conditions elsewhere.

I am not sure how the Wisconsin voter ID case would come out under this approach, but North Carolina’s rollback of same-day registration would clearly be vulnerable. In the latter case, the district court indicated that the question of discriminatory intent under the equal protection clause was close. A factual showing that almost establishes discriminatory intent under the equal protection clause should suffice to establish a “significant likelihood” of subjective discrimination for purposes of Section 2.

  1. Whither state action? 

Objecting to “social and historical conditions” arguments, Judge Easterbrook wrote that Section 2 cannot be treated as a remedy for societal discrimination because societal discrimination does not violate the Constitution. That societal discrimination is beyond the Constitution’s ken (for want of “state action”) is very well established as a general matter. But might voting be different?

Certainly there are some hints that it is. As Ellen Katz has shown, the Waite Court, which rolled back the First Reconstruction in the late 19th century, pointedly sidestepped the question of whether Congress could use its enforcement power under the 15th Amendment to remedy societal discrimination that hinders minority political participation.

In the 1950s, the Supreme Court found state action in racially exclusionary straw poll conducted by a private political club. In the 1970s, the Supreme Court emphasized societal discrimination as it developed racial vote-dilution doctrine under the equal protection clause.

The Court later abandoned the racial vote dilution jurisprudence of the 1970s, but Congress in the 1982 amendments to the VRA provided a statutory remedy for the same injury. And, importantly, conservative judges in subsequent vote dilution cases have argued that there is no constitutional problem with the 1982 amendments so long as plaintiffs must show that white voters discriminate against minority candidates on the basis of the candidates’ race. Seemingly private discrimination by voters stands in for state action. Elsewhere I have argued that this apparent exception to the state-action requirement is no exception at all, once one recognizes that to put in office persons who wield the coercive power of the state is to perform a “public function.”

“Social and historical conditions” may also be relevant to a Section 2 claim not because societal discrimination can violate the 14th or 15th Amendments when it touches the right to vote, but because societal discrimination can create political incentives for elected officials to restrict voting by members of a racial group. If this argument is correct, it answers a question that has perplexed Easterbrook and other judges: Is racially polarized voting germane to “vote denial” claims under Section 2? Many courts and commenters have deemed it irrelevant. But if societal conditions matter for Section 2 because of the incentives they create for legislators and their agents, then racially polarized voting is centrally important to vote denial as well as vote dilution claims.

  1. Distinguishing “adjudicative” from “legislative” facts?

A few years ago, the Supreme Court upheld Indiana’s photo-ID requirement for voting on the theory that it promotes “public confidence” in the electoral process. Plaintiffs in the Wisconsin voter-ID case said this argument is now a loser because subsequent empirical research found no relationship between voter ID laws and citizens’ confidence that their ballots will be counted. Judge Easterbrook held that the new findings are irrelevant because the relationship between voter ID and public confidence is a “legislative fact,” rather than a fact to be determined on the record in a particular case.

The idea here is that some putative facts are essentially just matters of belief. These “facts” must be settled as a matter of law, or else the law itself will consist of nothing more than district judges applying their personal and quite divergent prior beliefs.

I think Easterbrook was wrong that voter ID / public confidence is such a fact. Questions about causation can in principle be answered with statistics when the question concerns some discrete intervention in the world, and there is a way to estimate counterfactual outcomes—e.g., voter confidence in the absence of the ID requirement.

However, many facts of central importance to Section 2 are quintessentially legislative. Here’s an example: to what extent are current socioeconomic disparities among racial groups due to disparate-treatment discrimination? The Democratic district judge in the Wisconsin voter ID case credited an expert who said race discrimination is mostly to blame. In another case, a Republican judge might rely on conservative scholars who maintain that socio-economic disparities are largely due to differences in human capital, which in turn (some conservatives say) are substantially unrelated to race discrimination.

If we’re going to be honest, we must admit that the accounting-for-socioeconomic-disparities question is one that statistics—and hence experts—probably cannot answer. I see no way to estimate the relevant counterfactual, i.e., the pattern of socioeconomic outcomes that would be observed today if the United States had had no history of race discrimination. Furthermore, judicial answers to the accounting-for-socioeconomic-disparities question implicitly depend on normative judgments about the relevance of discrimination that took places generations ago. Justice Roberts’s famous pronouncement, “Things have changed in the South,” is as much as normative as factual.

This is not to say that all questions about race discrimination and its consequences are unanswerable. Experts can make across-state and over-time comparisons of racial attitudes, for example, and of the “treatment effect” of race in experimental settings.

One could also argue that Section 2 delegates authority to district courts to find legislative facts, rather than reserving these questions to the courts of appeal. But however one comes down on this question, there can be little doubt that voting rights law would be much improved if judges paid a little more attention what can and cannot be learned from statistics. By asking courts to distinguish legislative from adjudicative facts, Judge Easterbrook has taken a small but potentially constructive step in this direction—even if the line he drew was misplaced.