Elections and the Courts Lisa Soronen State and Local Legal Center lsoronen@sso.org
Overview of Presentation Recent cases in the lower courts alleging states have limited access to voting on a racially discriminatory basis Voter ID Straight ticket voting Early voting Proof of citizenship Just for fun Ballot selfie bans
Two Sides of the Same Coin? How involved have courts been in examining state voting laws? How faithful have states been to ensuring equal access to voting? Tentative answer to the first question: very involved and not particularly sympathetic to states
Summer of Voter ID In a two-week period courts issued opinions in cases challenging voter ID laws in the following states: Texas North Carolina North Dakota Wisconsin Courts in all states in some way ruled against voter ID
Crawford v. Marion County Elections Board It all starts here 2008 Supreme Court case Court upholds Indiana s voter ID law 6-3 plurality decision (Stevens, Roberts, Kennedy) Dissent (Souter, Ginsburg, Breyer)
Crawford v. Marion County Elections Board Voter ID law with an important exception No ID because of indigency submit provisional ballot and sign an affidavit at the circuit county clerk s office 10 days after the election Fourteenth Amendment Equal Protection disparate impact case Court weighed the burden on voting against relevant and legitimate state interests
Crawford v. Marion County Elections Board State interests Election modernization Voter fraud Voter confidence Burden on voters Going to the DVM and getting a photo ID should not be a big deal If it is just cast a provisional ballot and sign an affidavit Where is the proof this is so hard for anyone?
Crawford v. Marion County Elections Board Two questions Would a better record mean a different result? No good evidence on how many people lacked photo ID No good evidence on burdens required to get an ID What if states fail to have as good of a fail-safe as Indiana s (where you don t actually need an ID)?
Background Different claims Intentional discrimination (under Section 2 or Equal Protection Clause) Disparate impact (under Section 2 or Equal Protection Clause) First Amendment Different stages Preliminary injunction by a district court v. federal Court of Appeals ruling en banc on the merits
Veasey v. Abbott Case I expected with the result I expected State would lose on a good record of disparate impact Southern state (Texas) with long history of voter discrimination on the basis of race Solid evidence on number of voters without ID, race of those voters, difficulty of getting an ID Weak fail-safe if a person doesn t have an ID
Veasey v. Abbott Holding: sent back to reconsider discriminatory intent, found to create a disparate impact, not a poll tax Details of voter ID system were not at issue Weak fail-safe ID is free With no ID you can sign an affidavit and bring an ID to the county register in 6 days (meaning you really need an ID to vote)
Veasey v. Abbott Discriminatory intent Bottom line: some of evidence the lower court relied on it shouldn t have Too much reliance on long ago history Lower court should not have relied on post-enactment speculation by opponents
Veasey v. Abbott Disparate impact 4.5% of Texans lack ID; blacks 2X more likely; Latinos 3X more likely Usual suspect problems: cost of getting underlying documents, trouble with getting birth certificates generally, travel time to DMVs Long history of racial discriminating in voting in Texas
Veasey v. Abbott Remanded for remedy Entire voter ID law does not have to be struck down in the case of disparate impact Legislative policy choices should be respected Vigorous dissent Cert petition filed
Brakebill v. Jaeger Anti-Crawford case Holding: North Dakota is ordered to adopt a fail-safe measure for those without ID
Brakebill v. Jaeger Back in the day Show up at the polls and only needed ID if a poll worker didn t know you No ID no problem sign an affidavit you are a qualified voter in the precinct Now Need an ID Only state in the US without a fail-safe
Brakebill v. Jaeger Strong factual case About twice (23.5%) as many Native Americans lack ID as others About half of Native Americans without ID don t have underlying documents to get an ID Native Americans have to travel twice as far to get the a DMV State disputes no facts No evidence of voter fraud=no compelling state interest
North Carolina NAACP v. McCrory Not a case I would have imagine after the first time I read Crawford Intentional discrimination case State loses
North Carolina NAACP v. McCrory Five challenged provisions Voter ID Shorter early voting Eliminated same day registration Eliminated out of precinct voting Eliminated preregistration
North Carolina NAACP v. McCrory Two facts really made a difference: The day after Shelby County a party leader announced it would offer an election bill Legislature requested data by race on the use of specific voting practices; proportionally black used all of the practices which were eliminated more often Other factors Racial polarization context Recent history was bad 50 DOJ objections since 1980 55 successful lawsuits Law proposed before Shelby County was scrapped and a much more ambitious law was pushed through the legislature Cumulative effect of law on blacks
North Carolina NAACP v. McCrory Supreme Court refused to stay North Carolina s law Roberts, Kennedy, Alito and Thomas would have granted the stay Only 4 votes are needed to grant a petition to review this case on the merits Waiting to see if a cert petition is filed
Wisconsin Second-generation voter ID cases When Wisconsin won its voter ID cases in 2014 the issue of providing a truly free ID was already flagged
Wisconsin Wisconsin s voter ID law is similar in all the ways that matter to Indiana s law Upheld by the Seventh Circuit Frank v. Walker Upheld by the Wisconsin Supreme Court in NAACP v. Walker Wisconsin Administrative Code in theory allows indigent people with to get an ID for free Can a person really get a free ID in Wisconsin making a reasonable effort?
Wisconsin ID Petition Process (IDPP) If you don t have an ID and can t get one because you can t afford to get a copy of your birth certificate or can t track it down, the DMV will get it for you so you can get a truly free ID Two lawsuits argue the IDPP process has totally failed More technically, despite IDPP many people in WI cannot obtain an ID with reasonable effort
Frank v. Walker II Wisconsin (federal) district court for the Eastern District Holding: people who cannot obtain an ID with reasonable effort may receive a ballot by executing an affidavit Some people can t obtain a free ID card with reasonable effort Have to got out of state to physically obtain a birth certificate Name change on birth certificate from SSA Errors from DMV (not telling people they could use IDPP) Having to make multiple trips to the DMV Temporary ID is not enough
Frank v. Walker II Seventh Circuit stayed the preliminary injunction in a 2-page opinion Because the district court has not attempted to distinguish genuine difficulties of the kind our opinion mentioned or any other variety of substantial obstacle to voting, from any given voter s unwillingness to make the effort that the Supreme Court has held that a state can require, there is a substantial likelihood that the injunction will be reversed on appeal.
One Wisconsin Institute v. Thomsen Wisconsin (federal) district court for the Western District Holding: IDPP is unconstitutional; the state must reform the IDPP; plaintiffs didn t ask for an affidavit system and judge didn t adopt one
One Wisconsin Institute v. Thomsen Some people can t obtain a free ID card with reasonable effort Lack of ID and qualifying documents is strongly correlated with race Despite IDPP at least 60 qualified voters have been denied the right to vote State allocated no money to pay to obtain birth certificates, etc. Average of 5 contacts with DMV to finish the process Temporary emergency rule isn t enough Remedy If you initiate IDPP you get an ID immediately The public must know Seventh Circuit refused to put this decision on hold before the election
Big Picture on Voter ID More than possible for challengers to gather data to make out a disparate impact case Evidence that one person who is eligible to vote can t vote is enough for courts Judges are increasingly suspicious about voter fraud as a justification for voter ID Fail-safe provisions may be a weak link for states North Carolina case illustrates the importance of how voter ID laws are passed
Straight Ticket Voting (Michigan) Michigan s attempt to ban straight ticket voting was struck down by a federal district and appeals court Supreme Court refused to enforce it Argument: Blacks heavily rely on straight ticket voting (50% of white; 70% of blacks) Michigan State A. Philip Randolph Institute v. Johnson
Straight Ticket Voting Law adopted in 1891 Blacks have the longest wait time in the state Ballots are now confusing Most states don t have straight ticket voting MI has more candidates than most states MI has no early voting MI has 6 th longest wait time at the polls
Early Voting (Ohio) Before: 35 days of early voting starting with 6 days of early voting where you could register and vote; 6 days called Golden Week Now: 29 days where you can early vote (must register beforehand); no Golden Week Argument: blacks are disproportionally affected Court of Appeals ruled eliminating Golden Week was constitutional Supreme Court refused to reinstate Golden Week Ohio Democratic Party v. Husted
Early Voting Golden Week isn t a floor which can never be subtracted from Very easy to vote in Ohio 10 th longest early voting Preference to vote during Golden Week isn t enough Blacks may have relied disproportionally on voting during Golden Week but has anyone actually been precluded from voting? Dissent: Use of Golden Week by black was up to 5 times as high; same day registration is really important to less affluent communities Waiting for cert petition
Proof of Citizenship (Kansas) Holding: National Voter Registration Act preempts a Kansas law requiring documentary proof of citizenship Tenth Circuit Court of Appeals affirmed preliminary injunction Fish v. Kobach
Proof of Citizenship NVRA regulates states allowing people to register to vote when obtaining or renewing a driver s license States may require only the minimum amount of information necessary to... enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process. NVRA require applicants to sign a attestation under penalty of perjury that the applicant is a citizen Kansas law required applicants to provide proof of citizenship Court concludes attestation under penalty of perjury is the presumptive minimum amount of information Presumption can be rebutted by proof a substantial numbers of noncitizens have successfully registered
Ballot Selfie Laws AP says 18 states prohibit 17 state allow Rest of state are unclear Laws have been challenged in at least five states
History and Policy Technically most laws are bans on ballot sharing not ballot selfies per se As old as 125 years Adopted to prevent voter intimidation More important now than ever in the age of social media? Like burning down the house to roast a pig? Is anyone really being prosecuted under these laws? Justin Timberlake is not!
Legal Arguments Reed v. Town of Gilbert held content-based regulations on speech are subject to strict (almost always fatal) scrutiny Are bans on ballot sharing content-based restrictions on speech? You can share an uncompleted ballot but you can t share a completed ballot?
How Have these Laws Fared? New Hampshire unconstitutional (federal court of appeals) New York, California federal district court judges refused to grant preliminary injunctions Michigan, Colorado federal district court judges granted preliminary injunctions Caveat: More of these lawsuits are likely to succeed when they are not at the preliminary injunction stage right before an election
At Home v. At Polling Place Courts have viewed taking a ballot selfie at home differently that taking one at a polling place Not a public forum Privacy concerns Not modelling studios delay