Here’s Why We Still Need Federal Oversight of Voting under the VRA, Part 3,249

News from NC:

Early voting sites in two of Winston-Salem’s prominent minority neighborhoods are in jeopardy after the Forsyth County Board of Elections approved a plan last week that moves sites at Winston-Salem State University’s Anderson Center and the Sprague Street Recreation Center to other locations.

The plan, which includes 15 early voting sites around the county, was approved by the Republican majority of the board Friday and will be submitted to the State Board of Elections for consideration in the next week. A second plan, drafted by the board’s lone Democrat, Fleming El-Amin, will also be submitted to the state board.

El-Amin said he kept the Anderson Center and Sprague Street locations in his plan to ensure the African-American and Hispanic populations that make up the majority of east and southeast Winston-Salem have easy access to early voting sites. The majority plan, submitted by Republican board members Ken Raymond and Stuart Russell, does away with those sites in favor of an additional site in the southwest portion of the county and a site further east.

UPDATE: Chris Lawrence points out that the county in which this took place was not one of the 40 counties in North Carolina which used to be subject to preclearance. A good argument for making preclearance broader!


Breaking: Federal District Court Softens WI Voter ID Law, Allowing Affidavit in Place of ID

You can find Judge Adelman’s 44-page order here.

I’m about to jump on a call, and so I will post more later. But suffice to say that this is a very big deal, and at first blush (subject to closer review) it is not clear to me that this broad relief will be upheld by the 7th Circuit panel that upheld Wisconsin’s voter id law in the first place.

UPDATE: I have now had a chance to read the order in Frank v. Walker and I offer this analysis:

  1. Judge Adelman, who wrote today’s decision in Frank v. Walker, was the same judge who initially ruled that the entire law was unconstitutional and a violation of the Voting Rights Act. That ruling was overturned on appeal by a 7th Circuit panel, led by Judge Frank Easterbrook, and the 7th Circuit divided 5-5 over whether to take the case en banc (including on the question of emergency relief) over strong dissents from among others, Judge Richard Posner. The ACLU then petitioned the Supreme Court to take the case (a decision which was controversial at the time, when Justice Scalia was still on the Court and the chances of a 5-4 affirmance rather high), but the Supreme Court declined to hear the case. Plaintiffs then went back to the district court and asked for some as-applied relief, for those voters who faced special burdens in getting voter id. Judge Adelman first ruled that he had no authority to do that given the earlier 7th Circuit opinion, but then Judge Easterbrook, for the 7th Circuit panel said that the 7th Circuit’s first opinion did not preclude this relief, and Judge Adelman should consider it. He did, and today’s ruling is the product of that ruling. (There is a separate Wisconsin federal case, the One Wisconsin Now case, raising a similar as-applied challenge, which remains pending.
  2. Judge Adelman’s decision canvasses (relying in part on evidence from the other case) the difficulties that some voters have faced obtaining “free” state identifications from the state DMV. (The state supreme court, in a separate lawsuit, mandated that DMV adopt procedures for voters with difficulty obtaining id so as not to violate the right of WI residents to vote under the state constitution.) Although it is not clear how many voters are having problems getting the id that wanted them, it is clear from the evidence here and in the other case that some voters are facing serious impediments to voting.
  3. At this stage of the case, the plaintiffs asked Judge Adelman to require the state not just to rely on the DMV procedures for voters who have difficulty obtaining voter id but to allow those voters to vote by affidavit, swearing that they are eligible voters but face an unreasonable impediment in getting a voter id. In today’s ruling Judge Adelman granted that relief. He modeled it after the approach of North Carolina and South Carolina, both of whom created a reasonable impediment procedure when faced with litigation over their voter id laws. (Further update: As Gerry Cohen points out, this remedy is broader than NC, where someone casting a ballot with an affidavit has to file a provisional ballot.)
  4. It is not clear how much voters in NC and SC rely on the reasonable impediment procedures, in part because there is inadequate publicity about them and inadequate knowledge on the part of poll workers and others about this option of voting without id. (I discuss this disjunction between theory and practice in Softening Voter ID Laws Through Litigation: Is it Enough?, Wisconsin Law Review Forward (forthcoming 2016) (draft available)). Nonetheless, the reasonable impediment affidavit is far better than nothing.
  5. The question remains whether the 7th Circuit will agree with this remedy should the state of Wisconsin choose to appeal. Here, there are two issues. First is one of timing. Changes too close to the election appear to be frowned upon under the Purcell Principle. The judge was cognizant of that, not requiring the affidavit option for the August election but requiring for November. I think we are far enough out from November that this does not come too late. The other, more serious question is the scope of the remedy. It could well be that the 7th Circuit was imagining a much more limited remedy, such as allowing individual voters to get an administrative hearing or court order to get id rather than offering the affidavit to all. Or the 7th Circuit might believe the class of voters who should be offered an id must be much narrower, such as those who have tried to go the DMV route but who have been successful. It is not clear to me whether or not the 7th Circuit will agree that the remedy is too broad here.
  6. And then if the 7th Circuit reverses and time is getting shorter, what does a 4-4 SCOTUS do? That’s an interesting question.

[This post has been updated.]


“Virginia Needs to Fix Its Racist Voting Law”

Dale Ho NYT oped:

THE Virginia Supreme Court will hear arguments on Tuesday in a lawsuit that aims to strip the right to vote from more than 206,000 people, including one in five African-American adults in the state. If state lawmakers win, they will keep Virginia trapped in a shameful part of history: when former Confederate states passed felon disenfranchisement laws after Reconstruction to suppress black political power.


Yeah, I’m Sure the Husband’s Super PAC is TOTALLY Independent of the Wife’s Campaign

Bethesda Magazine:

…Meanwhile, Epstein in early June put $300,000 into Maryland USA, an “independent expenditure” committee created late last year to promote Hoeber’s candidacy—bringing to more than $500,000 the amount that the couple has laid out over the past couple of months alone. Epstein’s latest contribution is relatively modest when compared to the $2.1 million he had previously donated to Maryland USA, a so-called Super PAC, since it was created a year ago..

In contrast, Hoeber’s personal campaign committee reported spending a total of nearly $560,000 through June 30, virtually all of this directed toward her campaign to secure the Republican nomination. And Maryland USA, in its latest filings, reported spending more than $1.45 million for independent expenditure efforts—including TV and digital advertising as well as direct mail—to promote her candidacy, most of it directed to the primary campaign.

Unlike a candidate’s personal campaign committee, which has strict limits on the amount of donations it can accept from anyone but the candidate, Super PACs can take unlimited contributions from individuals and corporations. Super PACs and other independent expenditure efforts are barred by law from coordinating their activities with a candidate’s campaign committee—notwithstanding that, in this instance, the candidate and the donor underwriting the Super PAC happen to reside under the same roof.


“ACLU Sues Kansas Over Dual Voter Registration System”


The American Civil Liberties Union today filed a lawsuit challenging Kansas’ dual voter registration system, charging it violates the Kansas Constitution and state law.

The dual system prevents qualified Kansas voters from voting in state and local elections due solely to their method of registration. Secretary of State Kris Kobach received administrative approval last week of a temporary regulation aimed at formalizing this system, which a court has already declared violates state law.

“Secretary Kobach continues to seek ways to confuse and obstruct voters in Kansas. His flagrant disregard of the court’s findings means that Kansans still face unnecessary barriers to voting. We’re asking the court to immediately block the temporary regulation and to ultimately end this dual system once and for all,” said Sophia Lakin, a staff attorney with the ACLU’s Voting Rights Project.

Shawnee County District Judge Franklin Theis last monthreiterated that Kobach cannot stop Kansans from voting in state and local elections simply because they registered to vote using federal forms that don’t require the same onerous documentation that Kobach prefers.

The dual system would allow some Kansans to vote for federal offices, like U.S. senator and U.S. representative, but not for their state representative, state senator, or other state and local offices.


“The Real Reason Why Judges Should Keep Quiet About Elections; The restrictions remind judges to aspire to be apolitical.”

Dahlia Lithwick and I have written this piece for Slate. It begins:

Late last week, Supreme Court Justice Ruth Bader Ginsburg tried to put the controversy over her recent criticisms of presumptive Republican presidential nominee Donald Trump behind her, issuing a written statement of regret and telling NPR’s Nina Totenberg: “I did something I should not have done. It’s over and done with, and I don’t want to discuss it anymore.”

But the issue of judicial speech on political matters is hardly over and done with. It will remain fodder for the 2016 presidential election because Donald Trump criticized Ginsburg, even questioning her mental competence (“her mind is shot”) and calling on her to resign. Many court watchers worry what might happen if the court is called upon to rule on any kind of election dispute and that brings a reprise of calls for her to recuse in any Trump-related litigation. And on top of all that, the court itself will soon decide whether to weigh in on a case challenging an Arizona rule that bars judicial candidates from doing the very thing Justice Ginsburg did: openly supporting or opposing a candidate for public office.

If Justice Ginsburg follows her past judicial writing and not her personal example, she’d likely decide—correctly, we think—that states can stop judicial candidates and judges from endorsing or opposing candidates for office (aside from opponents in their own elections). Even though we all know that judges have political opinions, it is better for their own legitimacy and the integrity of our elections to keep the judicial and political roles separate. If the court votes to allow yet more political speech from sitting judges, we will have a great many more Ginsburggates to look forward to.


“AP-GfK Poll: Trump supporters unfazed by reversal on self-funding”

Julie Bykowicz and Emily Swanson for AP:

Donald Trump’s voters adored him for mostly paying his own way in the first half of the presidential campaign. Yet those same people are shrugging their shoulders now that he’s raising money just like the rivals he once disparaged as the “puppets” of big donors.

A new Associated Press-GfK poll found that 63 percent of Trump supporters say they’re at least somewhat more likely to back a self-funded candidate, just as he once was. However, just 13 percent consider it a problem that Trump changed his mind — and nearly all those think it’s only a minor one.


“Voting challenges head toward the Supreme Court: 4 cases to watch”

Ariane de Vogue for CNN:

The looming election and the Supreme Court will converge in the coming months as voting rights challenges on issues such as Voter ID, early vote cutbacks and same-day registration make their way to the high court.

Challenges during an election year are always fraught, but this cycle things could grow even more complicated because the court only has eight members to review the cases, and there’s a good chance that it could split 4-4.

“Kansas Zealot Helps Shape the G.O.P.’s Right-Wing Platform”

NYT editorial:

Appellate courts should act swiftly to show Mr. Kobach just how wrong he is. The basic rights of voters are being abridged by the champion of a shameful campaign that is being whipped up in Republican-controlled statehouses: using ID requirements to suppress voters who tend toward the Democrats. Mr. Kobach is pushing the myth that voter cheating is rampant. But he has utterly failed to document that, despite his Javert-like zealotry as secretary of state. In fact, the federal ruling against him said there was evidence of only three instances across 18 years in which noncitizens voted in Kansas.

While the courts are at it, I wonder if there will be sanctions for Kobach trying to reinstitute the two-tiered (or three tired) voting system a court already said he couldn’t use.


“These Virginians Just Got Their Voting Rights Back. Republicans Are Trying To Take Them Away Again.”

Think Progress:

But Virginia Republicans are taking the state to court on July 19 to try to roll back these changes, and restore the Reformation-era felon disenfranchisement law. The conservative officials are arguing not only that the governor’s order violates the state constitution, but that it hurts them personally. They told the court that allowing ex-offenders to vote in the 2016 presidential election would “dilute” their own votes, “injure” them, “and undermine the legitimacy of the election.”

“These ongoing, coordinated efforts to register unqualified voters have diluted Petitioners’ votes, created an illegitimate electorate, and threatened the legitimacy of the November elections,” their impending lawsuit states.

If their case at the Virginia Supreme Court succeeds, the governor would no longer be able to restore the rights of newly-released, and the thousands of Virginians who have already registered to vote could once again lose the ability to vote.

Republicans asked for the case to be expedited to prevent ex-offenders from voting in this November’s presidential election.


Bauer on Chemerinsky on RBG


In the LA Times, Chemerinsky opens with these words:

Imagine that you are a person with great influence, highly respected and with a powerful voice that commands enormous attention. Imagine that you see the country heading down a potentially destructive and very dangerous path. Do you sit quietly and, if the worst happens, always regret your silence, or do you speak out even if doing so will subject you to criticism?

It is an entirely fair question. And the one that follows is what is permitted to others who lack the same power and influence but who feel no less urgency about the country’s direction. This is not an argument for dispensing with all campaign finance controls, but for considering them carefully in the light of those times when many wishing to speak and to influence voters are convinced that there is a great deal on the line, with the “country heading down a potentially destructive and very dangerous path.”


ELB Podcast Episode 14. Erwin Chemerinsky: Did Justice Ginsburg Cross the Line?

Did Justice Ginsburg go too far in her comments against presumptive Republican nominee Donald Trump? Should comments like Justice Ginsburg’s be protected by the First Amendment, and would they be grounds for recusal in a future Clinton v. Trump case? Are judicial rules which bar endorsements of candidates and political statements by judges unconstitutional?

On Episode 14 of the ELB Podcast, we talk with UCI Irvine Law dean and noted constitutional scholar Erwin Chemerinsky.

You can listen to the ELB Podcast Episode 14 on Soundcloud or subscribe at iTunes.


“Lawyers’ Committee Expresses Disappointment with U.S. Department of Justice Decision to Terminate Critical Federal Observer Program”


 The Justice Department (DOJ) has stated that it will no longer deploy federal observers inside polling sites, a long-standing and critical component of its election monitoring efforts.  The Justice Department announced that it will cease dispatching federal election observers to polling sites, based on the their interpretation of the 2013 U.S. Supreme Court decision in Shelby County v. Holder.  The DOJ also issued a Fact Sheet further outlining the decision.  Federal election observers, specially trained individuals with authorization to enter polling locations and review the counting of the votes, have historically played a critical role monitoring elections to ensure that all voters are able to freely cast a ballot.

From an AG Lynch speech to LULAC:

That decision did great damage.  It seriously undermined Section 5 of the VRA, which required jurisdictions with the most troubling histories of voter discrimination to receive federal approval, or “preclearance,” before they could change their election rules.  Section 5 was in many ways the heart of the Voting Rights Act and its neutralization was a serious blow with far-reaching consequences.  First and foremost, the Department of Justice can no longer block voting restrictions before they take effect.  For example, in 2011, the state of Texas passed a restrictive voter ID law that requires voters to produce documents that more than half a million Texas voters simply do not have.  Seven federal judges have reviewed this law and seven federal judges have found that it violates the Voting Rights Act – three of them before Shelby County and four of them after.  The case is currently before the full Fifth Circuit, with a decision due any day.  But because of Shelby County, Texas’s law remains in force while we wait for a final decision – and it is not the only one.  Because of Shelby County, other states have also enacted laws that restrict voting rights.  And these laws have the potential to distort elections by making it harder for voters – especially low-income and minority voters – to access the ballot box.

Shelby County had other consequences as well.  It has forced the Justice Department to rely much more on local groups and individuals to alert us to potentially unlawful acts, since jurisdictions no longer have to self-report.  In the past, we have also relied heavily on election observers – specially trained individuals who are authorized to enter polling locations and monitor the process to ensure that it lives up to its legal obligations.  Unfortunately, our use of observers is largely tied to the preclearance coverage formula that the Supreme Court found to be unconstitutional in Shelby County and so our ability to deploy them has been severely curtailed.  Rest assured, we will continue to monitor elections to the extent that we can, but because of Shelby County, we will be sending out fewer people with fewer capabilities this November.

The kind of harm we see – in places that pass restrictive laws that we now spend years fighting on the back end, instead of preventing on the front end; the harm that comes when we don’t have the same number or kind of “eyes and ears” in polling locations that we did before –cannot be undone.  And in the year 2016, in the United States of America, it should not be tolerated.  Nor does it have to be.  In its ruling, the Supreme Court made clear that Congress has the ability to establish a new system for determining which jurisdictions are subject to preclearance – a step that would restore Section 5 to its full effect and restore our capacity to protect.  I have repeatedly urged Congress to embrace this opportunity.  And today, once again, I call upon the people’s branch to stand up for the people’s voice.  In a nation of the people, by the people and for the people, no eligible citizen should be denied the right to vote, no matter who they are or where they live.  And the representatives of the people should guarantee that right – not tomorrow, not after the election, but right now.

Now, the good news is that even without Section 5, the Voting Rights Act remains a potent tool.  Its other provisions remain in effect. And there are many other important voting rights laws that our Civil Rights Division is using to ensure and to widen access to the ballot.  We entered into an agreement with the State of Alabama to ensure its compliance with the National Voter Registration Act, which requires states to provide eligible citizens with the opportunity to register to vote through motor vehicle agencies.  Our action eased the way to vote for the more than one million Alabama residents who interact with the state motor vehicle agency annually.  We have also made certain that communities in Virginia establish accessible polling places for voters with disabilities.  We have secured access for Latino voters in Napa County, California, to the Spanish-language ballots and assistance to which they are legally entitled.  We have worked to ensure that uniformed service members deployed at home and abroad are able to send in their absentee ballots in plenty of time for them to be counted – because the men and women fighting to defend our rights should never be denied theirs.  When others bring cases, we join the fight there as well: since the beginning of 2014, we have filed briefs in private lawsuits in 14 different states that address issues ranging from district lines and registration opportunities to ID rules and language access.  And as we prepare for the first presidential election since the Shelby County ruling, we are mobilizing all of the resources left at our disposal to monitor the process as thoroughly and effectively as possible.


Supreme Court Asks for Response to Cert. Petition in WI John Doe Case, and Respondents Oppose Amicus Brief from Reform Groups

See the latest two entries.

The next to last entry means that someone at the Court thought enough of the district attorneys’ cert petition to ask for those opposing cert. to file a response. It is no guarantee of a cert grant, but makes it somewhat more likely.

The second entry means that some of the unnamed respondents don’t want to allow those groups to file an amicus brief supporting cert. That’s unusual, and to me a sign of weakness.



“Call for Papers: Analysis and Comment on Recent Developments in Constitutional Law”

Announcement via email:

The Syracuse Law Review seeks manuscripts that address constitutional issues that were raised by the Supreme Court’s 2015-2016 term and that continue to be discussed in the ongoing 2016 presidential campaigns. Such issues include, but are not limited to, affirmative action, immigration, voting rights, healthcare, and gun control. A book of Volume 67 of the Law Review will be dedicated to addressing these constitutional themes, and we would like to include any and all pertinent subjects in the conversation. The articles’ subjects were left intentionally broad so as to leave room for authors to choose individual, specific topics within their fields. Article submissions should be approximately 10,000 words (flexible) and must be submitted to the Law Review no later than October 1, 2016. If you are interested in submitting or if you have any questions, please contact Lead Articles Editors Hillary Anderson at and Matthew Petrone at


“Stop Corruption Now drive targeting Arizona dark money ends”

Arizona Republic:

A campaign to stop a bill that loosens much of the control Arizona has over anonymous campaign spending has dropped it efforts to get the issue before voters.

The Stop Corruption Now drive wanted to refer the state’s campaign-finance overhaul to the Nov. 8 ballot, so voters could decide if they agree with the changes state lawmakers approved earlier this year. But the drive didn’t have enough money to gather the more than 75,000 signatures needed to get it on the ballot.


“Mike Pence used campaign funds to pay his mortgage — and it cost him an election”


Mike Pence was a young lawyer on the rise, challenging a longtime Democratic congressman in a Republican-leaning Indiana district.

And then, scandal.

Campaign finance records from the 1990 effort showed that Pence, then 31, had been using political donations to pay the mortgage on his house, his personal credit card bill, groceries, golf tournament fees and car payments for his wife.

The spending had not been illegal at the time. But it stunned voters — and undermined Pence’s strategy to portray the incumbent, Rep. Philip R. Sharp, as tainted by donations from special-interest political action committees.


“The Wrong Way to Count Prisoners”

NYT editorial:

Voting rights advocates have been pressing the Census Bureau for more than a decade to stop counting prison inmates as “residents” of prisons — where they typically remain for only a short time — instead of the communities they call home. The bureau, in a rejection of common sense and fairness, has proposed rules for the 2020 census that continue this discredited practice.

Counting inmates this way allows legislators who draw electoral lines to inflate the power of certain areas with “constituents” who have been stripped of the right to vote and have no interaction with the larger community.


“Trump raised $32 million with RNC, but kept only a fraction”


Of that, Trump Victory transferred only $2.2 million to Trump’s presidential campaign committee, as compared to $10.1 million to the RNC, though $5.8 million of that went to funds that can’t be used for campaign activity, and are earmarked instead for the party’s buildings and legal and convention expenses. Trump Victory didn’t transfer any money at all to the 11 state parties participating in it. Meanwhile, Trump Make America Great Again Committee, which comprises only the Trump campaign and the RNC, did not transfer any money to either.



“GOP convention organizers apologize to Sheldon Adelson”


The last-minute plea for $6 million from Las Vegas billionaire Sheldon Adelson to rescue the Republican convention has erupted in controversy, as four of the five signatories to the letter from party organizers never saw it before it was sent and major donors flagged serious errors that forced the convention hosts to apologize to one of the GOP’s most influential financiers.

The episode has opened a window into a host committee that is scrambling and still millions shy of its fundraising target, only days before tens of thousands of Republicans arrive in Cleveland, as it acknowledges for the first time that presumptive Republican nominee Donald Trump has put a damper on donations.



Trump Campaign, By Adding Pence, Now Faces Pay-to-Play Rules Limiting Campaign $

Jason Abel and Scott Sinder of Steptoe:

Today, Donald Trump, the presumptive Republican nominee for president, announced that Governor Mike Pence of Indiana will be his running mate.  By virtue of the fact that Pence is a current governor, the presumptive Republican vice president nominee will now subject the Republican ticket to various pay-to-play rules:

  • Securities and Exchange Commission Rule 206(4)-5 for investment advisers
  • Municipal Securities Rulemaking Board Rule G-37 for municipal securities dealers and – effective on August 17, 2016 – municipal advisors
  • Commodity Futures Trading Commission Rule 23.451 for swap dealers

Those in the donor community who are subject to pay-to-play rules (specifically those in the financial services sector) may be limited in how much they can contribute to the Trump-Pence ticket.  Companies should have in place compliance policies and procedures to safeguard against the negative consequences resulting from prohibitions that can be triggered by certain contributions (including bans on business), and employees should be aware of the actions that could lead to violations of the rules….


“Election Cases Move Toward U.S. Supreme Court, Risking Deadlocks”

Greg Stohr for Bloomberg:

At the shorthanded U.S. Supreme Court, the next deadlock may affect the November election.

A group of voting-rights cases is making its way to a court that’s all but guaranteed to have a lingering vacancy through the election. The divisive nature of the issues may leave the eight justices unable to decide who can cast the ballots that will determine control of the White House and Congress.

The disputes involve voter-identification requirements in Texas, Virginia and Wisconsin; an early-voting period in Ohio; a variety of restrictions in North Carolina; and proof-of-citizenship laws elsewhere. The cases pit Democrats and civil-rights groups claiming discrimination against Republicans arguing the steps are warranted to prevent voter fraud.

“They affect the rights of voters to be able to cast an effective ballot that will be counted accurately,” said Rick Hasen, an election-law professor at the University of California, Irvine.

The eight-member court deadlocked in four cases in its just-completed term. Justice Antonin Scalia died in February, and Senate Republicans have refused to consider President Barack Obama’s nomination of Judge Merrick Garland to fill the slot.

The vacancy increases the potential for the cases to produce varied outcomes from state to state. A 4-4 Supreme Court split leaves the lower court ruling in place.