Today’s must read from Michael Wines in the NYT on what is still lost with the demise of Section 5 preclearance.
Jonathan Adler roundup for Volokh.
I spoke with NPR’s Michel Martin on All Things Considered.
In a 119-page opinion, a federal district court has struck a host of WI voting rules, including certain voter id provisions, as unconstitutional. Among other things, the court has ordered that expired but otherwise valid student id cards will be valid for voting. This is yet another win for voting rights activists in the past few weeks. The trial court enjoined the following WI laws:
most of the state-imposed limitations on the time and location for in-person absentee voting (although the state may set a uniform rule disallowing in-person absentee voting on the Monday before elections);
the requirement that “dorm lists” to be used as proof of residence include citizenship information;
the 28-day durational residency requirement;
the prohibition on distributing absentee ballots by fax or email; and
the bar on using expired but otherwise qualifying student IDs.
This is a pretty sweeping opinion, which rejects many of the state’s arguments for its restrictive voting rules as pretexual, and really aimed at giving Republicans advantage in elections. The judge was particularly skeptical of measures which made it harder to vote in Milwaukee, with its large population of minority voters, and to a lesser extent, Madison, a liberal stronghold in the state. But this is a careful opinion which parses the evidence and does not accept all of the claims.
What will the 7th Circuit do? The first question is whether this gets consolidated with the other WI voter id case, and gets before the Easterbrook panel again. I don’t know if that will happen, but if it does, I think that parts of this ruling could well be reversed. On the other hand, things could be different before a different panel of 7th Circuit judges, and remember, now there is a 5-4 majority on the 7th Cir. en banc that has expressed concerns about overly strict voter id laws. So it is uncertain how all this plays out.
Another uncertainty is the timing. Can all of this get resolved before the election. If this drags on on appeal, we may run into Purcell Principle problems for the fall 2016 election.
Some observations and details about the opinion:
- The trial court judge says that if he could rethink cases like Crawford (Supreme Court opinion upholding Indiana’s voter id law against facial challenge) and Frank (same as to Wisconsin from 7th Circuit), he would: “The evidence in this case casts doubt on the notion that voter ID laws foster integrity and confidence. The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.” But that’s not his job in this opinion. Here, the judge considers an as applied challenge to the voter id law (and other laws). The conclusion: “The most pointed problem with Wisconsin’s voter ID law is that it lacks a functioning safety net for qualified electors who cannot get a voter ID with reasonable effort.”
- The judge’s remedy here sets up a potntial clash with the approach of Judge Adelman in the other voting rights case, and the right remedy will have to be sorted out, likely by the 7th Circuit. On this point, the judge writes: “Judge Adelman’s injunction provides one type of safety net. But plaintiffs have not asked me to impose that solution, and I will not. The state has already issued an emergency rule under which those who are in the IDPP will get receipts valid for voting. Although that is not a complete or permanent solution, it blunts the harshest effects of the IDPP. I will also order the state to publicize that anyone who enters the IDPP will promptly get a receipt valid for voting. To address this problem over the longer term, I will order the state to reform the IDPP to meet certain standards, leaving it to the state to determine how best to cure its constitutional problems. I take this approach because it respects the state’s decision to have a strict voter ID law rather than an affidavit system. But Wisconsin may adopt a strict voter ID system only if that system has a well-functioning safety net, as both the Seventh Circuit and the Wisconsin Supreme Court have held.”
- Later on in the opinion, the trial court says it may be possible to satisfy both judges’ orders: “Nothing would prevent the state from complying with both Judge Adelman’s injunction and the one that this court will impose.This court will require that the IDPP be reformed to satisfy two criteria. First, Wisconsin cannot make it unreasonably difficult for voters to obtain a free ID. Once a petitioner has submitted materials sufficient to initiate the IDPP, the DMV must promptly issue a credential valid for voting, unless readily available information shows that the petitioner is not a qualified elector entitled to such a credential. Second, the state must inform the general public that those who enter the IDPP will promptly receive a credential valid for voting, unless readily available information shows that the petitioner is not a qualified elector entitled to such a credential.”
- Although the court rejected claims of intentional racial discrimination for most of the challenged laws, it did find it for one: “I find that 2013 Wis. Act 146, restricting hours for in-person absentee voting, intentionally discriminates on the basis of race. I reach this conclusion because I am persuaded that this law was specifically targeted to curtail voting in Milwaukee without any other legitimate purpose. The legislature’s immediate goal was to achieve a partisan objective, but the means of achieving that objective was to suppress the reliably Democratic vote of Milwaukee’s African Americans.”
- On impersonation fraud (the only fraud a voter id law would prevent): “The court credits the evidence of plaintiffs’ expert on the subject, Dr. Lorraine C. Minnite, who testified and filed two expert reports. PX039; PX044. But the more compelling evidence comes from Milwaukee County, the one county in the state that has tried to systematically discover and track violations of election law. The county has an assistant district attorney devoted full-time to the job, Bruce Landgraf. Based on Landgraf’s testimony, and on other evidence discussed below, the court finds that impersonation fraud—the type of fraud that voter ID is designed to prevent—is extremely rare. In most elections there are a very few incidents in which impersonation fraud cannot be ruled out. But as Crawford and Frank held, despite rarity with which election fraud occurs, it is nevertheless reasonable for states to take steps to prevent it.”
- Sick burn from trial court on the fraud problem: “True, it is not unheard of: in one well-known case, a Milwaukee man was so committed to Governor Walker’s re-election that he voted 14 times. Tr. 8a, at 184:3-24. He was charged with and convicted of voter fraud (even without the benefits of the voter ID law). Proponents of voter ID would say that there could be other incidents of voter fraud that have gone undetected. But there is no evidence to support that hypothesis. As many have pointed out, multiple voting is not a very effective way of influencing an election, and few people would risk the penalties to do so. The bottom line is that impersonation fraud is a truly isolated phenomenon that has not posed a significant threat to the integrity of Wisconsin’s elections.”
- The court sees most of these laws motivated by partisanship, not race: “Accordingly, in light of the record of the case as a whole, the conclusion is nearly inescapable: the election laws passed between 2011 and 2014 were motivated in large part by the Republican majority’s partisan interests.”
- On the intention of motivation for curtailing early voting (called in person absentee voting here): “Statements by legislators show that Act 146 reduced the hours allowed for in-person absentee voting specifically to curtail voting in Milwaukee, and, secondarily, in Madison. Senator Grothman made repeated statements objecting to the extended hours for in-person absentee voting in Milwaukee and Madison, indicating that hours for voting needed to be “reined in.”12 On the floor of the senate, he said, “I want to nip this in the bud before too many other cities get on board.” PX022, at 5. Senate Majority Leader Scott Fitzgerald made similar comments. Id. at 12. As he put it, “But the question of where this is coming from and why are we doing this and why are we trying to disenfranchise people, I mean, I say it’s because the people I represent in the 13th district continue to ask me, ‘What is going on in Milwaukee?’” Id. at 16.” And: “The acknowledged impetus for this law was the sight of long lines of Milwaukee citizens voting after hours. Yet instead of finding a way to provide more access to voters in small towns, the legislature responded by reining in voters in Milwaukee, the state’s most populous city, where two-thirds of its African American citizens live.”
- The court rejected a “partisan fencing argument” (that election laws motivated by partisan animus get special scrutiny) as plausible but foreclosed to him by Crawford and Frank. However, the court went on to apply the Anderson-Burdick balancing test familiar in these kinds of cases, and found that some, but by no means all, of the challenged laws imposed great burdens on some voters that were outweighed by the state’s interests.
- In contrast to a recent Michigan opinion, the Wisconsin court found that the elimination of straight ticket voting was permissible.
- Some of the provisions of WI law were challenged as Voting Rights Act section 2 violations. The court here rejected those claims, finding the evidence of burden insufficient. But the court found other provisions, such as a long durational residency requirement, as a violation of section 2.
- The court seemed to lose patience with the state on its defense of not accepting expired student ids for identification. “Repetition has not made defendants’ argument any more persuasive.”
[This post has been updated.]
Bryan Lowry for Wichita Eagle:
A Shawnee County judge has ruled that 17,500 voters can participate in state and local races as well as federal ones in Tuesday’s Kansas primary election.
The state had approved a rule saying people could vote only in federal elections – not state and local ones – if they registered at DMV offices but failed to provide proof of citizenship as required by Kansas law. It was meant to put the state in compliance with a recent ruling by a federal judge to let these voters vote under the federal “motor-voter” law.
The American Civil Liberties Union challenged the new rule, calling it a dual voting system.
Judge Larry Hendricks granted the temporary order Friday.
The real question is what the 7th Circuit will do.
Here’s the inflammatory statement:
“Since today’s decision by three partisan Democrats ignores legal precedent, ignores the fact that other federal courts have used North Carolina’s law as a model, and ignores the fact that a majority of other states have similar protections in place, we can only wonder if the intent is to reopen the door for voter fraud, potentially allowing fellow Democrat politicians like Hillary Clinton and Roy Cooper to steal the election. We will obviously be appealing this politically-motivated decision to the Supreme Court.”
My earlier analysis of the 4th Circuit ruling touched on the possibility of Supreme Court review, but let me say a few words here.
North Carolina could first go to the Supreme Court on an emergency basis to seek a stay of the 4th Circuit order, which if successful would have the effect of putting some of the provisions, like voter id, back into effect. Some of the others were blocked by a preliminary injunction, so a SCOTUS order would have them go into effect for the first time.
I think such emergency relief is unlikely. The Court is divided 4-4 on ideological lines about these voter id and similar laws. At best NC could hope for 4 votes for emergency relief, unless the argument was one about timing (though I think we are far enough from the election that a timing argument would not work).
North Carolina could also file a cert. petition, and the timeline there for responses and a Supreme Court decision whether or not to hear the case could take longer. There is certainly a meaty question in the case—how to decide when a jurisdiction has a racially discriminatory intent when race and party so intersect, especially in the South?—but here too, the prospect of a 4-4 SCOTUS tie looms, and it is hard to see whether the Justices will be willing to bite. (Now if there is a Justice Garland by then, I think it is pretty clear the Court does not take the case, because conservatives won’t want to take the risk and liberals will be satisfied with the 4th Circuit opinion).
So I rate the chances of SCOTUS review slim but not impossible.
Closing arguments were almost two years ago.
Disgraceful. (I have my suspicions about what’s going on, but let’s wait until the opinion actually issues (if it is not mooted by the 2020 round of redistricting.).)
You can find the 83 pages of decisions at this link.
A partially divided panel of 4th Circuit judges reversed a massive trial court opinion which had rejected a number of constitutional and Voting Rights Act challenges to North Carolina’s strict voting law, a law I had said was the largest collection of voting rollbacks contained in a single law that I could find since the 1965 passage of the Voting Rights Act. The key part of the holding is that North Carolina acted with racially discriminatory intent. However, despite this finding of discriminatory intent, the 4th Circuit refused to use its discretion to put North Carolina back under federal supervision for up to 10 years for its voting. “Such remedies ‘[are] rarely used]’ and are not necessary here in light of our injunction.” Nonetheless, the finding of intentional discrimination could be the basis for a future argument for section 3 should North Carolina pass other discriminatory voting laws.
What happens next? North Carolina could decide to go along (there’s nothing to do on remand in this opinion as the 4th Circuit wrote it). Or it could seek to take the case to the 4th Circuit en banc or to the Supreme Court. The state could well go to the 4th Circuit en banc; although that court is not nearly as conservative as it once was, not sure what North Carolina has to lose. And NC could go to the Supreme Court, as the case presents the very rich question of what it means to to engage in racially discriminatory intent when race and party so overlap. (I addressed this question in this Harvard Law Review forum piece: Race or Party?: How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere). It is not clear that the evenly divided and shorthanded Supreme Court will bite, and I expect any attempt to get emergency relief from the Supreme Court will fail.
The way the opinion is written, by taking Section 3 preclearance off the table, probably makes Supreme Court review less likely, but I wouldn’t count it out.
This is a very big win for voting rights plaintiffs and the DOJ: This decision is the third voting rights win in two weeks: first in Wisconsin, where a federal district court recently softened the state’s strict voter id law (an issue now on appeal to the Seventh Circuit), and then in Texas, where the en banc 5th circuit not only ordered the trial court to fashion such softening, but it also opened the door to a finding of discriminatory intent, which can put Texas under federal supervision as well. Still it is not a complete victory, given the failure to get NC back under a federal preclearance regime.
Here are some more detailed thoughts on the 4th Circuit opinion:
- The 4th Circuit goes out of its way to commend the trial court for its carefulness and thoroughness (something I noted in my own analysis). But “In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.” It explained: “In North Carolina, restriction of voting mechanisms and procedures that most heavily affect African Americans will predictably redound to the benefit of one political party and to the disadvantage of the other. As the evidence in the record makes clear, that is what happened here.” And: “In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.”
- The 4th Circuit here takes the opposite approach of the 5th Circuit. While the 5th Circuit decided everything on discriminatory effect grounds, leaving the discriminatory intent question for another day (either is enough to get relief under Section 2, but a finding of discriminatory intent gets a broader remedy, apparently), the 4th Circuit reached only discriminatory intent, and did not decide other issues. This is controversial, because it means that the 4th Circuit held that the trial court’s findings were “clearly erroneous” (a very tough standard to meet on appeal), and the only rational conclusion from the evidence is that NC acted with racially discriminatory intent.
- Now what is meant by racially discriminatory intent? In the 5th Circuit case, it seems the court there said that acting with knowledge of effects on minority voters is just as bad as acting with that purpose. (See my analysis of the 5th Circuit opinion here.) The 4th Circuit offered a similar, though not identical, analysis: “But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics.” And later there is this key part: “Our conclusion does not mean, and we do not suggest, that any member of the General Assembly harbored racial hatred or animosity toward any minority group. But the totality of the circumstances — North Carolina’s history of voting discrimination; the surge in African American voting; the legislature’s knowledge that African Americans voting translated into support for one party; and the swift elimination of the tools African Americans had used to vote and imposition of a new barrier at the first opportunity to do so — cumulatively and unmistakably reveal that the General Assembly used SL 2013-381 to entrench itself. It did so by targeting voters who, based on race, were unlikely to vote for the majority party. Even if done for partisan ends, that constituted racial discrimination.” (In a footnote on page 47, the court quotes a Daily Show interview in which a NC Republican party official made racist statements. The court says the statement did not show the intent of the legislature directly but indicated the political atmosphere.)
- Here is the key language on why the 4th Circuit found the district court clearly erroneous on the intent question: “The district court failed to take into account these cases and their important takeaway: that state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day. Only the robust protections of § 5 and suits by private plaintiffs under § 2 of the Voting Rights Act prevented those efforts from succeeding. These cases also highlight the manner in which race and party are inexorably linked in North Carolina. This fact constitutes a critical — perhaps the most critical — piece of historical evidence here. The district court failed to recognize this linkage, leading it to accept ‘politics as usual; as a justification for many of the changes in SL 2013-381. But that cannot be accepted where politics as usual translates into race-based discrimination.”
- The 4th Circuit rejected the argument that NC’s cutbacks cannot be evidence of discriminatory intent because the rules for voting were still more generous than in other states. “The district court discounted the claim that these provisions burden African Americans, citing the fact that similar election laws exist or have survived challenges in other states. But the sheer number of restrictive provisions in SL 2013-381 distinguishes this case from others. Moreover, removing voting tools that have been disproportionately used by African Americans meaningfully differs from not initially implementing such tools.” This is an importation of non-retrogression ideas from section 5, at least in the discriminatory intent context. And the court found that the rise in African-American turnout did not negate a finding of discriminatory intent. “Moreover, although aggregate African American turnout increased by 1.8% in 2014, many African American votes went uncounted. As the district court found, African Americans disproportionately cast provisional out-of-precinct ballots, which would have been counted absent SL 2013-381. See N.C. State Conf., 2016 WL 1650774, at *63. And thousands of African Americans were disenfranchised because they registered during what would have been the same-day registration period but because of SL 2013-381 could not then vote.”
- The 4th Circuit says remand is not necessary because the trial court created and described an extensive record. It just weighed the facts in clearly erroneous way. And the law under conditions of racial discrimination cannot be justified to prevent voter fraud. “Thus, we do not ask whether the State has an interest in preventing voter fraud — it does — or whether a photo ID requirement constitutes one way to serve that interest — it may — but whether the legislature would have enacted SL 2013-381’s photo ID requirement if it had no disproportionate impact on African American voters. The record evidence establishes that it would not have.” In any case, the Court makes the point I have made in The Voting Wars and many others have made. If you want to stop fraud, you don’t use ID, which targets virtually non-existent voter impersonation fraud. You go after absentee balloting, where fraud actually does occur. But that’s not what this law did. The law also excluded the types of ids likely held by African-Americans for no discernible anti-fraud purpose.
- The court marched through the other provisions of the law and the state’s justifications, calling them “a solution in search of a problem.” “The record thus makes obvious that the ‘problem’ the majority in the General Assembly sought to remedy was emerging support for the minority party.”
- As to remedy, the court did not enjoin the entire law, because much of the law went unchallenged and could be severed from the unconstitutional parts. “Therefore, we enjoin only the challenged provisions of SL 2013-381 regarding photo ID, early voting, same-day registration, out-of-precinct voting, and preregistration.” However, the court divided on whether remand was appropriate in part on the voter id law, to figure out if the reasonable impediment voter id softening was good enough to solve the discriminatory intent problem. The majority said no remand was necessary (the dissent, written by Judge Motz, who otherwise wrote the majority opinion, would have remanded.) The majority found the reasonable impediment softening was not good enough (a position I’ve taken). “To the contrary, the record establishes that the reasonable impediment exception amendment does not so fundamentally alter the photo ID requirement as to eradicate its impact or otherwise ‘eliminate the taint from a law that was originally enacted with discriminatory intent.'” This is the only issue on which the judges divided.
- Perhaps most surprising to me is the refusal to consider putting Section 3 preclearance in place. It is within the discretion of the court. Declining to do so does lower the temperature, and perhaps that explains it. Or perhaps the judges felt they would have had to remand to the trial court, who (given the trial court’s views of the plaintiffs’ case) certainly would have declined to exercise discretion, setting up the possibility of yet another major reversal of the trial court on grounds where the trial court ordinarily would have great discretion.
[This post has been updated.]
This is smart, but it does give a side not happy (likely the state of TX) a chance to go back to 5th Circuit on remedy.