SUPREME COURT CASES

 

Oct. 2017 Term

 

Gill v. Whitford

      No. 3:15-cv-00421- bbc (W.D. Wis. Nov. 21, 2016), No. 16-1161 (U.S.)

      Tag(s): Redistricting; Partisan Gerrymandering; Efficiency Gap

 

Case Description: In 2011, Republican legislators in Wisconsin redrew the State Assembly districts to maintain Republican Control. In the 2012 elections, Republicans gained 60 percent of the seats in the State Assembly, despite receiving only 49 percent of the statewide vote. 

In 2006, all nine justices of the U.S. Supreme Court agreed that excessive partisan gerrymandering violates the Constitution, and five of the justices that the Court has the authority and responsibility to decide partisan gerrymandering claims. However, the Court has yet to adopt a standard for determining whether a redistricting plan constitutes a partisan gerrymander. Every proposed test to date has been deemed unworkable by the courts – too ambiguous and subjective to reliably identify the most objectionable plans.

Without a legal standard, voters are free to challenge politically motivated maps in court, but judges, without clear guidance, ordinarily dismiss these cases out of hand. The result is voters, like those in Wisconsin, are unable to hold their representatives accountable and reign in extreme partisan gerrymanders.

Whitford v. Gill is the first purely partisan gerrymandering case to go to trial in 30 years. Through this litigation, the plaintiffs seek to establish for the first time a manageable standard by which courts nationwide can analyze partisan gerrymandering case. The Whitford plaintiffs propose using a statistical measure called the “efficiency gap” to measure the partisan effects of a map, and to provide evidence of the discriminatory intent and discriminatory effects behind unconstitutional partisan gerrymandering.

On November 21, 2016, a three-judge panel in the U.S. District Court for the Western District of Wisconsin struck down Wisconsin’s State Assembly district map, relying in part on the efficiency gap. On January 27, 2017, the three-judge panel enjoined any further use of the 2011 map, and ordered the legislature to draw new maps for the 2018 elections, to be in place no later than November 1, 2107. Appellants have an automatic right to appeal directly to the United States Supreme court.

Appellants filed a jurisdictional statement with the Supreme Court on March 24, 2017, seeking review or reversal of the opinion below. Plaintiffs filed a motion to affirm on May 8. On May 22, Appellants applied for a stay of the order to draw new districts pending the outcome of the appeal, which the plaintiffs opposed. On June 19, 2018 the Court agreed to schedule a hearing on the merits, postponed consideration of jurisdiction until that hearing, and granted the appellants motion for a stay of the remedial order pending the outcome of the appeal. Briefing on the merits will take place over the summer, and the Court is expected to hear the case during the first week of the October 2017 term. The Court heard oral arguments on October 3rd.

 

Case Status: The Court remanded the case for further proceedings on the issue of standing.

 

CLC Position/Involvement: The Campaign Legal Center is part of a litigation team representing the 12 Wisconsin voters who challenged the state’s Assembly district lines as an unconstitutional partisan gerrymander. Read more about our involvement here.

 

Husted v. A. Philip Randolph Institute

No. 16-3746 (6th Cir. Sept. 23, 2016); No. 16-980 (U.S.)

Tag(s): NVRA, HAVA, Voting Administration, Voter Registration, Voting List Purge

 

Case Description: The NVRA prohibits states from adopting programs that “result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote,” except under certain statutorily prescribed circumstances, such as when a state or voting jurisdiction receives notification that a voter may have changed their address. While Ohio uses an NVRA approved change-of-address matching procedure for list maintenance purposes, it also uses a “supplemental procedure” intended to capture voters who have moved but have not informed the voter registrar or changed their address with the post office. The supplemental procedure is triggered when a voter fails to vote for two years.

Plaintiffs the A. Philip Randolph Institute and the Northeast Ohio Coalition for the Homeless challenged the “supplemental” removal procedure as violating the NVRA’s prohibition on removing registered voters from the rolls for failure to vote.

On June 29, 2016 the District Court dismissed the case, finding that the text of the NVRA and HAVA “specifically permits” the supplemental process used by Ohio. Plaintiffs appealed to the Sixth Circuit, and a divided panel reversed, finding that the NVRA and HAVA permit removal of voters for failure to vote when review of their eligibility is triggered by a change-of-address, but do not permit the review of eligibility itself to be triggered by failure to vote. Ohio agreed to a preliminary injunction for the 2016 election, and filed a petition for certiorari in the Supreme Court in February, 2017.

On May 30, 2017 the Supreme Court granted Ohio’s petition for certiorari, and agreed to hear the case during the October 2017 term. Oral argument took place January 10th. Decision is pending as of  February 14, 2018.

 

Case Status: On June 11, 2018, the Supreme Court ruled that Ohio's vote purge procedure was legal.

 

CLC Position/Involvement: CLC submitted an amicus brief on behalf of groups supporting the poor and disabled. Paul Smith, Vice President of Campaign Legal Center, took over oral arguments after the original advocate fell ill.

 

 

Common Cause v. Rucho

      No. 1:16-CV-1026 (M.D.N.C. March 3, 2017)

      and

League of Women Voters of North Carolina v. Rucho

      No. 1:16-CV-1164 (M.D.N.C. March 3, 2017)

      Tag(s): Redistricting; Partisan Gerrymandering; Efficiency Gap;

 

Case Description After the three-judge court in Harris v. McCrory ruled in February, 2016 that North Carolina’s 1st and 12th Congressional Districts were unconstitutional racial gerrymanders, the Republican-led General Assembly redrew North Carolina’s congressional districts with the express purpose of biasing the map in favor of Republicans. Representative Lewis, the co-chair of the committee tasked with redrawing the maps, repeatedly stated that he intended to rely only on political data, that he intended to create a map likely to elect 10 Republicans and 3 Democrats, and that the Committee was engaged in political gerrymandering.  The resulting map is one of the worst partisan gerrymanders in modern history.

In 2006 the Supreme Court held that excessive partisan gerrymandering violates the Constitution, but failed to adopt a standard for determining whether a redistricting plan is an unconstitutional partisan gerrymander. Without a legal standard, voters are free to challenge politically motivated maps in court, but judges, without clear guidance, ordinarily dismiss these cases out of hand. The result is that voters, like those in North Carolina, are unable to hold their representatives accountable and reign in extreme partisan gerrymanders.

On August 5, 2016 Common Cause challenged the 2016 map as an unconstitutional partisan gerrymander in violation of the First and Fourteenth Amendment, and as drawn in violation of Article I, Section 2, which provides that House members be chosen “by the people.”

On September 22, 2016 the League of Women Voters and several individual plaintiffs also challenged the 2016 district lines as an unconstitutional partisan gerrymander, in violation of the First and Fourteenth Amendments of the Constitution. The case is the first since the successful challenge to Wisconsin’s state legislative map in Whitford v. Gill to propose the efficiency gap measure as a legal standard for determining whether a partisan gerrymander is unconstitutional. 

Both complaints allege that the 2016 map was drawn with the intent to favor Republican voters, it had a discriminatory effect on Democratic voters, and that there is no legitimate State justification for that discriminatory effect. Further, both complaints allege that the map was drawn in such a manner as to burden or penalize citizens who voted for Democrats, in violation of their First Amendment right to political expression and political association. The two cases were consolidated for review by a three-judge court.

On March 3, 2017 the three-judge court denied the defendants’ motion to dismiss, holding that it was improper to dismiss plaintiffs’ claims on the basis of the pleadings where they presented a novel theory of liability. The court found that plaintiffs’ claims were not foreclosed by precedent, that the plaintiffs had plausibly alleged discriminatory intent and effects, and that plaintiffs should be allowed to “develop evidence establishing the viability of their proposed – and uncontradicted – discriminatory effects test.”

Trial on the merits was originally scheduled to begin June 24, 2016 but was continued on motion of the court. Subsequently, the defendants filed a motion to stay the trial until the Supreme Court issues a decision in Gill v. Whitford. The stay was denied on August 26thTrial took place on October 16th, as of 12/5/17, a decision is pending. 

On January 4, the three-judge-court issued an opinion finding for plaintiffs on all counts. On January 12, Defendants moved for a stay in the Supreme Court. Plaintiffs submitted a response in opposition. On January 18, the Supreme Court granted a stay. On January 23, Plaintiffs moved for expedited process in the Supreme Court. On February 6, 2018 the motion for expedited process was denied.

 

Case Status: The case was remanded for further proceedings in light of the disposition of Gill v. Whitford. Briefing is due in the three-judge court on July 11.

 

CLC Position/Involvement: The Campaign Legal Center, along with the Southern Coalition for Social Justice, represents the League of Women Voters of North Carolina and numerous individual voters

 

 

Benisek v. Lamone (formerly Shapiro v. McManus)

      No. 1:13-cv-03233-JKB (D. Maryland)

      Tag(s): Redistricting; Partisan Gerrymandering

 

Case Description: The plaintiffs in this case brought a partisan gerrymandering case claiming their First Amendment rights were violated and they were discriminated against because of their political party affiliations when Maryland drastically redrew its sixth congressional district to unseat the incumbent Republican Member of Congress and ensure the election of a Democrat.

The complaint alleges that the Sixth District was redrawn using citizens’ voting records and known party affiliations with the intent to dilute the votes of Republican voters and prevent them from electing their preferred candidate. The state accomplished this by “cracking” the Sixth District - moving a set of Republican voters out of the Sixth District and into the Eighth District, to dilute Republican voting strength in the Sixth District.

Because the Supreme Court has not yet adopted a legal standard for determining whether a partisan gerrymander is unconstitutional, plaintiffs propose using the well-settled First Amendment framework to determine a) whether the States considered plaintiffs’ protected First Amendment conduct (their voting records and political affiliation) with the intent to dilute their voting strength by reason of how they voted, b) whether the plan achieved its intended effect of diluting the plaintiffs’ votes, and c) whether the plan as drawn was necessary to achieve a compelling interest.

After the Supreme Court held that plaintiffs were entitled to a three-judge panel, the case was remanded to the district court and a panel was formed on February 4, 2016. The state filed a motion to dismiss on April 20, 2016

The three-judge court denied the state’s motion to dismiss on August 24, 2016. Discovery in the case is complete, and the parties have filed cross-motions for summary judgment. 

The Three Judge Court denied the plaintiff’s motion for a preliminary injunction. Plaintiffs have appealed to the Supreme Court. On December 8, 2017, the Supreme Court agreed to hear the appeal. Argument has been set for March 28, 2018.

 

Case Status: This case was remanded on procedural grounds. It will proceed to trial in the three-judge court.

 

CLC Position/Involvement: The Campaign Legal Center filed an amicus brief with the three-judge court in support of the plaintiffs’ opposition to the state’s motion to dismiss. CLC continues to track this case.

 

2016 Term

Bethune-Hill v. Virginia State Board of Elections

No. 3:14-cv-852 (E.D.V.A. Oct. 22, 2015), No. 15-680 (U.S. Mar. 1, 2017)

Tag(s): Redistricting; Racial Gerrymandering

 

Case Description: In the wake of the 2010 census, the Virginia General Assembly redrew the legislative districts for the Virginia House of Delegates and the Senate of Virginia. The General Assembly purposely drew 12 districts to each have a set majority population of minorities — specifically, an African American voting age population that met or exceeded a pre-determined 55 percent threshold.

The state argued that the use of race as a predominant factor in drawing legislative districts is permissible if the resulting districts are in “substantial compliance” with neutral traditional redistricting criteria. Plaintiffs in the court below argued that the state’s admitted reliance on race as the predominant factor in drawing the legislative map is unconstitutional.

A three-judge federal district court found that the General Assembly used an express racial quota when drawing the districts and that this quota was prioritized over other districting criteria. However the court held that such a quota, even where it is the predominant factor, is constitutional unless the resulting districts violate traditional redistricting principles such as compactness or contiguity and there are no other possible criteria that explain the resulting districts.

The Supreme Court noted probable jurisdiction in June of 2016. The case was argued in front of the Supreme Court on December 5, 2016.

 

Case Status: On March 1, 2017 the Supreme Court held that strangely shaped districts are not a pre-requisite to proving a racial gerrymandering claim, and that courts must look to the “actual considerations” used in drawing lines, not whether the legislature could have drawn the same lines without using race. The case was remanded to the three-judge court to re-examine 11 of the 12 districts in dispute, based on a holistic analysis that takes into account all evidence.

 

CLC Position/Involvement: The Campaign Legal Center submitted an amicus brief in support of the Virginia citizens and voters who challenged Virginia’s racial gerrymander. The League of Women Voters, the Voting Rights Institute, the National Council of Jewish Women and the Racial Justice Project at New York Law School also signed on to the brief.

 

Cooper v. Harris (formerly McCrory v. Harris)

No. 1:14-cv-949 (M.D.N.C. Jun. 2, 2016), No. 15-1262 (U.S. May 22, 2017)

Tag(s): Redistricting; Racial Gerrymandering

 

Case Description: In 2011, the North Carolina Legislature redrew its congressional map based on the 2010 Census. Before the 2011 redistricting, African-American voters in CD 1 and CD 12 successfully elected their candidates of choice despite not making up a majority of the voting age population in the districts. When the Legislature redrew the maps, it explicitly drew them to increase the black voting age population (BVAP) of those districts above fifty percent.

The Legislature argued that drawing a majority black district in CD 1 was required to protect itself from future vote dilution claims under Section 2 of the Voting Rights Act of 1965. Plaintiffs argued that the State used an impermissible racial quota to draw CD 1 and that the use of race as the predominant factor in drawing CD 1 was not justified by the need to draw a VRA district because black voters had consistently elected minority representatives.  As to CD 12, Plaintiffs argued that race was the predominant factor in drawing the district, while the Legislature argued that the intent was to pack Democrats, not minority voters.

On February 5, 2016 a three-judge district court panel found for the Plaintiffs, holding that CD 1 and CD 12 were unconstitutional racial gerrymanders. The Supreme Court noted probable jurisdiction in June of 2016 and he case was argued on December 5, 2016.

 

Case Status: The Supreme Court upheld the decision of the district court in a decision announced on May 22, 2107. In so doing, the court held that plaintiffs are not required to demonstrate that an alternative districting plan exists that would achieve the same partisan effect without the same racial impact, if sufficient other evidence exists to show the map-drawers’ discriminatory intent.

 

CLC Position/Involvement: CLC filed an amicus brief supporting Appellee’s position that CD 1 and CD 12, as drawn in the 2011 maps, constituted unconstitutional racial gerrymanders.

 

Dickson v. Rucho

No. 201PA12-2 (N.C. Dec. 18, 2015), No. 14-839 (U.S. Apr. 20, 2015), No. 16-24 (U.S. May 30, 2017)

Tag(s): Redistricting; Racial gerrymandering

 

Case Description: This case involves a racial gerrymandering challenge to North Carolina’s 2011 redistricting. According to the plaintiffs, North Carolina failed to consider whether the African American community could have elected candidates of its choice in certain districts at a lower population percentage and instead followed an impermissible policy of keeping the African American voting-age population in each black-majority district the same in the new map as it had been in the old map.

The North Carolina Supreme Court rejected the challenge, holding that the state’s policy was intended to ensure compliance with Section 2 of the Voting Rights Act of 1965 and that the maps thus survived strict scrutiny even assuming race was a predominant motive in their design. On April 20, 2015, the Supreme Court granted certiorari, vacated the North Carolina Supreme Court’s decision, and remanded the case in light of its March 25 decision in Alabama Legislative Black Caucus v. Alabama, and Alabama Democratic Conference v. Alabama.

The North Carolina Supreme Court heard arguments on remand on August 31, 2015 and once again affirmed the decision of the three-judge court, upholding the redistricting map as drawn predominantly based on traditional and permissible redistricting principles, and without giving improper weight to population equalization. Further it found that the state had a compelling interest in drawing districts to avoid liability under the VRA.

 

Case Status: Rehearing was denied on February 11, 2016. Plaintiffs filed a cert petition at the US Supreme Court on August 4, 2016 and the petition was initially distributed for conference on September 26, 2016, but was held by the court pending the disposition of Cooper v. Harris. On May 30, 2017 the court granted Plaintiff’s petition, vacated the judgment below, and remanded the case to the Supreme Court of North Carolina for further consideration of the Supreme Court’s ruling in Cooper v. Harris.

 

CLC Position/Involvement: J. Gerald Hebert, Director of Voting Rights and Redistricting at CLC joined with other election law professors to file an amicus brief at the Supreme Court supporting the plaintiffs.

 

NEOCH v. Husted

No. 2:06-cv-00896 (S.D. Oh. June 7, 2016); Nos. 16-3603/3691 (6th Cir. Sept. 13, 2016); No. 16-1068 (U.S. June 19, 2017).

Tag(s): Section 2 of the VRA (non-redistricting); Voting Administration; Burden on the Right to Vote.

 

Case Description: Before the 2014 election, Ohio adopted several restrictive changes to its laws governing absentee and provisional ballots. First, they adopted an exact-match requirement, meaning that absentee or provisional ballots must be rejected if they are submitted using an address or birth date that does not exactly match voter registration records. Second, they shortened the time period after the election during which absentee and provisional voters can cure exact-match failures. Finally, they enacted limits the assistance poll workers can offer in-person voters.

In addition to several other claims, plaintiffs Northeast Ohio Coalition for the Homeless, the Columbus Coalition for the Homeless, and the Ohio Democratic Party challenged the exact-match procedures, the reduction in the cure period, and the restrictions on assistance from poll workers as an undue burden on the right to vote, as denial or abridgement of the right to vote under Section 2 of the Voting Rights Act.

On June 7, 2016 the District Court found for the plaintiffs and permanently enjoined the exact-match procedure, the reduction of the cure period, and the restrictions on assistance by poll workers. On September 13, 2016 the Sixth Circuit affirmed the District Court’s ruling that the exact-match procedure constituted an undue burden on the right to vote, but reversed on the other issues, and on the Section 2 claims. Plaintiffs’ filed an emergency application at the Supreme Court to stay the Sixth Circuit decision on October 25, 2016, which the Court denied on October 31.

 

Case Status: In March 2017, the plaintiffs filed a petition for certiorari with the Supreme Court. The Court denied the petition on June 19, 2017.

 

CLC Position/Involvement: CLC followed this case.

 

North Carolina State Conference of the NAACP v. North Carolina

Nos. 16-1483, 16-1469, 16-1474, 16-1529 (4th Cir. July 29, 2016); No. 16-833 (U.S.)

Tag(s): Section 2 of the VRA (non-redistricting); Voter Registration, Photo ID; Polling Places; Voting Administration.

 

Case Description: Various groups of plaintiffs challenged a voting law passed by North Carolina in 2013 -- immediately after Shelby County eliminated the requirement that North Carolina obtain Section 5 preclearance for changes to its voting laws. The 2013 law severely restricted early voting, eliminated same-day voter registration, empowered poll monitors to challenge the validity of ballots, enacted new voter registration restrictions, blocked jurisdictions from counting ballots cast in the wrong precinct and imposed a new voter ID requirement that would go into effect for the 2016 elections. Plaintiffs claimed that the law was intentionally racially discriminatory, violated the constitutional right to vote, reduced the ability of minority voters to participate in the political process in violation of Section 2 of the Voting Rights Act, and discriminated against young voters in violation of the Twenty-Sixth Amendment.

The District Court found that the law was not passed with racially discriminatory intent, nor did it have a racially discriminatory effect, and thus there was no violation of Section 2 of the VRA. The court based this finding in part on its assertion that, despite the burdens on voting imposed by the law, it did not actually deny any person the right to vote.

On July 29, 2016 the Fourth Circuit reversed, relying on the extensive factual findings of the District Court, including its finding that the legislature had requested data demonstrating the racial impact of each of the proposed provisions of the law. The Fourth Circuit found that the legislature had targeted African American voters with “almost surgical provision” and that the purported reasoning for doing so, which was to achieve partisan advantage, could not justify intentional discrimination against minority voters. The case was remanded to the District Court to enjoin the challenged provisions of the law.

While the law was enjoined for the 2016 election, the remedy ordered by the District Court allowed significant wiggle room, for example allowing counties to limit early voting and polling place selection to the bare minimum required by law rather than restoring the same provisions that were in place before the discriminatory law took effect. In addition, voters remained confused over photo ID requirements and early voting and same-day registration opportunities.

North Carolina appealed the Fourth Circuit decision, filing a cert petition at the Supreme Court on December 27, 2016. The case was originally scheduled for the March 3 conference, but the state (under new leadership after the November 2016 election) subsequently filed a motion to dismiss the appeal. A dispute arose between the Attorney General and the General Assembly over whether the AG had the authority under state law to dismiss the appeal, and whether the leadership of the General Assembly had standing to intervene to preserve the appeal.

                                                                                                  

Case Status: On May 15, 2017 the Supreme Court denied the petition for certiorari. Chief Justice John Roberts wrote separately, noting the procedural issues that arose over the state’s motion to dismiss the appeal, and emphasizing that a denial of certiorari has no bearing on the merits of the case.

 

CLC Position/Involvement: CLC followed this case.

 

 

Recently Decided Cases – 2015 Term

 

Evenwel v. Abbott

No. A-14-CV-335-LY-CH-MHS (W.D. Tex.), No. 14-940 (U.S. 2016)

Tag(s): Redistricting; One-person, one-vote.

 

Case Description: In this lawsuit, the plaintiffs argued that Texas’s senate districts violate the Constitution’s one-person, one-vote requirement because the state used total population rather than citizen voting-age population (CVAP) as the equalized population base. The effect of using CVAP rather than total population as the basis of drawing districts would result in a reduction of the number of districts with high minority populations (and thus lower CVAPs) and an increase the number of districts with high white populations (and thus higher CVAPs).

A three-judge district court dismissed the complaint, reasoning that under settled Supreme Court precedent, states are free to choose any reasonable, non-discriminatory population base, including total population. The Supreme Court heard oral argument on December 8, 2015 and affirmed the lower court’s decision 8-0 in a decision by Justice Ginsburg, issued April 4, 2016.

 

Holding: As constitutional history, precedent, and practice demonstrate, a State or locality may draw its legislative districts based on total population. Further, use of a total-population baseline serves the principle of representational equality.

 

CLC Position/Involvement: CLC filed an amicus brief in support of the State’s position, on behalf of former directors of the US Census Bureau.

 

Harris v. Arizona Independent Redistricting Commission

2:12-vc-00894-ROS-NVW-RRC (D. Ariz. 2014), No. 14-232 (U.S. 2016)

Tag(s): Redistricting; Partisan Gerrymandering

 

Case Description: Appellants brought this challenge to the 2012 Arizona redistricting plan alleging that the minor population deviations in the plan were motivated by pro-Democratic partisanship. Appellants claimed that the commission had purposefully overpopulated some Republican districts and underpopulated some Democratic districts and that the minor population deviations were motivated by the Commission’s goal of achieving Section 5 preclearance on the first attempt.

Appellants argued that achieving Section 5 preclearance approval was not a legitimate or rational justification for the minor population deviations. The Supreme Court rejected this argument on April 20, 2016 in a unanimous decision authored by Justice Breyer.

 

Holding: Mathematical perfection in balancing population between legislative districts is not required, so long as deviations are justified by legitimate considerations. Minor deviations (under 10%) are not sufficient, standing alone, to support a prima facie case of invidious discrimination. Where the Arizona plan’s population deviations were under 10% and predominantly reflected efforts to achieve compliance with the Voting Rights Act, not to secure political advantage for the Democratic Party, Appellants failed to show the plan was drawn based on illegitimate factors.

 

CLC Position/Involvement: CLC filed an amicus brief in support of the Arizona Independent Redistricting Commission, on behalf of former DOJ officials tasked with enforcing the Voting Rights Act.

 

Shapiro v. McManus

No. 14-1417 (4th. Cir. 2014), No. 14-990 (U.S. 2015)

Tag(s): Redistricting; Partisan Gerrymandering

 

Case Description: The plaintiffs in this case brought a partisan gerrymandering case claiming their First Amendment rights were violated and they were discriminated against because of their political party affiliations when the state drastically redrew the sixth congressional district to unseat the incumbent Republican Member of Congress and ensure the election of a Democrat.

Under federal law, such claims require the convening of a three-judge court, which occurs procedurally after a request for such a convening is made, unless the judge presented with the request determines that three judges are not required. Instead, the judge in this case dismissed the action rather than notifying the Chief Judge of the Circuit to convene a three-judge court, determining that no relief could be granted.

Plaintiffs’ appealed the dismissal of the case as a violation of the district judge’s mandatory duty to convene a three-judge panel. The Supreme Court heard oral argument on November 4, 2015 and decided in favor of the plaintiffs on December 8, 2015.

 

Holding: Plaintiffs’ were entitled to a three-judge panel. A judge presented with a request may only dismiss a case if it is not “an action . . . challenging the constitutionality of the apportionment of congressional districts” and thus is not required under the relevant statute to be referred to a three-judge court. Unless the claim is “wholly insubstantial and frivolous” then a dismissal for failure to state a claim constitutes a judgment on the merits, which may only be made by the three-judge panel.

 

CLC Position/Involvement: Together with Common Cause, CLC submitted an amicus brief in support of plaintiffs. CLC continues to track this case as it proceeds on remand. For more information on the current status of Shapiro and its substantive claims, see below.

 

Recently Decided Cases – 2014 Term

 

Alabama Legislative Black Caucus v. Alabama

No. 2:12-CV-691 (M.D. Ala.), No. 13-895 (U.S.)

and

Alabama Democratic Conference v. Alabama

No. 2:12-CV-1081 (M.D. Ala.), No. 13-1138 (U.S.)

Tag(s): Redistricting; Racial gerrymandering

 

Case Description: These consolidated cases involve challenges to Alabama’s 2011 state legislative redistricting. The plaintiffs alleged that the Alabama legislature engaged in impermissible racial gerrymandering by packing black voters into minority-majority districts.

A three-judge district court found in favor of the state on several alternative grounds, with one judge dissenting. First, the district court held that the Alabama Democratic Conference lacked standing to sue. Second, the district court explained that the plaintiffs had failed to make the necessary showing that Alabama’s legislative map as a whole – as opposed to the design of certain districts – was the product of racial gerrymandering. Third, the district court found that race was not a predominant factor motivating the state legislature during redistricting. Fourth, the district court reasoned that Alabama’s map would survive strict scrutiny in any event because the map was narrowly tailored to serve the states’ compelling interest in complying with the requirements of Section 5of the Voting Rights Act of 1965.

 

Case Status: The Supreme Court issued a 5-4 decision on March 25, 2015 reversing the district court. The Court held that all plaintiffs presumptively have standing to sue, that the district court had improperly refused to consider whether race predominated in the drawing of individual districts and that the state had misunderstood the requirements of Section 5 of the Voting Rights Act. The Court remanded the case to the district court for consideration of all relevant factors and on January 20, 2017 the district court struck down twelve of the challenged districts as an unconstitutional racial gerrymander.

 

CLC Position/Involvement: CLC assisted the plaintiffs by reviewing their draft Supreme Court brief and offering comments. CLC continues to track this case.

 

Arizona State Legislature v. Arizona Independent Redistricting Commission

No. CV-12-01211-PHX-PGR-MMS-GMS (D. Ariz.), No. 13-1314 (U.S. 2015)

Tag(s): Redistricting; Independent Redistricting Commission

 

Case Description: In 2000, Arizona voters passed a referendum that took the power to draw congressional districts away from the partisan state legislature and gave it to a five-member independent redistricting commission. In this lawsuit, the state legislature is arguing that because the independent redistricting commission was created by public referendum rather than legislative action, it is not part of the “legislature” of a state and therefore under the Elections Clause of the Constitution, cannot exercise redistricting authority.

A three-judge district court rejected this argument, holding that under Supreme Court precedent the word “legislature” includes public referenda. The Supreme Court heard oral argument on March 2, 2015. In an opinion authored by Justice Ginsburg, the Court affirmed the decision of the three-judge panel below on June 29, 2015.

 

Holding: Redistricting is a legislative function, but the Elections Clause does not require congressional districting be done by a State’s representative body, rather it is to be done in a manner in accordance with the State’s prescriptions for lawmaking, which may include the referendum.

 

CLC Position/Involvement: On January 23, 2015, CLC joined with the League of Women Voters of the United States, the American Civil Liberties Union, Common Cause, and Democracy 21 to file an amicus brief defending Arizona’s independent commission law.

 

 


 

OTHER CASES CHALLENGING VOTING RESTRICTIONS

 

NVRA Cases

 

Common Cause v. Kemp

        No. 1:16-cv-00452-TCB (N.D. Ga. Mar. 17, 2017)

Tag(s): NVRA, Voting Administration, Voter Registration, Voting List Purge

 

Case Description: Common Cause and the Georgia State Conference of the NAACP sued Secretary of State Brian Kemp in February 2016 to enjoin a state practice of purging voters from the rolls when they move, fail to respond to a state notice prompting them to confirm their address within 30 days, and do not vote in two consecutive general elections.

Plaintiffs argued that the First Amendment protects as a form of political speech not only the act of voting, but also act of not voting, and that the National Voter Registration Act of 1993 prohibits states from purging voters for the act of not voting.

Georgia’s purge procedure resulted in the removal of hundreds of thousands of voters from its voter rolls just during the period between 2012 and 2014. Defendants filed a motion to dismiss on March 04, 2016, and briefing continued through the summer.

Oral argument on the motion to dismiss was held on November 21, 2016 at which point the judge took the case under advisement.

On March 17, 2017 the court granted the defendants’ motion to dismiss, holding that the NVRA does not forbid states from ever considering failure to vote when removing voters from the registration rolls, and that using a registrant’s failure to vote as a trigger provision for sending the registrant a verification notices complies with the NVRA and HAVA. The Court then applied the doctrine of time, place, and manner restrictions on speech in holding that even if a right not to vote exists under the First Amendment, that right is not violated by Georgia’s purge procedure because the state has substantial interest in maintaining accurate voter rolls, and its statute is reasonably designed to further than interest without overburdening speech.

 

On March 23, 2017 the plaintiffs filed a notice of appeal with the 11th Circuit. On October 2, 2017 the 11th Circuit denied appellees’ motion to hold the case in abeyance pending the resolution of A. Philip Randolph Institute v. Husted, and denied appellants’ motion for an injunction pending appeal.  Oral argument was held on March 7, 2018.

 

Case Status:  On March 12, 2018, the 11th Circuit vacated the District Court’s order and remanded to reconsider in light of the result in A. Philip Randolph Institute v. Husted.

 

CLC Position/Involvement: CLC is tracking this case.

 

Fish v. Kobach

      No. 16-2105-JAR-JPO (D.Kansas), No.16-3147 (10th Cir.)

      Tag(s): NVRA, Voting Administration, Voter Registration, Proof-of-Citizenship

 

Case Description: The ACLU sued Kansas Secretary of State Kris Kobach to enjoin Kansas from enforcing its law requiring Kansans to provide proof-of-citizenship documentation in order to register to vote, in contravention of the NVRA. Plaintiffs, including the League of Women Voters and individual Kansans claim that the Kansas proof-of-citizenship law is pre-empted by Section 5 of the NVRA. Plaintiffs also brought a claim under the Privileges and Immunities clause, arguing that the proof-of-citizenship law’s grandfather clause and verification procedures burdened the right to travel because they applied differently to newer Kansas residents.

The NVRA requires that states allow eligible voters to register to vote at the same time as applying for a driver’s license, using a federally mandated form that includes no more than the “minimum amount of information necessary” to prevent duplicate registrations and to allow states to determine the eligibility of the applicant. Section 5 further mandates that the federal form include an attestation, signed under penalty of perjury, that the applicant meets the eligibility requirements for voting, including the citizenship requirement.

On May 17, 2016 the District Court granted the plaintiffs’ request for a preliminary injunction, and ordered Secretary Kobach to register applicants who had previously been rejected for failing to produce proof-of-citizenship and to cease enforcing the proof-of-citizenship requirement for applicants registering at the DMV. The 10th Circuit declined to stay the preliminary injunction pending an appeal, and during the pendency of the appeal the parties wrangled over enforcement of the preliminary injunction.

On September 30, 2016 the 10th Circuit upheld the preliminary injunction and, in an opinion issued on October 19, 2016, found that that the NVRA pre-empted Kansas’s proof-of-citizenship requirement as applied to individuals registering to vote through the motor voter process at the DMV. The 10th Circuit found that the attestation required by Section 5 was the presumptive minimum amount of information necessary for state officials to assess eligibility, and could only be overcome by a demonstration that “substantial numbers” on noncitizens were registering despite the attestation requirement.

In late December 2016, the plaintiffs filed for summary judgment in the district court, and the defendants filed their response at the end of January 2017. In the meantime, the defendant requested that discovery in the case be re-opened so that the state could attempt to demonstrate that substantial numbers of noncitizens were registered despite the attestation requirement. During the course of this limited discovery, plaintiff’s counsel at the ACLU requested documents regarding potential changes to the NVRA, including documents created by Secretary Kobach and shared with other officials in Kansas and with President-elect Trump, as reported by the Associated Press in November, 2016.

After reviewing the documents in camera, a Federal Magistrate Judge ordered Secretary Kobach to turn over the documents to the ACLU, questioned Secretary Kobach’s credibility after he denied in court filings that the requested documents were relevant or even existed, and suggested that the plaintiffs could pursue sanctions against Secretary Kobach.

The District Court declined to stay the order of the magistrate judge and Secretary Kobach was forced to turn over the relevant documents to the ACLU, though the documents remain subject to a protective order and have not been made available to the public. The magistrate further ordered that Secretary Kobach sit for a limited deposition related to the documents, and that he pay a fine of $1000 for misleading the court. Secretary Kobach has appealed this latest order to the District Court.

On May 4, 2017 the District Court denied the plaintiffs’ motion for partial summary judgment on the Privileges and Immunities claim, holding that the proof-of-citizenship law did not discriminate against citizens based on how long they had resided in Kansas. Limited discovery in the case is ongoing, related to the question of whether Secretary Kobach can demonstrate that substantial numbers of noncitizens are registered despite the attestation requirement.

On June 23, Kris Kobach was sanctioned for discovery violations. He filed an interlocutory appeal of that order. He also filed for an emergency stay of his deposition, which was denied on August 2nd.

Trial took place the week of March 6, 2018. Kris Kobach was found in contempt of court on April 19 for failing to obey the preliminary injunction before trial.

Case Status: On July 18, 2018, the court struck down the law as a violation of the NVRA and the Constitution.

CLC Position/Involvement: CLC is tracking this case.

           

 

League of Women Voters v. Newby

       No. 1:16-cv-00236-RJL (D.D.C. February 24, 2017)

      Tag(s): NVRA, Voting Administration, Voter Registration, Proof-of-Citizenship

 

Case Description: The National Voter Registration Act (NVRA) adopted a national uniform mail-in voter registration form for registering to vote in federal elections. In 2006, several states, including Arizona and Kansas, requested that the Election Assistance Commission (EAC) amend the federal voter registration form to require that applicants submit documentary proof of citizenship. The EAC repeatedly denied these requests. After Arizona began rejecting voter registration applications made using the federal form if they did not include documentary proof of citizenship, the Supreme Court ruled in Arizona v. Inter Tribal Council of Arizona, Inc., that states must accept the federal form as implemented by the EAC, and could not impose additional requirements on voter seeking to register for federal elections.

In 2014, the previous EAC Director again rejected requests from Arizona, Kansas, and Georgia to require documentary proof of citizenship to register to vote using the federal form, finding that doing so would contravene the purpose of the NVRA and that the states had failed to show that it was necessary. The 10th Circuit affirmed the EAC director’s decision after Kansas and Arizona challenged it under the Administrative Procedure Act (APA).

Brian Newby, a former Kansas elections official, took over the directorship of the EAC in November 2015. Kansas again requested that instructions on federal form be changed, and Mr. Newby approved the request. Plaintiffs the League of Women Voters, their affiliates in Kansas, Alabama, and Georgia, and other organizations challenged Mr. Newby’s decision alleging multiple violations of the APA, and as being in contravention to the NVRA. The complaint was filed on February 2, 2016.

On June 29, 2016 District Court Judge Richard J. Leon denied the plaintiffs’ motion for a preliminary injunction. Plaintiffs appealed to the DC Circuit, and on September 9, 2016 the DC Circuit, in a per curiam order, preliminarily enjoined Director Newby’s action allowing Kansas, Alabama, and Georgia to require documentary proof of citizenship on the federal voter registration form.

In the interim, the parties filed motions for summary judgment, and at a hearing at in the District Court on September 12, 2016 the defendants argued unsuccessfully that Judge Leon should move forward in ruling on summary judgment without waiting for the panel's full opinion in the matter. The DC Circuit released their full opinion on September 26, 2016, which can be found here. In reversing the district court and granting the PI, the DC Circuit found that Leagues have "a substantial (perhaps overwhelming) likelihood of success on the merits."

On February 24, 2017, the district court remanded to the EAC the question of whether Director Newby had authority to rule upon the requested changes to the States’ instructions on the federal form. The court gave defendants until June 1, 2017 to file the Commission’s determination. In the interim, the court deferred ruling on the merits of the parties’ cross-motions for summary judgment, and left in place the preliminary injunction against the proposed changes.

 

Case Status: On June 1, the EAC notified the court that the commissioners were split 3-3 over whether Director Newby had the authority to change the federal form as requested by Arizona, Georgia, and Kansas despite the Commission’s precedent of denying such changes. Briefing has commenced on the result of this deadlock. As of June 6, 2018, no court date is scheduled.

 

CLC Position/Involvement: CLC signed on to an amicus brief supporting the plaintiffs in the 10th Circuit and continues to track this case.

 

Redistricting - One Person, One Vote Cases

 

Davidson v. City of Cranston

      No. 16-1692 (1st Cir. Sept. 21, 2016); C.A. No. 14-91L (D.R.I. May. 24, 2016)

      Tag(s): Redistricting; Prison Gerrymandering; One Person One Vote

 

Case Description: In 2014, local residents in Cranston, Rhode Island sued the city over its 2012 redistricting plan for city council and school board elections. The 2012 plan counted the population of Rhode Island’s state prison, located in Ward 6, as residents of that ward for the purposes of allocating population between wards. In no other manner are individuals in Ward 6 considered residents of the ward, but in fact they are otherwise legally considered residents of their pre-incarceration community.

Plaintiffs argue that counting the prison population in Ward 6 artificially inflates the size of the ward and gives its actual residents outsize voting and representational power. The resulting population disparity between districts (Ward 6 has 3000 fewer actual residents than the other wards) violates the one person one vote doctrine.

While Evenwel, a recent Supreme Court case dealing with the one person, one vote case, looked at which individuals should be counted for the purpose of population parity among districts, Davidson considers where individuals should be counted, arguing that counting incarcerated individuals in their district of incarceration is inappropriate and in violation of one person, one vote.

 

Cases Status: While the District Court ruled in favor of the plaintiffs, the City of Cranston appealed to the First Circuit, which reversed. The First Circuit relied on a broad reading of Evenwel to hold that the City had the right to look to total population, including the incarcerated population, in drawing the Wards. Plaintiffs’ petition for rehearing en banc was denied on October 20, 2016.

 

CLC Position/Involvement: Along with the Voting Rights Institute and the VRI Student Clinic at Georgetown Law, CLC submitted an amicus brief to the First Circuit in support of Plaintiffs.

 

Alabama v. Dep’t of Commerce

No. 2:18-cv-00772-RDP (N.D. Ala.)

Tag(s): Census; Redistricting; One Person, One Vote

Case Description: On May 23, 2018, Alabama sued the Department of Commerce asserting that it is unlawful for the Department to include undocumented immigrants in the Census. It contends that it may lose a seat in Congress that it would hold if these immigrants were not counted. It asserts that the Department of Commerce’s actions violate the Constitution’s command of an “actual enumeration” and that it is also a violation of the APA.

 

Case Status: Complaint was filed on May 23.

 

CLC Position/Involvement: CLC is tracking this case.

 

Redistricting - Partisan Gerrymandering Cases

 

League of Women Voters of Pennsylvania v. Pennsylvania

No. 159 MM 2017 (Pa.)

Tag(s): Redistricting; Partisan Gerrymandering; Vote Dilution

Case Description: The Pennsylvania Constitution guarantees the right to free expression and association (Art. I, §§ 7, 20), equal protection (Art I, §§ 1, 26), and free and equal elections (Art I, §5). Unfortunately, when the state drew its Congressional districts in 2011, it drew them in order to maximally disfavor Democrats. Over the next several elections, their efforts proved successful, and Republicans won outsized majorities in Pennsylvania’s congressional delegation. On June 15, 2017, the League of Women Voters brought suit under the Pennsylvania Constitution.

The defendants asked for, were granted, a stay by the Commonwealth Court pending Gill v. Whitford. The Supreme Court then reversed the stay and granted expedited process. Defendants then attempted to remove the case to federal court, despite lacking any reasonable claim of jurisdiction, and were rebuffed.

The Commonwealth Court issued Findings of Fact and Conclusions of Law on December 29. The Pennsylvania Supreme Court then set oral argument for January 17.

On January 22, the Pennsylvania Supreme Court issued an order finding the map unconstitutional. They further ordered that the State pass a new map and at the same time appointed a special master to draw a map so that it may be implemented if the State failed to do so.

The defendants then moved to stay the order in both the Pennsylvania and United States Supreme Courts, arguing that the opinion violated the Elections Clause of the United States Constitution by usurping the legislature’s role as the body who draws district lines. They were rebuffed in each instance. Defendants also moved to have several Justices disqualified from the court post-hoc due to statements made during the course of the Justices’ campaigns. They were denied a hearing.

On February 5, opinions issued, including a majority, an opinion concurring and dissenting and two dissents.

 

Case Status: Pennsylvania has been redistricted in response to these rulings.

 

CLC Position/Involvement: CLC filed an amicus brief in support of plaintiffs. 

 

Vesilind v. Virgina State Board of Elections,

No. 170697 (Va.), No. CL15-3886 (Va. Cir. Ct. Mar. 31, 2017)

      Tag(s): Redistricting; Partisan Gerrymandering; Vote Dilution

 

Case Description: The Virginia Constitution requires that the legislature give priority to specific, non-partisan criteria in drawing legislative districts, including compactness. The intent of this requirement is to make it more difficult to gerrymander electoral districts by preventing legislators from drawing districts that are unreasonably spread out, or have excessively contorted boundaries.

In 2011, Virginia legislators engaged in an open and extreme partisan gerrymander of the General Assembly maps. The efficiency gap, a mathematical analysis of how effectively voters from each party are distributed among voting districts, demonstrates that the 2011 and 2013 House of Delegates maps exhibit a strong and durable pro-Republican bias. The notably large efficiency gaps in Virginia illustrate the extent to which legislators successfully elevated political considerations over non-partisan criteria in order to create an entrenched Republican majority in the House of Delegates.

In 2015, a group of individual voters in Virginia challenged the 2011 Virginia General Assembly maps as violating the state constitution, arguing that the map drawers subordinated compactness and prioritized partisan criteria in order to achieve self-interested political objectives.

The state court below found the question of whether constitutional redistricting criteria were subordinated for partisan gain “fairly debatable,” and deferred to the legislature.

Plaintiffs challenged the ruling in the Virginia Supreme Court. Briefing is completed and oral argument is set for March 1.

 

Case Status: On May 31, 2018, the Virginia Supreme Court issued an opinion affirming the lower court decision that Virginia’s districts are constitutional.

 

CLC Position/Involvement: On behalf of the League of Women Voters of Virginia, Campaign Legal Center(CLC) and Sidley Austin LLP filed an amicus brief in support of the plaintiffs’ petition for review, highlighting the increasing threat of partisan gerrymandering to fair representation and effective democracy, and the egregious gerrymander of the Virginia House of Delegates map.

 

Ohio A. Phillip Randolph Institute v. Kasich,

No.: 1:18-cv-00357-TSB (S.D. Ohio May, 23 2018)

Tags: Redistricting, partisan gerrymandering,.

 

Case Description: The ACLU is challenging Ohio’s U.S. congressional map as an unconstitutional partisan gerrymander. Despite only having 50% to 60% of the statewide vote, Republican legislators in Ohio have consistently obtained 12 out of 16 congressional seats in Ohio due to the map’s partisan skew. Since the 2010 redistricting cycle, the map has consistently produced extremely skewed results in favor of Republicans.

The manner in which Ohio legislators drew this map also calls is partisan bias into question. Legislators allegedly rented out a secret room they called the “Bunker” for their redistricting operation.

This lawsuit seeks to replace the current map with one that is consistent with the Constitution.

Case Status: On May, 23, 2018, The ACLU filed this complaint in the U.S. District Court in Cincinnati

 

Redistricting – Racial Gerrymandering Cases

 

Patino v. City of Pasadena

      No. 4:14-cv-03241 (S.D. Tex. January 16, 2017), 17-20030 (5th Cir.)

      Tag(s): Redistricting; Racial Gerrymandering, Vote Dilution

 

Case Description: After Shelby County was decided in 2013, the mayor of Pasadena, Texas, Johnny Isbell, proposed a change to the system for electing the Pasadena City Council. After Hispanic citizens brought a lawsuit under the Voting Rights Act in 1992, the city had adopted a system using eight single-member districts. Mayor Isbell proposed adopting a new system with six single-member districts and two at-large seats.

Plaintiffs’ challenged the new system as intentionally discriminatory against Hispanic voters. Before the change, Hispanic voters had elected four of the eight members of the council, with the Mayor retaining control over council decisions on the basis of his tie-breaking vote. Because of a growing Hispanic population, it was generally assumed that the next election cycle would see Hispanic-elected councilmembers achieving a majority on the council.

Instead, after the changes, the status quo was maintained, with Hispanic voters electing four members, white voters electing four, and the Mayor maintaining his tie-breaking vote. Plaintiffs’ challenged the plan as adopted intentionally to discriminate against Hispanic voters, and as having that effect. In addition to seeking declarative and injunctive relief, Plaintiffs asked the judge for relief under Section 3(c) of the Voting Rights Act, whereby the city would be bailed back into preclearance of its voting changes by the Department of Justice.

On January 6, 2017 a federal judge found that the new plan diluted the votes of Latino citizens, and that it was adopted with the intent to dilute the votes of Latino citizens on the basis of their race. The court enjoined the use of the new map, ordered the 2017 City Council race to be held using the eight single-member district map used in 2013, and required the city of Pasadena to submit future redistricting changes to the Department of Justice under Section 3(c) of the VRA The decision marked the first time that a judge has ordered 3(c) preclearance since the Supreme Court eviscerated Section 5 preclearance in Shelby County.

Pasadena sought a stay of the ruling pending appeal at the Fifth Circuit. A three-judge panel heard oral argument on the question of the stay on February 1, 2017, but denied the city’s motion to stay two days later. An appeal on the merits is pending, and the State of Texas has filed an amicus brief in support of the city’s challenge, arguing that 3(c) relief is an unwarranted remedy for a single incident of intentional discrimination.  

 

Case Status:  The city settled the laws on September 29, 2017 for more than $1 million in payment, covering the plaintiffs' legal fees and court costs. As a result, the city of Pasadena must use its redistricting plan for the rest of the decade and will continue to be subject to federal preclearance

Read the opinion.

 

CLC Position/Involvement: In conjunction with the NAACP Legal Defense Fund, the Campaign Legal Center filed an amicus brief in support of the plaintiffs, challenging the State’s interpretation of Section 3(c) relief.

 

Perez v. Abbott

No. 11-CA-360-OLG-JES-XR (W.D. Tex.), Nos. 11–713, 11–714 & 11–715 (U.S.)

      Tag(s): Redistricting, Racial Gerrymandering

Case Description: After the 2011 census, the Texas legislature redrew its congressional and state legislative districts. Because Texas was subject to preclearance under Section 5 of the Voting Rights Act because of its history of discriminatory voting practices, the state sought preclearance of its 2011 plans in the District Court for the District of Columbia, as provided for in the VRA. When it became clear that Texas’s maps were unlikely to receive preclearance, the United States Supreme Court ordered Texas to implement interim maps for the 2012 election.  

At the same time, various groups of plaintiffs challenged Texas’s 2011 proposed redistricting for the Texas House and for Congress. (In a related case, Davis v. Perry, several plaintiffs challenged the Texas Senate map. After the ruling in Shelby County, the Texas legislature adopted a court-imposed remedial plan for the Texas Senate, and the plaintiffs remaining claims were held to be moot). The plaintiffs alleged the Texas House and Congressional maps were intentionally racially discriminatory in violation of the Constitution and the Voting Rights Act, were unconstitutional racial gerrymanders, and impermissibly diluted minority voting strength in violation of Section 2 of the Voting Rights Act.

In the 2013 Shelby County v. Holder decision, the United States Supreme Court declared the coverage formula for Section 5 preclearance unconstitutional, relieving Texas of the preclearance requirement. Subsequently, the Texas legislature adopted a new plan, drawing maps based on the interim plan implemented for the 2012 election, which itself was based substantially on the 2011 plan. The State argued that the implementation of the 2013 plan rendered the challenge to the 2011 plan moot.

In response to the decision Shelby County, the plaintiffs amended their complaint to seek relief under Section 3(c) of the Voting Rights Act, which would bail Texas back in to coverage under Section 5, subjecting it to preclearance once again. Based on the availability of Section 3(c) relief for a finding of intentional discrimination in the 2011 plan, the district court determined that the case against the 2011 maps was not moot. Various plaintiffs also filed claims against the 2013 maps, alleging that those maps constituted a racial gerrymander in violation of the Constitution and Section 2 of the Voting Rights Act.

A three-judge court held a trial on the claims against the 2011 maps in August 2014 and requested additional briefing on the racial gerrymandering claims in March 2015.

On March 10, 2017 the three-judge panel declared that Texas has engaged in intentional racial discrimination in creating the 2011 maps, and that several of the challenged Congressional districts were unlawfully drawn. On April 20, 2017 the three-judge panel found that the 2011 Texas House plan were also drawn to intentionally discriminate against black and Latino voters.

On April 21, 2017 in a bizarre move, Texas attempted to circumvent the procedural requirements governing appeals from the decision of a three-judge panel, which go directly to the Supreme Court, by filing a motion to certify an interlocutory appeal to the Fifth Circuit. The Court denied the state’s request, and scheduled a five-day trial starting July 10, 2017 to determine whether the 2013 Congressional and state house plans similarly violate the Constitution and Section 2 of the VRA. 

On August 24, 2017 the panel issued a ruling determining the districting was an illegal racial gerrymander. On August 25, 2017 the state filed an appeal to the Supreme Court. On September 12th the Supreme Court granted a stay that halted redrawing of maps pending appeal. On September 15th, Respondent Perez moved to expedite appeal, the Supreme Court denied this motion on September 25th. On October 17, 2017 Texas filed a jurisdictional statement on the Congressional Plan, arguing that the Supreme Court has jurisdiction to review the district court’s order, the Legislature did not act with an unlawful purpose, and that the Plan was never infected by any discriminatory taint. On October 27, 2017 Texas filed a jurisdictional statement on the House Plan which made very similar arguments to the jurisdictional statement on the Congressional Plan. On November 6, Quesada Plaintiffs filed a jurisdictional statement on the Congressional plan argument that evidence at trial would prove that Texas’s Congressional and State House Plans are unconstitutional gerrymanders. On November 20, 2017, Respondents filed a motion to dismiss or affirm with the Supreme Court, arguing that the Supreme Court does not have jurisdiction over the appeal, the district court ruling were proper, and that Districts 27 and 35 are unlawful regardless of discriminatory intent.

 

Status: On January 12, 2018, the Supreme Court postponed further consideration of the questions of jurisdiction until the hearing of the cases on the merits.

 

CLC Position/Involvement: In his private practice, J. Gerald Hebert, Director of Voting Rights and Redistricting at CLC, represents one group of plaintiffs in this case.

See also: Davis v. Perry, challenging the 2011 State Senate district map.

 

Alabama State Conference of the NAACP v. Alabama

No. 16-cv-731


Tag(s): Section 2; at-large elections


Case Description: Alabama elects all 19 of its Supreme Court and intermediate appellate justices via at-large statewide ballot. Nine justices sit on the Supreme Court, five sit on the Court of Criminal Appeals, and five sit on the Court of Civil Appeals. The state is more than a quarter African American, but voting is highly racially polarized, and none of the current 19 justices are black. Only two African Americans have ever won a statewide race in Alabama, both of whom were first appointed by the Governor.

On September 7, 2016, the Lawyers’ Committee for Civil Rights Under Law filed suit on behalf of the Alabama NAACP and four black voters to challenge Alabama’s method of electing judges under the Voting Rights Act. The state filed a motion to dismiss, and on August 31, 2017, Judge William Watkins of the federal Middle District of Alabama denied the state’s motion. Judge Watkins denied the motion on the grounds that precedent in the 11th Circuit allowing for the election at-large election of trial court judges does not apply to appellate judges, found that petitioners had suggested a facially plausible remedy and had standing, and dismissed the State’s claim it had sovereign immunity from the suit.  On October 4, 2017, the state appealed the denial of its motion to dismiss at the 11th Circuit.

 

Case Status: On March 1, 2018 the 11th Circuit informed parties that there would be oral argument in the case. The motion remains pending before the court.

 

CLC Position/Involvement: CLC is tracking this case.

 

Larry v. Arkansas

No.: 4:18-cv-00116-KGB-DB-BSM  (E.D. Ark. February 9, 2018)

Tags: racial gerrymandering, Fourteenth Amendment, Fifteenth Amendment

Case Description: Plaintiff filed suit against the state alleging that the First Congressional District violates section two of the Voting Rights Act, the Fourteenth Amendment and the Fifteenth Amendment. Plaintiff’s Fourteenth and Fifteenth Amendment claims were dismissed on April 23, 2018. Plaintiffs VRA claims will be heard before a 3-judge panel. 

Complaint is available here.

 

Section 2 – Non-redistricting Cases

 

Feldman v. Arizona

No. CV-16-01065-PHX-DLR (D. Ariz. Sept. 23, 2016 and Oct. 11, 2016 ); No. 16-16998 (9th Cir. Nov. 4, 2016); No. 16-16865 (9th Cir. Nov. 2, 2016); 16-A460 (U.S. Nov. 5, 2016)

      Tag(s)

 

Case Description: Arizona law allows counties to choose whether to implement a precinct based system, where voters must cast a ballot in their precinct in order for it to count, and a vote center system, where voters can cast their ballot at any of the vote centers within the county. If a voter goes to the wrong precinct, and casts a provisional ballot, Arizona law requires that the ballot be rejected in its entirety, even as to the races in which a voter was eligible to vote, and even where the voter was eligible to vote in all of the races.

This problem is exacerbated by the fact that Arizona counties make significant changes to their precinct-based polling locations between elections, and may even switch between a vote center system and a precinct-based system in consecutive elections. Because voters are understandably confused about where their polling location is, and whether they need to go to a specific location or my vote in any location, large numbers of ballots end up being cast out-of-precinct and thus are not counted.

Arizona has also adopted early voting by mail, allowing votes to fill out an absentee ballot and either deliver or mail it to the county recorder, or deposited at any polling place in the county on Election Day. In March 2016, citing the threat of potential fraud, Arizona criminalized the collection and delivery of mail-ballots by third parties, despite a long and rich history of minority communities and political parties collecting and delivering ballots on behalf of voters, particularly those that have difficulty making it to the polls.

Plaintiffs, individual voters joined by the Democratic Party and plaintiff-Intervenors Bernie 2016, Inc., filed suit in April 2016 challenging both the out-of-precinct ballot law, and the law prohibiting ballot collection as having a discriminatory effect on minority voters in violation of Section 2 of the Voting Rights Act, and as imposing an unconstitutional burden on the right to vote under the Fourteenth Amendments. Plaintiffs also alleged that the out-of-precinct ballot law violated the Equal Protection clause of the Fourteenth amendment by arbitrarily treating voters differently based on what county they live in. Finally, plaintiffs challenged the criminalization of mail-ballot collection as a violation of the First Amendment right to freedom of association and as discriminating against Democrats on the basis of expressive conduct (i.e., how they vote).

On September 23, 2016 the District Court denied plaintiffs motion for a preliminary injunction of the ballot-collection law, finding that the plaintiffs had failed to prove a disparate effect on minority voters or more than a minimal burden on the right to vote. A divided Ninth Circuit panel affirmed the lower court decision, but an en banc panel reversed and enjoined the law. Arizona filed an emergency application for a stay of the Ninth Circuit en banc court’s decision with the Supreme Court, which granted the stay on November 5, 2016.

On October 11, 2016, the District Court denied plaintiffs’ motion for a preliminary injunction against Arizona’s law rejecting out-of-precinct ballots, finding that the plaintiffs had failed to demonstrate that the law resulted in a disparate impact on minority voters, or that it imposed more than a minimal burden on the right to vote. A divided Ninth Circuit panel affirmed the lower court decision on November 2, 2016.

In December 2016, the en banc Ninth Circuit court announced it was retaining jurisdiction over subsequent appeals, but stayed further proceedings pending final judgment in the District Court.

On April 13, 2017 the District Court denied a motion to dismiss the complaint in its entirety, filed by the Arizona Republican Party, which intervened as a defendant in the case. The Court cited the divided opinions of the Ninth Circuit on likelihood of success of the plaintiffs’ claims indicated they were at least plausible and thus dismissal on the pleadings would be improper. Oral argument was held December 11, 2017.

 

Case Status: District Court decision is pending as of August 8, 2018.

 

CLC Position/Involvement: CLC is tracking this case.

 

 

Frank v. Walker

No. 11-cv-01128 (E.D. Wis. 2014); No. 14-2058 (7th Cir. 2014); 819 F.3d 384, No. 15-3582 (7th Cir., Jan. 26, 2016);

      Tag(s): Section 2 (Non-redistricting); Photo ID

 

Case Description: In 2011, Wisconsin passed an extremely strict voter ID law, requiring voters to present one of seven specific forms of photo identification in order to be able to vote. The law included no accommodation for voters who did not have or were unable to obtain one of the seven required forms of photo ID. Representing individual voters, the ACLU filed suit against the state challenging the law as racially discriminatory in violation of the constitution and the VRA. In April 2014, the District Court found for the plaintiffs, and issued an injunction against the law.

The state appealed to the Seventh Circuit, which granted a stay of the injunction, allowing the law to go into effect for the 2014 midterm elections. Plaintiffs filed an emergency application with the Supreme Court, which vacated the Seventh Circuit stay, in part because of the proximity of the midterm elections and because absentee ballots had already been distributed, without notice of the photo ID requirement.

Plaintiffs then appealed the Seventh Circuit decision to the Supreme Court, filing a petition for certiorari in January, 2015. After the Court declined to hear the case, plaintiffs filed for a permanent injunction in the District Court, asking the Court to order the state to modify the law to include additional forms of identification, and to allow voters without ID to vote by executing an affidavit affirming their identity and stating that they do not have and cannot reasonably obtain the required identification for voting. The plaintiffs also asked that the state be ordered to engage in voter education, to notify voters about the requirements of the photo ID law and how to obtain ID.

After an initial denial of the injunction, on remand from the Seventh Circuit the District Court found the photo ID law was unconstitutional as applied to individual voters who were unable to vote because they lacked the requisite photo ID. Soon after, a District Court judge ruled similarly in One Wisconsin Institute, Inc. v. Nichol, but imposed a more limited affidavit procedure than that ordered in Frank v. Walker. After the Seventh Circuit stayed the Frank injunction, the more limited injunction in One Wisconsin Institute governed during the November 2016 elections. 

 

Case Status: The parties cross-appealed to the Seventh Circuit, and briefing occurred through the end of 2016. The court heard oral argument on February 24, 2017. Decision is pending as of July 5, 2018.

 

CLC Position/InvolvementCLC is tracking this case.

 

Greater Birmingham Ministries v. Merrill

      No. 2:15-cv-02193-LSC (N.D. Ala. April 06, 2017).

      Tag(s): Section 2 of the VRA (non-redistricting); Photo ID.

 

Case Description: Plaintiffs the Greater Birmingham Ministries, the Alabama NAACP, and several individual voters challenged Alabama’s photo ID requirement for voting on the grounds that it violates Section 2 of the Voting Rights Act of 1965 and the Fourteenth Amendment because it was intended to and has the effect of discriminating against voters on the basis of race or color. The plaintiffs further alleged that the exemption to the photo id requirement for voters who can be “positively identified” by two election officials is an impermissible test or device under Section 201 of the Voting Rights Act.

Alabama passed its photo ID law in 2011, but did not seek to enforce the law until after the Supreme Court decided Shelby County. Before Shelby County, Alabama was under federal preclearance, meaning that changes to its voting laws needed to be approved by the DOJ or a federal judge in DC before going into effect, in order to ensure that they did not burden minority voters. The day after Shelby County was decided, Alabama announced it would begin enforcing its photo ID law for the 2014 election.

In 2015, Alabama went a step further by curtailing the hours and closing offices of Alabama DMV offices in nine majority black counties, eliminating black citizens’ access to both transportation services and the photo ID they were required to obtain in order to vote.

The NAACP Legal Defense Fund represents the plaintiffs in suing the state over the Photo ID requirements and the closure of DMV offices in majority-black counties. In December of 2016, the state entered into an agreement with the US Department of Transportation to restore the hours of the DMV offices, and to seek pre-approval from the DOT before closing or reducing services in other DMV offices. 

On April 6, 2017 the District Court denied the defendants’ motion to dismiss, finding that plaintiffs had plausibly alleged circumstantial evidence of discriminatory intent and effects, and that dismissal of fact-intensive allegations and claims would be inappropriate at the pleadings stage.

 

Case Status: On September 29, 2017, plaintiffs moved for partial summary judgment stating that there was no genuine dispute of material fact that there are statistically significant racial disparities in HB 19 ID possession rate and that plaintiffs are entitled to summary judgment on their claim that the “positively identify” provision is a requirement or a prerequisite to voting in violation of section 201 of the Voting Rights Act. Judge granted Secretary Merrill’s Motion for Summary Judgement. Plaintiffs Motion for Partial Summary Judgement was denied. The action was dismissed with prejudice.The case was appealed to the 11th Circuit. The 11th Circuit found in favor of the Defendants.

 

      CLC Position/Involvement: CLC filed an amicus brief on February 28, 2018 at the 11th Circuit in support of plaintiffs.

 

 

Lewis v. Alabama

      No. 2:16-cv-690-RDP (N.D. Ala. Feb. 1, 2017); No. 17-11009 (11th Cir.)

      Tag(s): Section 2 of the VRA (non-redistricting); Vote Dilution

 

Case Description: In 2015, the Birmingham City Council voted to raise the local minimum wage above the federal minimum wage. In response, state legislators adopted a law requiring the entire state to use the federal minimum wage, effectively overriding the decision of the duly elected city council in Birmingham to provide workers in the city with a higher minimum wage.

The Alabama NAACP, along with members of the Alabama Black Legislative Caucus and individual Birmingham residents, sued the state for intentionally discriminating against black voters under the Fourteenth Amendment and Section 2 of the Voting Rights Act of 1965 (VRA).   

The District Court dismissed the plaintiffs’ suit, holding that Alabama and its officials had immunity from a VRA challenge under the 11th Amendment grant of “sovereign immunity.” The court’s decision ignored the clear intent by Congress to override state sovereign immunity under the VRA, unanimous decades-long precedent holding that the VRA overrides sovereign immunity, and over one hundred years of Supreme Court precedent allowing suits against state officials regardless of sovereign immunity under Ex Parte Young.

 

Case Status: Plaintiffs have appealed the court’s decision to the Eleventh Circuit Court of Appeals.

 

CLC Position/Involvement: In partnership with the NAACP Legal Defense Fund, CLC filed an amicus brief in support of the plaintiffs, urging the Eleventh Circuit to correct the District Court’s failure to abide by the Supreme Court’s ruling in Ex Parte Young, and its failure to recognize that Congress abrogated state sovereign immunity by including a citizen-suit provision in the VRA. 

 

Ohio Organizing Collaborative v. Husted

No. 2:15-cv-1802 (S.D. Ohio)

Tag(s): Section 2 of the VRA (non-redistricting), Burden on the Right to Vote

Case Description: After the 2012 election, the Ohio legislature rolled back several voting initiatives in the state, including reducing early-voting time, limiting early voting locations to one per county, requiring periodic voter registration purges, decreasing the number of electronic voting machines per-voter each county using electronic voting must have on hand, making it more difficult to obtain, cast and count absentee and provisional ballots, and implementing wrong-precinct-voter rules that have the effect of treating voters in different counties differently. Plaintiffs the Ohio Organizing Collective along with individual voters challenged the newly restrictive voting regime as intentionally racially discriminatory and as having a discriminatory effect on minority voters.

Plaintiffs alleged that this package of voting changes was designed to and had the effect of diluting the ability of minorities to elect candidates of choice in violation of Section 2 of the Voting Rights Act, undermining the right to vote in violation of the First and Fourteenth Amendments and impermissibly discriminating against voters based on their partisan preferences in violation of the Fourteenth Amendment. The plaintiffs also allege that the restrictions on obtaining, casting and counting absentee and provisional ballots violate procedural due process requirements and that the disparate treatment of wrong-precinct voters violates the Fourteenth Amendment’s Equal Protection Clause under the Supreme Court’s decision in Bush v. Gore.

A month before plaintiffs filed their complaint in May 2015, Ohio settled a separate case (NAACP v. Husted) over the reduced hours for early voting, agreeing to reinstate an additional Sunday of voting for the 2016 Presidential election, and to expand early voting hours in the weeks leading up to the election. The increased hours, however, fell well short of the early voting opportunities Ohio had previously provided, and the settlement did not affect Ohio’s decision to prohibit individual jurisdictions from providing expanded early voting opportunities.

The case went to trial in late 2015, and in a lengthy opinion issued in May 2016, the District Court enjoined the reduction of early voting hours, but declined to find for the plaintiffs on the other issues. In June 2016, a separate District Court judge in NEOCH v. Husted found that the restrictions on absentee and provisional ballots violated the Equal Protection Clause and Section 2 of the VRA.

Ohio appealed the injunction against the reduction in early voting to the Sixth Circuit, which reversed the lower court’s ruling, arguing that it essentially applied a “one-way ratchet” to voting law.

 

Case Status: Plaintiffs filed for an emergency stay of the Sixth Circuit decision in the Supreme Court, but the application was denied on September 13, 2016, and the restrictions on early voting were in place during the November 2016 elections.

 

CLC Position/Involvement: CLC followed this case.  

 

One Wisconsin Institute, Inc. v. Thomsen

No. 15-cv-324 (W.D. Wisc.); Nos. 16-30-83, 16-3091 (7th Cir.)

Tag(s): Section 2 of the VRA (non-redistricting), Burden on the Right to Vote, Photo ID

 

Case Description: After the 2010 election, the Wisconsin legislature enacted a series of restrictive voting law changes, including reducing early-voting time, eliminating straight party-ticket voting, imposing new barriers to accessing absentee ballots, and implementing new voting registration restrictions, new residency requirements for voting and a new voter photo ID requirement.

Plaintiffs One Wisconsin Institute, along with individual voters, alleged that this package of voting changes diluted the ability of minorities to elect candidates of choice in violation of Section 2 of the Voting Rights Act, undermined the right to vote in violation of the First and Fourteenth Amendments, impermissibly discriminated against voters based on their partisan preferences in violation of the Fourteenth Amendment, intentionally discriminated against minority voters, and discriminated against young voters in violation of the Twenty-Sixth Amendment.

After Seventh Circuit rejected a separate, more limited challenge to the Wisconsin photo ID law in Frank v. Walker, plaintiffs filed this complaint on May 29, 2015. On July 29, 2016 the District Court found that while a facial challenge to the Photo ID law was precluded by Crawford v. Marion County and Frank v. Walker, the procedure for eligible voters unable to obtain a voter ID was unconstitutionally deficient and ordered the state to institute a remedial plan, including requiring the state to educate voters about their options if they do not possess the required photo ID.

The court further found that the restrictions on in-person absentee voting were intentionally discriminatory on the basis of race, in violation of the Constitution. Finally, the court found that the burden imposed by restricted in-person absentee voting, the new residency requirements, and restrictions on access to absentee ballots and the use of expired student IDs outweighed the interests asserted by the state in justification, and struck them down under the Anderson-Burdick.

In the intervening months before the 2016 election, the District Court declined to stay the bulk of its order, though allowed the state to wait to undertake fundamental reform of the procedures for votes without the required ID because an interim emergency remedy was in place for the upcoming election. The Seventh Circuit then denied Wisconsin’s emergency motion to stay the District Court’s order. After hearing reports about the deficiencies of the State’s implementation of the alternative procedures for voters without photo ID, plaintiffs filed a motion for additional relief. The District Court stepped in on October 13, 2016 and ordered the state to take further steps to implement the remedial procedures for votes without the required photo ID.

 

Case Status: Wisconsin appealed the District Court’s ruling to the Seventh Circuit court of appeals, which heard oral argument on February 24, 2017. As of August 8, 2018 a decision is still pending at the Seventh Circuit.

 

CLC Position/Involvement: CLC is tracking this case. The Institute for Public Representation at Georgetown University Law Center filed an amicus brief on behalf of Common Cause at the Seventh Circuit. Together with CLC and the American Constitution Society, the Institute for Public Representation helped launch the Voting Rights Institute, a project dedicated to providing resources for voters and voting rights litigators.

 

Veasey v. Abbott

No. 13-CV-00193 (S.D. Tex.), Nos. 14-41126 & 14-41127 (5th Cir.), No. 14A393 (U.S.)

     

Tag(s): Section 2 of the VRA (Non-redistricting); Photo ID

 

Case Description: In this lawsuit, various Texas citizens, civil-rights groups, and the United States all challenged Texas’s voter photo ID law, Senate Bill 14 (S.B. 14), under the Constitution and Section 2 of the Voting Rights Act of 1965. S.B. 14 requires voters to show one of several limited forms of state issued photo ID in order to vote and forces those lacking such ID to jump through many hoops to regain the franchise. Plaintiffs, including the Department of Justice, and plaintiff-intervenors made four claims, though not all plaintiffs and plaintiff-intervenors raise all claims. They argued that S.B. 14, the most restrictive voter ID law in the nation, (1) was passed with a racially discriminatory purpose; (2) has impermissible racially discriminatory effects; (3) violates the constitutional right to vote; and (4) constitutes a poll tax. The district court found in favor of the plaintiffs on all four claims and issued an injunction blocking enforcement of the photo ID law. The Fifth Circuit stayed that injunction pending appeal, and the Supreme Court refused to vacate that stay. The Fifth Circuit then heard argument on Texas’s merits appeal on April 28, 2015. After oral argument, Texas passed a bill purporting to reduce S.B. 14’s burdens by eliminating fees for election IDs, though the bill actually did little to reduce burdens for most affected voters.

In March 2016, with a decision from the Fifth Circuit still pending, plaintiffs again applied to the Supreme Court to vacate the stay in light of the upcoming Presidential election. The Supreme Court ordered that if the 5th Circuit’s full panel failed to decide the case by July 20, 2016, the high court would consider taking action on a request from Texas voters.

On July 20, the en banc 5th Circuit ruled in a 9-6 decision that Texas' discriminatory voter ID law violates the Voting Rights Act because it has a discriminatory effect, and that it could not be enforced as is for the 2016 presidential election. The Fifth Circuit declined to decide the question of whether S.B. 14 was passed with discriminatory intent, remanding to the District Court for further factual development.

For the November 2016 election, plaintiffs and plaintiff-intervenors entered into a joint agreement with Texas requiring the state to allow those who do not possess and cannot reasonably obtain a SB 14 ID to vote by signing a declaration stating their reasonable impediment.

In the meantime, Texas petitioned the Supreme Court for certiorari to appeal the 5th Circuit’s en banc decision finding SB 14 had a discriminatory effect. The petition was denied on January 23, 2017, but Chief Justice Roberts issued a statement about the interlocutory posture of the petition, and suggested the issues would be “better suited” for review after a final decision from the District Court.

After the change in administration in January, 2017 the Department of Justice withdrew its discriminatory intent claim. On April 10, 2017, after additional briefing and oral argument on the intent issue, and only a few days after granting the DOJ’s motion to withdraw its intent claim, the District Court found for a second time that SB 14 purposefully discriminated against black and Latino voters, and struck down the law as violating the Constitution and the Voting Rights Act.

While the District Court was determining whether to strike down SB 14 in its entirety, the Department of Justice, a plaintiff in the case, filed a brief at the remedy stage essentially supporting Texas.

On Aug. 24, 2017, the District Court issued an order that would permanently block Texas latest version of its voter photo ID law, SB 5, and found intentional discrimination. On September 5, a Fifth Circuit panel stayed the ruling. On September 8, plaintiffs moved for en banc review.The petition for en banc review was denied on October 10, 2017. Oral argument was held in the Fifth Circuit on December 5, 2017.

 

Case Status: The Fifth Circuit ruled against the challenge to the voter ID law on April 27, 2018, stating that the Texas legislature cured the problems with the original Voter ID law by passing amendments to it.

 

CLC Position/Involvement: Attorneys at CLC serve as co-counsel to the lead plaintiffs, including Congressman Marc Veasey and the League of United Latin American Citizens (LULAC). For more information on CLC’s work on this case, click here.

 

Indiana NAACP and League of Women Voters of Indiana v. Lawson

Tags: voter purges

Case Description: Plaintiffs have filed suit against Defendants for violation of the National Voter Registration Act (NVRA). The NVRA requires that states give notice to voters that the state intends to purge from the rolls. The state cannot purge voters from the rolls until the expiration of a waiting period. Yet, Indiana law SB 442 eliminates the notice requirement and the waiting period requirement.

Since 2015, Indiana has conducting voter purges using a system called Crosscheck  which is supposed to find voters who are registered in multiple states.  Crosscheck was found to have an error rate as high as 17 percent.  Not only is crosscheck error-prone, but is also racially discriminatory.  In Crosscheck, minorities are more likely to be flagged for removal than whites.

Case Status: Plaintiffs filed a complaint in the District Court for the Southern District of Indiana on August 23, 2017. They then moved for preliminary injunction of the law on March 9, 2018. The court granted Plaintiffs motion for preliminary injunction on June 8, 2018.

 

 

Other Voting Rights Cases

Hand v. Scott

No. 4:17-cv-00128-MW/CAS (N.D. Fla.)

Tag(s): Felony Disenfranchisement; 14th Amendment

Case Description: In April 2017, Florida citizens represented by the Fair Elections Legal Network challenged the constitutionality not of Florida’s policy of permanently disenfranchising all felons, but rather, the way in which it chooses which felons to re-enfranchise. In Florida, all felons are disenfranchised unless and until the Governor, with the assistance of an executive clemency board, restores their rights. Felons must wait 5 to 7 years before applying. Once they do apply, Florida law gives the Governor complete and total discretion as to whose rights to restore, when, and for what reason. If the Governor rejects an application, he may block the felon from reapplying for a period of any or indefinite length.

On February 1, 2018, Judge Mark Walker sided with Plaintiffs in finding that the system of absolute executive discretion and the lack of clear time limits in the process are unconstitutional, but ruled against plaintiffs in upholding the uniform 5-7 year wait period for the initial application. What made the former two counts constitutionally infirm and distinct from the later count, Walker ruled, was the potential for and likely existence of impermissible First Amendment viewpoint or racial bias. Walker noted one instance where the Governor restored the rights of a felon who had cast an illegal ballot, minutes after the felon told the Governor he had voted for him, while in five other instances, felons were rejected for casting an illegal ballot. Four of those five felons were black. In another instance, the Judge noted the Governor imposing a 50 year reapplication ban on a 54 year-old felon.

While the US Constitution explicitly allows a state to ban felons from voting, and while challenges to executive clemency are rare, Walker found that there are limits to how the state can pursue its reasonable interests. Noting that Florida could not choose to re-enfranchise only blue-eyed or six-foot felons, or only white felons, Walker ruled that the Florida system is arbitrary and capricious to an impermissible degree, and said it was “not a close question.”

 

Case Status: Judge Walker ordered Florida Executive Clemency Board to establish new voting rights restoration process using “specific and neutral criteria to direct vote-restoration decisions,” and “meaningful, specific, and expeditious time constraints” for the voting rights restoration processOn April 25, 2018, the Eleventh Circuit stayed the opinion of the lower court, saying that the state was likely to succeed on appeal. As a result, the Florida Executive Clemency Board is no longer required to establish a new voting rights restoration process.

 

Hooker v. Illinois State Board of Elections

No. 121077 (Ill. Aug. 25, 2016)

Tag(s): Redistricting; Independent Redistricting Commissions

 

Case Description: In May 2016, Support Independent Maps submitted an initiative petition to the Illinois Secretary of state proposing to amend the Illinois Constitution to remove the power to redistrict from self-interested legislators and invest it in an independent commission. The Illinois Constitution only allows for limited amendment by ballot initiative, and a separate interest group filed suit against the Illinois Board of Elections seeking to enjoin the Board from placing the initiative on the ballot, arguing it was outside the scope of permissible ballot initiatives.

An intermediate state court held for the plaintiffs, finding that the scope of the proposed initiative exceeded the permissible subjects recognized in the Illinois Constitution. Independent Maps, who intervened as defendants below, appealed to the Supreme Court of Illinois, which expedited review. The Court affirmed the lower court ruling, finding that the initiative imposed duties on a particular state official whose function was governed by a section of the Illinois Constitution not subject to amendment through the initiative process.

 

Case Status: The case was decided in favor of the plaintiffs on August 25, 2016 and the initiative proposal to create an independent redistricting commission was not on the ballot in the November 2016 election.

 

CLC Position/Involvement: CLC represented several civic organizations in filing an amicus brief asking the court to dismiss the plaintiffs’ motion and allow the amendment to be voted on by the people in November 2016.

 

Thompson v. Alabama

No. 2:16-cv-00783-WKW-CSC (M.D. Ala.)

Tag(s): Felony Disenfranchisement; Voter Registration; Section 2 of the Voting Rights Act (non-redistricting); Burden on the Right to Vote; 24th Amendment; Poll Tax

 

Case Description: Since 1901, the Alabama Constitution has barred people from voting if they are convicted of a crime of “moral turpitude.” The proponents of the “moral turpitude” standard at that time were quite clear that crimes of moral turpitude were crimes committed by black people, and that the adoption of the clause was intended to ensure white supremacy in Alabama politics. During the 1990s, after an earlier Supreme Court decision struck down the moral turpitude language as it relates to misdemeanors, Alabama reaffirmed that a felony conviction for a crime of moral turpitude barred a person from voting. Until May, 2017, however, the state refused to provide a comprehensive definition of “moral turpitude,” leaving it to individual county registrars to determine whether a person was disqualified on the basis of a felony conviction.

Alabama citizens, convicted of a felony of moral turpitude, who have completed parole and probation may apply for a Certificate of Eligibility to Vote (CERV) from the state, in order to restore their right to vote. But individuals are only eligible for rights restoration if they are able to pay all fines and restitution associated with their sentence. Thus, access to the right to vote turns on whether the applicant has the ability to pay their legal fines and fees, which leads to disparate results for similarly situate individuals based entirely on their financial means.

In September of 2016, CLC sued the state on behalf of several individual Alabama citizens, and the various classes of voters they represent. The complaint alleged that Alabama’s felon disenfranchisement law is intentionally discriminatory and has a disparate effect on minority voters in violation of Section 2 of the VRA, and the Fourteenth and Fifteenth Amendments to the Constitution, that it is overbroad in scope, and that the requirement that citizens pay fines and fees in order to restore their voting rights is an unconstitutional poll tax, in violation of the Fourteenth and Twenty-Fifth Amendment, and the Voting Rights Act. The complaint further alleged that Alabama’s failure to define “moral turpitude” rendered its felon disenfranchisement law unconstitutionally vague and resulted in an arbitrary and capricious system of enforcement.

As noted above, in May 2017 the Alabama legislature adopted a definition for “moral turpitude,” creating a conclusive list of crimes that result in the loss of the right to vote. As a result, thousands of eligible voters, who were previously informed by state officials that they were ineligible to vote on the basis of their conviction, are now able to exercise their fundamental right to vote. The law becomes effective on August 1, 2017, meaning it will be in effect for the August 15 special primary election for the US Senate.

In the wake of the new law, however, Alabama has refused to commit to taking several common sense steps to ensure that these voters are able to exercise their right to vote in the August primary election. These include posting the list of disqualifying crimes on the Secretary of State’s website, including it with voter registration forms, and reinstating voters whose voter registration applications were denied, or who were purged from the voter rolls on the basis of a non-disqualifying conviction.

The state filed a motion to dismiss. Plaintiffs responded in January, and the motion to dismiss is still pending with the court as of July 12, 2017. In the interim, the plaintiffs filed for a preliminary injunction, asking the Court to order the State to take remedial measures to ensure that voters wrongfully denied the right to vote by the State under the prior, unconstitutional standards, are able to register and exercise their right to vote in the August primary election. On July 28, the District Court denied the motion, stating that plaintiffs had failed on all factors for the issuance of a preliminary injunction.

 

Case Status: On September 28, the court issued an order granting the state’s motion to dismiss in part and denying it in part, with opinion to follow at a later date. On December 26, 2017 the court issued that opinion.

 

CLC Position/Involvement: Along with an incredible team of lawyers, CLC represents the individual and class-wide plaintiffs in the case. Read more about the plaintiffs and the background of the case here.

 

LULAC v Reagan

Case No. 2:17-cv-04102-DGC (D. Ariz.)

Tags: NVRA, Voter Registration

 

Case Description: In most states, when an individual wants to register to vote, they can fill out a state voter registration form or a federal voter registration form, and no matter which they fill out, they will be able to vote in state and federal elections. The process is easy and straightforward. But in Arizona, the voter registration system is far more confusing, resulting in tens of thousands of people who think they are registered to vote being disenfranchised when they try to vote. The difference is an additional proof of citizenship requirement and how Arizona chooses to enforce it. In Arizona, if a person wants to register to vote in both state and federal elections, they must attach specific documents – such as a birth certificate – proving citizenship.

 

Case status: On November 7, 2017, plaintiffs filed their complaint in US District Court for the District of Arizona.  On June 4, 2018, the parties entered into a settlement agreement. You can read more about that here.

 

Fair Districts Colorado Ballot Initiatives in Support of Independent  Redistricting Commissions

Colorado Supreme Court Case No. 2017SA292, 293, 294

Tags: Redistricting

 

Case Description: Fair Districts Colorado, a redistricting reform group, proposed a series of ballot initiatives that seek to establish independent redistricting commissions (IRCs) to draw Colorado’s state legislative and congressional district lines. The IRCs are designed to promote a more democratic process for Colorado redistricting, which happens every ten years with the census. In order to achieve this goal, the initiatives lay out criteria for drawing district lines meant to protect voters of color and to prevent one political party from unilaterally controlling the redistricting process. One such criterion calls for the protection of  communities of interest, defined as groups that share ethnic, cultural, economic, trade area, geographic, demographic, racial or linguistic ties.

CLC submitted a friend-of-the-court brief on Jan. 4, 2018 in support of those seeking to get the redistricting reform initiatives on the ballot. CLC’s brief outlines the importance of allowing IRCs to be advanced through ballot initiatives, especially where there is no incentive for incumbents to relinquish their control over redistricting.

 

Case Status: On February 2, 2018, the Colorado Supreme Court upheld the decisions of the Title Board and the validity of ballot questions #67, #68, and #69

 

League of Women Voters v. Detzner (N.D. Fla. 2018)

No. 4:18-cv-00251-MW-CAS

Tag(s): Discrimination against young voters

 

Case Description: On May 2018, the League of Women Voters filed suit on behalf of six college students against Florida’s Secretary of State Ken Detzner, seeking to overturn a 2014 legal opinion from his office, which found that college campuses did not meet the definition of “government-owned community centers,” and thus could not host early voting sites under Florida law. The students claim this places an unreasonable burden on their ability to vote, in terms of transportation and logistics. Also joining the case is Priorities USA, a Democratic political organization. The complaint was filed in Federal court in Tallahassee.

 

CLC v. DOJ

Case No. 1:18-cv-00340

Tag(s): FOIA

 

Case Description: In August 2017, Campaign Legal Center (CLC) received a series of documents in response to a FOIA request regarding the Pence-Kobach Commission. This response contained one particular email chain, which ended up in the private inbox of Attorney General Jeff Sessions, where a Heritage Foundation employee pushed back on naming a single Democrat to the Pence-Kobach Commission. In fact, he asked that no Democrats, academics, or moderate Republicans be appointed to the commission. The name of the person sending the email, those receiving it (besides the Attorney General), and the names of several people referenced were all redacted.

The author of the email was later revealed to be Hans von Spakovsky. Subsequent to sending the email, von Spakovsky was appointed to the commission.

The clear precedent is that these emailers had no interest of privacy retained in their names because they were dealing with the government in their business capacities and, in any event, the significant public interest in knowing who exerts this sort of influence over high level administration officials making important staffing decisions outweighs any privacy considerations. However, the other redacted names were never revealed. That is why CLC has taken the action of suing the Department of Justice (DOJ) to release this information to the public, who can be better prepared to defend against voter suppression if they know its source. CLC’s complaint can be viewed here.

 

Case Status: Briefing is complete on motion for summary judgment, decision is pending.