Justice Dept. Weigh in on Ohio, Wisconsin Voting Rights Cases

The Justice Department weighed in formally Wednesday in pending voting rights litigation involving Wisconsin's voter identification law and Ohio's election practices.

In April, a federal judge blocked enforcement of the Wisconsin law.  That decision is now on appeal to the 7th Circuit U.S. Court of Appeals, where the Justice Department filed an amicus brief Wednesday urging the appeals court to uphold the ruling striking down the Wisconsin measure.

The Ohio case, involving challenges to state efforts to curtail early voting and limit same-day registration, is still awaiting a decision in the district court.  The Justice Department lawyers filed a "statement of interest" in that case that doesn't explicitly stake out a position on the key issues, but does say Ohio is misinterpreting its duties under the Voting Rights Act.

"These filings are necessary to confront the pernicious measures in Wisconsin and Ohio that would impose significant barriers to the most basic right of our democracy."

"These two states' voting laws represent the latest, misguided attempts to fix a system that isn't broken."

"The Justice Department will never shrink from our responsibility to protect the voting rights of every eligible American."

"We will keep using every available tool at our disposal to guard against all forms of discrimination, to prevent voter disenfranchisement, and to secure the rights of every citizen."

Attorney General Eric Holder said in a statement.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Restoring Felons' Voting Rights

This post is from an article in Politico by JOSH GERSTEIN.

People convicted of felonies should not forever lose their right to vote, according to Attorney General Eric Holder.

In remarks prepared for delivery at todays criminal justice conference at the Leadership Council on Civil and Human Rights Criminal Justice Forum at Georgetown law school, Holder takes aim at state laws which strip voting rights from those convicted of serious crimes.

CLICK HERE for information about the conference.

"It is time to fundamentally rethink laws that permanently disenfranchise people who are no longer under federal or state supervision, these restrictions are not only unnecessary and unjust, they are also counterproductive.  By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood they will commit future crimes."  Holder will say.

Holder also plans to note that felon disenfranchisement laws ban almost one in 13 African Americans from voting and, in states like Florida, Kentucky and Virginia, as many as one in five black adults have been stripped of voting rights.

"However well-intentioned current advocates of felony disenfranchisement may be – the reality is that these measures are, at best, profoundly outdated," Holder is to say.  "At worst, these laws, with their disparate impact on minority communities, echo policies enacted during a deeply troubled period in America’s past – a time of post-Civil War discrimination.  And they have their roots in centuries-old conceptions of justice that were too often based on exclusion, animus, and fear."

Mr. GERSTEIN notes:

Holder has been stepping up his public advocacy on various issues in recent months, including reform to the criminal justice system.  He's pressing to rein in the use of mandatory minimum sentences, particularly for drug crime, and is encouraging some federal inmates to apply for presidential commutations.  Such actions would surely have caused a stir during the tough-on-crime 1990s, Holder's recent moves have encountered little public or political resistance.  In fact, some Republicans are supporting shorter sentences for some offenders, in part due to huge prison costs federal and state governments are incurring.

CLICK HERE for a State by State Chart of Felon Voting Laws.










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Michael H. Drucker
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Justice Dept. Starts VRA Bail-In for TX

Attorney General, Eric Holder, delivered remarks at the National Urban League Annual Conference.

"Today I am announcing that the Justice Department will ask a federal court in Texas to subject the State of Texas to a preclearance regime similar to the one required by Section 5 of the Voting Rights Act. This request to “bail in” the state – and require it to obtain “pre-approval” from either the Department or a federal court before implementing future voting changes – is available under the Voting Rights Act when intentional voting discrimination is found. Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder – as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized – we believe that the State of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices.

This is the Department’s first action to protect voting rights following the Shelby County decision, but it will not be our last. Even as Congress considers updates to the Voting Rights Act in light of the Court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to ensure that the voting rights of all American citizens are protected. My colleagues and I are determined to use every tool at our disposal to stand against discrimination wherever it is found. But let me be very clear: these remaining tools are no substitute for legislation that must fill the void left by the Supreme Court’s decision. This issue transcends partisanship, and we must work together. We cannot allow the slow unraveling of the progress that so many, throughout history, have sacrificed so much to achieve. And, in our broader efforts, we will continue to look far beyond America’s ballot boxes – to our schools, military bases, and border areas; our immigrant communities, our criminal justice system, and even our workplaces – in order to advance the fight for equality and against injustice."

On June 26, Texas Congressman Marc Veasey, who is African-American, and eight other plaintiffs filed a new lawsuit against the Texas photo-ID law for voters at the polls, Veasey v Perry, 2:13-cv-193, southern district. Some of the plaintiffs are voters who lack the approved forms of ID. Others have state ID but the name on the voter’s ID and the name of the voter on the voter registration rolls don’t exactly match and the voter has not been able to resolve the problem.

If approved under Section 3, Texas would fall under preclearance for 10 years. They would have to prove, at a later date, using the Bail-Out option, documentation for the court that they corrected their voting rights problems.

Other states where Section 2 could come into play:

1. Mississippi: The state legislature approved a voter ID scheme in 2012, but it has not received DOJ clearance. Despite the restrictions, Mississippi’s secretary of state said they would proceed with implementing the voter ID law and that “We’re not the same old Mississippi that our fathers’ fathers were.“

2. Alabama: In 2011, the state passed a law requiring photo ID to vote, but never cleared it with the DOJ. Both the attorney general and the secretary of state said they believed their plans could now be implemented in time for the 2014 elections.

3. Arkansas: In April, the Arkansas legislature overrode Democratic Gov. Mike Beebe’s veto to pass their voter ID legislation. With preclearance out of the way, the state law can now be implemented without DOJ review.

4. South Carolina: The Palmetto State passed a similar voter ID law in 2012, but DOJ at least succeeded in delaying its implementation. South Carolina’s attorney general issued a statement following the decision, lauding the Court for allowing the preclearance states to “implement reasonable election reforms, such as voter ID laws similar to South Carolina’s.”

5. Virginia: Unlike several of the other states, Virginia’s voter ID plan was not scheduled to be implemented until July 2014 anyway. But unless Congress replaces the preclearance formula before then, Virginia will also likely be able to move forward with its plan.

6. Alaska, which just had its own voter ID law struck down, has not moved to restrict the right to vote in less than two days since the ruling.

7. Arizona, which just had its own voter ID law struck down, has not moved to restrict the right to vote in less than two days since the ruling.

8. Georgia, whose own voted ID law was likely ruled unconstitutional, has not moved to restrict the right to vote in less than two days since the ruling.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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City of Wheatland, CA Bails-Out of Section 5

The Justice Department announced that it has reached an agreement with the City of Wheatland, Calif., that, if approved by the court, will allow it to bail out from its status as a “covered jurisdiction” under the special provisions of the Voting Rights Act, and thereby exempt the city from the preclearance requirements of Section 5 of the Voting Rights Act. Wheatland is located in Yuba County, Calif., which is a jurisdiction subject to Section 5. The agreement is in the form of a consent decree filed today in the U.S. District Court for the District of Columbia.

The City of Wheatland filed its bailout action in the U.S. District Court for the District of Columbia on Jan. 14, 2013. City officials had contacted the attorney general prior to filing its action, indicating that the City was interested in seeking a bailout. The city provided the Justice Department with substantial information, and the department conducted an investigation to determine the city’s eligibility. Based on that investigation, the department is satisfied that the city of Wheatland meets the Voting Rights Act’s requirements for bailout.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Supreme Court and Voting Rights

In Shelby County v. Holder, which the Supreme Court will hear this month, the issue is whether Section 5 of the Voting Rights Act remains necessary to prevent racially biased voting laws in nine states and part of seven others with egregious histories of discrimination against minority voters.

Under Section 5 of the Voting Rights Act, certain covered jurisdictions, determined according to Section 4 of the act, are required to seek preclearance for any changes in voting qualifications, standards, practices or procedures from the U.S. District Court for the District of Columbia, or from the U.S. Attorney General, prior to their implementation.

Section 4 of the act provides that a covered jurisdiction may seek to “bail out,” or remove itself from such coverage, and therefore be exempted from the preclearance requirements, by seeking a declaratory judgment before a three-judge panel in U.S. District Court for the District of Columbia. A bailout judgment can be issued only if the court determines that the jurisdiction meets certain eligibility requirements for bailout contained in the statute, including a 10-year record of nondiscrimination in voting-related actions. The act also provides that the attorney general can consent to entry of a judgment of bailout only if, based upon investigation, the attorney general is satisfied that the jurisdiction meets the eligibility requirements.

In Shelby, the district court noted that DOJ had objected in 2008 to an annexation of the city of Calera, a “governmental unit” within Shelby County, and that Shelby County held several special elections under one county ordinance that had not been submitted to DOJ for preclearance. DOJ asked the court for six months of discovery to investigate Shelby County’s eligibility for bailout. The court denied the request and permitted no discovery into the eligibility question.

Justice wants to be able to get up before the Supreme Court in the Shelby County case and show that an entire state was able to bail out of Section 5. They want to argue that there is a viable way out for covered jurisdictions, including states, and that therefore the Supreme Court should not decide the constitutional issue.

Last year, The Justice Department announced that it has reached an agreement with the Browns Valley Irrigation District, a special district in California, that will allow for the district to bail out from its status as a “covered jurisdiction” under the special provisions of the Voting Rights Act, and thereby exempt the district from the preclearance requirements of Section 5 of the Voting Rights Act. The district covers part of Yuba County, which is a jurisdiction subject to Section 5. The agreement is in the form of a consent decree filed in the U.S. District Court for the District of Columbia.

With all the attempts of Voter ID laws and gerrymandering, and with the bailout option of Section 4, we need the entire United States to be under Section 5.

There is another part of Section 4 that allows the voters to partition for the Justice Department to examine a bailout county or state and see if they have failed a bailout, and if proven, put them back on preclearance.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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IL and Justice Dept. Agreement on Miltary Ballots for Special Elections

The Justice Department announced that yesterday it reached an agreement with Illinois officials to help ensure that military service members, their family members and other U.S. citizens living overseas have an opportunity to participate fully in the upcoming Feb. 26, 2013, special primary election, and the April 9, 2013, special election to fill a vacated seat in the state’s 2nd Congressional District. The agreement is necessary to ensure Illinois’s compliance with the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) as amended by the 2009 Military and Overseas Voter Empowerment Act (MOVE Act).

The agreement, filed yesterday evening, which must be approved by the federal district court in Chicago, requires that by Jan. 15, 2013, the state will ensure expedited transmittal of ballots for the special primary election to UOCAVA voters who have requested them by that date. The agreement also requires that by Jan. 31, 2013, the state will resolve any candidate petition challenges and ensure expedited notice to UOCAVA voters of the final list of candidates for the special primary election. The voted ballots must be postmarked by Feb. 25, 2013, and received by March 6, 2013, to be counted in the special primary election.

The agreement also requires that by March 8, 2013, the state will ensure expedited transmittal of ballots for the April 9, 2013 special election to all UOCAVA voters who have requested them. Under Illinois law, the voted ballots must be postmarked by April 8, 2013, and received by April 23, 2013 to be counted in the special election.

In addition, for both the special primary election and the special election, the state will provide all UOCAVA voters the option of returning their marked ballots by email, fax or express mail at no expense to the voter.

“This agreement reflects this department’s continued and resolute commitment to ensure that members of our armed forces, their families and overseas citizens are offered a full and meaningful opportunity to vote in all federal elections, including special elections scheduled to fill vacated seats,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “I am pleased that we are able to reach this agreement with Illinois officials, which will ensure that these voters can fully participate in the state’s upcoming special primary election and special election.”










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Michael H. Drucker
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DOJ Must Reimburse South Carolina for Voter ID Case

A federal court has ruled that South Carolina was the prevailing party in the unnecessary Voter ID litigation, and therefore the Justice Department is liable for paying the state’s costs.

South Carolina spent $3,500,000 to obtain federal court approval of the state’s Voter ID law as non-discriminatory under the Voting Rights Act.

The lawsuit was made necessary because of the delays of Assistant Attorney General Tom Perez and his deputy Matthew Colangelo.

South Carolina Attorney General Alan Wilson’s office was quick to respond to the court’s ruling late yesterday:

"The state Attorney General’s Office blamed the U.S. Department of Justice for the high cost of the case. They accused the federal government of delaying the case by 120 days by filing numerous frivolous motions, including challenging the 12-point font size on a document the state filed."

“The Department of Justice in Washington, D.C., bears responsibility for the litigation costs,” said Mark Powell, Wilson’s spokesman. “The decision was so emphatic, even the Department of Justice and Interveners did not appeal it. South Carolina was forced to pay a hefty price because a handful of Washington insiders refused to do the right thing.”

Whether Congress will hold Perez and Colangelo accountable remains to be seen. Members of Congress, including Senator Lindsey Graham, have already demanded that Perez turn over all the documents in the case. So far, Graham has not received what he has asked for, though he may already possess the documents from other sources.










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Michael H. Drucker
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CA Special District Bails Out of Section 5 of the Voting Rights Act

The Justice Department announced that it has reached an agreement with the Browns Valley Irrigation District, a special district in California, that, if approved by the court, will allow for the district to bail out from its status as a “covered jurisdiction” under the special provisions of the Voting Rights Act, and thereby exempt the district from the preclearance requirements of Section 5 of the Voting Rights Act. The district covers part of Yuba County, which is a jurisdiction subject to Section 5. The agreement is in the form of a consent decree filed today in the U.S. District Court for the District of Columbia.

Under Section 5 of the Voting Rights Act, certain covered jurisdictions, determined according to Section 4 of the act, are required to seek preclearance for any changes in voting qualifications, standards, practices or procedures from the U.S. District Court for the District of Columbia, or from the U.S. Attorney General, prior to their implementation. Section 4 of the act provides that a covered jurisdiction may seek to “bail out,” or remove itself from such coverage, and therefore be exempted from the preclearance requirements, by seeking a declaratory judgment before a three-judge panel in U.S. District Court for the District of Columbia. A bailout judgment can be issued only if the court determines that the jurisdiction meets certain eligibility requirements for bailout contained in the statute, including a 10-year record of nondiscrimination in voting-related actions. The act also provides that the attorney general can consent to entry of a judgment of bailout only if, based upon investigation, the attorney general is satisfied that the jurisdiction meets the eligibility requirements.

The Browns Valley Irrigation District filed its bailout action in the U.S. District Court for the District of Columbia on Sept. 26, 2012. District officials had contacted the attorney general prior to filing its action, indicating that the district was interested in seeking a bailout. The district provided the Justice Department with substantial information, and the department conducted an investigation to determine the district’s eligibility. Based on that investigation, the department is satisfied that the district meets the Voting Rights Act’s requirements for bailout.

“In this case, the department carefully evaluated the information provided by the district, and conducted its own investigation, which has satisfied us that the district is eligible for bailout,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “I appreciate the cooperation of district officials in providing the department with information that we have requested, and in moving toward a resolution of this matter in the way envisioned by the Voting Rights Act.”










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Michael H. Drucker
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Justice Department at the George Washington University Law School Symposium

Assistant Attorney General Perez spoke at the George Washington University Law School Symposium on Friday, November 16, 2012. He discussed the Civil Rights Division’s work to protect the fundamental civil right that is the lifeblood of our democracy: the right to vote.

Some of the changes addressed what we can do both to protect the right to vote, and to improve the voting process:

1. Ensure that every eligible person entering a social service office can register to vote.

2. It should be the government’s responsibility to automatically register citizens to vote, by compiling, from databases that already exist, a list of all eligible residents in each jurisdiction. Of course, these lists would be used solely to administer elections and would protect essential privacy rights.

3. Election officials should work together to establish a program of permanent, portable registration – so that voters who move can vote at their new polling place on Election Day. Until that happens, we should implement fail-safe procedures to correct voter-roll errors and omissions, by allowing every voter to cast a regular, non-provisional ballot on Election Day. Several states have already taken this step.

4. Same-day registration is a reform we should be considering seriously – it would both facilitate election administration and promote electoral participation. For the 2012 election, eight states plus the District of Columbia had same-day registration in place. (Two more states have recently enacted it and will implement it next year – California, and Connecticut.) And we know that it increases participation: in both the 2008 and 2010 general elections, each of the eight states with same-day registration had higher turnout of the voting-eligible population than the national average. In fact, for the 2008 presidential election, five of the six states with the highest turnout in the country were states with same-day registration. Preliminary turnout estimates for the 2012 election show that this pattern will likely continue.

5. Voter fraud is not acceptable. But we also need to reform deceptive election practices and dishonest efforts to prevent certain voters from casting their ballots. Over the years, we’ve seen all sorts of attempts to gain partisan advantage by keeping people away from the polls – from literacy tests and poll taxes, to misinformation campaigns telling people that Election Day has been moved, or that only one adult per household can cast a ballot. Senators Schumer and Cardin recently introduced legislation that would deter and punish such harmful practices. This bill has sparked and helped to advance a critically important dialogue across – and beyond – Capitol Hill.

6. Provisional ballots - In some states and elections, large segments of the electorate are required to cast a provisional ballot instead of a regular ballot on election day, for any of a number of reasons. The Justice Department will be considering whether we need to propose concrete solutions, such as national standards for counting provisional ballots for federal elections, to ensure that voters are not disenfranchised by moves close to an election, by appearing in the wrong polling place or precinct, or by poll worker errors.

7. It’s time to rethink our largely partisan system of state and local election administration. We risk leaving our election processes open to partisan mischief – or to the perception of such mischief. We should have a serious conversation about solutions to this risk, including developing an entirely professionalized and non-partisan system for administering our elections.

The Supreme Court agreed last week to hear a challenge to Section 5 of the Voting Rights Act this term, in the lawsuit filed by Shelby County, Alabama. The Justice Department is looking forward to demonstrating to the Court both that the statute is still constitutional and still has critically-important work to do. Section 5 is a linchpin of the Voting Rights Act, and is directed at specific areas where discrimination historically was deeply rooted. Under that important provision, certain “covered jurisdictions” are prevented from altering their voting practices until it can be determined that any proposed changes would have neither a discriminatory purpose nor effect. This process, known as “preclearance,” has been a powerful tool in combating discrimination for decades. And it has consistently enjoyed broad bipartisan support – including in its most recent re-authorization, when President Bush and an overwhelming and bipartisan Congressional majority came together in 2006 to renew the Act’s key provisions and extend it until 2031.

The reality is that – in jurisdictions across the country – both overt and subtle forms of discrimination remain all too common – and have not yet been relegated to the pages of history. In just the past few months we’ve seen numerous vivid examples of the continuing salience of the VRA.

Section 5 continues to play an important prophylactic role, encouraging non-discriminatory voting practices at the outset. In many of the Section 5 covered states, for example, the statewide redistricting process following the release of the decennial census data in this cycle began with a decision to identify the existing ability-to-elect districts, and to protect the ability of minority voters to elect their candidates of choice in those districts. And at the more local level, one county in Texas recently withdrew a preclearance submission involving polling place changes after DOJ requested more information on the reasons for the change. The County planned to move the polling place from a school to a private club. The school had been agreed upon in earlier litigation as a compromise polling place location within the county, while the club had been a historically segregated organization. In our request for more information, we explained that our investigation had identified concerns that the use of the proposed polling place could discourage minority voters from turning out to vote. The County withdrew the submission after that request. As Congress recognized in 2006, and as the D.C. Circuit recently agreed, these kinds of examples are further evidence that Section 5 promotes compliance by covered jurisdictions.

At the same time, the statute has very effectively been used to allow covered jurisdictions to “bail out” when they demonstrate a history of compliance. Our bailout work has increased dramatically since the Supreme Court’s decision in Northwest Austin. Since the current bailout provision became effective in 1984, bailout has been granted in 36 cases. Fully half of those bailouts have been granted since the Supreme Court’s decision in Northwest Austin. Several more cases are pending now, including a bailout lawsuit filed by the State of New Hampshire. The effectiveness of the bailout mechanism further demonstrates that Section 5 is proportionate to the harms it is aimed at eliminating. In short, Section 5 continues to be necessary, and our bailout work illustrates that it is not over-inclusive.

The Department of Justice will continue, whether through enforcement and litigation, or through legislation and policy measures to expand the democratic process to all eligible participants.










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Michael H. Drucker
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Counties in VA Bail Out of VRA's Section 5

The Justice Department announced that it has reached agreements with Carroll County and Craig County, Va., that will allow the counties and their political subdivisions to bail out from their status as “covered jurisdictions” under the special provisions of the Voting Rights Act, and thereby exempt these jurisdictions from the preclearance requirements of Section 5 of the Voting Rights Act.

Under Section 5 of the Voting Rights Act, certain covered jurisdictions, determined according to Section 4 of the act, are required to seek preclearance for any changes in voting qualifications, standards, practices or procedures from the U.S. District Court for the District of Columbia or from the U.S. Attorney General, prior to their implementation. Section 4 of the act provides that a covered jurisdiction may seek to “bail out,” or remove itself from such coverage, and therefore be exempted from the preclearance requirements, by seeking a declaratory judgment before a three-judge panel in U.S. District Court for the District of Columbia. A bailout judgment can be issued only if the court determines that the jurisdiction meets certain eligibility requirements for bailout contained in the statute, including a 10-year record of nondiscrimination in voting-related actions. The act also provides that the attorney general can consent to entry of a judgment of bailout only if, based upon investigation, the attorney general is satisfied that the jurisdiction meets the eligibility requirements.

Carroll County and Craig County filed these bailout actions in the U.S. District Court for the District of Columbia on July 17, 2012, and July 18, 2012, respectively. Counsel for both counties contacted the attorney general prior to filing the action, indicating that the counties were interested in seeking a bailout. Both counties provided the Justice Department with substantial information, and the department conducted an investigation to determine their eligibility. Based on that investigation, the department is satisfied that both Carroll and Craig counties meet the Voting Rights Act’s requirements for bailout. “In the department’s view, Carroll County and Craig County have met the requirements necessary for bailout. We reached this conclusion after thoroughly reviewing information provided by the counties and gathered during the department’s independent investigation,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “I commend the counties on their cooperation to ensure resolution of this matter.”










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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