Wisconsin’s Voter ID Law Fight

A federal judge struck down the state's Voter ID law.  In a lawsuit brought by Advancement Project and pro bono law firm Arnold & Porter, they showed that, in burdening the right to vote for Wisconsin’s African-American and Latino citizens, the measure violated Section 2 of the Voting Rights Act (VRA).  In his decision, the judge also rejected the state’s argument that a voter ID law was needed, stating that allegations of voter fraud have absolutely no merit.

The Wisconsin victory marked the first time a voter ID law has been defeated under Section 2, which prohibits voting practices that discriminate on the basis of race.  That’s especially important since one year ago this week, in its Shelby County v. Holder decision, the U.S. Supreme Court gutted the provision (Section 5) of the VRA which required federal pre-approval of voting changes in jurisdictions with a history of discriminatory practices.

On the one-year anniversary of the Supreme Court’s Shelby decision, we are reminded of how much we lost.  Fighting voter suppression laws under Section 2, as done in Wisconsin (a state that had not been previously covered by Section 5) requires taking states to court and proving that their voting laws are discriminatory.  It places the burden on voting rights attorneys and communities of color, and it places tremendous pressure on litigation, which involves vast amounts of resources and time.

Instead of accepting the judge’s decision, the state of Wisconsin is fighting tooth and nail to keep these discriminatory laws on the books.  Last month, state officials appealed the judge’s order, filing with the 7th Circuit Court of Appeals to overturn the ruling.  Now Advancement Project and their law firm face a drawn-out legal battle over the issue, with another set of court arguments expected in the coming months.

It’s unfortunate that Wisconsin officials are using limited state resources in a desperate attempt to defend an unnecessary and racially discriminatory voting measure.

This legal battle is intended to keep partisan politicians in power by restricting the votes of people of color.  The casualties of this war on voting rights will be older African Americans born in the rural South when it was not common to record Black births; people unable to afford time off from work to make it to Wisconsin’s limited DMV offices, which are only open on weekdays and mostly during daytime hours; and the hundreds of thousands of Wisconsin voters, disproportionately voters of color, who lack the required form of voter ID.

What happens next in the state has implications for the entire country.  As the leading democracy in the world, it is our responsibility to ensure states do not enact laws that obstruct the inalienable right to vote.  This is why we should all be watching Wisconsin.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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One Year After The Voting Rights Act Was Gutted

A year ago today, in a 5-to-4 ruling on Shelby County v. Holder, the Supreme Court invalidated a key provision of the Voting Rights Act.  Jurisdictions with histories of racial discrimination subject to preclearance, or special review by the Justice Department or a federal court before enforcing any new voting laws, were now free to legislate as the wished.

Though the conservative Justices may disagree, voting discrimination is not largely a thing of the past.  Since 2010, nearly two-thirds of the states previously covered under Section 5 of the VRA, nine of fifteen, have passed new voting restrictions.

And between 2000 and June 2013, there were 148 Section 5 objections or other VRA violations recorded in 29 states, mostly concentrated in the South.



Meanwhile, Congress which voted to renew the Voting Rights Act in 1970, 1975, 1982, and 2006, each time with increasingly larger margins, has yet to fix it this time around.

The Senate has introduced the Voting Rights Amendment Act.  In the House, it has languished.  House Judiciary Committee Chairman Bob Goodlatte apparently thinks that a fix to the Supreme Court’s Shelby decision is not needed.

BOTTOM LINE: Last year, the Supreme Court ruled that we no longer need the Voting Rights Act.  Today offers a good opportunity to remind them, and the legislators dragging their feet in Congress, that we do.  States continue to pass laws designed to erect barriers to voting and suppress voter turnout, often targeted disproportionately at minority communities.  There may no longer be literacy tests or poll taxes, but the modern voting restrictions are just as insidious and we need strong federal protections to prevent states from enacting them.

The best way to handle this is during the census.  Every ten years during the census all states are put on preclearance.  Under the law, a jurisdiction can get out from under Sections 4/5 if it can show a ten-year record of non-discrimination, so they get 90 days to file their bailout 10 year record.  After the Justice Department review, the preclearance map will change.  This will then affect those states put on preclearance when they file their redistricting maps.

The key to this concept is the creation to an independent review board to modify the Section 5 rules to keep up with future voter suppression laws.

The current laws are:

1. The first element in the formula was that the state or political subdivision of the state maintained on November 1, 1964, a "test or device," restricting the opportunity to register and vote.

2. The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964.

3. Proof that any proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group.

4. In 1970, Congress adopted an additional coverage formula, identical to the original formula except that it referenced November 1968 as the date to determine if there was a test or device, levels of voter registration, and electoral participation.

5. In 1975, the special provisions of the Voting Rights Act were broadened to address voting discrimination against members of "language minority groups."  An additional coverage formula was enacted, based on the presence of tests or devices and levels of voter registration and participation as of November 1972.  In addition, the 1965 definition of "test or device" was expanded to include the practice of providing election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age.

So we need to expand the formula to include new voter I.D. laws, reductions in early voting, and any other laws that state's can come up with in the future.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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My Option for the Supreme Court Voting Rights Case

Today, the Supreme Court keep the Voting Rights Act but required a new coverage formula. In a 5-4 ruling that split the court along ideological lines, the court freed some or all of 15 states from the requirement that all changes to voting laws, procedures and even polling place locations get advance approval from the Justice Department or a panel of federal judges.

The formula for coverage under Section 4 of the Voting Rights Act

As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote. The Act's definition of a "test or device" included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.

The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state itself and all political subdivisions of the state are subject to the special provisions. In "partially covered" states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.

In 1970, Congress recognized the continuing need for the special provisions of the Act, which were due to expire that year, and renewed them for another five years. It added a second prong to the coverage formula, identical to the original formula except that it referenced November 1968 as the relevant date for the maintenance of a test or device and the levels of voter registration and electoral participation. This addition to the formula resulted in the partial coverage of ten states, including Alaska, Arizona, California, Connecticut, Idaho, Maine, Massachusetts, New Hampshire, New York, and Wyoming. Half of these states (Connecticut, Idaho, Maine, Massachusetts, and Wyoming) filed successful "bailout" lawsuits.

In 1975, the Act's special provisions were extended for another seven years, and were broadened to address voting discrimination against members of "language minority groups," which were defined as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." As before, Congress expanded the coverage formula, based on the presence of tests or devices and levels of voter registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was expanded to include the practice of providing any election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age. This third prong of the coverage formula had the effect of covering Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota.

In 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it. In 2006, the coverage formula was again extended for 25 years. Section 4, along with those other sections that are dependent upon it, such as Section 5 and 8, will expire in 2031.

The best way to handle this is during the census. Every ten years during the census all states are put on preclearance. Under the law, a jurisdiction can get out from under Sections 4/5 if it can show a ten-year record of non-discrimination.

They then file their bailout 10 year record. After the Justice Department review, the preclearance map will change. This will then affect each state when they file their redistricting maps.

With all the current laws making it harder for some to vote, I would like to see voters use the part of Section 4 that allows them 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.

From Ballot Access News:

"Since it is not likely that Congress will re-write section four, the practical impact of today’s decision will be to increase the number of lawsuits. Section two of the act has not been limited in any way. It gives the U.S. Justice Department authority to sue any state or other jurisdiction that has an election law or practice that results in racial discrimination in voting. The number of such lawsuits will probably increase, because the new laws and practices that lead to such lawsuits will increase without the pre-clearance law in effect."










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Another Opinion on Shelby County v. Holder

Yesterday, the Supreme Court held oral arguments on the constitutionality of two key sections of the Voting Rights Act of 1965, in the case of Shelby County v. Holder (docket 12-96). Shelby County urged the Court to strike down those provisions and was argued by Bert W. Rein of the Washington, D.C., law firm of Wiley Rein LLP. Dividing time in defense of the law was the U.S. Solicitor General, Donald B. Verrilli, Jr. and Debo P. Adegbile, an attorney with the NAACP Legal Defense Fund in New York City, representing individual voters and other private defenders of the law.

I just listened to the oral arguments, CLICK HERE to listen on C-SPAN.

During the session, the question of making all of the states part of Section 5 (preclearance) was asked a few times. So here is my answer.

Every ten years we have the Census, and then perform redistricting. We should also use this process to do a preclearance test for all the states. We basically do an opt-in and then evaluate the last ten years and bailout those states that pass.

States and districts could still ask for a bailout during the 10 year window using the following criteria:

Section 4 provides that a jurisdiction may terminate or "bailout" from coverage under the Act's special provisions. The amendment, which took effect on August 5, 1984, establishes an "objective" measure to determine whether the jurisdiction is entitled to "bailout".

A jurisdiction seeking to "bailout" must seek a declaratory judgment from a three-judge panel in the United States District Court for the District of Columbia. The successful "bailout" applicant must demonstrate that during the past ten years:

•No test or device has been used within the jurisdiction for the purpose or with the effect of voting discrimination

•All changes affecting voting have been reviewed under Section 5 prior to their implementation

•No change affecting voting has been the subject of an objection by the Attorney General or the denial of a Section 5 declaratory judgment from the District of Columbia district court

•There have been no adverse judgments in lawsuits alleging voting discrimination

•There have been no consent decrees or agreements that resulted in the abandonment of a discriminatory voting practice

•There are no pending lawsuits that allege voting discrimination

•Federal examiners have not been assigned

•There have been no violations of the Constitution or federal, state or local laws with respect to voting discrimination unless the jurisdiction establishes that any such violations were trivial, were promptly corrected, and were not repeated

• The jurisdiction must have eliminated those voting procedures and methods of elections that inhibit or dilute equal access to the electoral process. It also must demonstrate that it has made constructive efforts to eliminate intimidation and harassment of persons seeking to register and vote and expand opportunities for voter participation, such as opportunities for registration and voting, and to appoint minority officials throughout the jurisdiction and at all levels of the stages of the electoral process. The jurisdiction must also present evidence of minority electoral participation.

• These requirements apply to all governmental units within the geographical boundaries of the jurisdiction. Thus, if a county is seeking to "bailout", it must establish each criteria for every city, town, school district, or other entity within its boundaries.

The Attorney General is also authorized to consent to an entry of judgment granting the "bailout" if the Attorney General concludes after investigation that the jurisdiction has complied with all of these requirements.

Prior to actually filing a petition with the District of Columbia court, any jurisdiction interested in seeking "bailout" may submit a request to the Attorney General with supporting documentation and evidence. Upon receipt, the Voting Section of the Civil Rights Division will undertake an investigation to determine whether the Attorney General would be willing to enter into a consent decree or would oppose the "bailout" petition. If the Attorney General determines that consent to an entry of judgment is proper, the Voting Section will work with the jurisdiction to agree on the terms of the consent decree to be filed with the "bailout" petition when the litigation is actually filed.

During the arguments some of the Justices' used the fact that some northeast states had worse minority registration then the south. But that misses the entire problem. I might be registered but it is the ability to vote that also must be protected.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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My Option for the Supreme Court Voting Rights Case

Today, the Supreme Court will hold a scheduled oral argument on the constitutionality of two key sections of the Voting Rights Act of 1965, in the case of Shelby County v. Holder (docket 12-96). Shelby County urged the Court to strike down those provisions and will be argued by Bert W. Rein of the Washington, D.C., law firm of Wiley Rein LLP. Dividing time in defense of the law will be the U.S. Solicitor General, Donald B. Verrilli, Jr. and Debo P. Adegbile, an attorney with the NAACP Legal Defense Fund in New York City, representing individual voters and other private defenders of the law.

My option would be to modify the opt-out (“bailout”) opportunity already in the law.

Just as the Court passed up the opportunity in 2009 to strike down the 1965 Act’s provisions, it could do so again this time, and perhaps with a variation of the back-up approach it took then: expanding the opportunity for jurisdictions to declare themselves beyond the law because they no longer discriminate against minority voters. But this is somewhat questionable, because it gets the Court into the business of rewriting a law of Congress, or at least seeming to do that.

Under the law, a jurisdiction can get out from under Sections 4 and 5 if it can show a ten-year record of non-discrimination. It is difficult to know how that very specific formulation could be changed by the Court without it getting into actual legislative drafting. Perhaps the Court might strike down the ten-year “clean hands” record, and tell Congress to find something that makes it easier to bail out. I would change it to 5 years.

The jurisdiction that is directly involved in this case, Alabama’s Shelby County, cannot qualify for the existing bailout, because it simply does not satisfy the ten-year minimum of “clean hands.”

The federal government and the other defenders of the 1965 Act are pushing the bailout option strenuously, in hopes that it would be the way to salvage Sections 4 and 5, and thus the heart of the Act.

With all the current laws making it harder for some to vote, I would like to see voters use the part of Section 4 that allows them 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.

UPDATE
Following through on the deep constitutional concerns stated in its prior Northwest Austin decision, a majority of the Court seems committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes. The vote seems quite likely to be five-to-four. The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula. But the more conservative majority was plainly not persuaded by either point. It is unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure.










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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