Playing Catch-Up on Recent Election Law Developments

[Image via cherigregory]

I had some unexpected travel this week, and – as often happens in an election year – the election world didn’t stand still while I was gone. Specifically, three more courts in three more states issued rulings that will likely have an impact on this fall’s election:

In North Carolina, the U.S. Court of Appeals for the Fourth Circuit overruled a trial court and found that several recent changes to the state’s election laws were enacted with discriminatory intent and thus are invalid as a violation of the Voting Rights Act (VRA). The finding of discriminatory intent stands in contrast to the recent opinion in Texas, which focused instead on discriminatory effects of voter ID. Rick Hasen has this observation at Election Law Blog:

Now what is meant by racially discriminatory intent? In the 5th Circuit case, it seems the court there said that acting with knowledge of effects on minority voters is just as bad as acting with that purpose. (See my analysis of the 5th Circuit opinion here.) The 4th Circuit offered a similar, though not identical, analysis: “But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics.” And later there is this key part: “Our conclusion does not mean, and we do not suggest, that any member of the General Assembly harbored racial hatred or animosity toward any minority group. But the totality of the circumstances — North Carolina’s history of voting discrimination; the surge in African American voting; the legislature’s knowledge that African Americans voting translated into support for one party; and the swift elimination of the tools African Americans had used to vote and imposition of a new barrier at the first opportunity to do so — cumulatively and unmistakably reveal that the General Assembly used [changes to election law] to entrench itself. It did so by targeting voters who, based on race, were unlikely to vote for the majority party. Even if done for partisan ends, that constituted racial discrimination.”

Also unlike Texas, there will be no remand; the appeals court essentially accepted the trial court’s findings of fact but disagreed with its application of the law to those facts:

The 4th Circuit goes out of its way to commend the trial court for its carefulness and thoroughness (something I noted in my own analysis). But “In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees. This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.” It explained: “In North Carolina, restriction of voting mechanisms and procedures that most heavily affect African Americans will predictably redound to the benefit of one political party and to the disadvantage of the other. As the evidence in the record makes clear, that is what happened here.” And: “In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.”

Hasen also notes that the appeals court declined to find, as it could have, that North Carolina should once again be “bailed in” to preclearance of its voting changes under the VRA. Such a decision, he notes, likely “lower[s] the temperature” on the case on the [very likely] appeal.

In Wisconsin, another federal court has struck down or enjoined several state election laws. Hasen again:

In a 119-page opinion, a federal district court has struck a host of WI voting rules, including certain voter id provisions, as unconstitutional. Among other things, the court has ordered that expired but otherwise valid student id cards will be valid for voting. This is yet another win for voting rights activists in the past few weeks. The trial court enjoined the following WI laws:

+ most of the state-imposed limitations on the time and location for in-person absentee voting (although the state may set a uniform rule disallowing in-person absentee voting on the Monday before elections);
+ the requirement that “dorm lists” to be used as proof of residence include citizenship information;
+ the 28-day durational residency requirement;+ the prohibition on distributing absentee ballots by fax or email; and
+ the bar on using expired but otherwise qualifying student IDs.

The case may set up a conflict with the other Wisconsin ID case, in that it requires a more sweeping “fix” for voters without ID, but that is likely to be addressed during the (likely) appeal.

And finally, the ping-pong game in Kansas continues as a county court blocked the state from using its two-tiered voting system in this week’s elections. The Wichita Eagle has more:

A Shawnee County judge has ruled that 17,500 voters can have their votes counted in state and local races as well as federal ones in Tuesday’s Kansas primary election.

“Losing one’s vote is an irreparable harm in my opinion,” Judge Larry Hendricks said in his bench ruling Friday.

A state board approved a rule earlier this month to allow people to vote only in federal elections – not state and local ones – if they registered at DMV offices but failed to provide proof of citizenship as required by Kansas law.

The rule, crafted by Secretary of State Kris Kobach, was meant to put the state in compliance with a recent ruling by a federal judge to let these voters vote under the federal “motor-voter” law.

Kobach contended that the federal ruling applied only to federal elections and that the state’s proof of citizenship requirement still barred these voters from casting votes in state and local races…

Hendricks said Friday that Kobach lacks the authority to create a dual voting system. He issued a temporary order blocking the rule, ensuring that all of these voters’ votes will be counted.

Hendricks said the state does have an interest in preventing non-citizens from voting, but that those interests “do not outweigh the rights” of the “overwhelming number of U.S. citizens that will lose the constitutional right to vote” under Kobach’s rule.

Under the order, if one of these voters shows up at the polls Tuesday, he or she will receive a ballot just like any other voter and be able to vote in every race, from U.S. Senate to county sheriff…

The court order applies only to the August primary. Hendricks set a Sept. 21 court date for an evidentiary hearing ahead of the November general election.

While this order wasn’t appealed for the primary, you can bet the issue will be litigated – and appealed – likely right up until Election Day in November.

As I said last week, it’s good that courts are acting now, as it will help election officials and voters know the “rules of the road” in November … but as always, that road is likely to twist and tun several more times before voters go to the polls this fall.

Stay tuned…