Voting Rights

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Date: 2018
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Voting Rights

The rights of participation in public elections of a country's citizens. Specified in the United States of America by an enactment by Congress in 1965 (42 U.S.C.A. § 1973 et seq.) that prohibits the states and their political subdivisions from imposing voting qualifications or prerequisites to voting, or standards, practices, or procedures that deny or curtail the right of a U.S. citizen to vote because of race, color, or membership in a language minority group.

Bethune-Hill v. Virginia State Board of Elections

The U.S. SUPREME COURT has continued to articulate the framework under which states should establish voting districts. In 2017 the Court determined that a federal district court Page 241  |  Top of Articleapplied the wrong standard when ruling on whether the Virginia General Assembly had improperly considered race when drawing district boundaries. The Court remanded the case so that the district court could apply the correct standard. Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788, 197 L. Ed. 2d 85 (2017).

When Congress first passed the VOTING RIGHTS ACT OF 1965, Pub. L. No. 89-110, 79 Stat. 437, Virginia was one of nine states covered by section 5 of the Act. States and other jurisdictions that fell under section 5 were required to seek approval (preclearance) for voting changes by the U.S. Attorney General or the U.S. District Court for the District of Columbia. The preclearance requirement applied to states and jurisdictions that had histories of discriminating against minorities.

In Shelby County v. Holder, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013), however, the U.S. Supreme Court struck down key provisions of the Voting Rights Act. The decision's effect was that jurisdictions that were previously “covered” by the Act no longer had to seek preclearance for changes to voting laws. The decision came during a time when many jurisdictions were engaged in redistricting efforts based on results of the 2010 census.

The Virginia General Assembly began its redistricting work in 2010, even before the state received the results of the census. Throughout 2011 various legislative committees worked to redraft voting districts. One concern the committees had was to avoid “unwarranted retrogression,” which would have violated section 5 of the Voting Rights Act.

As part of the effort to comply with the Voting Rights Act, as well as the FOURTEENTH AMENDMENT to the U.S. Constitution, the committees identified twelve districts that needed to have a black voting age population (BVAP) of at least 55 percent. This floor would avoid retrogression of minority voting strength, but the committees also had to comply with constitutional requirements. The general assembly approved the redistricting efforts in 2011.

The Supreme Court decided Shelby County two years after the general assembly approved the districts, and a group of voters brought suit to challenge how the general assembly drew the districts. Virginia was no longer required to address retrogression. Instead, the state needed to show that it complied with the Fourteenth Amendment to the U.S. Constitution, as well as other sections of the Voting Rights Act.

A three-judge panel of the U.S. District Court for the Eastern District of Virginia reviewed how the state had created the twelve districts in question. Under U.S. Supreme Court precedent, those challenging the districts had to show “that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.” Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995).

In a 2–1 decision, the district court upheld the districts. For eleven of the districts, the court determined that race had not been a predominant factor, stating that race would predominate only if there were an “actual conflict between traditional redistricting criteria and race.” The court did find that racial considerations predominated in the creation of the twelfth district (District 75). However, the court determined that the state had articulated a compelling state interest for creating District 75 and that the state had narrowly tailored the creation of the district to address the state's interest. Bethune-Hill v. Virginia State Bd. of Elections, 141 F. Supp. 3d 505 (E.D. Va. 2015).

Judge Barbara Keenan dissented at the district court level. She stated that the court had applied the wrong standard when evaluating whether race had been a predominant factor in constructing the districts. She also concluded that the state's justification for the boundaries was too “general and conclusory.”

The plaintiffs appealed the decision directly to the U.S. Supreme Court, which vacated a large part of the district court's decision. Justice ANTHONY KENNEDY wrote the majority opinion.

The majority concluded that the district court had applied the wrong standard when it considered whether race predominated in considerations about the district boundaries. Kennedy's opinion reiterated that the Equal Protection Clause of the Fourteenth Amendment prohibits a state from separating voters into different districts based on the race of those voters. The Court has recognized that while legislatures are always aware of race, race cannot be a predominant factor. Thus, a legislature's districts run afoul of the Constitution when the legislature has “subordinated traditional Page 242  |  Top of Articleneutral districting principles … to racial considerations.”

The Court reviewed the justifications given for the lines that the general assembly drew. In reviewing these justifications, the Court determined whether the state had a racial purpose, which would violate the EQUAL PROTECTION Clause. Even if the plan complied with traditional principles governing the construction of voting districts, the state would violate the Constitution by having a racial purpose behind the construction of the districts. Justice Kennedy wrote,

The ultimate object of the inquiry… is the legislature's predominant motive for the design of the district as a whole. A court faced with a racial gerrymandering claim therefore must consider all of the lines of the district at issue; any explanation for a particular portion of the lines, moreover, must take account of the districtwide context. Concentrating on particular portions in isolation may obscure the significance of relevant districtwide evidence, such as stark splits in the racial composition of populations moved into and out of disparate parts of the district, or the use of an express racial target. A holistic analysis is necessary to give that kind of evidence its proper weight.

The Court affirmed the district court's conclusion regarding District 75, finding that the legislature had properly balanced competing concerns in constructing the district. Thus, the legislature was justified in setting a BVAP floor of 55 percent. Nevertheless, because the Court concluded that the district court had applied the wrong standard with respect to the other eleven districts, the Court vacated the district court's order and remanded the case.

Justice SAMUEL ALITO concurred, writing that he agreed with the majority's conclusions. However, he would have held that all the districts in question must satisfy strict scrutiny. Justice CLARENCE THOMAS concurred in part and dissented in part, stating that he believed all twelve districts violated the Constitution.

D.C. Circuit Strikes Down Requirement of Proof of Citizenship for Federal Elections

The National Voter Registration Act (NVRA) requires states to register eligible citizens who submit a complete and valid federal registration form. The federal form has historically included a list of state-specific voter registration instructions. In recent years some states have required documentary proof of U.S. citizenship, but until 2016 the federal form had not included this requirement. When the Election Assistance Commission, which administers the NVRA, approved requests by three states to include proof of citizenship on the federal form, two individuals and several voting rights organizations challenged the approvals in federal court. The D.C. Circuit Court of Appeals, in League of Women Voters of U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016), issued an order prohibiting states from including proof of citizenship on the form.

The NVRA, which was enacted in 1993, requires states to permit voters to register for federal elections when applying for a driver's license, by mail, and in person. The Act requires each state to use a national mail voter registration form, which is commonly referred to as “the federal form.” States may impose their own registration requirements for state elections but they cannot decline to register for federal elections an applicant who completes and submits a valid federal form. The form requires only identifying information and other information necessary for a state election official to determine the eligibility of the applicant and to “administer voter registration and other parts of the election process.” The applicant must sign, under penalty of PERJURY, an attestation that he or she meets each eligibility requirement. In addition, the federal form must contain state-specific voter eligibility requirements.

The NVRA is administered by the Election Assistance Commission. The commission is composed of four commissioners, appointed for a term, two from each party. Actions by the commission require a vote of three commissioners. The commission's staff includes an executive director.

The commission was called upon in 2005 to determine whether it should grant Arizona's request that its state-specific instructions be changed to reflect its new proof-of-citizenship requirement. The commission denied the request and did so again in 2007. In 2013 the U.S. SUPREME COURT ruled that the NVRA bars a state from demanding that registrants who submit a federal form provide information not required by the form itself, but allowed states to request alteration of the federal form. Kansas and Arizona filed such requests, but the commission's acting director denied the Page 243  |  Top of Articlerequest and a federal court of appeals upheld the denial.

The situation changed in November 2015, when the commission hired Brian Newby as its executive director. Kansas, Alabama, and Georgia requested that the commission add the proof-of-citizenship requirement to the federal form's state-specific instructions. Newby approved the modifications and the new forms went into effect on February 1, 2016. The League of Women Voters and other plaintiffs filed a lawsuit two weeks later, asking the federal district court to invalidate Newby's decisions and issue a preliminary injunction preventing use of the new forms. Several months later the court denied the PRELIMINARY INJUNCTION. The plaintiffs appealed to the D.C. Circuit Court of Appeals.

A three-judge panel voted 2–1 to issue the preliminary INJUNCTION. Judge Judith Rogers, writing for the majority, noted that a party seeking a preliminary injunction must make “a clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the PUBLIC INTEREST.” Because the district court denied the injunction for lack of irreparable harm, the court began its analysis there. To demonstrate irreparable harm, the party must show that the harm was “certain and great” and “beyond remediation.” An organization like the League of Women Voters had to show it was harmed because the actions taken by Newby had “perceptibly impaired” its program.

The League said that before states imposed proof-of-citizenship laws, its branches registered voters using state registration forms. They conducted registration drives in shopping malls, community festivals, and other informal venues. However, the Kansas proof-of-citizenship requirement substantially limited the ability of the Kansas League to register voters. Potential voters often did not have citizenship documents with them, and even if they did, the League did not have equipment to copy those documents. As a result, the number of voters successfully registered by the League during these drives dropped substantially. The registration numbers in three Kansas counties fell by more than 85 percent, nearly 70 percent in another, and two other counties suspended all registration efforts. However, the League could still use the federal form to register a voter without requiring proof of citizenship. The Newby decision presented the same roadblock as the state voter registration requirements. The Kansas League was now unable to register any voter who could not provide proof of citizenship.

Judge Rogers concluded that the league had shown that irreparable harm would occur if the preliminary injunction was not granted. The Newby decisions “unquestionably make it more difficult for the Leagues to accomplish their primary purpose of registering voters.” As to whether the Leagues had a substantial likelihood of success on the merits of the case, Judge Rogers answered yes. The court found that Newby's decisions had exceeded the authority granted to the commission by the NVRA.

The court also found that the balance of equities tipped in the League's favor because a preliminary injunction would not “substantially injure” the three states. The burden on Kansas to revert to its prior federal form and procedures was not great enough to outweigh the “strong public interest in ensuring that unlawful agency decision making does not strip citizens of the right to vote.” Because both the balance of equities and the public interest favored the League, the court ordered that a preliminary injunction be entered and that the commission take steps to restore the previous federal form and inform the three states that the federal form applications filed since the Newby decision should be treated “as if they did not contain the now-stricken state-specific instructions.”

Judge A. Raymond Randolph, in a dissenting opinion, contended that the states alone had authority to determine the eligibility of those who sought to vote in federal elections. However, he argued that the case could have been disposed of without examining the constitutional issues. Instead, he believed the League and the other plaintiffs did not have standing to bring the lawsuit in the first place because they could not “even come close to demonstrating the type of harm entitling them to an order suspending these state laws.”

Federal Judge Strikes Down North Dakota Voter ID Law

Just three months before the 2016 November elections, a federal district judge ruled that a voter identification law in North Dakota was Page 244  |  Top of Articleunconstitutional. The judge enjoined the state from applying the law, which would have required voters to present valid forms of identification before voting. The judge determined that the law discriminated against Native Americans, many of whom lack valid forms of identification. Brakebill v. Jaeger, No. 1:16-CV008, 2016 WL 7118548 (D.N.D. Aug. 1, 2016).

Until 2013 the voting system in North Dakota used several smaller voting precincts. Election boards and poll workers generally knew who could and could not vote in a particular precinct. In the event that it was unclear whether a person was an eligible voter, the law permitted the voter to produce one of several forms of acceptable identification, so long as the form of identification showed the person's address and date of birth. In addition to driver's licenses and other forms of state-issued identification cards, the state also permitted voters to present military ID cards, student ID cards, and cards issued by Native American tribal governments.

The old law also had “fail-safe” provisions. If a voter could not present one of the accepted forms of identification, the voter could file an AFFIDAVIT swearing that he or she was a qualified voter in a specific precinct. The old law also allowed either a member of a local election board or a poll clerk to vouch for the voter. According to allegations made by the plaintiffs in the lawsuit, voter fraud was virtually nonexistent under this system, even with these relatively loose fail-safe provisions in place.

The Republican-controlled Legislative Assembly enacted a new statute in April 2013. Under this legislation, introduced as H.B. 1332, a voter had to comply with stricter provisions to vote. The voter identification must provide the voter's date of birth along with a residential address. The law also limited the forms of voter identification to the following: (1) a North Dakota driver's license; (2) a state-issued North Dakota identification card; (3) a tribal-government identification; or (4) an alternative form of identification prescribed by the SECRETARY OF STATE. The legislation also eliminated the fail-safe provisions.

Two years later, the legislative assembly added new restrictions to the law. Under the 2015 legislation, the secretary of state could no longer prescribe new forms of identification. College students could not present college ID cards, and members of the military could not present military ID cards, except for North Dakota residents who were stationed outside of the state. The previous fail-safe provision remained omitted from the statute.

The plaintiffs in the case were seven Native American voters. They filed the suit in the U.S. District Court for the District of North Dakota and asserted that the North Dakota law violated the federal Voting Rights Act as well as the U.S. and North Dakota Constitutions. U.S. District Judge Daniel L. Hovland presided over the case.

The plaintiffs asserted that North Dakota's voter identification law had become one of the most restrictive in the United States. According to the complaint, the new law especially burdened Native American voters. Many of these voters do not have qualifying identification cards, and they often lack the resources to obtain proper identification. These Native Americans do not have the money to pay for a license or to travel to obtain the license.

The plaintiffs sought a preliminary injunction that would prevent the state from implementing the strict voter identification provisions during the 2016 election. To prevail, the plaintiffs had to show a substantial likelihood of success on the merits. To do so, they had to show that the injuries the they were likely to suffer because of restrictions on their right to vote would outweigh the justifications offered by the state.

A number of expert and lay witnesses provided support for the plaintiffs' position in the case by filing affidavits and declarations. Among other facts, the various pieces of evidence showed the following:

  • 23.5 percent of Native Americans lack valid identification, compared with 12 percent of non–Native Americans;
  • 15.4 percent of Native Americans who voted in 2012 would lack qualifying identification for the 2016 election, compared with 6.9 percent of non–Native Americans;
  • 78.2 percent of Native Americans have a North Dakota driver's license, compared with 94.4 percent of non–Native Americans;
  • 47.7 percent of Native Americans who did not have qualifying identification lacked Page 245  |  Top of Articlethe documents necessary to obtain a valid ID to vote; and
  • Native Americans in North Dakota had to travel twice as far on average as a non– Native Americans to visit a driver's license site.

Significantly, state officials who defended the law did not dispute the evidence submitted by the plaintiffs. These officials also did not present any evidence to support the response to the motion requesting the PRELIMINARY INJUNCTION. Instead, the defendants argued that the statute on its face did not discriminate against Native Americans or anyone else.

Hovland did not find the defendants' argument to be persuasive. He wrote,

The undisputed evidence before the Court reveals that Native Americans face substantial and disproportionate burdens in obtaining each form of ID deemed acceptable under the new law …. [O]btaining any one of the approved forms of ID almost always involves a fee or charge, and in nearly all cases requires travel. It also helps to have a computer with Internet access, a credit card, a car, the ability to take time off work, and familiarity with the government and its BUREAUCRACY. Thus, obtaining a qualifying voter ID is much easier to accomplish for people who live in urban areas, have a good income, are computer-literate, have a computer and printer, have a good car and gas money, have a flexible schedule, and understand how to navigate the state's administrative procedures.

The court enjoined the state officials from enforcing the law and issued its order on August 1, 2016. State officials responded that the ruling occurred too close to the election for the state to appeal the case. Accordingly, the state operated under the law as it was before April 2013. Despite the fact the former ID law was used, Republicans won all of the major positions in the November elections.

The North Dakota Legislative Assembly enacted a new law in April 2017, but the attorney representing the plaintiffs said the new law continues to be unconstitutional.

Fifth Circuit Rules Texas Voter ID Law Violates the Voting Rights Act

A growing number of states have enacted voter identification laws that require certain specific forms of identification at the polls. Proponents of voter ID laws believe these more stringent requirements will reduce the chances of voter fraud. Critics argue that these laws discriminate against minority groups because a disproportionate number of minority voters cannot obtain documents including birth certificates because of cost and difficulties traveling to file paperwork. Most federal courts have upheld these voter ID laws. However, the Fifth Circuit Court of Appeals, in Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016), ruled that Texas's voter ID law violated the Voting Rights Act because it had a discriminatory effect against African-American and Hispanic voters.

In 2011 Texas passed SENATE Bill 14 (SB 14), which restricted the types of identification that could be presented at the polls. Previously, a Texas voter could cast a ballot in person by presenting a registration certificate that had been mailed to the voter upon registration. If a voter did not have the certificate, the voter could cast a ballot by signing an AFFIDAVIT and presenting one of multiple forms of ID, including a current or expired driver's license, photo ID from an employer or student ID, utility bill, bank statement, paycheck, and other government documents. SB 14 still allowed the use of a driver's license or personal identification card issued by the department of public safety but limited other types of acceptable ID. These forms of ID included a U.S. military ID card, U.S. passport, concealed-carry handgun license, or election identification certificate (EIC).

To obtain an EIC, a registered voter must present either one form of primary ID, two forms of secondary ID, or one form of secondary ID and two pieces of supporting identification. This meant that any application for an EIC required either one Texas driver's license or personal ID card or an original or certified copy of a birth certificate and two supporting pieces of identification. In SB 14's original version, it imposed a $2 or $3 fee for a certified copy of a birth certificate. In 2015 the legislature abolished the fee, after the law had been challenged in federal court and the fee was cited by plaintiffs as a poll tax.

The state began enforcing SB 14 in June 2013. A group of Texas voters filed a suit in federal district court, alleging that the law's photo identification requirements violated the Fourteenth and Fifteenth Amendments and section 2 of the Voting Rights Act because the Page 246  |  Top of Articlelaw was enacted with a racially discriminatory purpose and had a racially discriminatory effect. They also claimed the photo ID requirement substantially burdened the FUNDAMENTAL RIGHT to vote under the First and Fifteenth Amendments. Finally, they claimed the law imposed an unlawful POLL TAX under the Fourteenth and Twenty-Fourth Amendments. The state countered that SB 14 was a lawful attempt to prevent in-person voter FRAUD and increase voter confidence and turnout.

The district court conducted a nine-day bench trial, with dozens of experts and lay witnesses testifying by DEPOSITION or in person. The court agreed with all of the plaintiffs' claims. The decision was rendered shortly before in-person early voting was scheduled to begin for the November 2014 elections. The court issued an INJUNCTION, barring the SB 14 requirements and directing state officials to accept forms of ID acceptable prior to the law's enactment. However, the Fifth Circuit Court of Appeals stayed the court's order and allowed Texas to employ the new photo ID requirements.

A three-judge panel of the Fifth Circuit heard the state's appeal. The panel found that the district court had committed legal errors in making its discriminatory purpose analysis but agreed with the court's finding that SB 14 had a discriminatory effect in violation of section 2 of the Voting Rights Act. The panel overturned the court's findings that the law was a poll tax and that it violated the First and Fourteenth Amendments. The appeals court remanded the case so the district court could correct its error. However, Texas requested that the entire Fifth Circuit rehear the appeal. Such requests are rarely granted but the court acceded to the state's request.

The court, in a 9–5 decision, essentially agreed with the three-judge panel's legal conclusions. Judge Catharina Jones, writing for the majority, found that the plaintiffs had failed to prove that the legislation was passed with a discriminatory purpose in violation of the FOURTEENTH AMENDMENT. The district court's finding of intent to discriminate based on historical and contemporary examples was less than convincing and mistakenly relied “in part on speculation by the bill's opponents about proponents' motives (rather than evidence of their statements and actions).”

The court did affirm the district court's finding that SB 14 had a discriminatory effect under section 2 of the Voting Rights Act. Judge Jones relied on a number of factors endorsed by the SUPREME COURT to determine if there was a discriminatory effect in voting. The court noted that more than 608,000 registered voters, or 4.5 percent of all registered voters in Texas, lacked SB 14 ID. Plaintiffs' experts presented evidence that Hispanic registered voters and African-American registered voters were, respectively, 195 percent and 305 percent more likely than their Anglo peers to lack SB 14 ID. Moreover, the court concluded that SB 14 “disproportionately impacts the poor, who are disproportionately minorities.” The district court heard testimony from Hispanic and black voters who were not able to vote because they could not afford to buy a certified birth certificate from their state of birth and they were unable to make a three-hour trip to present their documents to a registrar.

The appeals court dismissed the First and Fourteenth Amendment claims and ruled that SB 14 did not impose a poll tax. It directed the district court to work with both sides to find a remedy for SB 14's discriminatory effect.

Judge Edna Jones, in a dissenting opinion joined by four other judges, argued that SB 14's photo ID requirement was reasonable and “widely supported by Texans of all races and members of the public belonging to both political parties.” The majority's finding of discriminatory effect “fans the flames of perniciously irresponsible racial name-calling.”

Supreme Court Finds that Race Predominated in Redrawing Two North Carolina Congressional Districts

The Voting Rights Act (VRA) prohibits racial DISCRIMINATION in the drawing of state legislative districts and federal congressional districts. The U.S. SUPREME COURT has developed a number of principles when determining whether a state has separated its citizens into different voting districts on the basis of race. In some cases the Court has upheld race-based redistricting because the state has provided a sufficient justification for doing so. If such a justification is lacking, the Court will find that the redistricting violated the Equal Protection Clause of the FOURTEENTH AMENDMENT. Two North Carolina congressional districts have been subject to voting rights challenges since Page 247  |  Top of Articlethe early 1990s, with the Supreme Court issuing rulings in 1993 and 1999. Following the 2010 census, Districts 1 and 12 were again redrawn. Plaintiffs again asserted that the redistricting maps violated the law when the legislature created majority black voter populations in both districts. The Court, in Cooper v. Harris, 137 S. Ct. 1455, 197 L. Ed. 2d 837 (2017), held that the districts violated EQUAL PROTECTION, though it used different reasoning for each district.

District 1 is anchored in northeast North Carolina, with appendages stretching both south and west. District 12 begins in south-central North Carolina and then moves northeast to the state's northern border. In 1993 the Supreme Court held that the two districts were unconstitutional racial gerrymanders. Two years later the Court upheld a new map for District 1 but struck down the map for District 12 because the “serpentine” district was race-centric and did not comply with the VRA. In 1999 the Court upheld a new map for District 12, finding that racial considerations did not predominate in the design of the district. Instead, the Court characterized the resulting district as the product of a political gerrymander intended to produce a safe Democratic seat. The state redrew its congressional districts in 2001, following the 2000 census. Under the 2001 map, which was not challenged in court, the two districts did not have a black voting-age population, called a “BVAP,” that was a majority of the whole. Despite the lack of a black majority, all candidates preferred by most African Americans won their contests in five successive elections.

Following the 2010 census, the state legislature redrew the congressional map. The Republican majorities in both the house and SENATE named redistricting committees. The chairs of the committees appointed a veteran political mapmaker to help them redraw district lines. After several hearings and a number of revised maps, both houses adopted the scheme the three men proposed. The new map made great alterations in Districts 1 and 12. The 2010 census showed that District 1 was severely underpopulated. To comply with the one-person, one-vote principle, the state needed to place almost 100,000 new people within the district's boundaries. The two chairs and the mapmaker chose to gather most of these people from heavily black areas of Durham. With that addition, District 1's BVAP rose from 48.6 percent to 52.7 percent. District 12 had no major population changes, but the three men reconfigured the district, narrowing its snakelike body while adding areas at either end. The district gained 35,000 African-American voters and lost 50,000 white voters. District 12's BVAP rose from 43.8 percent to 50.7 percent.

Registered voters in both districts filed a lawsuit, complaining the districts had been impermissible racial gerrymanders. A three-judge federal district court panel ruled both districts unconstitutional. All three judges agreed that racial considerations predominated in District 1. They rejected the state's claim that it had a “strong basis” for believing the VRA forced them to produce a race-based drawing of District 1's lines. Two judges concluded that race predominated the drawing of District 12 over all other factors, including partisanship. They noted the state had not put forward any reason to justify its use of race in designing the district. One judge dissented, finding that politics rather than race drove District 12's lines. The state appealed to the U.S. Supreme Court.

The Court, in a 5–3 decision, upheld the three-judge panel's rulings. Justice ELENA KAGAN, writing for the majority, found that the record showed that the state's mapmakers, in designing District 1, “purposefully established a racial target: African Americans should make up no less than a majority of the voting-age population.” The mapmaker followed the directions from the two chairs to meet this target. Having found race-based redistricting, the Court looked to whether the state had a compelling interest in doing so. Complying with the VRA is a compelling interest. The state argued that under the VRA and prior Court rulings, it was required to create a majority African-American district. Justice Kagan rejected this argument, noting that it would only be justified if the state could show that a district's white majority usually voted as a bloc to defeat minority candidates. She agreed with the district court that, over two decades, District 1 was “an extraordinarily safe district for African-American preferred candidates.” In the closest election during this period, African Americans' candidate of choice received 59 percent of the total vote. This demonstrated that enough white voters joined the black community to elect the black community's favored candidate.

As for District 12, Justice Kagan pointed out that the state did not provide a reason to defend Page 248  |  Top of Articleitself from the charge that the district had been redrawn on the basis of race. Instead, the state contended that racial considerations played no role in designing a district that became majority African-American voters. District 12 was part of a “strictly” political GERRYMANDER, without regard to race.

The Court acknowledged that when a state asserts partisanship as a defense, a “highly irregular” shape for the district could arise from a “political motivation” as well as a racial one. In addition, “racial identification is highly correlated with political affiliation.” Justice Kagan concluded that the district court's finding that race was the driving force in redrawing District 12 must be affirmed because it was “plausible.” The Court could only overturn the finding if it found a serious error of law. There was no error of law because the district court correctly ruled that the plaintiffs were not required to offer an alternative design for District 12 as CIRCUMSTANTIAL EVIDENCE of the legislature's intent.

Justice SAMUEL ALITO, in an opinion joined by Chief Justice JOHN ROBERTS and Justice ANTHONY KENNEDY, agreed that the District 1 map violated equal protection. However, they dissented as to the District 12 ruling. Justice Alito concluded that political rather than racial considerations played a predominant role in the redistricting plan.

Two Federal Courts Strike Down “Ballot Selfies” Laws

The growth of social media continues to alter social, cultural, and legal perspectives. The introduction of the smartphone and its camera has generated self-portraits commonly known as “selfies.” These photos are generally innocuous and of no legal consequence. However, after individuals began entering the voting booth and taking photos of themselves with their marked ballots, these so-called “ballot selfies” triggered laws that forbid such actions. The First Circuit Court of Appeals, in Rideout v. Gardner, 838 F.3d 65 (1st Cir. 2016), overturned a recently passed New Hampshire criminal law that prohibited ballot selfies, while a Michigan federal district court in Crookston v. Johnson, Case 1:16-CV-01109 (W.D. Mi. 2016), issued a preliminary injunction against the enforcement of a Michigan law that invalidated the ballot of anyone who took a ballot selfie. Both courts concluded that the laws violated the individuals' FIRST AMENDMENT right of free expression.

In 2014 the New Hampshire legislature amended a CRIMINAL LAW meant to avoid vote buying and voter intimidation by forbidding voters from photographing their marked ballots and publicizing these photographs. The statute imposed a fine of up to $1,000 for a violation of this new provision. Two state legislators and a legislative candidate voted in the September 2014 primary election and took photos of their marked ballots. They then posted the photos on social media, inviting prosecution to test the constitutionality of the new provision. The New Hampshire Attorney General's Office opened investigations into these selfies, but the three men filed a lawsuit in October 2014 in federal district court, asking the court to declare the new provision invalid and forbid New Hampshire from enforcing the statute.

The district court sided with the plaintiffs. The court concluded that the ban on ballot selfies was a content-based restriction on free speech because the law required law enforcement officials to examine the content of the speech to determine whether it included impermissible subject matter. The court applied the strict scrutiny test of constitutional review. It found that the government interests asserted by the state—the prevention of vote buying and voter coercion—were not compelling interests justifying the restriction. These interests were compelling in the abstract, but the state failed to show an imminent problem with images of “completed ballots being used to facilitate either vote buying or voter coercion.” Under STRICT SCRUTINY, the judge also found that the statute was not narrowly tailored. The law was “vastly overinclusive” and would “punish only the innocent while leaving actual participants in vote buying and voter coercion schemes unscathed.”

The First Circuit upheld the district ruling, finding that it was facially unconstitutional even if the intermediate scrutiny test was applied. Under this test, the government must show that a law is narrowly tailored to serve a significant governmental interest. Chief Judge Sandra Lynch, writing for the three-judge panel, agreed that the state's asserted interests were significant in the abstract, yet cellphone ballot selfies had been “ubiquitous for several election cycles, without being shown to have the effect of Page 249  |  Top of Articlefurthering vote buying or voter intimidation.” The appeals court agreed with the district court that even if it could be shown that selfies did further those activities, the statute was not narrowly tailored. The state could have achieved the goals by simply making it a crime to use an image of a completed ballot in connection with vote buying and voter coercion schemes. The law clearly violated the First Amendment.

In Crookston v. Johnson, the PLAINTIFF, Joel Crookston, voted in the November 2013 election and posted a selfie of part of his ballot on social media. For these actions, Michigan law required the rejection of his ballot and the forfeiture of his right to vote in a primary or general election. Crookston filed a lawsuit in Michigan federal district court, arguing that the Michigan law violated the First Amendment. In addition, the Michigan secretary of state's instructions and orders regarding photography and the use of cellphones at polling places violated his right to free speech. He asked the court to prohibit the enforcement of the law and the rules.

Judge Janet Neff sided with Crookston. The court found that Crookston would likely succeed on the merits of his case because the law and rules were content based. Under the First Amendment, content-based laws are “presumptively unconstitutional.” The law significantly impinged upon First Amendment free speech rights and was not properly tailored, for it prohibited free speech by voters, who are not implicated by the state's interest in avoiding vote buying or voter coercion.

As to the rules regarding photography in polling places, the court found them unconstitutional. The rule banned all photo and video cameras as well as audio and video recording equipment in the polling place except for broadcast stations and members of the news media. They were permitted to briefly film from a public area outside the polling place. Crookston pointed to this exception as evidence the rule was a content-based restriction. Moreover, it served no governmental interest and was not narrowly tailored. The secretary of state's rule was outdated, cutting off the modern delivery of news through social media in favor [of] the established media outlets. Judge Neff concluded that the integrity of the election process could be secured in a more reasonable manner than the “blanket PROHIBITION on citizen photography.”

The court also found that the rule banning the use of cellphones once the voter entered the voting station violated the First Amendment. The issuance of a PRELIMINARY INJUNCTION would prevent Crookston from suffering irreparable harm for the loss of his First Amendment rights on the November 2016 election day. Moreover, a preliminary INJUNCTION would not harm the state. Judge Neff rejected the “parade of horribles” offered by the state, noting that the SECRETARY OF STATE had declared she would not instruct election officials to refer violators for criminal prosecution. Finally, Crookston should be granted the preliminary injunction because “it is always in the PUBLIC INTEREST to prevent the violation of a party's constitutional rights.”

Virginia Supreme Court Overturns Executive Order Mandating Mass Restoration of Voting Rights to Felons

Persons convicted of a felony lose their voting rights. However, every state has a procedure for felons to petition for the restoration of these rights. Generally, most felons do not pursue this avenue, keeping millions of people in the United States from voting. In 2016 Virginia Governor Terry McAuliffe issued an EXECUTIVE ORDER that restored voting rights and other political rights to 206,000 Virginians who had been convicted of a felony but who had completed their sentences of INCARCERATION and any periods of supervised release, including PROBATION and PAROLE. McAuliffe, a Democrat, was sued in state court by Republican legislative leaders and four registered Virginia voters, alleging that the order was unconstitutional. The SUPREME COURT of Virginia, in Howell v. McAuliffe, 292 Va. 3207, 788 S.E.2d 706 (2016), agreed with the plaintiffs, barring the implementation of the order.

Governor McAuliffe issued the executive order on April 22, 2016. The order restored CIVIL RIGHTS including the rights to vote, hold public office, serve on a jury, and act as a notary public. When he issued the order, McAuliffe indicated he would issue similar orders at the end of each month to felons who became eligible that month for the restoration of these civil rights. He issued such orders in May and June 2016.

In late May, Speaker of the Virginia House of Delegates William Howell, Majority Leader of the Virginia SENATE Thomas Norment, Jr., and four other Virginia registered voters filed a Page 250  |  Top of Articlepetition seeking writs of mandamus and PROHIBITION in the supreme court against McAuliffe and several Virginia election officials. The petitioners sought to cancel the voter registrations accomplished due to the executive order, prevent further registrations, and prohibit the governor from issuing additional executive orders categorically restoring the voting rights of felons who had completed their sentences. They argued that the order effectively overturned the state constitution's prohibition against voting by convicted felons who had completed their sentences. The petitioners also asked the court to issue a writ of MANDAMUS to compel election officials to remove from the voting rolls any felon who had registered pursuant to the order and to refuse to register any new voters under the orders.

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VOTER ID: PROTECTING ELECTION INTEGRITY OR VOTER SUPPRESSION?

Prior to the 2006 election, no state required a voter to show a government-issued photo ID as a condition to vote. In that year, Indiana became the first to do so. Opponents challenged the law, but in 2008 the U.S. SUPREME COURT upheld the statute. By 2017, 34 states had voter identification requirements at polling places, with seven states having strict photo ID laws. These laws require a voter to present one of a limited number of forms of government-issued photo ID in order to cast a regular ballot. States that have enacted strict photo ID laws assert that such laws are needed to prevent voter fraud and to preserve the public's confidence in the integrity of the election process. Opponents counter that strict photo ID laws are a solution in search of a problem. A recent study concluded that between 2000 and 2014, there were only 31 credible allegations of voter impersonation out of more than a billion ballots cast. In opponents' view, photo ID laws are used as a tool for voter suppression.

The debate over voter FRAUD intensified during the closing weeks of the 2016 presidential election, when Donald Trump suggested voter fraud might keep him from being elected. Following his victory, he claimed that a massive group of noncitizens, somewhere between 3 to 5 million people, voted illegally for HILLARY CLINTON. After being challenged on these unsubstantiated claims, President Trump appointed an “election integrity” commission to look into voter fraud nationwide.

Photo ID laws are intended to prevent voter impersonation, in which a person falsely claims to be another person and casts a ballot in that person's name. Proponents of photo ID have claimed that some individuals cast multiple ballots in an election using this method. However, various studies have revealed few such cases. A 2007 New York Times analysis found that the JUSTICE DEPARTMENT filed 120 voter fraud cases over the previous five years. Many of these cases involved mistakenly completed registration forms or misunderstanding over voter eligibility, with 86 leading to convictions. Another analysis by News21, a national investigative reporting project, identified only 10 voter impersonation cases out of 2,000 alleged election fraud cases since 2000. This worked out to one case for every 15 million voters. However, in 2012, Texas Attorney General Greg Abbott (now the state's governor) stated that voter fraud was real, having prosecuted 50 cases in recent years.

The push for photo ID laws increased after the Supreme Court upheld Indiana's photo ID law in 2008. Opponents of the law mounted a constitutional attack on the law as written. The Court upheld the law on its face, finding the state had a rational basis for enacting provisions to combat voter fraud. In 2011 legislators in 34 states (33 Republicans, 1 Democrat) introduced photo ID voting laws. Fourteen of these states already had voter ID laws, but legislators wanted to make the requirements tougher by requiring photo ID. Nine of these states have the strictest laws, limiting the types of photo ID that will be accepted at the polls.

Opponents of strict photo ID voting laws argue that for the poor, minorities, and the elderly, obtaining a photo ID is burdensome. If an individual lacks an approved type of photo ID, they must obtain a birth certificate when they apply for a photo ID. Some states waive the fee for a certified copy of a birth certificate for this purpose, but if the person was born in a different state they would have to pay for it. Also, some people must travel long distances to apply for a photo ID. Proponents don't believe producing a photo ID at a polling place is burdensome. Photo ID is required when you cash a check or purchase certain over-the-counter medications, so it is not unreasonable to require it for the much more important purpose of voting.

Photo ID has also been challenged as having discriminatory effects. Nationally, approximately 25 percent of African-American citizens of voting age do not have government-issued photo IDs, compared to only 8 percent of white voters. However, until recently there had been very little good data on the effects of voter ID laws. A 2017 study by three University of California San Diego researchers is one of the first to analyze votes across all states after the voter ID laws had been used in multiple elections. The researchers found “that strict photo identification laws have a differentially negative impact on the turnout of Hispanics, Blacks, and mixed-race Americans in primaries and general elections.” Strict ID laws doubled the turnout gap between whites and Hispanics in general elections and almost doubled the white-black turnout gap in primary elections.

In a Washington Post article that summarized their findings, the researchers concluded that by using strict voter ID laws, “states can alter the electorate and shift outcomes toward those on the right. Where these laws are enacted, the influence of Democrats and liberals wanes and the power of Republicans grows. Unsurprisingly, these strict ID laws are passed almost exclusively by Republican legislatures.”

These conclusions support opponents of strict voter ID, who characterize these laws as exercises in voter suppression. Advocates of voter ID laws reject these conclusions. They contend that when voter fraud occurs, it dilutes and weakens the votes of legitimate voters. Moreover, many states offer free photo ID cards, so it is up to each individual to decide if they want to comply with the law in order to vote.

The examination of voter fraud is likely to gain even more prominence with President Trump's establishment of a Presidential Advisory Commission on Election Integrity. The cochair of the commission is Kansas SECRETARY OF STATE Kris Kobach, a strong advocate of strict voter ID laws. On June 29, 2017, in a surprising move, Kobach requested that every state's election chief send the commission detailed voter information—including name, address, party affiliation, last four digits of SOCIAL SECURITY number, and voting history back to 2006—for potentially every voter in every state. In his request, Kobach said the information would be made available to the public. State election officials, both Democrats and Republicans, pushed back on this request. Some were concerned about releasing Social Security numbers, while others did not want the federal government intervening into election matters that are the responsibility of the states. Even before the commission held its first meeting, its findings and recommendations were expected to keep the issue of voter fraud in the public eye.

The supreme court, in a 4–3 decision, sided with the petitioners. Chief Justice Donald Lemons, writing for the majority, first determined that the petitioners had standing to seek reliefbased on the allegations of their petition. To qualify for standing to sue in court, the petitioners had to allege that the executive order directly injured them. The court found that the petitioners, as voters, were directly affected by the order, which allegedly allowed the registration of unqualified voters. Allowing the addition of 206,000 disqualified voters to the statewide electorate would dilute the votes of qualified voters.

The court next turned to the constitutionality of the executive order. Article II, section 1, of the Virginia constitution provides: “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been Page 251  |  Top of Articlerestored by the Governor or other appropriate authority.” Felons may request that the governor restore their civil rights. The court noted that “[s]cores of restoration orders have been issued for more than a century to specific felons who requested that their civil rights be restored.” Moreover, the prior 71 governors had never ordered such a wide-ranging clemency order that restored voting rights to “an entire class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request.” The court recognized that these observations did not prevent the court from recognizing “a novel executive power that no prior Governor ever believed existed.” Never-theless, when government officials have adopted a “practical construction” of a constitutional provision for a considerable period of time, courts should conclude that the construction had been “generally accepted as correct.”

Chief Justice Lemons concluded that the “practical construction” in this case limits the CLEMENCY power of the governor. McAuliffe argued that the right of the governor to grant reprieves, pardons, commutations, and the restoration of civil rights was absolute. The court rejected this “unprecedented” reading of the constitutional provision. All prior governors exercised these clemency powers on an individualized, case-by-case basis, taking into account the specific circumstances of each. There was no reasonable ground to accept McAuliffe's contention that he had the power to grant “blanket, group” restoration orders.

The court also found that the executive order violated the SEPARATION OF POWERS embodied in the Page 252  |  Top of Articleconstitution. The governor's order was an unlawful executive suspension of laws. McAuliffe's order had the effect of rewriting the law rather than the “contemplated use of the executive clemency powers.” The order did not seek to follow the restoration of voting rights on an individualized basis, “but, rather, to supersede it entirely for an indiscriminately configured class of approximately 206,000 felons, without any regard for their individual circumstances and without any specific request by individuals seeking relief.” The executive order had rewritten the constitutional provision, turning it on its head by finding that no person who had been convicted of a felony shall be “disqualified” to vote unless the felon is incarcerated or serving a sentence of supervised release.

The court concluded that the order was unconstitutional. It granted the petitioners' request to prohibit the governor from issuing any similar orders in the future and it ordered election officials to remove any felons from the voter rolls who had been granted restoration of their rights by the order.

Justice William Mims, in a dissenting opinion, argued that the petitioners did not have standing to challenge the executive order. The petitioners had not “identified any historically recognized common-law right of action to challenge the registration of voters—reinstated or otherwise.” Justice Cleo Powell, in a dissenting opinion joined by Justice S. Bernard Goodwyn, agreed that the petitioners did not have standing. In addition, Justice Powell contended that the order did not suspend the law when it restored political disabilities. The majority had misread the law, requiring the governor “to exercise his executive powers in a different, less efficient manner.”

Source Citation

Source Citation   

Gale Document Number: GALE|CX3652200093