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Fifth Circuit Orders En Banc Review of Texas Voter ID Suit

Ari Berman analyzes the effects of the Fifth Circuit’s March 9, 2016 order. This is bad news for the plaintiffs, and for Texas voters generally. The foot-dragging has been especially galling, given the airtight factual evidence in support of the plaintiffs’ arguments.

(Note to the non-attorneys out there: the linked article explains this, but not everyone knows what “en banc review” means. After five months of delay, the court has collectively decided that the previous decisions regarding the State’s unconstitutional voter I.D. law need to be reconsidered by the entire panel of all the Fifth Circuit appellate judges, the majority of whom happen to be conservative political appointees).

As an additional follow-up; the Fifth Circuit Court of Appeals has rebuffed arguments for stopping implementation of the unconstitutional law until after the whole body of judges hear additional oral argument later this year. The law will likely continue to be enforced through the November 2016 presidential election, despite the fact that it has been found to be unconstitutional.


Lighting A Fire Under the Redistricting Panel – Plaintiffs Seek Injunctive Relief From San Antonio Federal Court

As Rick Hasen has reported, yesterday the plaintiffs in the 2011 redistricting lawsuit asked the three-judge panel for the Western District of Texas, San Antonio Division to enjoin the State of Texas from using the patently illegal district boundary lines that were used in the 2014 election.

Evidence-wise, the plaintiffs have a slam-dunk on this one – the State has lost at every turn with respect to the question as to whether the 2011 redistricting violated Section 2 of the Voting Rights Act; and there isn’t any serious disagreement on the facts – the State enacted a redistricting plan that was motivated by racial animus in order to limit the voting rights of racial minority groups.

For some reason that has never been explicitly articulated, the court appears to be paralyzed and unable to move on this issue. Possibly the members of the redistricting panel fear that any dramatic change in boundary lines will draw a disastrous results-oriented Supreme Court rebuke that might leave the plaintiffs in an even-worse position. but that doesn’t really justify the timidity with which the court has approached this matter. Whatever the motivation, the risk is now quite high that just as with the Texas elections in 2012 and 2014, the 2016 primaries and general election might be conducted using bad maps.

As I said before in reference to the November 2014 elections, the use of maps that have been explicitly found to violate Section 2 of the Voting Rights Act is not in keeping with judicial economy. That is true in part because bad maps are an early Christmas present to any losing candidate in any election in any of the affected urban areas in the State (particularly around the major population centers).

Heads up, election litigators – if your candidate has strong support among minority voters in 2016, but loses on these maps, you have been handed a ready-made, pre-briefed reason to contest the outcome of that unsuccessful election. And every contested election has at least one losing candidate, so somebody’s going to get creative if the court doesn’t get its act together.

50 Years of Conflict Over Voting Rights – Mourning and Hope

Jim Rutenberg has written a must-read cover story for the New York Times magazine about the Voting Rights Act, providing context for the relentless pressure exerted by segregationists to kill black voting throughout the history of that landmark act.

This story has come out at the same time that Professor Heather Gerken has written a mournful look back at the Voting Rights Act. Her elegiac commentary on a recent scholarly article in the Iowa Law Review is both somber and despairing.

Because I favor the use of a purely regulatory expansion of administrative oversight of the Civil Rights Act as a substitute for the moribund Voting Rights Act “superstatute,” I perked up at this paragraph in Professor Gerken’s introduction:

  • Regulatory schemes have a funny habit of surviving, in large part because they become normalized after a few years. I have little doubt that a civil rights statute would be trimmed by this Court and subject to inconsistent levels of enforcement, depending on the administration. But if it were possible to pass a new statute—and that’s an enormous “if” in an era in which Congress is all but sclerotic—it’s not clear to me that it would be destined for failure. The Department of Justice has administered the VRA under executives of all sorts, and the federal courts include many a judge willing to apply the law as-is. A new civil rights-oriented statute might limp along at times, but the game might still be worth the candle.

Gerken, An Academic Elegy, 100 Io. L. R. 109, 115 (2015).

The subject of Professor Gerken’s elegy is the paper by Guy-Uriel Charles and Luis Fuentes-Rohwer, “The Voting Rights Act in Winter: The Death of a Superstatute.” Briefly, that paper masterfully recounts the political climate in 2006 that caused Congress to fail in any meaningful way to revitalize or expand the scope of the Voting Rights Act, and the sea change in American politics that rendered the traditional, geographically limited scope of Section 5 coverage of certain “troubled” political jurisdictions untenable.

Today, race and party are inextricably intertwined; the Republican Party has effectively transformed itself into the Apartheid Party, (amply demonstrated by how well Donald Trump’s explicitly segregationist campaign plays with Republican voters) while the Democratic Party has by default taken on the role of the anti-apartheid faction. The subversion of race and class issues in pursuit of the Republican Party’s concrete practical goal of winning elections means that (1) the traditionally Southern brand of focused anti-black bigotry has now been successfully exported to almost all jurisdictions, and (2) has been broadened to its natural conclusion, to target not just protected classes of minority voters for suppression, but to extend voting suppression efforts to all likely Democratic Party voters.

Of course, in one sense the suppression of racial equality has always been about winning elections; in another sense, racial discrimination has always been a root motivator for at least some part of American political competition; bigotry (as an inherent cultural element) and the exploitation of bigotry (as a viable political tactic or strategy in the pursuit of power) are just reflected elements of our nation’s original sin.

My bias is that I believe my solution to the problem (applying anodyne, depoliticized regulatory “reporting” rules that give the Department of Justice the ability to track changes in election procedures) at least points to the way out of this dilemma, and perfectly dovetails with the legal prescriptions offered by Professors Charles and Fuentes-Rohwer, for three reasons.

1. My proposed reporting rules aren’t predicated on historical or geographic patterns of racial discrimination, but instead apply to all jurisdictions equally, and without singling any specific jurisdiction or jurisdictions out based on prior bad acts; and

2. My proposed reporting rules are enforced by robust, explicit monetary incentives (i.e., through the threat of withholding federal funding from political jurisdictions that fail to comply), using tried and well-understood Civil Rights Act enforcement tools.

3. My proposed reporting rules may be adopted by purely executive action without the involvement of the vestigial and powerless Congress.

Not to keep harping on this … but, well, yes …, to keep harping on this. The loss of the preclearance mechanism of Section 5 of the Voting Rights Act was devastating to the effective management of fair elections in the United States. Therefore, some regulatory balance must be restored by adopting a replacement regulatory process.

Some thoughts on the eve of oral argument in Veasey v. Perry

As you may know, tomorrow (April 28), a three-judge panel of the 5th Circuit Court of Appeals in New Orleans will hear oral argument in Veasey v. Perry. Texas has appealed the trial court’s damning conclusion that the State had used its voter I.D. law to enact a deliberately racially discriminatory barrier to voting.

Back in March, as the April 1, 2015 deadline for its reply brief loomed, the State asserted that it would only need 11,500 words to successfully argue that its draconian picture I.D. law wasn’t targeting minorities. After all, it wouldn’t take much paper to say that Texas’ voter I.D. law is more universally and generally horrible than merely racist. It doesn’t just discriminate against protected racial and language minority groups – it also discriminates against elderly voters, student voters, the poor, voters with disabilities, and inconveniences or hinders voting in general for everyone.

And there’s the State’s argument on appeal – which I shall broadly and meanly paraphrase as follows. “This law is so bad, it can’t possibly have been motivated by mere racial animus. We just hate all voters.” (That’s actually the second part of the State’s argument. The first part is, “well … all the people who were disenfranchised should have just voted by mail.” Unfortunately for the State, that’s a terrible argument, in part because it violates equal-rights provisions of the 14th Amendment. In fact, it’s such a self-destructive “shot in the foot” argument that everyone else feels a little sorry for the State’s litigators for being forced to repeat it. I mean … they do know that equating voting by mail with in-person voting is sort-of cringe inducingly bad form in civil rights litigation, right?)

Embarrassingly, the powers-that-be at the Texas Solicitor-General’s office dawdled a bit over the crafting of their succinct brief, and accidentally filed it a few minutes after midnight on April 2nd. These things happen, and nobody (other than me) felt particularly inclined to capitalize on the minor technical error in order to gently ridicule the already hapless appellant.

Ha ha.

On a more serious note, people interested in same-day coverage of tomorrow’s oral argument should contact Erik Opsal at the Brennan Center.

Erik Opsal
Communications Manager

Finally, for a nice perspective on why the international reputation of the United States currently hangs in the balance over voting rights, here’s a nice paper by Patricia Broussard, published as part of a recent symposium on the Voting Rights Act conducted by the Journal of Race, Gender and Ethnicity. “Eviscerating the Voting Rights Act and Moral Authority: Freedom to Discriminate Comes With a Price” (Journal of Race, Gender and Ethnicity, Volume 7, No. 1, Fall 2015)

Reading the tea leaves – what do recent U.S. Supreme Court decisions bode for Texas elections?

Within the past week, the U.S. Supreme Court refused to grant certiori to hear an appeal of a decision upholding Wisconsin’s appalling voter i.d. law, (Frank v. Walker) and just remanded two Alabama redistricting cases (Alabama Black Legislative Caucus et al.  v. Alabama et al., linked with Alabama Democratic Conference et al., v. Alabama et al.) back to the lower courts on a 5-4 decision holding that the state legislature could not justify “packing” African-American voters into fewer districts on the basis that it was compelled to do so in order to comply with Section 5 of the Voting Rights Act.

Superficially, this seemed to be a bit of give-and-take when it came to voting rights, although the cases weren’t directly comparable on the facts or issues.

So, what do these decisions mean for (1) the Texas voter i.d. case (Veasey et al. v. Perry et al.), or (2) the Texas redistricting case (Perez et al. v. Texas)?

Answer: Not much either way. The Texas Legislature (bless its aggregated shriveled dignity) overreached far more aggressively on both voter i.d. laws and on redistricting than did any of the other states (with the possible exception of South Carolina, which seems to be giving us a run for the money on efforts to cement the title of “most regressed” when it comes to voting rights).

As a consequence, the Texas lawsuits present voting rights advocates with an interesting set of tactical choices. On the one hand, the State has been such a bad actor that it is absolutely imperative that its voter i.d. and 2013 redistricting be struck down in the Supreme Court as unconstitutional, and that its future actions be subjected to “opt-in” preclearance under Section 3 of the Voting Rights Act.

On the other hand, because Texas pushed the envelope on bad legislative acts, the State provided some cover for other states involved in similar lawsuits. It’s sometimes handy to be able to point to another entity and say, “Well, at least our state government didn’t try something on the order of what Texas did!”

In the case of the Wisconsin litigation, the plaintiffs lacked sufficient evidence of malicious racial intent to invoke key provisions of the Voting Rights Act. In the case of the Alabama litigation, the plaintiffs prevailed only in knocking back a couple of fairly tenuous legal arguments justifying racial gerrymandering.

In the Texas litigation, the stakes are much higher, and the evidence for racial animus is much stronger. As for me, I just hope that the Supreme Court fixes the Texas mistakes. As much as I might hope that Justice Roberts would have a change of heart regarding the importance of the Voting Rights Act for the country as a whole, I really just want some acknowledgment that there are fact patterns so egregious that they can embarrass even a few hard-core states-rightists.


The Great Chain of Being Cranky About Disenfranchisement; or The Stupids, Continued

After the November election, a number of editorial articles came out with variations on the following theme – that the various depressing voter I.D. laws didn’t actually have much effect on elections. Because hey, the Republicans knocked the elections out of the park, right? That happened despite disproportionately good turnout among minority voters in some elections.

Such editorials are music to the ears of the extreme right (“Yeah. See, we’re not racists. If we were racists, we would have had to turn the firehoses on the swarms of minority voters that voted in the November 2014 federal elections. But we didn’t have to use firehoses or police dogs, or even fire any tear gas into the polling places. Therefore, we have conclusively demonstrated that we’re not racists. Plus, we love democracy. Democracy was very good to us.”) and to the defense attorneys representing the State of Texas in its appeal of Veasey v. Perry et al.

I mean, if an editorial by Nate Cohn in the New York Times, (that notorious hotbed of centrist legal opinions), comes out saying that voter I.D. weren’t no big deal, then the centerpiece of the plaintiffs’ evidence against the State in Veasey is undermined, and the State should walk on all charges, right?

Mr. Cohn was extending a dialog he had begun with the Brennan Center on this question with an earlier and similarly dumb editorial along the same themes.

Mr. Cohn’s argument runs like this: It must be the case that 600,000 Texas voters weren’t disenfranchised because if they had been disenfranchised, they would have been turned away from the polls. Since 600,000 people weren’t turned away from the polls, 600,000 people weren’t disenfranchised. Quod erat demonstram. Ipso facto. Res ipse loquitor. Et cetera.

And because only a fraction of all registered voters lack sufficient I.D., (say, 9 percent, or 11 percent, or something like that) it means that voter I.D. laws don’t actually change election outcomes. Right? Right? Because if the bad guy won by 20 percent, then even if all the voters without i.d. had been able to vote (and even if all of them had voted for the bad guy’s opponent), the bad guy would still have won by 11 percent, or 9 percent. Or whatever.

I’ve written about this before, but maybe if I write slower and louder, people will begin to understand.

The secret to getting people not to vote is to discourage them from attempting to vote. And because the cost of voting is so high compared to the benefit, it is very, very easy to discourage people from voting.

And when people don’t vote, they don’t make an ostentatious show of not voting. They don’t gather en masse, carrying placards and linked arm-in-arm at the polling place to not cast their ballot, in a vast silent repudiation of their civic authority. Such mass demonstrations by non-voters would be quite satisfying, if they happened, and would make for some fun political theater. But they don’t happen, because showing up at a polling place to not vote is almost as much bother as showing up at a polling place to vote.

Non-voters don’t go out of their way to proclaim their nonvoting status. They go to work or school. They run errands. They watch T.V. Some of them register to vote, but fail to register on Mr. Cohn’s radar, and so he assumes that they don’t exist. Some of them fail to register to vote, period, and so they don’t even show up in the statistics of “registered voters who lack i.d.”

The authors of the sociological studies at the heart of the plaintiffs’ case in Veasey v. Perry didn’t merely rely on the self-selecting sample of voters who actually go to vote. They called people up and asked them direct questions about their status as voters, and about their inclination to vote or not vote, based on their circumstances.

As it turns out, (as amply demonstrated by our most recent election) disenfranchisement works. It would have been embarrassing to the arch-conservative proponents and apologists for picture i.d. requirements  if disenfranchisement hadn’t worked, because it’s actually kind of an administrative pain in the ass to exclude those naughty liberals from the polls, and it costs money to administer draconian voter i.d. laws. Luckily for the right, everything went swimmingly.

Let’s look at the November 2014 elections in one Texas county, and see how disenfranchisement succeeded in that county.

Harris County, Texas

Voters in Harris County had a long ballot to work on this year, in part because this very heavily populated county has an enormous county and district judiciary to handle the legal caseload generated by its roughly 4,330,000 residents. As it seems to happen every four years, the district and county courts were filled by Republican candidates, who pretty uniformly won their seats by consistent margins, just as they had even when Bill White carried Harris County in 2010.

2010 was a watershed year for the county – it was the first Federal decennial census in which Harris County had more than 4 million people. The City of Houston, meanwhile, was estimated to have just a smidge under 3 million people; there’s no doubt that Houston, like much of urban Texas, is experiencing a tremendous population boom. In fact, the county has added roughly 240,000 people or more since the 2010 Census; my guess (and the guess of the U.S. Census demographers) is that the recent population increase skews in favor of Hispanic or Latino residents.

As of the 2010 Census, slightly more than 40% of the Harris County population identified as Hispanic or Latino, while about 33% identified as non-Hispanic white, and about 18.4% identified as non-Hispanic black. As of 2013, those percentages were estimated to work out as 41% Hispanic, 19% Black, and 32% non-Hispanic white.

A lot of people under 18 live in Harris County, so let’s say that only about 72 percent of the total population are voting age. That’s about 3,117,600 voting age people in Harris County as of 2013.

So … how successful have people been at registering Harris County residents to vote? Well, out of those 3.12 million voting-age people in Harris County, only 2.06 million were registered to vote in the November 2014 election. So let’s see, um, that’s a 66% registration rate.

Hmm. Let’s see. In 2002 (a relatively slow gubernatorial election year, with anemic turnout), there were 1.9 million registered voters in Harris County.

But … Wait. What? That’s almost as many registered voters as there are now in that county.

What was the voting-age population of Harris County in 2002? Well, the estimated 2002 population in the county was 3.54 million. Of those, we’ll guess that around 71% were 18 or older (based on the 2000 census data). So that’s an estimated voting age population of 2.51 million in 2002, of whom 1.9 million were registered. That’s a 75.6% registration rate.

I’ll admit that a 75.6% voter registration rate wasn’t spectacular in 2002. But it was definitely better than a 66% registration rate in 2014. If the Harris County Voter Registrar had managed to just tread water with regard to registration between 2002 and 2014, we’d expect that there would be about 2.36 million registered voters in Harris County as of the November 2014 election.

Which works out rather nicely as a shortfall of 300,000 people in the Harris County voting-age population who should have been registered voters (based on historic trends), but who weren’t registered.

Now … from 2002 to 2014, the racial demographics in Harris County basically flipped for white and Hispanic voters. In 2002, about 42% of the voters were non-Hispanic whites, and about 32% of the voters were Hispanic.

What the Texas Republicans realized in 2011 is that they would have to find a way to discourage both voter registration and voting in Harris County, so that while the percentage of non-Hispanic registered voters would remain roughly steady (rising a very modest 8% over the course of 12 years), the percentage of Hispanic registered voters would need to go down. And it would need to go down by a big margin.

The available tools were varied, and ranged from bad-faith purges and registration challenges to outright bullying and strong-arm tactics. But none of those tools would be as effective (in terms of the percentage of potential votes suppressed) as a simple increase in the opportunity costs of voter registration and voting.

This is an area deserving of additional study, but I would hazard that by focusing solely on the suppressive effect of voter i.d. laws as applied to registered voters, studies by the Brennan Center and others have dramatically underestimated the intended and successfully achieved levels of vote suppression generally. The underestimate is the result of failing to consider the suppressive effect of harsh election laws not just on the people who are already registered to vote, but also on the people who haven’t registered yet.

If the suite of laws enacted in 2011 (not just picture i.d., but also restrictions on volunteer deputy registrars, the mealy scrutiny and comparison of error-ridden databases, etc.) managed to drop voter registration in Harris County by around 13%, and the picture i.d. requirement managed to mess up voter eligibility for around 9% to 11% of the remaining 2.06 million voters, wouldn’t it be more accurate to say that (in Harris County, at least) that voter suppression succeeded in three ways, by:

(1) trimming the rolls of around 300,000 (mostly minority, poor, or elderly people) who would otherwise have registered to vote;

(2) discouraging another 180,000 to 220,000 registered voters from bothering to vote (the latter group also being disproportionately composed of minorities and the poor), and;

(3) so debasing and screwing up the election experience for everyone else that turnout was at an all-time low (around 678,000 votes cast in the big races, or around 33% of the registered voters).

It starts to look like the Republicans were running up the score in an unseemly way. I mean, if you start with 3.12 million possible voters (more or less), disenfranchise one sixth of those voters (say, around half a million), and then demoralize two thirds of the rest so badly that they don’t bother to come out and vote, well then … voila!

You get an instant Republican grand slam. A mandate for the ages, and an endorsement by our polity of the emerging πρωκτοκρατία (proctocratia, i.e., a form of government known as a proctocracy, administered by proctocrats).

Hey! You there! Candidates in Harris County who lost!

If you lost, and you lost by a margin of around 24% of the vote or less, strongly consider filing an election contest. Remember – such an action must be initiated not later than 30 days after the canvass of your election, by filing suit in district court. Your clock is ticking. Also remember (if you’re feeling a little sheepish about filing such a lawsuit) – that the November 2014 general election was an illegal election.

As for Mr.Cohn of the New York Times, here are some general tips for successfully navigating the confusing world we live in.

Sometimes bad actions are identified by absence, rather than presence. For example, if you are in a coal mine, and most of the canaries have suddenly gone silent, that isn’t proof that the remaining canaries are happy and content. That’s evidence that something is wrong.

“Well, everyone said that when the crew hit that natural gas pocket, it created a poisonous atmosphere. But I heard that at least 32% of the canaries were still singing. Therefore, the natural gas pocket could not have had any measurable effect on the health of the canaries. Q.E.D. Res ipse loquitor. Et cetera, et cetera. Say, does anyone else feel a little light-headed?”

How Would I Have Argued For Texas on the Emergency Stay Issue?

Attorneys representing the State of Texas on the picture I.D. law have a tough job, a fact that I should probably emphasize from time to time – an attorney isn’t the client, but just the conduit for the client’s assertions. Heck, back in the day, I did legal work defending the denial of insurance, retirement and disability benefits in circumstances that would corrode your soul, so I do have empathy for those toiling in the Office of the Devil’s Advocate.

So maybe I was a little mean about the Texas Solicitor-General’s 74-page bolus of overripe stew in defense of keeping the voter I.D. law in place for the November 2014 election. A fair riposte to my skewering of that brief would be to ask, “So, smart guy. How would YOU defend the patently indefensible voter I.D. law?”

Here’s how:

  • First, no matter what argument I made, I wouldn’t take 74 pages to lay it out. That’s just embarrassing and sloppy. C’mon guys, it’s called a “brief” for a reason.
  • Second, in general, I wouldn’t bother to defend the voter I.D. law. at all, because that’s not the issue before the court. I wouldn’t attack the factual findings of the trial court; I wouldn’t bring up any of the patently offensive (and sometimes factually false) arguments in favor of the voter I.D. law. The issue before the Supreme Court isn’t “Was somebody mean to the widdle-bitty State of Texas? Did that meany-weeny district court go and issue a mean, nasty decision against Texas?”
  • The issue before the Court is, “Did the 5th Circuit Err in Suspending the Effect of the Corpus Christi Trial Court’s Injunction Against the Use of Texas Picture I.D. Laws in the November 2014 Election? It was provocative, dangerous, and hot-headed for the State to rave on and on about how bad the trial court’s decision was. Instead, I would have recommended just saying something like this:
    • “After the trial court made its findings of fact and conclusions of law, it issued a clarifying order at the request of the State. In that order, the judge added an immediate injunction against the use of the existing I.D. law. In so ruling, the judge failed to describe any considered analysis of the balanced costs and benefits to the parties resulting from the issuance of such an injunction.”
    • “If briefing had been invited by the trial court relating to the costs of imposing the injunction, the State of Texas would have presented evidence that the suspension of the voter I.D. law at this remove from the start of the election would cost the State an estimated $5 million in opportunity costs, wages and other labor costs, and materials. Additionally, local costs to each of the county election offices in Texas would amount to an aggregate amount of between $4 and $12 million, resulting in an increase of roughly $7 in the per-vote expense of conducting the election (assuming a turn out of roughly 20% of the total number of registered voters (2.4 million ballots), and an increased administrative expense of up to $17 million aggregated across all government jurisdictions conducting elections in November).”
    • “In failing to account for the administrative costs, the trial court’s order failed to engage in the sort of factual analysis required when making judicial alterations in the manner in which an election is conducted. Purcell v. Gonzalez, … [cite omitted].”
    • “Therefore, the State moves that the emergency stay be upheld, and that the substantive issues relating to the administrative burdens imposed by the injunction should be remanded to the trial court for further proceedings not earlier than a date on or after the conclusion of the November 6, 2014 general election.”

See? Easy … inoffensive … and brief. Rather than proudly defending the indefensible (and by embracing over-the-top rhetoric, echoing the nutty tone of the state’s worst racists and lunatics), I would focus on a narrow procedural issue.

Frankly, I think even this issue is a loser – the plaintiffs can simply say, “Okay, the administrative burden increased. But the harm caused by the enforcement of the picture i.d. requirements (i.e., the State’s ongoing violation of the Fourteenth Amendment) is so overwhelming, and of such grave consequence to the integrity of the election, that the additional expense associated with the injunction pales to insignificance against that harm.”

If the voter I.D. law is enforced due to the emergency stay, every losing candidate in the November 2014 election in Texas will have potential grounds for filing election contests immediately afterwards, simply by arguing that within the context of each of those elections, it will be factually impossible to determine whether the outcome of those elections reflects the will of the voters who would have voted but for the continued enforcement of the illegal voter i.d. requirement.

You want to talk about administrative expense – there’s an administrative expense. Consider the disruption, as every single race (and especially every close race) becomes subject to an election contest in state district court, with quite good chances of success for those suits that are competently argued.

That’s every school district board race, every water district bond race, every county, district, state, and federal race.

Consider a hypothetical candidate running for the office of Mayor in a small town in the November 2014 election.

When the dust settled after the election, Candidate Loser had 110 votes, and Candidate Winner had 127 votes.

Now assume that the town’s demographics are (for the sake of making the math easier) roughly similar to the state demographics (i.e., about 12% African-American, about 40% Hispanic, and about 48% white). Assume that the town has 1,000 residents of voting age, and of those residents, 120 are African-American, and 400 are Latino or Hispanic, for a total of 520 members of a protected class of minority voters, or at least potential voters.

Assume that the total number of registered voters in the town is 800. Of those voters who are registered to vote, Loser determine that 34 (9% of 384 of the voters) are white residents who lack adequate I.D., 24 (25% of 96 of the voters) are African-American residents without sufficient I.D., and 51 (16% of 320 of the voters) are Hispanic residents without sufficient I.D. (The percentages reflect the statistical tendencies not to have sufficient I.D. Notice that there are statistically significant differences among particular groups when tested for adequate I.D., and these differences are based on race).

Let’s assume that if those residents had I.D., they would have voted in the same proportion as the qualified voters with sufficient I.D.s. Turnout was 237 out of 800 registered voters, or 29.625%.  So that’s ten missing white votes (roughly 30 percent of 34), 8 missing black votes (roughly 30 percent of 24), and 15 missing Hispanic votes (roughly 30 percent of 51).

Now, the margin by which Loser lost was 17 votes, and there are 33 people who would have voted, but for their lack of adequate I.D. Maybe not all of these voters would have voted for Candidate Loser. But suppose Candidate Loser was disproportionately favored by minority voters – through interviews and exit polling, Loser has determined that black and Hispanic voters were significantly more likely to favor that side of the ticket. Of the 33 “gave-up, no reason to try to vote” voters, 23 were minority voters. But Loser only needs to find 18 more votes.

Assuming Loser mounts a competent election contest, Loser can simply ask to be declared the winner. Or, if there’s no money and time to subpoena I.D.-less registered voters, Loser can at least raise enough doubt about the integrity of the election to force a new election. Voila!

Meanwhile, the disenfranchised voters in Smalltown all have a civil cause of action against the State of Texas for violating their voting rights.

Now, pull upward and away from Smalltown, to take in a larger view. Observe the glimmering street lights and lighted houses across the state – the clumps of population strung like beads along the roads. All those towns … (around 1,100, although admittedly not all may be having elections). All those school districts (also roughly 1,100, most of them forced by recent changes in the law to conduct their elections in November of even-numbered years). All those water districts (1,600). All those hospital districts, and library districts, and road districts, and airport authorities, and special law districts (who knows the numbers for sure? Let’s say 350 to be conservative). All those counties (254), with their multitudes of offices up for election (two commissioner seats, county judge, various district court judgeships, etc). All those state legislative districts (181, of which roughly 168 are up for election). All those U.S. House of Representatives seats (36). All of those statewide offices (Governor, Lieutenant Governor, Attorney General, various seats on the Texas Supreme Court and Court of Criminal Appeals, Land Commissioner, et cetera, ad nauseum).

All those elections. All those thousands of elections.

Now, put yourself in the position of the Texas Secretary of State. Can you say with confidence that none of those elections are going to be squeakers? Are you sure that the margin of victory for all the winning candidates in those many, many elections are going to be so large that no loser could possibly argue that they would have won, but for the loss of the disenfranchised vote.

Because what the 5th Circuit has stupidly done is open the door to a tidal wave of election-related litigation.

In a typical election year, there will always be a few local election contests – maybe a school bond election here, a city council election there. Maybe one or two high-profile contests involving multi-county races. The number of suits is limited by the difficulty of accessing the courts, and the difficulty (usually) of being able to show causation – that a particular screw-up in the conduct of the election led to the wrong outcome.

But all bets are off for 2014, baby. Because if there are voters out there about whom it can be fairly said that they would have voted but for the imposition of the voter I.D. requirements, then let the flood gates of election litigation open wide, and swallow incalculable sums and staggering amounts of time and energy, affecting the state courts, local and state government, and every voter. Imagine waking up on November 5th to newspaper headlines announcing that all of Texas lies under a thick pall of uncertainty, disjunctive lack of continuity in office, and overwhelming distrust of the accuracy of the election outcome.

It will be like Christmas, Thanksgiving, and the Fourth of July for any lawyer with an interest in election-law litigation.

No Duh … Federal Judge Strikes Down Draconian Voter I.D. Law

As expected, the Federal District Court in Corpus Christi has found that the Texas voter I.D. law is an unconstitutional burden on the voting rights of minority voters and constitutes a poll tax.

As further expected, the court’s decision also finds that the State intentionally discriminated against minority voters. As a result, the court indicates that it will issue additional orders following a status conference.

I expect that the State will need to do preclearance submissions pursuant to the terms of a court order under Section 3(c) of the Voting Rights Act for at least the foreseeable future.

Gosh, I hope the Elections Division at the Texas Secretary of State kept all of its Section 5 paperwork, file cabinets, file shelves, and materials for preclearance submissions. It’d be a shame if they had to start up again from scratch.

And, as expected, Greg Abbott has invoked “voter confusion” as the impetus for seeking a quick suspension of the decision from the 5th Circuit Court of Appeals (also known as The Worst Circuit).

By the way, doesn’t it strike you as a bit … conflict of interest-ish … for an actively campaigning candidate for governor to ask a federal court for political favors on the eve of an election?

Notably, the U.S. Supreme Court (in reversing the 7th Circuit order that reinstated Wisconsin’s voter i.d. law) signals that at least a majority of the justices still adhere to the traditional common-law doctrine that courts should not impose last minute judicial orders affecting voting.

Rick Hasen and others refer to this as the “Purcell” doctrine, a shorthand reference to a 2006 Arizona voting case, Purcell v. Gonzalez, wherein the U.S. Supreme Court blocked a last-minute injunction against enforcement of an Arizona voter i.d. law.

Whether this cuts for or against Texas remains to be seen, although I tend to agree with Justin Levitt that the 147-page decision in Veasey v. Perry is “Purcell-proofed.” It isn’t a spur-of-the-moment injunction of the sort that was disapproved of in Purcell – (1) it’s a thoroughly vetted and fact-heavy decision on the merits following a lengthy trial, and (2) it does not impose any resource-intensive or difficult change to an existing process, but merely relieves the State of an existing administrative burden. At this point, a court order reimposing the Texas voter i.d. requirement would look more suspect from a Purcell-based analysis.

Here are the links, for those of you using web readers:




http://electionlawblog.org/?p=66613 (I cited Justin Levitt’s blog entry twice, because I liked it so much).







What Does Holder’s Resignation Portend for Voting Rights Advocates?

As you know, it’s been widely reported in the national press that after six years as President Obama’s Attorney General, Eric Holder is stepping down. There are all sorts of messages that one can read in the tea leaves here – to the extent that Holder has been an effective A.G., he’s also been a favorite target of criticism from the far right, and it’s possible that as the midterm elections loom, President Obama is trying to neutralize some of that criticism.

The Department of Justice is a huge agency, and I’m sure that anyone working there would agree that it’s not a perfect place – certainly the criminal investigation and criminal prosecution arms of the Department have had their ups and downs over the past half-decade.

Similarly, I’m sure that the rank-and-file employees of the Voting Rights Section could, in moments of candor, express dissatisfaction with one or another aspect of the Department’s management. But no matter what opinion one may have of Attorney General Holder, and regardless of one’s political affiliations, one must agree that the Department of Justice has responded aggressively and consistently with respect to voting rights litigation after Shelby County v. Holder.

I think that on balance, Attorney General Holder’s resignation presages both a bruising confirmation fight for his successor (as predicted by every major media source), and a hit to the Voting Section’s employees’ morale.

Currently, the trial attorneys working for the Department in high-profile cases like the Texas 2011 redistricting case, the Texas voter I.D. case, the Ohio voter registration case, the Wisconsin voter I.D. case, the North Carolina voter I.D. case, and many other less visible voting rights cases, are doing absolutely stellar courtroom work, in both their filed motions and pleadings, and in the oral advocacy that they are doing.

Even if they aren’t interested in the issues being contested in these suits, law school students would do well to study and emulate the lucidity and organization of the Department of Justice-authored briefs that have been filed in these cases. This is top-notch, major league lawyering by many of the nation’s best civil rights litigators.

Such excellent work is possible in part because of the political and institutional support supplied to the Voting Section by Attorney General Holder. My fear is that the Republicans will now shift their resources away from attempting to defend their frankly indefensible restrictions on voting, and instead will use the Senate confirmation hearings to cripple voting rights advocacy.

For instance, here are a couple of illuminating pull quotes from the USA Today story about the A.G.’s resignation:

Majority Leader Mitch McConnell, R-Ky., a Holder critic, said Republicans would scrutinize the next nominee to make sure he or she “finally returns to prioritizing law enforcement over partisan concerns.”

Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee, urged Obama to take his time. “Rather than rush a nominee through the Senate in a lame-duck session, I hope the president will now take his time to nominate a qualified individual who can start fresh relationships with Congress,” he said.

“Prioritizing law enforcement over partisan concerns” should be read between the lines to mean “abandoning voting rights litigation,” because for decades, Republicans have characterized enforcement of the Voting Rights Act as a purely liberal Democratic Party concern.

And “I hope the president will now take his time to nominate a qualified individual” should be read as meaning, “After the November election, and with an (expected) Republican-led House and Senate, President Obama can kiss goodbye any hope of ever getting Senate confirmation of any nominee he chooses from now until the end of his term.”

My hope is that as Attorney General Holder leaves office, his status as a lame-duck head of the Department of Justice will free him to some extent to end his tenure with bold, fearless policy actions. Like maybe … I don’t know … boldly pushing for the enactment of a proposed Civil Rights Act-based set of administrative rules designed to curb the worst excesses of post-Shelby County restrictions on voting. That’s what I’d suggest.

For those of you using web readers, here are the cited links:





So many lawsuits …

Rick Hasen has provided a link to the latest Law and Order-themed electionline Weekly (http://www.electionline.org/index.php/electionline-weekly), and as the editor is careful to note, the list of election-related lawsuits on the first page isn’t supposed to be inclusive or exhaustive.

Nevertheless, I feel a little bit hurt that the editors at Electionline couldn’t have included at least one Texas lawsuit. Maybe the newsletter writer was simply overwhelmed by the available choices. Remember – Veasey v. Perry opens next week in Corpus Christi, while Perez v. Perry is expected to continue with hearings this fall. And then there are all the local suits, which tend to be harder to track down.

One suit (and associated grand jury investigation) in Hidalgo County arising out of the Democratic Party primary election has finally been put to bed – an expert data security company put rumors of tampering with voting equipment to rest, and the county followed suit by shutting down the related criminal investigation. The story is here: http://www.texaslawyer.com/id=1202667669976/Election-Lawsuits-End-After-Report-Finds-No-Evidence-of-Vote-Tampering?slreturn=20140728210207.