Fifth Circuit's Voter ID Decision Shows the Attitude of Bush's Judges

Last week, a federal district court judge concluded that Texas's strict voter ID law (SB 14) violated both the Constitution and the Voting Rights Act. Judge Nelva Ramos concluded that the law was passed with illegitimate motives:

This Court concludes that the evidence in the record demonstrates that proponents of SB 14 within the 82nd Texas Legislature were motivated, at the very least in part, because of and not merely in spite of the voter ID law's detrimental effects on the African-American and Hispanic electorate. As such, SB 14 violates the VRA as well as the 14th and 15th Amendments to the Unites States Constitution.

Nevertheless, yesterday, a three-judge panel of the Fifth Circuit ruled that Texas can hold this fall's elections under the voter ID law anyway. Although the ruling was unanimous, the two Bush-43 judges on the panel (Edith Brown Clement and Catherina Haynes) took a very different approach to the case than did the Obama nominee.

Judge Gregg Costa, the court's newest member, wrote in his short concurrence:

The district court issued a thorough order finding that the Texas voter ID law is discriminatory. We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory. … I agree with Judge Clement that the only constant principle that can be discerned from the Supreme Court's recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis. … On that limited basis, I agree a stay should issue.

Those recent Supreme Court actions Judge Costa cites are hard to interpret, since they came with no explanation. But they also didn't involve a judicial finding of intentional racial discrimination in violation of the Constitution, which we have in this case.

While Costa's concurrence was only a paragraph, the Bush judges' opinion went on for many pages. Judge Clement (joined by Judge Haynes) wrote that Texas will be irreparably harmed if the stay is not issued: "When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws."

But what is the public interest in enforcing a law that a district judge concluded was passed with the intent to make it harder for African Americans and Latinos to vote? What interest does Texas have in enforcing a law that violates the Constitution?

The two Bush-43 judges also stated critically that Judge Ramos didn't give a reason for applying the injunction so close to the beginning of an election, even though Texas warned it would disrupt the election process.

Perhaps "disrupting the election process" is warranted when that process has been intentionally designed to disenfranchise targeted groups.

While all three judges agreed to stay the district court's ruling and allow Texas to enforce its voter ID law, the different approach taken by Bush and Obama judges is notable.

PFAW Foundation

Texas Judge Could Teach the Roberts Court a Thing or Two

Late yesterday, federal district Judge Nelva Gonzales Ramos struck down Texas' restrictive voter ID law. Judge Ramos found that it creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect on African Americans and Latinos, and is an unconstitutional poll tax. Most importantly, a careful analysis of the record led her to conclude that the law was passed with an unconstitutional discriminatory purpose.

This is a terrific development for those who care about the right to vote. And the fact that the discrimination was intentional triggers Section 3 of the Voting Rights Act, which permits Judge Ramos to subject Texas to the same type of preclearance conditions it was subject to under Section 5, before the notorious Shelby County decision. She is expected to decide whether to pursue that course of action within the next few days.

This is a textbook case of why courts matter, and why it matters who sits on those courts. Texas citizens' right to vote was being threatened by their own state government, in clear violation of the law. The federal courts have now stepped in to make sure the promises of the U.S. Constitution are kept.

The opening of Judge Ramos' opinion makes clear that she recognizes the preeminent importance of the right to vote:

The right to vote: It defines our nation as a democracy. It is the key to what Abraham Lincoln so famously extolled as a "government of the people, by the people, [and] for the people." The Supreme Court of the United States, placing the power of the right to vote in context, explained [in 1964]: "Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." [footnotes removed]

She could teach a thing or two to the five conservatives on the Roberts Court, whose Shelby County ruling gave the green light to politicians in Texas and elsewhere eagerly seeking to make it harder for certain people to vote.

PFAW Foundation

The Roberts Court Gives North Carolinians a Reason to Vote

Late yesterday, the Roberts Court allowed North Carolina to re-impose obstacles to voting that particularly harm African Americans. Over the dissents of Justices Ginsburg and Sotomayor, and without explanation, the Justices issued a stay of the Fourth Circuit's order that the state not impose two particularly onerous rules (elimination of same-day registration and termination of out-of-precinct voting) until the conclusion of voters' lawsuits against the state currently pending in district court.

Justice Ginsburg pointed out in her dissent that these restrictions are a direct result of last year's Shelby County decision.

For decades, §5 of the Voting Rights Act of 1965, through its preclearance requirement, worked to safe guard long obstructed access to the ballot by African-American citizens. In Shelby County y. Holder, this Court found the Act's §4 coverage formula obsolete, a ruling that effectively nullified §5's preclearance requirement. Immediately after the Shelby County decision, North Carolina enacted omnibus House Bill 589, which imposed voter identification requirements, cut short early voting by a week, prohibited local election boards from keeping the polls open on the final Saturday afternoon before elections, eliminated same-day voter registration, terminated preregistration of 16- and 17-year olds in high schools, authorized any registered voter to challenge ballots cast early or on Election Day, and barred votes cast in the wrong precinct from being counted at all. These measures likely would not have survived federal preclearance. The Court of Appeals determined that at least two of the measures—elimination of same-day registration and termination of out-of-precinct voting—risked significantly reducing opportunities for black voters to exercise the franchise in violation of §2 of the Voting Rights Act. I would not displace that record-based judgment.  [internal citations removed]

As North Carolinians go the polls next month, some will be turned away because same-day registration will no longer be available. Others will have their entire ballots thrown away rather than counted because the voter went to the wrong precinct, silencing their voices on a key statewide race that is the same in every precinct: The one for U.S. Senate, where the winner will likely vote on several Supreme Court confirmations and hundreds of lower federal court judges during their six-year term.

So voters might want to consider Shelby County when they cast that vote for Senate. Do they want a far-right senator who would confirm more judges like the ideologues who have made it so much easier to disenfranchise African Americans?

Courts matter. And next month, North Carolinians will have a chance to shape our courts for years to come.

PFAW

New Poll Demonstrates Bipartisan Support to Restore the Voting Rights Act

For nearly half a century, the Voting Rights Act (VRA) has helped protect each American’s right to vote, a founding principle of our democracy. Last year, the 5-4 Supreme Court decision in Shelby County v. Holder gutted a key provision of the VRA and imperiled those hard-won voting rights. But new polling finds that across the board, Americans want to see these protections restored.

The poll, conducted by Lake Research Partners and released this week, finds that Americans believe laws must be in place to ensure that each individual has a voice in our democratic process. More than 8 in 10 voters favor the Voting Rights Act for combatting persistent issues with voting discrimination, including 72 percent of respondents who are strongly in favor of VRA protections. Additionally, over two-thirds of voters from diverse racial, political and geographical backgrounds support restoring the Voting Rights Act and strengthening protections for the right to vote.

The overwhelming response in support of strong voting protections underscores the failure of Congress to listen to the American people. Even in the face of this broad consensus, House Republican leadership has made it clear that protecting the right to vote is not a priority for them.

PFAW

The Roberts Court vs. Ohio Voters

Earlier this month, supporters of voting rights cheered when a federal district judge struck down restrictions on early voting in Ohio. That ruling was upheld by the Sixth Circuit. But today, the five conservative members of the Supreme Court ordered that the ruling be stayed until the high court can act on a formal appeal by the state (which hasn't been filed yet).

There was no written opinion, just an order, along with a sentence saying that the four moderate Justices dissented.

It is a great day for those in Ohio who seek to make it harder for certain Americans to vote. But it is worth recalling the quote from a 1964 Supreme Court ruling cited by district court Judge Peter Economus earlier this month:

The right to vote is a fundamental right. "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined."

Today, the Roberts Court seems to have said:

Never you mind all that pretty talk from the ‘60s about the right to vote.

This, just a few days before the official beginning of the 2014 Term. It is not an auspicious sign of things to come.

PFAW Foundation

A State-by-State Round-Up of Voting Rights Today

More than a year ago, the Supreme Court dealt a major blow to voting rights when they struck down a key provision of the Voting Rights Act in their Shelby v. Holder decision. In the wake of this decision, nine states and many other counties that once had to have their voting law changes approved by the federal government before they took effect — what’s known as “preclearance”— no longer have to do so. With the midterm elections rapidly approaching, where does that leave voters in the preclearance states and in other states where legal battles over voting laws are raging?

Yesterday ProPublica published a great round-up of the current landscape of voting rights across the country. Some of the lowlights included:

• Seven preclearance states have announced new restrictions since the Supreme Court rolled back the Voting Rights Act.
• [In 2012], a federal court called Texas's photo ID law [the] “most stringent in the country.” Now, it’s in effect.
• Two months after the Supreme Court ruling on the Voting Rights Act, North Carolina cut early voting and eliminated same-day registration.

ProPublica notes that while glaringly discriminatory barriers like literacy tests are behind us, these legal changes matter a great deal. As voting rights advocates have demonstrated, voter ID laws, limitations on early voting, and voter roll purges disproportionately harm communities of color and other marginalized groups. Rather, Americans agree that no one should be facing barriers to casting a ballot and participating in our democracy.

You can read the full article here.

 

PFAW Foundation

PFAW and Allies Deliver Half a Million Signatures Calling on Congress to Restore the Voting Rights Act

On Wednesday, PFAW joined representatives from a number of organizations similarly concerned with civil rights and the cornerstone of American democracy – the right to vote – on Capitol Hill to present Speaker John Boehner with the signatures of more than 500,000 Americans demanding that Congress move forward in restoring key provisions of the landmark Voting Rights Act.

Today, access to the voting booth has become an increasingly imperiled right for many Americans, thanks to the Supreme Court’s decision last year in Shelby County v. Holder. Across the country, states and localities are making changes to voting laws that make it more complicated and onerous to carry out a fundamental civic duty, especially for ethnic and racial minorities, the elderly, and student voters.

However, the Republican leadership in the House does not seem to share the public’s sense of urgency on compromised voting access. Tellingly, neither Speaker Boehner nor his staff acknowledged the coalition’s attempt to deliver the signatures in-person. The office that he keeps for his congressional district was locked, and knocks went unanswered, shutting out the American people, including his constituents, in the middle of a workday while Congress is in session.

In a press conference following the attempted delivery of the petitions, lawmakers and representatives from the #VRA4Today coalition of more than 50 advocacy groups spoke of the need to strengthen the rights of voters and restore the critical protections of the Voting Rights Act. Marge Baker, executive vice president of People For the American Way, said:

Repairing the damage done by the court majority in Shelby is a critical test of whether Congress can put partisanship behind to protect our democracy. The will of the people is clear: we will not tolerate voting discrimination in our country, we will not turn back the clock.

Joining in this sentiment was House Minority Whip Steny Hoyer, who urged his colleagues to support the rights of Americans to participate in their government. “The right to vote is the most fundamental right in a democracy,” he said. “It is the right to have one’s voice heard.”
 

PFAW

Voting Developments in Ohio and Wisconsin Show, Again, Why #CourtsMatter

The past week held both good news and bad news for voting rights, depending on your part of the country. On Friday in Ohio, an appeals court declined to put on hold a ruling that expands early voting in the state, a win for those of us who believe that voting should be fair and accessible for all people. But on the same day, an appeals court gave the okay to Wisconsin’s voter ID law — a law that had been blocked months ago by a federal judge who noted that it disproportionately affects Latino and black communities.

Commentators have noted that instating the new voter ID law in Wisconsin so close to an election could cause real confusion for voters, and advocates are asking for a re-hearing. As election law expert Rick Hasen said, “It is hard enough to administer an election with set rules — much less to change the rules midstream.”

Beyond the practical implications for voters, it’s also important to connect the dots back to how these decisions happened and who was making them. As The Nation’s Ari Berman wrote on Friday night:

[A] panel of Democrat-appointed judges on the Sixth Circuit upheld a preliminary injunction from a Democrat-appointed district court judge striking down Ohio’s cuts to early voting. Two hours earlier, however, a trio of Republican-appointed judges on the Seventh Circuit overturned an injunction from a Democratic judge blocking Wisconsin’s voter ID law.

This is why elections matter. And the courts are increasingly becoming the arbiters of who does and does not get to participate in them. [emphasis added]

PFAW

Court Restores Voting Opportunities for Ohioans

A federal district court ruled this morning that restrictions on early voting in Ohio violate both the Fourteenth Amendment's Equal Protection Clause and the Voting Rights Act. This is a major setback for right-wing officials dedicated to making it harder for certain people to vote, and a major victory for Ohioans seeking to exercise their right to vote.

The Ohio legislature passed a law reducing the time for early in-person (EIP) voting from 35 days to 28 days and eliminating "Golden Week" (the first week of early voting, when people can register and vote on the same day). Adding insult to injury, Secretary of State Jon Husted issued directives setting uniform (and limited) hours statewide for EIP voting, eliminating the ability of local boards to extend hours as needed for their specific communities. It was a transparent effort to make it harder for certain people to vote – primarily African Americans. The ACLU challenged the restrictions on behalf of the Ohio NAACP, the Ohio League of Women Voters, and several African American churches.

Judge Peter Economus considered the record before him and recognized that the new rules would significantly burden certain groups' right to vote, including African Americans as well as low-income and homeless Ohioans. He also concluded that the state's purported rationales for the restrictions fell apart under careful evaluation. Consequently, he ordered the state to restore the cuts for the 2014 election.

Quoting from decades-old Supreme Court precedent, the judge framed the issue well:

The right to vote is a fundamental right. No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. [internal quotations and citations removed]

This showcases why our federal courts are so important. When government officials act to restrict our rights, we should be able to turn to our neutral federal judiciary to vindicate those rights. Our constitutional structure and basic liberties depend on that. And that is why those who would force through unconstitutional actions – restrictions on voting rights, violations of church-state separation, intrusions on reproductive choice – have long focused their efforts on putting like-minded ideologues on the federal courts, especially the Supreme Court and our nation's circuit courts.

Today, our judicial system worked exactly as intended. As a result, efforts to make it harder for African Americans in Ohio to vote have failed.

PFAW Foundation

Voter Registration in Ferguson Inspires Rather Than Disgusts

This post was originally published at the Huffington Post. 

On August 9, I don't believe 18-year-old Michael Brown, Jr. woke up in the morning thinking he would not see the evening sun, his family or friends, the end of the day that started with hope and promise. That morning, I don't believe Officer Darren Wilson left for work knowing his tragic encounter with an unarmed young African American male, who he would shoot and kill, would be the spark that ignited the flame that has been slowly burning in the city of Ferguson - the need for change.

In the wake of the fatal police shooting of unarmed teenager Michael Brown, Jr. in Ferguson, Missouri, community members and civil rights activists are proactively turning pain into power by praying, marching, meeting and yes, registering people to vote -- a move that the leader of the Missouri Republican Party, Matt Wills, said this week was "not only disgusting but completely inappropriate."

What is disgusting is that type of commentary and thinking! What is disgusting is for anyone to say, as Wills did, that "injecting race into this conversation and into this tragedy, not only is not helpful, but it doesn't help a continued conversation of justice and peace."

Is that leader aware or in denial of the Missouri Attorney General's 2013 report on racial profiling which shows that out of 5,384 Ferguson Police Department stops, 4,632 were of African Americans? That's disgusting and "completely inappropriate."

Is he aware or in denial that of the 521 arrests made during the report period, 483 were of African Americans? That out of 2,489 stops for moving violations, 1,983 were of African Americans? Shame on that leader and those who are "disgusted" by the simple act of voter registration drives to bring "light into darkness"!

In the shadow of Michael's death and the ensuing protests, I cannot imagine a more profound, inspiring response than voter registration. Justice and peace are close companions of democracy. Conducting voter registration drives at any time -- but especially at this time in a "sick and tired of being sick and tired" city that had just 12 percent turnout in this year's municipal election, 11.7 percent turnout in 2013, and 8.9 percent in 2012 -- is a critical way to address this as both a personal tragedy and a systemic tragedy.

It is not "disgusting" but deserving of those who live in a place that lacks diversity in local government, from the city council to the school board to the police department.

With deep condolences to the parents of Michal Brown, Jr. -- not wanting to "politicize" his death or exploit a grieving family who is calling for justice for the one who left out on Saturday morning and will never return -- what better way to honor them than by sowing the seeds of long-term, much needed change? Even from where I am in Washington, DC, I feel the urgency of the call for change in the homes, neighborhoods, businesses, and community of Ferguson.

The world has watched the dehumanization of a mother's child, police with military-grade gear tear-gassing protesters, journalists arrested and assaulted, and the response of helplessness and frustration that many community members must feel toward elected officials from City Hall to the halls of Congress. As Simon Maloy from Salon put it, "a week's worth of unrestrained police crackdowns...with the blessing or tacit approval of political leaders...will tend to erode whatever trust one has left in the people in charge."

So those of us who are watching should applaud, not complain about or attack, a community that turns a lack of trust in its elected officials into a movement for change.

We should applaud and not attack an inspiring vision for a different future for the rest of Michael's siblings, family and friends -- one in which the local officials are responsive to the needs of the entire community, and better reflect the community's diversity. Be "disgusted" by the city's racial profiling data. Be "disgusted" by the predicament of "driving while Black." Be "disgusted" by efforts to suppress voter participation, in Ferguson and around the country as some have "dusted off Jim Crow tactics" trying to stand in the way of men and women, youth and elder, unemployed and employed, determined to exercise their most fundamental right as citizens.

As the leader of a national alliance of African American faith leaders, I work every day with people who are often part of the first responders to tragedies like this, who walk with the family, who eulogize the deceased and who also organize, connect, and empower. They know the face of systemic injustices and of elected leaders who want to make it harder, rather than easier, for certain communities to participate in our democracy. To make the leap from pain to a promise of peace is a difficult step, but thank goodness for those who are taking it.

As one St. Louis faith leader said, pointing at a voter registration tent set up on a Ferguson street by a local woman and her daughter: "That's where change is gonna happen."

Believe is my favorite word. I truly believe "a change is gonna come." After the protests end, after the national cameras leave, after the marchers from east to west return to their homes, neighbors, and communities, there will be follow-up, there will be change.

Registering, educating and getting out the vote is not "disgusting" or "completely inappropriate." What is "disgusting" and "completely inappropriate" is not responding effectively, productively, and positively to suppression and oppression.

As I read about the homegoing (funeral) service planned for next week, I pause and pray for the family and people of Ferguson. What next comes to mind for Michael Brown, Jr. and for change in Ferguson, is: be inspired -- register and vote! For Michael's parents, Lesley McSpadden and Michael Brown, Sr. and for change in Ferguson: be inspired -- register and vote! For all those who loved "Big Mike," and all the other unnamed youth who have died to "justifiable" or "legal interventions" by law officers and know that Ferguson deserves change: be inspired -- register and vote for justice and for the fulfilled promise of peace!

PFAW Foundation