Let's start in the Sunshine State:
Judge Robert L. Hinkle of Federal District Court in Tallahassee is tossing out pernicious curbs on third-party voter registration organizations. Last year, in addition to other changes, Florida Gov. Rick Scott approved a law requiring such organizations to turn in all completed registration forms within 48 hours after completion. Consequently, several key volunteer voter-registration organizations, including Rock the Vote and the League of Women Voters, closed up shop in Florida. Groups previously had 10 days to submit the forms.
Deirdre Macnab, the president of the League of Women Voters of Florida, told The New York Times she was happy about this week's ruling. But she added there is a tough row to hoe since the registration deadline for the November election is just five weeks away:
“We have so far now to catch up in making sure that everyday Florida voices are going to be heard in a very important election with very important decisions to be made,” Ms. Macnab said.The change matters a great deal. For the 13 months beginning July 1 the year before elections in 2004 and 2008, registered Democrats increased by an average of 209,425 voters. But from last summer up to July 1, 2012, only 11,365. And one county, Duval, registered some 13,000 new Democrats. Which means the rest of Florida lost Democratic voters. Over the same 13 months, registered Republicans rose by 128,039 statewide, well above the average of 103,555 during 2004 and 2008.
(Continue reading below the fold.)
In other news
- In the Lone Star State: The United States District Court for the District of Columbia, ruled that the new voter-ID law in Texas violates the Voting Rights Act because it imposes “strict, unforgiving burdens” on poor minority voters. Under Section 5 of the act, Texas and several other Southern states as well as counties elsewhere in the country, get special scrutiny because of their decades-long employment of "Jim Crow" laws to keep African Americans and American Indians from voting. These states must get major voting procedures "pre-cleared" by the federal government.
The court ruled that costs associated with the voter-ID law would harm minorities because “a disproportionately high percentage of African Americans and Hispanics in Texas live in poverty.”
Although voter-ID laws vary state to state, the Texas law reflects a pattern of Republican governors and GOP-dominated legislatures working to suppress voter turnout. In its unanimous ruling, however, the court stuck to a narrow interpretation, taking care not to tread on Indiana case of Crawford v. Marion County Election Board in which the Supreme Court ruled that a photo-ID law passed muster:
After all, Texas argues, if Indiana can implement a photo ID law to protect against voter fraud, why can’t Texas do the same?Rick Hasen at Election Law Blog praised what he called a "careful" ruling by the court. He noted, among other things, that the judges chose to discount a deluge of social science evidence presented by both sides to show that the voter-ID law would or would not have a negative impact on minority voters. They chose instead to note straightforwardly that the law would be tough on poor voters and that Latino voters are more likely to be poor than white voters and would, therefore, be discriminated against by the requirement. He also wrote:
By contrast, the United States argues that Crawford is largely irrelevant to this litigation. It points out that Crawford involved a First and Fourteenth Amendment facial challenge to a voter ID law enacted by a state not covered by section 5. As such, the Crawford plaintiffs, who sought to have the law invalidated, bore a “heavy burden of persuasion,” requiring them to show that the law was invalid “in all its applications.” Crawford, 553 U.S. at 200 (emphasis added). Here, however, Texas bears the burden of proving that SB 14 lacks discriminatory purpose and retrogressive effect. Georgia, 411 U.S. at 538. Thus, the United States concludes, Crawford is essentially inapplicable to the issues before us.
Texas is likely to appeal this case to the Supreme Court, and I would expect to see an application for an emergency injunction allowing Texas to use its voter id law during the upcoming election. If this happens, this will be a major question for the Roberts Court, and it would have to be decided in short order. Given the closeness to the election, it is not clear to me that even if the Supreme Court disagrees on some of the analysis with the district court that it would grant such emergency relief. This is a big unknown.Ari Berman of The Nation has an as-always-excellent analysis of the ruling here. He says Texas officials plan to amend their case when they take it to the Supreme Court and challenge the constitutionality of Section 5. Alabama is already doing that. Texas has signed on to that case with an amicus brief. According to Berman, Texas has lost more Section 5 cases than any other state.
- In the Buckeye State: There was one small victory and a larger one in Ohio this week.
On Monday, a federal judge granted an injunction against a 2006 law that stated provisional ballots cast in the wrong precinct can be thrown out, even when the voter has been directed to that precinct by poll-workers.
The outcome of the big deal case, however, was announced Friday when a federal court judge restored the three days of early voting right before the election that the state legislature had dropped. Unless Ohio wins on appeal, Ohio citizens will now be able to cast ballots on the weekend and Monday before the November 6 election.
Those early-voting days were added in 2008 because, in the 2004 election, hideously long queues at Ohio polling stations in urban centers caused tens of thousands of voters to go home without casting a ballot. Under heavy criticism, the state added early voting days to its calendar. The move worked, boosting voter turnout significantly. But it gave Ohio to Barack Obama and cost the Republicans two congressional seats they would otherwise have kept. Early voter turnout was especially high on the three days right before the election. Tens of thousands of voters cast ballots on Sunday, many of them African Americans on their way home from church.
Ohio Republicans responded by cutting back the number of days available for early voting and eliminating the three days right before the election—except for Ohioans covered by the Uniformed and Overseas Citizens Absentee Voting Act.
Rick Hasen of the Election Law Blog is uncertain how the U.S. Sixth Circuit Court of Appeals might rule in the matter since the judges are deeply split on issues of voting rights.
- The Land of 10,000 Lakes: The Minnesota Supreme Court approved the wording of a ballot measure on a proposed constitutional amendment requiring voter ID. The decision did not discuss the merits of the amendment.
"If this passes, if this makes it into our Minnesota Constitution, I think we will have many years of litigation and possibly many lawsuits," said state Rep. Steve Simon, [a member of the Democratic/Farmer/Labor Party].Scott Newman, a Republican lawmaker who was a chief sponsor of the original legislation, said he believes the voter-ID law will have no problems in the courts as long as it closely follows the Crawford case in which the U.S. Supreme Court held that Indiana's voter-ID statute is constitutional. If the law in Minnesota ensures that the identification cards can be obtained free of charge, he thinks the amendment will stand, assuming voters approve it in the first place.
Simon was a vocal opponent of the Republican-backed voter ID legislation that DFL Gov. Mark Dayton vetoed, and the subsequent constitutional amendment bill that allowed the GOP to bypass the governor and put the measure directly on the ballot. If it passes, Simon said there could be a series of lawsuits challenging the requirement before it would take effect in 2013.
"A second series of lawsuits, I would suppose, would come along after implementation of the law. That is after an election has already taken place under the new regime," Simon said. "There would be, I suspect, lawsuits about that, about the sort of impacts of that on certain communities and certain populations."
- In the Centennial State: As part of a purge of supposedly ineligible voters, Scott Gessler. Secretary of State for Colorado sent out 3,903 letters asking recipients to confirm they are citizens. Gessler announced today that 16 people had voluntarily withdrawn their registrations but not a single person had been found who illegally voted. Democrats repeated their charges that Gessler was engaged in a witch hunt to suppress the votes of minorities. Letters questioning citizenship were sent to 1,566 Democrats, 1,794 unaffiliated voters and 486 to Republicans.
- The Palmetto State: A South Carolina lawmaker admits he gave thumbs-up reply to racist email regarding new voter ID law: Testimony was heard this week on South Carolina's voter-ID law. The U.S. Department of Justice has rejected the law under the "pre-clearance" provisions of Section 5 of the Voting Rights Act of 1965. That act was specifically directed at states that had a history of denying voting rights to minorities, particularly African Americans and American Indians. South Carolina is contesting the rejection.
In court on Tuesday, the author of the statute, state Rep. Alan Clemmons, a Republican, acknowledged that he might not have made the best choice in his reply to an email from someone named Ed Koziol. The email stated that if rewards were given for obtaining a government-issued photo ID, the response from African Americans "would be like a swarm of bees going after a watermelon." Clemmons had responded "Amen, Ed, thank you for your support." He told the Garrard Beeney, the attorney representing civil rights groups in the case, that this was a "poorly considered" response.
Had it been a one-time matter, Clemmons might deserve a pass, but Beeney
[...] asked Clemmons whether he remembered distributing packets of peanuts with cards that read “Stop Obama’s nutty agenda and support voter ID.”
Clemmons said he did not, though Beeney said he had testified in June that he did.