The State of Voting Rights Litigation
As the November 6 election approaches, we are keeping our eye on a series of significant voting rights lawsuits in the states.
As the November 6 election approaches, we are keeping our eye on a series of significant voting rights lawsuits in the states. For additional context, click here to review our report on the State of Voting of 2018 and related update.
Greater Birmingham Ministries v. Merrill (N.D. Ala., No 2:15-cv-02193; 11th Cir., No. 18-10151)
In December 2015, Greater Birmingham Ministries and the Alabama NAACP filed suit challenging Alabama’s voter ID law, which requires voters to present a photo ID to vote, but allows election officials to vouch for the identity of a voter without ID. They argue that the state’s photo ID law has a disproportionate impact on minority voters in violation of the Voting Rights Act and the U.S. Constitution.
In January 2018, a federal district court granted the defendant’s motion for summary judgment and dismissed the case. The plaintiffs appealed to the Eleventh Circuit, which heard oral argument on July 27, 2018. The parties are awaiting a decision.
League of Women Voters v. Newby (D.D.C, No. 1:16-cv-00236; D.C. Cir. No. 16-5196)
See Georgia below.
Thompson v. Alabama (M.D. Ala., No. 2:16-cv-00783)
In September 2016, Greater Birmingham Ministries and individuals who were disenfranchised as a result of a felony conviction in their past brought a lawsuit challenging the state’s disenfranchisement process. Plaintiffs argue that the state’s disenfranchisement of individuals convicted of a “felony involving moral turpitude” and its conditioning of restoration of the right to vote on full payment of all fines, court costs, fees, and restitution violate the U.S. Constitution and section 2 of the Voting Rights Act.
In May 2017, the Alabama Legislature passed a law defining crimes of moral turpitude, which addressed part of plaintiffs’ complaint. In an opinion issued in December 2017, a federal district court granted in part and denied in part the state’s motion to dismiss the complaint. The court permitted plaintiffs to proceed on their claims that the “moral turpitude” provision of the Alabama Constitution violates the Eighth, Fourteenth, and Fifteenth Amendments and the Ex Post Facto clause of the U.S. Constitution, and that the fees and fines provision of state law violates the Fourteenth Amendment. The case is proceeding in the district court.
Haas v. Martin (Pulaski County Circuit Court, Twelfth Division, No. 60CV-18-752; Ark. Sup. Ct., No. CV-18-375)
In February 2017, an Arkansas voter filed a lawsuit against the state’s newly enacted voter ID law, claiming that it violates the state Constitution.
In April 2017, a state trial court issued an order halting enforcement of the voter ID law. The state Supreme Court stopped the trial court’s order from going into effect for the May 22 primary election, however, even though the high court had struck down a previous iteration of the voter ID law as inconsistent with the state Constitution. The state Supreme Court heard oral arguments on the merits appeal on September 20, 2018. On October 11, the Supreme Court reversed the preliminary injunction and held that the voter ID requirement is constitutional.
League of Women Voters of Florida v. Detzner (N.D. Fl., No. 4:18-cv-00251)
In May 2018, the League of Women Voters, the Andrew Goodman Foundation, and several students filed a lawsuit challenged the Secretary of State’s determination that early voting sites could not be located on state university campuses.
On July 24, 2018, a federal district court issued a preliminary injunction, striking down the Secretary’s determination, and holding it was intentionally discriminatory on account of age, in violation of the Twenty-Sixth Amendment. The decision restored discretion to election supervisors to designate early voting sites on campuses. In August 2018, the court stayed further proceedings in the case until after the November midterms.
Florida Democratic Party v. Detzner (N.D. Fl., No. 4:18-cv-00463)
On October 9, 2018 the Florida Democratic Party filed a lawsuit for emergency injunctive and declaratory relief, seeking an extension of the state’s voter registration deadline in light of Hurricane Michael and problems with the state’s online voter registration system. On October 10, 2018, the court denied the request for a temporary restraining order.
New Florida Majority Education Fund v. Detzner (N.D. Fl., No. 4:18-cv-00466)
On October 10, 2018 the ACLU and Lawyers’ Committee brought suit on behalf of New Florida Majority Education Fund, Common Cause, and Mi Familia Vota Education Fund, seeking an extension of the state’s voter registration deadline in light of Hurricane Michael and problems with the state’s online voter registration system. The plaintiffs’ motion for emergency relief is pending.
Hand v. Scott (N.D. Fl., No. 4:17-cv-00128; 11th Cir., No. 18-11388)
In March 2017, the Fair Elections Legal Network and Cohen Milstein Sellers & Toll PLLC filed a class action complaint on behalf of individuals who were disenfranchised as a result of felony convictions in their past. Plaintiffs argue that the unfettered discretion given to Florida’s Executive Clemency Board to determine whether or not to restore individuals’ voting rights violated the U.S. Constitution.
In February 2018, a federal district court ruled that the Clemency Board’s unfettered discretion violates both the First and Fourteenth Amendments of the U.S. Constitution. In March 2018, the court ordered the defendants to create a new voting rights restoration process.
The state appealed to the Eleventh Circuit and requested a stay of the district court’s order, pending resolution of the appeal. On April 25, 2018, the Eleventh Circuit granted the request and halted the district court’s order. Oral argument on the merits appeal was held on July 25, 2018. The parties are awaiting a decision.
League of Women Voters v. Newby (D.D.C, No. 1:16-cv-00236; D.C. Cir. No. 16-5196)
In February 2016, the Brennan Center, Stroock & Stroock & Lavan LLP, and Kirkland & Ellis LLP filed suit on behalf of the League of Women Voters and state affiliates. The suit challenges letters sent by Election Assistance Commission Executive Director Brian Newby in January 2016 to the secretaries of state of Alabama, Georgia, and Kansas. Without explanation, he allowed the three states to require that applicants using the federal voter registration form provide documentary proof of citizenship.
The suit asserts that Newby lacked the authority to make this decision, and that issuing the letters violated both EAC policy and federal law. On June 29, 2016, the district court ruled that Alabama, Georgia, and Kansas could implement their proof of citizenship requirements for the 2016 election. Plaintiffs appealed this decision to the D.C. Circuit.
September 9, 2016, the D.C. Circuit preliminarily enjoined the EAC from changing the federal voter registration form to allow Kansas, Alabama, and Georgia to require documentary proof of citizenship. That means documentary proof of citizenship is not on the federal form. The case is proceeding in the district court.
On February 24, 2017, the district court remanded the matter to the EAC. Judge Richard Leon instructed the Commission to determine whether Executive Director Newby had authority to allow the three states to require proof of citizenship on the federal form. The preliminary injunction remains in place.
Georgia Coalition for the Peoples’ Agenda v. Kemp (N.D. Ga. No. 1:18-cv-04727)
On October 11, 2018, Lawyers’ Committee, Campaign Legal Center, AAAJ-Atlanta, and others brought suit on behalf of a coalition of civil rights groups, challenging Georgia’s “no-match, no vote” system, which requires an exact match between information on the voter registration form and information about the applicant in the state’s databases in order to complete the registration process. Plaintiffs argue that the system is discriminatory and constitutes an undue burden on the right to vote in violation of the Voting Rights Act and the U.S. Constitution. Plaintiffs also argue that the system violates Section 8 of the National Voter Registration Act because it fails to ensure that voters who submit timely and accurate voter registration forms are registered as active voters.
Georgia Muslim Voter Project v. Kemp (N.D. Ga. 1:18-CV-04789)
On October 16, 2018, the ACLU and ACLU of Georgia filed a lawsuit on behalf of the Georgia Muslim Voter Project and AAAJ-Atlanta, challenging a Georgia statute that requires elections officials to reject absentee ballots (and absentee ballot applications) if the absentee ballot signature does not match the signature elections officials have on file. This determination cannot be reviewed or appealed. Plaintiffs argue that this requirement violates the Fourteenth Amendment’s Due Process Clause, and they ask the Court to give voters whose ballots were rejected up to three days after Election Day (or three days after they receive notice of the rejection) to confirm their identity.
Indiana NAACP v. Lawson (S.D. Ind., No. 1:17-cv-02897; 7th Cir., No. 18-2492)
In August 2017, the Brennan Center filed a lawsuit on behalf of the Indiana NAACP and League of Women Voters, challenging the state’s new voter purge process. The law provides for use of the error-prone Crosscheck Program to remove voters without the notice and waiting period required by the National Voter Registration Act.
On June 8, 2018, a federal district court issued a preliminary injunction, blocking the law. The court held that the plaintiffs were likely to succeed in showing that Indiana’s laws violated the National Voter Registration Act. The state appealed the court’s order to the Seventh Circuit, and the appeal is pending.
League of United Latin American Citizens v. Pate (Polk County Dist. Ct., No. CVCV056403; Iowa Sup. Ct., No. 18-1276)
On May 30, 2018, LULAC Iowa and an Iowa voter filed a lawsuit challenging HF 516, a 2017 law that, among other things, cut back on early voting days, made it harder to cast absentee ballots, and implemented new voter ID requirements in elections after 2018.
In July 2018, a state district court issued temporary injunction, blocking parts of the law making it more difficult to apply for an absentee ballot and cutting back on the early/absentee voting period. The court also prohibited state officials from advertising that ID was required to vote this November in connection with the state’s “soft rollout” of its new voter ID law.
On August 10, 2018, the Iowa Supreme Court affirmed the district court’s temporary injunction in part, but it reversed the injunction with respect to the absentee/early voting period, restoring the state’s cutback.
Fish v. Kobach (D. Kan. No. 2:16-cv-02105; 10th Cir. No. 16-3147)
Bednasek v. Kobach (D. Kan. No. 2:15-cv-09300; 10th Cir., No. 18-3186)
In February 2016, the ACLU brought suit on behalf of affected would-be voters alleging that Kansas violated the National Voter Registration Act by requiring Kansans who attempt to register to vote while applying for or renewing a driver’s license to produce documentary proof of citizenship. In a separate case – Bednasek v. Kobach – would-be voters brought suit arguing that the documentary proof of citizenship requirement constituted an undue burden on their right to vote in violation of the Fourteenth Amendment.
A federal district court consolidated the cases for trial and held a bench trial in March 2018. After trial, the district court struck down the law. The state has appealed to the Tenth Circuit and the appeal is pending.
League of Women Voters v. Newby (D.D.C, No. 1:16-cv-00236; D.C. Cir. No. 16-5196)
See Georgia above.
Voice of the Ex-Offender v. State (19th Judicial District for the Parish of East Baton Rouge, No. 649587; Louisiana Court of Appeal, First Circuit, No. 2017 CA 1141)
In July 2016, Voice of the Ex-Offender and individuals with felony convictions in their past challenged the state’s disenfranchisement law. Plaintiffs argue that the state’s disenfranchisement of citizens on probation or parole violates individuals’ right to vote under the state constitution, which permits suspension of the right to vote if the person is “under an order of imprisonment”.
In August 2017, the trial court granted summary judgment to the state and dismissed the case. Plaintiffs appealed. In April 2018, the Louisiana Court of Appeal affirmed the dismissal.
In June 2018, Plaintiffs filed an application for writ of certiorari or review with the state Supreme Court, which awaits disposition.
Michigan State A. Philip Randolph Institute v. Johnson (E.D. Mich., No. 16-cv-11844; 6th Cir., No. 18-1910)
In May 2016, plaintiffs filed a lawsuit challenging a Michigan law that banned straight-ticket voting. Plaintiffs argued that the law violated the Voting Rights Act and the Fourteenth Amendment.
In July 2016, a federal district court issued a preliminary injunction blocking the law. The court held that plaintiffs were likely to succeed on the merits of their VRA and constitutional claims.
The court held a trial, and in August 2018, it issued a permanent injunction, striking down the law. The court found that the law impermissibly burdens African-Americans’ voting rights in violation of the Fourteenth Amendment; that it was passed with the intent to discriminate against African-Americans in violation of the Fourteenth Amendment; and that it has a disparate impact on African-Americans in violation of the Voting Rights Act.
The state appealed, and on September 5, 2018, the Sixth Circuit issued a stay of the district court’s order, pending resolution of the appeal.
Missouri NAACP v. State of Missouri (Cole County Cir. Court, No. 17AC-CC00309; Western District Court of Appeals, No. WD81484)
In June 2017, the ACLU and Advancement Project brought suit on behalf of the Missouri NAACP and League of Women voters, challenging the state’s new voter ID law. Plaintiffs argue that the manner in which the state has implemented the law violates state law and the state Constitution.
In January 2018, the trial court granted the defendants’ motion for judgment on the pleadings and dismissed the case. The plaintiffs appealed, and the appeal has been fully briefed.
Priorities USA v. State of Missouri (Cole County Circuit Court, No. 18AC-CC00226)
In June 2018, Priorities USA and an individual voter brought a lawsuit challenging the state’s voter ID law. Plaintiffs argue that the law violates the state Constitution.
In September 2018, the court held a trial. On October 9, 2018, the court issued an order striking down part of the voter ID law. Specifically, the court permanently enjoined the state from requiring otherwise-qualified voters that lacked photo ID to execute an affidavit in order to vote. In addition, the court enjoined the state from disseminating misleading materials suggesting that voters without photo ID could not vote. On October 10, 2018, the state filed a notice of appeal.
League of Women Voters v. Gardner (Superior Court, Hillsborough Northern District, No. 226-2-17-CV-00432 and -00433)
In August 2017, the League of Women Voters of New Hampshire (along with certain individual plaintiffs) and the New Hampshire Democratic Party filed complaints challenging Senate Bill 3, a voter registration law that critics claim that the law was designed to prevent students from voting in a state.
The trial court held a weeks-long preliminary injunction hearing that concluded in early September 2018.
Brakebill v. Jaeger (D.N.D., No. 1:16-cv-08; 8th Cir. No. 18-1725; U.S. Sup. Ct., No. 18A335)
In January 2016, seven Native American plaintiffs represented by the Native American Rights Fund filed suit under the Voting Rights Act and the U.S. and North Dakota Constitutions challenging the state’s strict photo ID law, arguing it disproportionately denies Native American citizens the right to vote. On August 1, 2016, a federal trial court issued a preliminary injunction ordering North Dakota to provide a “fail-safe” option for voters without photo ID if it intends to enforce the ID requirement.
In April 2017, North Dakota approved a revised voter ID law, and the plaintiffs filed a motion to enjoin the new law. In April 2018, the district court issued a preliminary injunction, temporarily halting the state from enforcing parts of the new law that could disenfranchise significant numbers of Native Americans. The state appealed to the Eighth Circuit and requested a stay of part of the district court’s injunction, which required the state to accept voter ID that includes a current mailing address rather than a current residential street address.
On September 24, 2018, the Eighth Circuit granted the state’s request for a stay of the district court’s injunction with respect to the residential street address requirement, pending appeal. The merits appeal has been fully briefed and submitted. On October 9, 2018, the U.S. Supreme Court denied plaintiffs’ application to vacate the Eighth Circuit’s stay.
South Carolina v. Andino (Richland County Court of Common Pleas, No. 2018-CP-40-05088)
On September 27, 2018, the South Carolina Attorney General filed suit against the State Election Commission, seeking a temporary injunction to extend the state’s voter registration deadline in light of Hurricane Florence. The Election Commission consented to the request for an injunction. On October 2, 2018, the court ordered an extension of ten days, moving the registration deadline to October 17, 2018.
The Tennessee Black Voter Project v. Shelby County Election Commission (Shelby Cty. Chancery Ct., No. CH-18-1476)
On October 15, 2018 Perkins Coie and Branstetter, Stranch & Jennings filed a lawsuit in state court on behalf of the Tennessee Black Voter Project and an individual under Tennessee’s public records law. The Tennessee Black Voter Project, which submitted more than 35,000 voter registration applications to the County Election Commission as part of a statewide voter registration drive, alleges that the county elections administrator has deemed over 55% of the voter registration forms received since August 2018 “invalid.” Plaintiffs seek to compel the Commission to permit them to inspect the rejected voter registration applications and related materials, prior to the November 6, 2018 election, in order to assist applicants in completing or correcting their registration applications.
Veasey v. Abbott (S.D. Tex., No. 2:13-cv-00193; 5th Cir., No. 14-41127; U.S. Sup. Ct., No. 16-393)
In September 2013, the Brennan Center, Lawyers’ Committee, and co-counsel filed suit challenging SB 14 – Texas’s strict photo voter ID law – on behalf of the Texas State Conference of the NAACP and the Mexican American Legislative Caucus of the Texas House of Representatives. The suit charged that the voter ID law violated the Voting Rights Act and U.S. Constitution. It was soon consolidated with similar actions filed by the U.S. Department of Justice and Texas voters.
After a trial in September 2014, a federal district court struck down the law. The court held that SB 14 violates Section 2 of the VRA by impermissibly abridging African Americans’ and Latinos’ access to the ballot; was passed by the Texas legislature with the intent to discriminate against minority voters; imposes an unconstitutional burden on the right to vote; and constitutes an unconstitutional poll tax.
Texas appealed this decision to the Fifth Circuit Court of Appeals. In July 2016, the Fifth Circuit, sitting en banc, held that the photo ID law has a discriminatory effect in violation of Section 2 of the VRA. The Fifth Circuit also instructed the district court to reevaluate plaintiffs’ claim that the law was passed with discriminatory intent.
In June 2017, Texas passed a new voter ID law, SB 5. The District Court struck down this law, finding that it perpetuated the discriminatory intent of initial law, but on April 27, 2018 a divided panel of the Fifth Circuit issued a decision permitting Texas to implement SB 5.
On September 17, 2018, the District Court entered a final judgment, dismissing the case for the reasons set forth in the Fifth Circuit’s April 27, 2018 opinion.
Frank v. Walker (E.D. Wis., No. 11-cv-1128; 7th Cir., Nos. 14-2058, 15-3582, 16-3003; U.S. Sup. Ct. No. 14A352)
In December 2011, the ACLU of Wisconsin, National ACLU, and National Law Center for Homelessness and Poverty brought suit on behalf of individual plaintiffs challenging Wisconsin’s strict photo ID law as discriminatory against African-American and Hispanic voters and a denial of the vote, bringing claims under the U.S. Constitution and Section 2 of the Voting Rights Act.
In April 2014, the trial court struck down the law; the state appealed to the Seventh Circuit, which overturned the trial court’s decision and upheld the law. However, after the Supreme Court stepped in, the law was not in effect for the November 2014 election. It went into effect in April 2015, after the Supreme Court declined to reconsider the Seventh Circuit’s ruling upholding the law.
Plaintiffs undertook a second stage of litigation, in which they argue that the strict photo ID law is unconstitutional for those who cannot get ID. In July 2016, the trial court issued an order instructing that voters who lack photo ID must be able to cast a regular ballot in the November 2016 elections after completing an affidavit.
Wisconsin filed an emergency appeal of this decision with the Seventh Circuit and on August 10, 2016, the Seventh Circuit stayed the district court’s order. On August 26, 2016, the full Seventh Circuit declined to reconsider this decision. Because of the Seventh Circuit’s order, Wisconsin’s law was in effect without the affidavit alternative for those without ID during the 2016 elections.
After the Seventh Circuit issued the emergency stay on the District Court’s order, the case proceeded to the Seventh Circuit on appeal. Oral Argument was held on February 24, 2017. The parties are awaiting a decision.
One Wisconsin Inst., Inc. v. Nichol (W.D. Wis., No. 15-cv-324; 7th Cir., No. 16-3091)
In May 2015, One Wisconsin Institute, affected voters, and Wisconsin Citizen Action brought suit to challenge various election law policies, including the voter ID provision and legislative restrictions on early voting opportunities, under the U.S. Constitution and Section 2 of the Voting Rights Act.
On July 29, 2016, the trial court blocked many of the challenged restrictive voting provisions. The trial court ruled, among other things, that Wisconsin could not maintain its voter ID law without creating a functional safety net for those without ID and permitting students to use expired but otherwise valid student IDs. The court also found that the limitations on in-person absentee voting were intentionally racially discriminatory. The decision was appealed to the Seventh Circuit.
On August 22, 2016, a panel of the Seventh Circuit denied Wisconsin’s request to put the trial court’s decision on hold in advance of the November election. On August 26, 2016, the full Seventh Circuit declined to reconsider this decision.
On September 30, the district court ordered state officials to investigate whether DMV clerks were properly instructing voters on the process to obtain ID for voting, after recordings of applicants receiving incorrect information were made public. The court held a hearing on the issue on October 13th, and issued an order finding that Wisconsin had failed to sufficiently inform the public about ID options and had failed to sufficiently train DMV officials on how to issue IDs for voting. The court ordered the state to increase its education efforts, retrain DMV officials, and submit weekly progress reports to the court up until the election, but declined to enjoin the voter ID law for the November 2016 election.
The case is currently on appeal with the Seventh Circuit. Oral argument was held on February 24, 2017. The parties are awaiting a decision.