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Expert Brief

The State of Voting Rights Litigation (November 2018)

As the November 6 election approaches, we are keeping our eye on a series of significant voting rights lawsuits in the states.

Published: November 15, 2018

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.

Please note that this page reflects the state of voting rights litig­a­tion in Novem­ber 2018. Click here to find the most recent update on press­ing voting rights cases in the courts.

ALABAMA

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.

ARKAN­SAS

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.

FLOR­IDA

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 condi­tion­ally 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. On Octo­ber 18, 2018 the court consol­id­ated this case with the Flor­ida Demo­cratic Party case above. On Octo­ber 22, 2018, the court condi­tion­ally denied the plaintiffs’ motion for emer­gency relief.

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.

GEOR­GIA

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.

On Novem­ber 2, 2018, the district court entered a prelim­in­ary injunc­tion with respect to voting rules for the approx­im­ately 3,141 indi­vidu­als whose voter regis­tra­tions have been placed in “pending” status because their citizen­ship inform­a­tion did not match. The court observed that a mismatch could occur when a person obtains a Geor­gia driver’s license prior to becom­ing a citizen, then becomes a natur­al­ized citizen, and then submits a voter regis­tra­tion applic­a­tion claim­ing citizen­ship.

The court ordered the Secret­ary of State to allow county elec­tion offi­cials to permit people placed in “pending” status because of citizen­ship to vote a regu­lar ballot by provid­ing proof of citizen­ship to poll managers or deputy regis­trars. Prior to the order, if these voters wanted to present proof of citizen­ship at the polls, they had to have their present proof reviewed by a deputy regis­trar. The court cred­ited evid­ence that deputy regis­trars were not always avail­able at poll places and determ­ined that the state’s system consti­tuted a severe burden on the right to vote.

Geor­gia Muslim Voter Project v. Kemp (N.D. Ga. No. 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.

On Octo­ber 24, 2018, the court issued an order that applied to this case and to Martin v. Kemp. The court determ­ined that plaintiffs were entitled to an injunc­tion, and it issued a proposed injunc­tion, giving the parties until Octo­ber 25 to provide any objec­tions to the form of the order. The court proposed that the Secret­ary of State issue instruc­tions to all county elec­tions offi­cials that they must afford absentee voters and applic­ants notice and an oppor­tun­ity to resolve the perceived signa­ture mismatch.

Martin v. Kemp (N.D. Ga. No. 1:18-CV-04776)

On Octo­ber 15, 2018, Geor­gia voters brought a lawsuit 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, as well as Gwin­nett County’s alleged prac­tice of reject­ing absentee ballots for mistakes relat­ing to the applic­a­tion date or the voter’s birth date. Plaintiffs argue that these proced­ures viol­ate the Four­teenth Amend­ment’s Due Process Clause and Equal Protec­tion Clauses.

On Octo­ber 24, 2018, the court issued an order that applied to this case and to Geor­gia Muslim Voter Project v. Kemp. The court determ­ined that plaintiffs were entitled to an injunc­tion, and it issued a proposed injunc­tion, giving the parties until Octo­ber 25 to provide any objec­tions to the form of the order. The court proposed that the Secret­ary of State issue instruc­tions to all county elec­tions offi­cials that they must afford absentee voters and applic­ants notice and an oppor­tun­ity to resolve the perceived signa­ture mismatch.

Common Cause Geor­gia v. Brian Kemp (N.D. Ga. No. 1:18-cv-05102-AT)

On Novem­ber 5, 2018, the Bren­nan Center for Justice and co-coun­sel filed a lawsuit on behalf of Common Cause Geor­gia seek­ing emer­gency relief by the court to ensure that all provi­sional ballots cast by eligible voters in the state are coun­ted. Plaintiffs argue that Geor­gia Secret­ary of State Brian Kemp purpose­fully left the state’s voter inform­a­tion portal suscept­ible to cyber­se­cur­ity threats and then exacer­bated said risk by publi­ciz­ing the system’s vulner­ab­il­it­ies in the final days before the 2018 midterms. Plaintiffs are also asking the court to require the state to insti­tute a modi­fied provi­sional ballot count­ing system to minim­ize the risks posed by the vulner­able cyber­in­fra­struc­ture.

On Novem­ber 12, 2018, the District Court gran­ted the plaintiff’s request for a tempor­ary restrain­ing order in part, requir­ing the state to take multiple steps to protect voters who were forced to cast provi­sional ballots because of regis­tra­tion prob­lems. This included estab­lish­ing a hotline and website so that voters could check if their ballots were coun­ted; conduct­ing a review of provi­sional ballots; and provid­ing detailed inform­a­tion about provi­sional ballots cast. 

INDI­ANA

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.

IOWA

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.

KANSAS

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.

LULAC v. Cox (D. Kan. No. 2:18-cv-02572)

On Octo­ber 26, 2018, ACLU Kansas filed a complaint and emer­gency motion for a tempor­ary restrain­ing order (TRO) on behalf of the League of United Latin Amer­ican Voters Kanas and a Kansas voter, chal­len­ging the Ford County Clerk’s relo­ca­tion of Dodge City’s sole polling place. Plaintiffs argue that the relo­ca­tion consti­tutes an undue burden on the voting rights of Dodge City voters and will have a discrim­in­at­ory impact on Hispanic voters in viol­a­tion of Section 2 of the Voting Rights Act.

On Novem­ber 1, 2018, the district court denied the TRO motion.

LOUISI­ANA

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. On Octo­ber 29, 2018, the state Supreme Court denied the writ applic­a­tion.

MICHIGAN

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

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 on Octo­ber 30, 2018, the Missouri Court of Appeals reversed the district court’s decision, and sent the case back to the district court for further proceed­ings.

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 19, 2018, the Missouri Supreme Court denied Defend­ants’ request for a stay of the trial court’s order.

NEW HAMP­SHIRE

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. On Octo­ber 22, 2018, the trial court issued a prelim­in­ary injunc­tion, partially block­ing SB3. Specific­ally, the court enjoined the state’s use of a new affi­davit for voters regis­ter­ing within 30 days of the elec­tion without docu­ment­a­tion prov­ing domi­cile.

On Octo­ber 26, 2018, the New Hamp­shire Supreme Court stayed the trial court’s prelim­in­ary injunc­tion until after the Novem­ber 6 elec­tion.

NORTH DAKOTA

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.

Spirit Lake Tribe v. Jaeger (D.N.D. No. 1:18-cv-00222)

On Octo­ber 30, 2018, the Native Amer­ican Rights Fund and the Campaign Legal Center (along with private firm part­ners) filed a lawsuit on behalf of the Spirit Lake Tribe and indi­vidual Native Amer­ican voters, chal­len­ging North Dakota’s require­ment that voter IDs include the voter’s resid­en­tial street address. This lawsuit follows on the Eighth Circuit’s Septem­ber 24, 2018 stay order in Brake­bill v. Jaeger (see above), which indic­ated that while that court would not uphold the district court’s statewide injunc­tion of the resid­en­tial address require­ment at that junc­ture, voters impacted by the require­ment could bring targeted chal­lenges to the law based on its impact on them.

Plaintiffs argue that this require­ment imposes an undue burden on their right to vote in viol­a­tion of the First and Four­teenth Amend­ments. They ask the court to bar the state from enfor­cing the resid­en­tial street address require­ment against Native Amer­ican voters living on reser­va­tions or altern­at­ively, to allow those voters to identify their resid­ences on the precinct map in order to verify their eligib­il­ity to vote in the precinct.

On Octo­ber 31, 2018, plaintiffs filed a motion for a tempor­ary restrain­ing order against the voter ID require­ment. On Novem­ber 1, 2018, the district court denied the motion.

OHIO

Ohio A. Philip Randolph Insti­tute v. Husted (6th Cir. No. 18–3984; S.D. Oh. No. 2:16-cv-00303)

On June 11, 2018, the U.S. Supreme Court upheld a contro­ver­sial Ohio purge prac­tice in a 5–4 decision called Husted v. A. Phil­lip Randolph Insti­tute (APRI). Under the chal­lenged law, voters in Ohio who miss a single federal elec­tion are flagged to receive a confirm­a­tion notice, and if they fail to respond to that notice (or engage in other defined activ­it­ies) in the next four years, they are removed from the voter rolls.  

Follow­ing the Supreme Court’s decision, the district court lifted a stay it had previ­ously entered and proceeded to consid­er­a­tion of the remain­ing issues in the case. Most crit­ic­ally, plaintiffs argued that the form of the confirm­a­tion notice described above viol­ated federal law, and they sought a perman­ent injunc­tion to remedy the alleged viol­a­tion. On Octo­ber 10, 2018, the district court denied plaintiffs’ motion for perman­ent injunc­tion with respect to the form of the confirm­a­tion notice.

On Octo­ber 12, 2018, plaintiffs appealed, and on Octo­ber 15, 2018, they filed an emer­gency motion for injunc­tion, pending appeal. On Octo­ber 31, 2018, the Sixth Circuit gran­ted plaintiffs’ emer­gency motion, in part. The court ordered Ohio to count ballots cast by voters who had been purged between 2011 and 2015 through the fail­ure-to-vote process, as long as the purged voter casts his or her ballot at the correct polling place, contin­ues to reside in the same county where he or she had been registered, and has not become ineligible to vote due to a felony convic­tion, mental inca­pa­city, or death. Ohio’s Secret­ary of State Jon Husted said that he would not appeal the ruling.

PENNSYLVANIA

Adams Jones et al. v. Torres (Common­wealth Court of Pa., No. 717 MD 2018)

On Novem­ber 13, 2018, the ACLU of Pennsylvania along with other civil rights organ­iz­a­tions filed a lawsuit chal­len­ging the Common­wealth’s dead­line for submit­ting absentee ballots. Among the plaintiffs are nine indi­vidu­als who applied for an absentee ballot on time but received the ballot either too close to or after Pennsylvani­a’s dead­line for return­ing ballots (by 5 pm on the Friday before Elec­tion Day). Accord­ing to the plaintiffs’ complaint, the state’s dead­line for return­ing absentee ballots is the earli­est in the nation. Plaintiffs are asking the court to estab­lish a new dead­line, arguing that the early dead­line for return­ing absentee ballots viol­ates both the U.S. and the Pennsylvania Consti­tu­tion.

SOUTH CARO­LINA

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.

TENNESSEE

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.

On Octo­ber 18, 2018, plaintiffs began a partial review of the reques­ted docu­ments, pursu­ant to an agree­ment reached with the Commis­sion. On Octo­ber 23, 2018, plaintiffs amended their complaint, based on this review. Plaintiffs asked the court to order Defend­ants to permit voters who timely submit­ted voter regis­tra­tion forms that were deemed incom­plete or defi­cient to cure those defi­cien­cies and vote a regu­lar ballot.

On Octo­ber 25, 2018, the court issued a ruling, requir­ing Shelby County to permit voters to fix defi­cien­cies with their regis­tra­tion applic­a­tions on Elec­tion Day and vote a regu­lar ballot, notify applic­ants regard­ing defi­cien­cies with their regis­tra­tion applic­a­tions, and provide daily updates on the number of applic­ants with defi­cient applic­a­tions.

On Novem­ber 1, 2018, the Tennessee Court of Appeals reversed the Chan­cery Court, in part. As a result of the Court of Appeals’ ruling, voters who correct their regis­tra­tion inform­a­tion on elec­tion day will only be permit­ted to cast provi­sional ballots. Shelby County will continue to have to provide notice to applic­ants regard­ing their regis­tra­tion status.

TEXAS

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.

Allen v. Waller County (S.D. Tex. No. 4:18-cv-3985)

On Octo­ber 22, 2018, the NAACP Legal Defense Fund and Norton Rose Fulbright brought a lawsuit on behalf of students of color at Prairie View A&M Univer­sity (PVAMU) – a histor­ic­ally Black univer­sity. Plaintiffs claim that Waller County elec­tions offi­cials have refused to provide them with early voting oppor­tun­it­ies equal to those provided to non-Black, non-student voters in the county, in viol­a­tion of Section 2 of the Voting Rights Act, and the Four­teenth, Fifteenth, and Twenty-Sixth Amend­ments. This lawsuit is a continu­ation of a decades-long fight against discrim­in­at­ory voting prac­tices in Waller County. On Octo­ber 24, 2018, plaintiffs filed a motion for a tempor­ary restrain­ing order (TRO).

On Octo­ber 25, 2018, Waller County took steps to expand early voting oppor­tun­it­ies for PVAMU students – adding a day of early voting at a loca­tion in the city of Prairie View (which surrounds the PVAMU) and extend­ing early voting hours at the PVAMU campus center. On Octo­ber 26, 2018 plaintiffs moved to with­draw their TRO motion without preju­dice, and on Octo­ber 30, the court gran­ted the motion to with­draw.

WISCON­SIN

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.