Lawyers’ Committee Files Federal Voting Rights Lawsuit Challenging Alabama’s Discriminatory Method of Electing Judges

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The Lawyers’ Committee for Civil Rights Under Law filed a lawsuit on behalf of the Alabama State Conference of the NAACP and four individual black voters alleging that the method of electing Alabama’s most powerful judges violates the Voting Rights Act.

The suit maintains that Alabama’s statewide method of electing members of the Alabama Supreme Court, Court of Criminal Appeals and Court of Civil Appeals deprives the African-American community of the ability to elect any judges of their choice. Currently, all 19 of Alabama’s appellate judges are white.

“In 2016, Alabama’s appellate courts are no more diverse than they were when the Voting Rights Act was signed more than 50 years ago,” said Kristen Clarke, president and executive director of the Lawyers’ Committee. “It is time for the highest courts in the state of Alabama to reflect the diversity of the communities they serve. This lawsuit seeks to provide African-American voters an equal opportunity to elect judges of their choice, achieve long overdue compliance with the Voting Rights Act and instill greater public confidence in the justice system of Alabama.”

The Supreme Court of Alabama has nine members and is the state’s court of last resort. Alabama’s intermediate appellate courts, the Court of Criminal Appeals and the Court of Civil Appeals, each has five members.

All 19 judges are elected statewide. Because white Alabamians comprise the majority of the voting age population in the state, and because of racially polarized voting, black-preferred candidates are consistently defeated in elections involving the highest levels of the state’s judiciary. Such vote dilution is prohibited by the Voting Rights Act and the state could easily devise a fairer electoral system.

The Lawyers’ Committee filed today’s suit in partnership with James Blacksher and Edward Still, two long-time Alabama civil rights attorneys, Montgomery-based attorney J. Mitch McGuire, as well as with pro bono counsel Crowell & Moring LLP and Stroock & Stroock & Lavan LLP.

The suit was filed in the U.S. District Court for the Middle District of Alabama and is part of the Lawyers’ Committee’s national initiative to bring state courts into compliance with the Voting Rights Act and promote judicial diversity. On July 20, 2016, the Lawyers’ Committee and another set of partners filed a similar suit alleging that the statewide method of electing Texas’s most powerful judges violates the Voting Rights Act.

In the history of Alabama, only two African Americans have won an election to statewide office. Every other black statewide candidate has been defeated by a white candidate. Alabama’s appellate judges have been all-white for 15 years.

“The Alabama NAACP continues to fight for equitable representation of all communities in our judicial system at all levels,” said Benard Simelton, president of the Alabama NAACP. “Alabama cannot continue to have a system that ignores segments of the community. We believe that a revised method of electing judges will lead to representation of all segments of the community.”

Alabama has the sixth-largest black population in the country with African Americans comprising almost 25 percent of the state’s voting age population.  However, with voting polarized along racial lines, African Americans have been underrepresented on the three courts at issue for decades. In 1991, the U.S. Supreme Court made clear that the Voting Rights Act applies to judicial elections.

The courts at issue in this case handle cases of all kinds, including important criminal cases.  Notably, nearly 63 percent of Alabama’s prison population is black.

“The right to vote is essential to our democracy, and that right must be meaningful for our system of government to function properly,” said Crowell & Moring partner Richard Schwartz.  His partner Keith Harrison explained, “We believe that African Americans must have an effective part in the election of appellate judgeships in Alabama. When judges are elected, equal justice under the law requires meaningful voting rights for all citizens, including Alabama’s African-American citizens.”

 

Voting Rights Group Sues GA Sec. of State for Voter Registration Records

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The nonpartisan voting rights group Project Vote filed a lawsuit recently against Georgia Secretary of State Brian Kemp, over his refusal to release public records relating to rejected voter registration applications.

The lawsuit, filed in the U.S. District Court for the Northern District of Georgia, alleges that Kemp, in his capacity as the state’s Chief Elections Officer, has violated the National Voter Registration Act by refusing to release voter registration records. With a federal election just over four months away, Project Vote—represented pro bono by the law firms Ropes & Gray and Caplan Cobb—will also seek a preliminary injunction to compel immediate compliance with the NVRA.

“The NVRA requires the public disclosure of voter registration records to ensure that election officials are complying with the law when rejecting applications or removing voters from the rolls,” explains Michelle Kanter Cohen, election counsel for Project Vote. “This provision was included in the law so groups like ours can provide oversight to election officials, and ensure that voters are protected from illegal practices, discrimination, and wrongful disenfranchisement. Secretary Kemp is deliberately sidestepping this oversight by ignoring federal law.”

Project Vote’s investigation into Georgia’s voting records began in early 2014, when the group grew concerned about the state’s enforcement of its proof-of-citizenship law. The need for information grew shortly before the 2014 midterm elections, when the group became concerned that Georgia may have improperly rejected, canceled, or failed to add a large number of applicants to the voter rolls.

Subsequently, it was revealed that Kemp’s former Elections Director, Linda Ford, had been asked to resign after illegally removing nearly 8,000 voters from the rolls. The news of Ms. Ford’s resignation reinforced the great need for transparency in Georgia’s voter registration process.

In light of these concerns, Project Vote made good faith requests to Kemp’s office to provide records that would explain why applicants were rejected, canceled, or otherwise kept off the rolls. Two years later, after lengthy negotiations—and despite repeated promises from the state—those records have not been produced.

Project Vote’s lawsuit asks the court to intervene and compel Kemp’s office to comply, so the group can perform the critical public oversight functions envisioned by NVRA. With a federal election on the horizon, Kanter Cohen says Project Vote will also seek a preliminary injunction to obtain the information, so it can ensure Georgia is not using arbitrary or otherwise improper criteria for rejecting applicants or purging voters.

“Our patience is at an end,” says Kanter Cohen. “Secretary Kemp is illegally preventing us from figuring out just what exactly Georgia has been doing with its voter rolls. With a presidential election just months away, we’re not willing to wait any longer, and the voters of Georgia can’t afford to wait.”

Groups Seek Emergency Relief and Judicial Oversight for Elections in Maricopa County, Arizona

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Last week, the Lawyers’ Committee for Civil Rights Under Law, Manatt, Phelps & Phillips, LLP and Osborn Maledon, P.A. filed a motion for preliminary injunction, arguing that the Arizona secretary of state and Maricopa County officials should be required to produce Election Administration Plans (EAP), and obtain judicial approval of those plans, ahead of the Aug. 30 primary election and the Nov. 8, 2016 general election.

The motion seeks to prevent a repeat of the March 2016 presidential preference primary in which state and county officials oversaw a drastic reduction in the number of polling places in Maricopa County from 403 in 2008, to 211 in 2012, to just 60 this year. The reduction resulted in unbearable wait times in excess of five hours in many locations and effectively disenfranchised countless voters.

“No voter in our modern day democracy should have to face the long lines and five hour wait times endured by many during the recent primary election in Maricopa County, Arizona,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “The relief we seek from the court can help ensure that all voters are able to participate in Maricopa’s electoral process free from unnecessary burdens and barriers.”

Prior to the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder, which gutted Section 5 of the Voting Rights Act, Maricopa County would have had to obtain federal approval of the reduction before its implementation. Section 5 required jurisdictions with a history of racial discrimination in voting to preclear all voting changes with the U.S. Department of Justice.

Today’s motion asks the court to require the secretary of state and Maricopa County recorder to submit an EAP 30 days before the August primary and 45 days before the November general election. The Maricopa County Board of Supervisors would be required to approve the plans before they are submitted to the court. Specifically, the EAPs would require officials to develop and implement measures to manage and reduce wait times, explain how the number of polling places was chosen, and create an Election Day communications plan.

“Everyone would benefit from increased transparency in the management of Maricopa’s elections,” said John W. McGuinness, partner at Manatt, Phelps & Phillips, LLP, which is representing the plaintiffs pro bono. “After what happened in March, voters should have the assurance that a comprehensive plan was in place well in advance of Election Day.”

“Our request simply asks the court to recognize that long lines at polling places are the same thing as denying citizens their right to vote, and to make sure election officials don’t make the same mistakes again,” said Shane Ham, an attorney at Osborn Maledon.

In June, the Lawyers’ Committee, Manatt, Phelps & Phillips, LLP and Osborn Maledon, P.A. filed a lawsuit on behalf of two Maricopa County voters who were either unable to cast their ballots, or had to wait in line for many hours to do so in the March presidential preference election. The suit was filed in the Arizona Superior Court and names Arizona Secretary of State Michele Reagan, Maricopa County Recorder Helen Purcell and the Maricopa County Board of Supervisors as defendants.

To read the full motion, click here.

CREW Files Criminal, IRS Complaints Against 10 Dark Money Groups

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Citizens for Responsibility and Ethics in Washington filed IRS complaints against 10 “social welfare” groups for violating their non-profit status by acting as political organizations or for significantly underreporting their political activity. CREW also filed criminal complaints with the Department of Justice against six of the organizations, calling on the FBI and DOJ to investigate whether they lied to the IRS about their political activity.

501(c)(4) social welfare groups are allowed to make political expenditures as long as political activity is not the primary focus of the group and they disclose all political spending to the IRS.  These groups failed to meet those simple standards.

“The disastrous Citizens United decision opened up the floodgates for dark money groups to spend on politics,” CREW Executive Director Noah Bookbinder said. “But there are still some limits to the amount of spending and secrecy these groups are permitted—and too many brazenly ignore these modest limits.”

American Dream Initiative (based in Virginia but active in Texas), the DC based Arizona Future Fund, Jobs and Progress Fund (organized in Ohio but spending in Georgia), Michigan Citizens for Fiscal Responsibility, Ohio’s Mid America Fund (which spent in Rhode Island and Illinois) and the Rule of Law Project (organized in Virginia but active in Wisconsin) all spent hundreds of thousands of dollars on politics in the 2014 election that they hid from the IRS, leading to CREW’s criminal and IRS complaints. Ohio’s Freedom Vote and Moving Ohio Forward, Oklahomans for a Conservative Future and the Iowa based but Nebraska and Arizona spending Legacy Foundation Action Fund all impermissibly spent more than 60% of their spending on political activity—as did many of the groups included in the criminal complaint, leading to today’s IRS complaints.

“These groups have demonstrated a clear disregard for the law,” Bookbinder said. “If the government does not act, it will send a signal to dark money groups that no laws or limits apply to them and it is open season for secret money in our elections.”

SCOTUS Says It Could Take Action if 5th Circuit Does Not Rule in Texas Voter ID Case Soon

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The U.S. Supreme Court issued an order indicating it would be willing to take action to protect voters in Texas in time for the 2016 presidential election, if the 5th U.S. Circuit Court of Appeals fails to issue a ruling by July 20.

“We’re very encouraged that the U.S. Supreme Court recognizes the time constraints involved in this case,” said Gerry Hebert, executive director of the Campaign Legal Center. “We believe the 5th Circuit has set up a schedule that may well foreclose the ability to obtain relief in time for the presidential election. This order gives us the opportunity to protect Texas voters if the 5th Circuit fails to rule in time.”

The Campaign Legal Center filed an application with the U.S. Supreme Court on March 25, calling for immediate action in the Texas voter ID case, Veasey v. Abbott. Seven federal judges have ruled that Texas’ voter ID law discriminates against minority voters, but the law is still in effect due to the 5th Circuit’s stay of the decision.

Oral argument in the en banc 5th Circuit is slated for May 23.

Democracy 21 and the Campaign Legal Center Sue the FEC for Failure to Enforce the Law and Protect the Integrity of Democracy

Democracy 21 and the Campaign Legal Center filed a lawsuit recently in the U.S. District Court for the District of Columbia against the Federal Election Commission for dismissing five complaints that CLC and D21 filed with the agency.

The dismissed complaints called for FEC investigation into donors who broke disclosure laws by hiding behind personal Limited Liability Companies  to anonymously make contributions to super PACs.

CLC and D21, over the course of several years, filed complaints with the FEC against these donors for violating the “straw donor” provision of Federal Election Campaign Act. These donors’ anonymous contributions ranged from $857,000 to over $12 million, and several of the donors openly admitted in the media that they had used their personal company for the purpose of hiding their identities from the public. Still, the FEC dismissed all five complaints, after the three Republican commissioners voted not to investigate and sanction these donors.

“This clearly is an agency out of control,” said Larry Noble, general counsel for the Campaign Legal Center, who previously served as general counsel for the FEC. “The agency is now sanctioning the intentional undermining of the integrity of campaign finance disclosure.  Each time the FEC fails to pursue a serious violation of the law, it weakens our democracy and the ability of Americans to know who is truly influencing our elections. It also sends a loud and clear message that those who violate campaign finance laws will face no penalties.”

The Supreme Court has repeatedly recognized that disclosure laws play a vital role in providing the electorate with critical information to make informed choices. Prohibiting the use of straw donors to hide the true source of a contribution is essential to the law.

“LLCs are growing vehicles for laundering dark money contributions into federal elections. Anonymous donors are giving contributions to Super PACs through LLCs, and only the LLCs, not the actual donors, are being disclosed to the public by the Super PACs,” said Fred Wertheimer, president of Democracy 21. “Our FEC complaints and lawsuit are designed to bring an end to these ‘secret money’ schemes before they get completely out of hand and to obtain enforcement of the law in cases that we believe involve clear violations.”

The lawsuit states that in dismissing these complaints, the FEC has “undermined FECA’s purposes, including its goal of promoting transparency in elections and providing the electorate with information about who is speaking to it during elections.” CLC and D21, along with the public, “were deprived of timely information about the sources of the contributions made to the super PACs – information to which they are legally entitled to under FECA.”

The lawsuit calls for the court to find that the FEC’s dismissal of the complaints was “arbitrary, capricious, and an abuse of discretion, and otherwise contrary to the law,” and seeks a judicial order demanding the FEC enforce the law within 30 days.

North Carolina’s Restrictive Election Law Approved by Federal Court

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The Federal District Court of Winston Salem ruled to uphold HB 589, North Carolina’s omnibus election law, something the League of Women Voters in the state said “is a profound disappointment for the state’s voters and for (the League.).

The comments came from Mary Klenz, co-president of the North Carolina League, a plaintiff in one of the suits – and she wasn’t alone in her disappointment.

“This North Carolina decision sends a dangerous signal to voters across the country, one the League is prepared to fight at every opportunity,” said Elisabeth MacNamara, president of the national League.

“We’ve been fighting HB 589 for several years on behalf of the real voters who have been harmed by this restrictive set of election requirements,” Klenz said. “This decision is not the end, however. We will decide on next steps shortly.”

“Sadly, North Carolina was one of the first states to jump into action following the U.S. Supreme Court’s Shelby v. Holder decision in 2013,” said Klenz. “The state’s Legislature took advantage of the court’s gutting of Section 5 of the Voting Rights Act to roll back pro-voter election reforms by reducing the number of days of early voting, disallowing people from registering and voting on the same day, not counting votes that were cast out of precinct and ending the practice of pre-registering teenagers before they turn 18.”

MacNamara agreed.

“This ruling is a blow to the voters in North Carolina but also voters throughout America,” she said. “Based on the breakdown in the elections processes we have already seen in the Arizona and New York primaries, we are very concerned about Election Day 2016.  We fear many eligible voters will be harmed by the short-sighted, anti-voter changes being put into place here in North Carolina and around the country.”

She continued:

“Ultimately, the voters will decide what kind of democracy we will have – one with mounting restrictions aimed at minority voters or one with free and fair elections for all,” said MacNamara.

Klenz agreed:

“We are in this to win, which means continuing our work to expand and protect voting rights. We will stop at nothing short of vindication for the principle that every citizen has a right to vote. The League has fought for voting rights since 1920 and we’re not stopping now.”

Voting Rights Institute Asks Department of Justice to Investigate Possible Voting Rights Violations in Alabama

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The Voting Rights Institute has called on the U.S. Department of Justice to investigate Daphne, Alabama’s City Council’s March 21 decision to reduce the number of polling places in the city from five to two.

The city’s decision forces residents of one of the only districts with a sizable black population to travel more than two and a half miles away from their current polling place, while preserving the polling locations for most of the city’s heavily white districts.

“This is exactly the type of voting change that would have had to have been pre-cleared by the Department of Justice before the Supreme Court’s disastrous ruling in Shelby County v. Holder,” said Harry Baumgarten, Legal Fellow with the Voting Rights Institute. “In gutting a key provision of the Voting Rights Act, the Supreme Court has opened the door for these potentially discriminatory measures to be passed and implemented throughout the country.”

The Voting Rights Institute, a project of the American Constitution Society, Campaign Legal Center and Georgetown University Law Center, sent the letter to the Department of Justice after receiving a complaint from African-American leader and voter in Daphne, Willie Williams. In addition to reducing the number of polling locations, the city also recently passed a new mid-decade redistricting plan whose impact on the black voting age population in each district is at best unclear because the city has not been forthcoming about the racial impact of its new plan.

“We want fair and honest elections, and what the Daphne City Council has done in reducing polling locations is not fair and it’s not honest,” said Willie Williams, Daphne resident. “Voters need convenient polling places and need to be able to vote, and not be confused where to go to vote in their local elections.”

News of Note: Challenge to Wisconsin’s Redistricting Plan Can Move Forward, Court Rules

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A Wisconsin district court ruled recently that 12 regular Wisconsin voters, represented by the Campaign Legal Center, can have their day in court to challenge to the state’s 2012 partisan redistricting process, which they say unconstitutionally drew district lines in a way that would keep Republican control of the state’s Legislature.

“The plaintiffs look forward to presenting evidence at trial showing that the plan was drawn in secret, in consultation with a political scientist and without any input from Democrats, in an attempt to maximize Republican wins and minimize Democratic influence over the political process for as long as the plan was in place,” said Gerry Hebert, executive director of the Campaign Legal Center.

Though the U.S. Supreme Court has made clear that excessive partisan gerrymandering is unconstitutional and can be addressed by the courts, the Supreme Court has yet to develop a judicially manageable standard for courts to use in deciding these cases.

“In denying Wisconsin’s motion for summary judgment and setting the case for trial next month, the three-judge court  has left it to us to develop a workable standard that reflects a voter’s right to fair and effective representation, and that’s exactly what we plan to do,” said Ruth Greenwood, senior redistricting counsel for the Campaign Legal Center.

Want to read the order and opinion? It’s here.

Voting Rights Nonprofit Files Amicus Brief in “Soft Money” Case that Could End Up Before U.S. Supreme Court

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Yesterday, we told you about some news related to voter ID laws. Today, we want to draw your attention to a legal case that revolves around so-called “soft money.”

Here’s what’s going on:

Nonpartisan non-profit the Brennan Center for Justice at NYU School of Law, together with a pro-bono team led by Center board member Daniel F. Kolb, filed an amicus brief in Republican Party of Louisiana v. Federal Election Commission, defending the constitutionality of provisions in 2002’s McCain-Feingold campaign finance law, or the Bipartisan Campaign Reform Act.

The case is before a three-judge panel in the D.C. District Court, which means that an appeal would guarantee the U.S. Supreme Court considers the case.

Although the Brennan Center has proposed limited reforms to allow party committees more fundraising flexibility, the brief argues that these recommendations in no way imply that the current regime is unconstitutional:

“In fact, the core relief Plaintiffs seek — permitting certain party committees to raise potentially unlimited funds for federal election activities — could undermine the very objective of broad political participation that led us to call for reform,” reads the brief. “Sensible contribution limits for political parties remain legitimate and necessary.”

The Brennan Center’s interest in the case is especially strong.

The Center’s research was cited by members of Congress during the congressional debate around BCRA, and the Center then represented congressional sponsors, including Sen. John McCain (R-Ariz.), who intervened to defend the law against a previous constitutional challenge.

You can read more about Republican Party of Louisiana v. Federal Election Commission online, as well as full amicus brief.