[EL] North Carolina breaking news

[Christopher S. Elmendorf]

I agree with Rick that Judge Schroeder’s opinion in U.S. v. North Carolina is on balance careful and well-reasoned, but it does have one glaring flaw: it assumes without discussion that the standard for proving intentional discrimination under Section 2 is the same as the standard under the 14th Amendment.

Let me explain why the assumed equivalence of the two intent standards is odd:

For purposes of vote dilution cases under the “results test” of Section 2, there is a circuit split over whether plaintiffs must show intentional discrimination / disparate treatment by voters.  In the Fifth and First Circuits, voter discrimination seems to be required; in most other circuits, it is one factor to be weighed (maybe a very important factor) as part of the totality of circumstances, but not strictly necessary to the plaintiffs’ case.  However, so far as I can tell, every judge who has come down in favor of the voter discrimination “intent” requirement has also endorsed a burden-shifting framework under which plaintiffs’ showing of racially polarized voting shifts the burden to the defendant to negate or cast serious doubt upon the inference that polarized voting occurred “because of” rather than “in spite of” race.  See for example the opinions of Judge Higgenbotham in LULAC v. Clements, 999 F.2d 831 (5th Cir. 1993), Judge Leval in Goosby v. Town of Hempstead, 180 F.3d 476 (2d Cir. 1999), Judge Selya in Uno v. City of Holyoke, 72 F.3d 973 (1st Cir. 1995), and Judge Tjoflat in Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994).

The upshot is that establishing “discriminatory intent” by voters for purposes of a vote dilution claim under Section 2 is much easier than establishing “discriminatory intent” by conventional state actors for purposes of an equal protection claim under the Constitution.

But if a relaxed showing of “intent” suffices under Section 2 when the discriminators are voters, why should the standard of proof by any more demanding when the discriminators are conventional state actors?  (For an extended argument for a unitary, relaxed intent standard under Section 2, see my paper, “Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes," 160 U. Pa. L. Rev. 377 (2012)<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1822642##>.)

Judge Schroeder’s opinion suggests that even under the 14th Amendment standard, the intent question in U.S. v. North Carolina is a close one.  See p. 71 ("Plaintiffs’ evidence that the General Assembly acted at least in part with discriminatory animus certainly raises suspicions and presents substantial questions.”).  Had the judge not equated "Section 2 intent” with “equal protection intent,” he might well have ruled the other way.

If I were litigating this case in anticipation of possibly reaching the Supreme Court, I would much prefer to go up arguing for a relaxed intent or “appearance of discrimination” standard under Section 2, rather than arguing that the Section 2 “results test” in effect incorporates the no-retrogression standard of Section 5 for purposes of vote denial cases--a position that Judge Schroeder quite reasonably rejected.  Cf. LULAC v. Perry, 548 U.S. 399, 440 (2006) (invalidating under Section 2 a redistricting plan that “bore the mark” of intentional discrimination, notwithstanding district court’s finding that legislature had acted for political rather than racial reasons), U.S. v. North Carolina, Memorandum Opinion at 40 (noting that North Carolina’s history of official discrimination with respect to voting affects the “perceptions . . . of black North Carolinians to this day”).

I’d be interested to hear what others on the list think of this question.

Best,

Chris

Christopher S. Elmendorf
Professor of Law
UC Davis School of Law
400 Mrak Hall Drive
Davis, CA 95616
530.752.5756

From: rick hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: Friday, August 8, 2014 at 3:23 PM
To: "law-election at UCI.edu<mailto:law-election at UCI.edu>" <law-election at UCI.edu<mailto:law-election at UCI.edu>>
Subject: [EL] North Carolina breaking news/more news

Breaking: Federal Court Denies Preliminary Injunction in North Carolina Voting Case – Analysis<http://electionlawblog.org/?p=64152>
Posted on August 8, 2014 2:28 pm<http://electionlawblog.org/?p=64152> by Rick Hasen<http://electionlawblog.org/?author=3>

You can read the 125-page ruling here<http://electionlawblog.org/wp-content/uploads/nc-prelim-ruling.pdf>.

I have now had a chance to quickly read the district court’s 125-page ruling in this case.  Here are my initial thoughts.

1. This is a careful, well-written and well-reasoned decision rejecting the U.S. and private plaintiffs’ Voting Rights Act and constitutional claims against some key provisions of strict North Carolina’s voting law passed last year. The opinion was only on a preliminary injunction, the court did not reach all the legal issues presented (and was tentative on some of the conclusions regarding some parts of the law) and it did not opine much on the voter id portion of the law. But this is an opinion in which the court expressed great skepticism about the use of either Section 2 of the Voting Rights Act or the U.S. Constitution’s equal protection clause to protect voting rights in a strong way. If this ruling stands, it shows that Section 2 and the Constitution’s Equal Protection Clause are poor substitutes in protecting voting rights for Section 5 of the Voting Rights Act, which the Supreme Court gutted in its Shelby County opinion from last year.

2. This ruling is at odds with the other major ruling on the use of Section 2 in these vote denial cases, the Frank v. Walker case. That case was a voting rights plaintiffs lawyer’s dream<http://t.co/cX6K8CAUM0>, reading Section 2 of the VRA and the Constitution’s equal protection clause expansively to broadly protect voting rights. That case is currently on appeal to the Seventh Circuit. Today’s case could well be appealed to the Fourth Circuit.  Eventually one or more of these cases could make it to the Supreme Court. Given the current conservative orientation of a majority of the Supreme Court, it seems likely that a Court majority would be more attracted to the narrow reading of Section 2 offered in today’s ruling compared to the broad ruling in Frank v. Walker.

3. Under the old Section 5 of the VRA, the question was one of “nonretrogression:” one compared the conditions for minority voters under an old law and a proposed new law. If the state could not demonstrate that the proposed new law did not make minority voters worse off, then the law could not be put into effect. Today, the judge in North Carolina said that section 2 did not include a similar nonretrogression standard. Thus, in deciding whether a cutback from 10 to 7 days of early voting violated Section 2 of the Act, the question was not whether 7 was worse than 10, but whether 7 days standing alone made it much harder for minority voters to participate in the political process on the same basis as other voters. The court held that there were still ample opportunities to vote under even the truncated dates, and especially in a midterm election where turnout is not expected to be a big problem. The court also seemed to require more proof of causation in the section 2 context than the Frank v. Walker court believed is necessary.

4. Importantly, the court today rejected evidence offered that the North Carolina legislature passed its laws out of a racially discriminatory intent. The judge seemed to believe that some of it was motivated by partisanship, not race and held that this did not constitute proof of racial discrimination. (I have written about this issue and the difficulty of disentangling the two standards in Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>, 127 Harvard Law Review Forum 58 (2014).)  But the big significance of a finding (at least preliminarily) of no intentional discrimination is that this means that DOJ will have a hard time getting North Carolina covered again under the preclearance provisions of the Voting Rights Act. Section 3 of the Act gives a court discretion to impose a preclearance regime on a jurisdiction found to have engaged in intentional discrimination in violation of the 14th or 15th amendments. Without such a finding, however, the state cannot be put back under preclearance.

5. The trial court refused to say much about the “novel” theory that the law violates the 26th amendment in discriminating against young voters (particularly in the elimination of the preregistration for 16 and 17 year olds. But the court did note that this claim was brought for 10 voters and not for all voters in this class, which could make it hard to prove that the law will hamper these particular voters from voting. My sense is that the court will likely sidestep the meaning of the 26th amendment here.

6. In sum, I had always thought that using section 2 of the VRA (or the Constitution’s equal protection clause) to challenge the elimination of same day registration, a cutback in the number of days of early voting, and similar provisions would be an uphill battle. This opinion proves today that this is correct. Unlike the wooden, unthinking opinion about voter id which we recently saw from the Wisconsin Supreme Court, this opinion rejecting the claim of voting rights plaintiffs is careful, considered and reasonable. While Frank v. Walker also presents a reasonable alternative way of reading the scope of voting rights protections after Shelby County, it is this opinion that is more likely to represent how the Supreme Court would view these issues if and when these cases make it to the Supreme Court.

[This post has been updated.]

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D64152&title=Breaking%3A%20Federal%20Court%20Denies%20Preliminary%20Injunction%20in%20North%20Carolina%20Voting%20Case%20%E2%80%93%20Analysis&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter registration<http://electionlawblog.org/?cat=37>
“To the courts: What’s next in the McDaniel challenge”<http://electionlawblog.org/?p=64150>
Posted on August 8, 2014 2:20 pm<http://electionlawblog.org/?p=64150> by Rick Hasen<http://electionlawblog.org/?author=3>

The Clarion Ledger reports.<http://www.clarionledger.com/story/politicalledger/2014/08/07/mcdaniel-challenge-whats-next/13748375/>

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D64150&title=%E2%80%9CTo%20the%20courts%3A%20What%E2%80%99s%20next%20in%20the%20McDaniel%20challenge%E2%80%9D&description=>
Posted in recounts<http://electionlawblog.org/?cat=50>
“Virginia election board makes voter ID requirements more stringent”<http://electionlawblog.org/?p=64148>
Posted on August 8, 2014 11:59 am<http://electionlawblog.org/?p=64148> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo<http://www.washingtonpost.com/local/virginia-politics/virginia-elections-board-makes-voter-id-requirements-more-stringent/2014/08/07/331d625e-1dbe-11e4-82f9-2cd6fa8da5c4_story.html>:

Inflaming a contentious debate over voter identification laws, the Virginia State Board of Elections decided this week that, to cast a ballot, voters will have to present a current photo ID or one that expired within the past year.The Republican-controlled board voted 2 to 0 Wednesday — with the Democratic member absent — to narrow the definition of valid identification, a move that one board member said would streamline and simplify the rules.“We believe it’s a compromise and gives people a reasonable grace period,” said Donald Palmer, who was appointed to the board by then-Gov. Robert F. McDonnell (R).But Democrats and voting rights advocates said the new rule will confuse voters less than two weeks before a special election in which the rule is expected to apply.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D64148&title=%E2%80%9CVirginia%20election%20board%20makes%20voter%20ID%20requirements%20more%20stringent%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>
“Documents: Top Walker aide at odds with DA after first Doe launched”<http://electionlawblog.org/?p=64146>
Posted on August 8, 2014 10:58 am<http://electionlawblog.org/?p=64146> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest <http://www.jsonline.com/news/statepolitics/documents-top-walker-aide-at-odds-with-da-after-first-doe-launched-b99326745z1-270498571.html> from Wisconsin.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D64146&title=%E2%80%9CDocuments%3A%20Top%20Walker%20aide%20at%20odds%20with%20DA%20after%20first%20Doe%20launched%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Disclosing Disclosure: Lessons from a “Failed” Field Experiment”<http://electionlawblog.org/?p=64144>
Posted on August 8, 2014 10:11 am<http://electionlawblog.org/?p=64144> by Rick Hasen<http://electionlawblog.org/?author=3>

Dick M. Carpenter,  David M. Primo, Pavel Tendetnik, and Sandy Ho have written this article <http://www.degruyter.com/view/j/for.2014.12.issue-2/for-2014-5008/for-2014-5008.xml?format=INT> for The Forum.  Here is the abstract:

In a recent issue of The Forum, Fortier and Malbin call for more research into the effects of disclosure requirements for campaign finance. In this paper, we report the results of a field experiment designed to assess whether such rules dissuade potential contributors due to privacy concerns. The paper is unique in that we explain why the field experiment never happened, and what we can learn from its “failure.” Specifically, we show that 2012 Congressional candidates were fearful about letting potential contributors know that their donations would be made available on the Internet, along with their address, employer, and other personal information. In trying to learn directly about whether contributors would be spooked by this knowledge, we ended up learning indirectly, through the actions of candidates, that privacy concerns may in fact limit participation in the political process, including among small donors.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D64144&title=%E2%80%9CDisclosing%20Disclosure%3A%20Lessons%20from%20a%20%E2%80%9CFailed%E2%80%9D%20Field%20Experiment%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Rep. DesJarlais, challenger trade leads in Tenn.”<http://electionlawblog.org/?p=64142>
Posted on August 8, 2014 10:00 am<http://electionlawblog.org/?p=64142> by Rick Hasen<http://electionlawblog.org/?author=3>

AP says<https://news.yahoo.com/rep-desjarlais-challenger-trade-leads-tenn-162238067--election.html> this race is still too close to call.

Rep. DesJarlais has been involved in some controversy<http://www.washingtonpost.com/blogs/the-fix/wp/2014/08/07/rep-scott-desjarlais-engaged-in-multiple-extramarital-affairs-he-still-might-win-thursday/>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D64142&title=%E2%80%9CRep.%20DesJarlais%2C%20challenger%20trade%20leads%20in%20Tenn.%E2%80%9D&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“Fair Voting in California – Will Santa Barbara Join Santa Clarita?”<http://electionlawblog.org/?p=64140>
Posted on August 8, 2014 9:29 am<http://electionlawblog.org/?p=64140> by Rick Hasen<http://electionlawblog.org/?author=3>

FairVote<http://www.fairvote.org/research-and-analysis/blog/fair-voting-in-california-will-santa-barbara-join-santa-clarita/>: “In July, the city of Santa Barbara became the most recent in a string of California citiesbeing sued under the California Voting Rights Act<http://www.latimes.com/local/political/la-me-pc-santa-barbara-voting-lawsuit-20140729-story.html> for diluting the votes of their Latino population. After finding out about the case, FairVote promptly sent a letter<http://www.fairvote.org/assets/FairVote-Santa-Barbara-Letter.pdf> to Mayor Helene Schneider of Santa Barbara, offering our expertise on election methods to them as they decide how to proceed.”

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D64140&title=%E2%80%9CFair%20Voting%20in%20California%20%E2%80%93%20Will%20Santa%20Barbara%20Join%20Santa%20Clarita%3F%E2%80%9D&description=>
Posted in alternative voting systems<http://electionlawblog.org/?cat=63>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“Strategists say impact of outside group spending is overrated”<http://electionlawblog.org/?p=64138>
Posted on August 8, 2014 9:02 am<http://electionlawblog.org/?p=64138> by Rick Hasen<http://electionlawblog.org/?author=3>

The Hill reports.<http://thehill.com/homenews/campaign/214552-strategists-say-impact-of-outside-group-spending-is-overrated#ixzz39i3W41Zx%C2%A0>

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D64138&title=%E2%80%9CStrategists%20say%20impact%20of%20outside%20group%20spending%20is%20overrated%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“New Hampshire candidate cashes in on campaign finance reform”<http://electionlawblog.org/?p=64136>
Posted on August 8, 2014 8:59 am<http://electionlawblog.org/?p=64136> by Rick Hasen<http://electionlawblog.org/?author=3>

Reuters<http://news.yahoo.com/hampshire-candidate-cashes-campaign-finance-reform-203107100.html>:

A dark horse in the New Hampshire race for the U.S. Senate who has been fighting big money in politics got a surprise boost last week from a like-minded group – to the tune of $2 million.

A new political action committee, Mayday PAC, is backing the candidate in the state’s Republican primary, former state Senator Jim Rubens, with TV, radio and Internet ads as a test case in reforming American political campaign financing.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D64136&title=%E2%80%9CNew%20Hampshire%20candidate%20cashes%20in%20on%20campaign%20finance%20reform%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Bipartisan Policy Center to Continue Work of Presidential Commission on Election Administration”<http://electionlawblog.org/?p=64134>
Posted on August 8, 2014 8:58 am<http://electionlawblog.org/?p=64134> by Rick Hasen<http://electionlawblog.org/?author=3>

Press release:<http://bipartisanpolicy.org/news/press-releases/2014/08/bipartisan-policy-center-presidential-commission-election-administration>

Building on the successful efforts of the Presidential Commission on Election Administration, the Bipartisan Policy Center’s (BPC) Democracy Project<http://bipartisanpolicy.org/projects/democracy-project> today announced that it will work to implement the commission’s recommendations.

Tammy Patrick, a former member of the commission and former Maricopa County election official, and Secretary of the Virginia Board of Elections Don Palmer have joined BPC to support this effort. The commission, led by Bob Bauer and Ben Ginsberg, released its report in January 2014<https://www.supportthevoter.gov/files/2014/01/Amer-Voting-Exper-final-draft-01-09-14-508.pdf>. All former commissioners<http://www.supportthevoter.gov/the-commission/> will advise BPC during the implementation phase.

“We are pleased with the positive reception the commission’s report has received in recent months,” said former Presidential Commission on Election Administration co-chair Bob Bauer. “However, implementation of the recommendations is key and we are we are eager to work with the Bipartisan Policy Center on this next chapter.”

Working with the commissioners, BPC will work with state and local election officials to educate the public and other stakeholders about the commission’s recommendations. BPC will also assess the states where there are opportunities and obstacles to implementing the commission’s recommendations and develop a plan to move discrete reforms in those jurisdictions.

”We are proud of the bipartisan and unanimous work of the commission,” said Ben Ginsberg, former Presidential Commission on Election Administration co-chair. “Our goal moving forward is to get the recommendations and best practices implemented by states and localities where there is a need.”

BPC will focus on these key recommendations in the year ahead: reducing polling place lines, addressing the imminent voting machine technology crisis; online registration; cross-state data sharing efforts; improving the Department of Motor Vehicles registration process; ensuring that schools can be used as polling places; and creating opportunities for voting before Election Day.

“We welcome the presidential commission’s work into our fold and will build on its recommendations to improve the voting process,” said John Fortier, director of BPC’s Democracy Project. “The Bipartisan Policy Center is well-situated to bridge the policy gap between election officials, legislators, academics and advocates as we have shown through our work with the separate Commission on Political Reform<http://bipartisanpolicy.org/strengthen-american-democracy>.”

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D64134&title=%E2%80%9CBipartisan%20Policy%20Center%20to%20Continue%20Work%20of%20Presidential%20Commission%20on%20Election%20Administration%E2%80%9D&description=>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>http://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140810/26a124f9/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: share_save_171_16.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140810/26a124f9/attachment.png>