[EL] ELB News and Commentary 2/28/17

[Rick Hasen]

“Justice Dept. Drops a Key Objection to a Texas Voter ID Law”<http://electionlawblog.org/?p=91369>
Posted on February 27, 2017 6:12 pm<http://electionlawblog.org/?p=91369> by Rick Hasen<http://electionlawblog.org/?author=3>
Manny Fernandez and Eric Licthblau<https://www.nytimes.com/2017/02/27/us/justice-dept-will-drop-a-key-objection-to-a-texas-voter-id-law.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news> in the NYT:
The Justice Department remains a party in the case. But it is pulling back at a crucial phase. If a judge finds the state acted with discriminatory intent, as the Justice Department and other plaintiffs have alleged, Texas could be forced to seek federal approval before it makes any changes to its voting laws or procedures. That would have major impacts on voting rules in Texas and be a potent symbol of the ability of the federal government to be a major brake on voting discrimination nationally.
“This is a complete 180-degree turn,” said Danielle Lang, a lawyer for the Campaign Legal Center, one of the groups that sued Texas and represents some of the Justice Department’s fellow plaintiffs in the voter ID case. Under the Obama administration, she added, the Justice Department was “fully committed to the case.”
“They were full partners,” Ms. Lang said. “This was their case as much as ours.”…
Whatever the case, Richard L. Hasen, a law professor at the University of California, Irvine, and an election-law expert said he saw the Justice Department’s action on Monday as “a sign of things to come.”
“This is the first step in what I expect to be a series of steps, with D.O.J. siding with the state of Texas,” he said. He added that by remaining in the case, the Justice Department “could actually do Texas more good than by getting out.”
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“Justice Department changes its position in high-profile Texas voter-ID case”<http://electionlawblog.org/?p=91367>
Posted on February 27, 2017 6:10 pm<http://electionlawblog.org/?p=91367> by Rick Hasen<http://electionlawblog.org/?author=3>
Sari Horwitz<https://www.washingtonpost.com/world/national-security/justice-department-changes-its-position-in-high-profile-texas-voter-id-case/2017/02/27/cfaafac0-fd0c-11e6-99b4-9e613afeb09f_story.html?utm_term=.7583fbebd29c> for WaPo:
The practical effect of the Justice Department’s decision is that civil rights groups will continue, without the backing of the federal government, to contest the purpose of the Texas law.
“DOJ’s reversal in position defies rationality after years of vigorously defending the case,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, who vowed to continue challenging the Texas law.
The Justice Department, which had wanted more time, had to take a position because of the deadline for the Tuesday hearing on whether the law was intended to be racially discriminatory. The department did not withdraw altogether from the Texas lawsuit. It remains to be seen whether the government will change its position on whether the effect of the law is discriminatory — a separate claim in the lawsuit.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Big Difference in Ohio Non-Citizen Voting Case<http://electionlawblog.org/?p=91365>
Posted on February 27, 2017 4:30 pm<http://electionlawblog.org/?p=91365> by Rick Hasen<http://electionlawblog.org/?author=3>
Earlier<http://electionlawblog.org/?p=91340> I quoted a story<http://wdtn.com/2017/02/27/ohio-secretary-of-state-investigation-found-non-citizens-registered-to-vote-cast-illegal-ballots/> on Ohio SOS Husted’s finding of potential non-citizen voting in Ohio: “Husted added that one of the cases where a non-citizen cast a ballot occurred in jurisdictions where an election was decided by one vote or tied.”
ACTUALLY… the press release<http://www.sos.state.oh.us/sos/mediaCenter/2017/2017-02-27.aspx> says: “It should be noted, that none of the cases where a non-citizen is shown to have cast a ballot occurred in jurisdictions where an election was decided by one vote or tied<https://www.sos.state.oh.us/sos/mediaCenter/2016/2016-12-16.aspx>.”
Big difference!
And….Michael McDonald gives some reason to believe<https://twitter.com/ElectProject/status/836247702077853696> a number of Husted’s “non-citizens” are actually naturalized citizens.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Breaking: NC General Assembly Will Object to Dismissing #SCOTUS Suit over Strict NC Voting Law, Moves to Add as Petitioner<http://electionlawblog.org/?p=91359>
Posted on February 27, 2017 12:48 pm<http://electionlawblog.org/?p=91359> by Rick Hasen<http://electionlawblog.org/?author=3>
Well, we’ve been expecting this. Here’s a motion<https://www.scribd.com/document/340455419/16-833-Objection> to be filed at the Supreme Court objecting to NC AG’s motion to dismiss the cert. petition in the controversial NC voting case. And here’s a motion<http://electionlawblog.org/wp-content/uploads/16-833-Motion-to-Add.pdf> to add the Legislature and members of the Legislature as petitioners in this case.
(I first suggested the withdrawal of the cert. petition, which would preserve an important voting rights precedent, in this Slate piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/02/north_carolina_should_withdraw_its_petition_to_the_supreme_court_in_its.html>).
As I noted <http://electionlawblog.org/?p=91263> the other day,
If the governor and AG have withdrawn the cert. petition, and the Board of Elections has no position in the litigation, it seems that the case should be withdrawn from SCOTUS, unless the Legislature seeks to intervene and argue that the governor lacked the power to withdraw from the case.  As of now, the Legislature is not a party to the case, and it is not clear to me how this would get resolved.
Does this get resolved in state court? Does SCOTUS put consideration of the cert. petition on hold or does it allow the withdrawal of the petition?
Not clear to me how SCOTUS will resolve a dispute as to who gets to speak for North Carolina. Can the case be sent to the NC Supreme Court to resolve?
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Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Some Clarification on What DOJ Is and Isn’t Doing in the Texas Voter ID Case<http://electionlawblog.org/?p=91350>
Posted on February 27, 2017 12:18 pm<http://electionlawblog.org/?p=91350> by Rick Hasen<http://electionlawblog.org/?author=3>
Before tomorrow’s hearing, the United States Department of Justice will ask a federal district court to voluntarily dismiss its claim that in enacting its strict voter identification law, Texas acted with a racially discriminatory purpose. There is nothing in the upcoming motion about DOJ’s claim that Texas’s law had racially discriminatory effect in violation of Section 2 of the Voting Rights Act. Thus, despite some press releases from groups to the contrary, DOJ has not (at least not yet) abandoned its suit against Texas’s law.
So what does this new motion mean? Even if granted, this motion by itself will have little impact on the case itself, as I will explain, but is indicative of a pullback of the DOJ in this case and a sign of possible things to come — with DOJ either staying out of these cases, or coming in on the side of states that have passed strict voting laws (a reversal of practice under the Obama DOJ).
The rest of this post gives some wonky details.
There are two primary claims in this case: that Texas passed its law with a racially discriminatory intent and that it passed it with a racially discriminatory effect. The trial court initially found that Texas acted with both discriminatory effect. Eventually the entire 5th Circuit, sitting en banc, agreed on the effects question, but held that the trial court used the wrong evidence and standard to judge discriminatory intent. It remanded the case for a new hearing on that question, which is taking place tomorrow.
Here’s why this matters. The Fifth Circuit said that a discriminatory effects finding would be a reason to soften Texas’s law (such as by allowing those who lack ID and cannot easily get it to put in an affidavit swearing to identity), but not to throw it out entirely. But a finding of discriminatory intent would allow throwing the law out entirely. It could also provide a predicate, under Section 3 of the Act, to put Texas back under federal supervision for up to 10 years.  So a finding of intent is a big deal.
BUT: in this case there is both the DOJ and private voting rights plaintiffs pursuing the case. So even if the trial court lets DOJ drop out, the private plaintiffs can still pursue the same claims. All this does is not put DOJ in the awkward position of putting forward a theory that AG Sessions likely does not believe. It will not have any effect on the case (except to the extent that the DOJ’s position is persuasive). And it leaves DOJ in the case for the trial court to later fashion a permanent remedy for the discriminatory effects finding (should the court find no discriminatory intent, or have such a finding reversed by the Fifth Circuit again).
STILL: This development is notable. It means DOJ is pulling back from aggressive defense of voting rights. And I predict, in cases like Texas and North Carolina, eventually DOJ will be on the other side of this issue, supporting the right of states to make it harder to register and vote (purportedly on anti-fraud or public confidence grounds).
[This post has been updated.]
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


--
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
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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