After a spree of favorable court rulings that softened or blocked Republican-passed voting restrictions, voting rights advocates are engaged in a new phase of trench warfare with a mere month left before November’s election and early voting in some places already underway. There was no time for civil rights groups to rest on their laurels after winning the high-profile legal challenges. In many states, such rulings were met with attempts to undermine or circumvent court orders meant to make it easier to vote.
“You take a step back and it’s really appalling,” said Dale Ho, the director of the ACLU’s Voting Rights Project who has been involved in many of the legal challenges to state voting restrictions.
“I mean the Department of Justice and other groups, we have all won the cases … you would have thought we would have been finished with this whole thing, when, up until Election Day, we have to stay on these people,” Ho told TPM.
At times, it’s hard to pin down whether issues red states have faced in implementing court orders have been motivated by bureaucratic incompetence or something worse. But the pattern is undeniable. In almost every state where voting rights advocates have scored a major legal victory in recent months, they have had to threaten to drag state officials back into court over the shoddy job election administrators have done following the rulings.
“There’s two things going on: One is that we have seen court-ordered softening [of voter ID laws] in places like Wisconsin and Texas, and then either foot-dragging or incompetence in carrying it out, which has led to follow-up lawsuits or threats of lawsuits,” said Richard Hasen, a professor at UC-Irvine School of Law who also runs the Election Law Blog. “The other thing that is going on is new shenanigans in response to court rulings. And that’s North Carolina.”
In North Carolina, the partisan-motivated chicanery has been perhaps most glaring.
After an appeals court ruling restored a week of early voting –– in a monumental decision that said provisions of a 2013 North Carolina election law were passed with discriminatory intent — a handful of GOP-led county election boards sought to limit voting hours in the extra week to the bare minimum, apparently at the behest of a leaked memo sent by a state Republican Party official. Early voting is disproportionately popular among Democratic-leaning minorities.
Some of the disputes between county officials and voting rights advocates were settled by the state election board. But five counties are now the subject of an emergency motion filed last week by Marc Elias — a voting rights lawyer and counsel to the Clinton campaign — on the behalf of North Carolina voters objecting to their skimpy early voting schedules.
Outside of North Carolina, in other states where voting rights advocates have won court victories, concern has been raised whether voters are being properly educated about rights guaranteed to them by the recent rulings.
“The trend that you’re definitely seeing is that although you may win in a court, so much of what actually matters to voters depends on implementation of a court victory,” said Jennifer Clark, counsel for the Brennan Center’s Democracy Program. “So getting a ruling that blocks or softens a restrictive voting law is really only the first step in making sure that people have the right to vote.”
Voting rights groups on Tuesday filed a motion, in the ongoing legal battle over Wisconsin’s voter ID requirement, questioning the state’s effort to provide non-ID holding voters a free ID card to vote in time for the election, as ordered previously by a federal judge. The filings come after reports that, at a number of local elections offices, administrators had told potential voters that they would not be able to obtain the free IDs in time. Nonetheless, Wisconsin Department of Transportation Secretary Mark Gottlieb said Tuesday in legislative testimony on the matter that the court-ordered process was “sound.” U.S. District Judge James Peterson has scheduled a hearing on the motion for next week.
At the urging of the Department of Justice, a federal judge in Texas last month had to order state officials to re-write the educational materials explaining how their voter ID law — which was ruled discriminatory in its effect by a full appeals court — had been softened for non-ID holders. The state had used harsher language in explaining how non-ID users could vote by affidavit than had been agreed upon after the appeals court ruling.
Kansas Secretary Kris Kobach, facing a contempt-of-court hearing, agreed last week to fix the implementation of multiple rulings blocking the state’s proof-of-citizenship requirement for voter registration. The civil rights groups that sued Kobach over the requirement noticed that the newly eligible voters were not being notified that they were now fully registered to vote, nor were their names coming up in the state’s online voting registration database.
The list goes on.
Ohio Secretary of State Jon Husted is under fire for failing to send absentee ballots to more than a million of Ohio’s 7.7 million registered voters. Among those not receiving ballots were those voters whose registrations were restored after an appeals court blocked a purge of them from the rolls. They were being purged because they didn’t vote in the 2012 or 2014 elections and did not respond to local county boards’ mailers requesting they confirm their registrations.
A key element in the slow-rolling of court decisions upholding voting rights is the 2013 Supreme Court decision Shelby County vs. Holder. The ruling invalidated a formula in Section 5 of the Voting Rights Act, which determined which states had to get changes to their election protocols pre-approved by the feds in a process known as preclearance. The current battles in North Carolina and Texas would have also most certainly been prevented by a fully-functioning Section 5.
“It’s a shame we have to keep, even after winning these cases, we have to continue to monitor these states,” Ho, the ACLU lawyer, said. “It’s part of the reason why the Section 5 preclearance regime was so valuable, why we instituted it in the first place. Because plaintiffs and the Department of Justice would win these cases and then the tactics would shift.”