Rick Hasen at Election Law Blog just saved me a lot of work. I was preparing to update the election law challenges in court, but Mr. Hasen has already done the heavy lifting. Thank you Mr. Hasen! Election Litigation 2016: Where Things Stand:
With 77 days to go until Election Day, and early voting starting much sooner in some places, here is the major litigation affecting election procedures and voting that I’m watching the most closely:
Wisconsin: One trial judge required Wisconsin officials to accept an affidavit instead of one of the strict voter ids for voting. A 7th Circuit panel reversed that holding, and we are awaiting the entire 7th Circuit en banc to rule on this question. A second trial judge struck a number of election rollbacks in Wisconsin, including those limited to early voting. The state has petitioned the 7th Circuit to stay that judge’s order pending appeal. I expect we will hear something on this case this week.
North Carolina: The 4th Circuit struck a number of challenged election rollbacks based upon a finding that North Carolina passed the law with racially discriminatory intent. The state will file a cert. petition in the Supreme Court, and in the meantime it has asked the Supreme Court to reinstate some of the laws that the 4th Circuit blocked. Chief Justice Roberts has asked the plaintiffs to file a reply by this Thursday, the 25th. Expect a ruling the following week (and given the slow pace set by the Chief, I do not expect the stay to be granted so close to the election).
Texas: We thought things were done in Texas for the time being, after the 5th Circuit found that Texas’s strict voter id law violated Section 2 of the Voting Rights Act and ordered a softening by the trial judge (as well as a remand after the election to consider whether Texas acted with racially discriminatory intent). Texas and the plaintiffs agreed in the trial court on an affidavit requirement for softening to apply in this election only, which seemed to settle things for November. But last week the Texas AG left open the possibility of seeking emergency relief with the Supreme Court to get the full voter id requirement reinstated for November. Nothing’s been filed yet, and given the lengthy delay and timing such a request would almost certainly be denied.
Ohio: We are waiting on a couple of cases out of the 6th Circuit over whether the Ohio legislature’s rollback of early voting was permissible. Two lower courts said it was not. Frankly, I’m quite surprised these rulings are not out yet as time is tight—and the theories of the plaintiffs here seem the shakiest in terms of proving a violation. We are also awaiting a 6th Circuit ruling on a so-far-unsuccessful challenge to its voter purge procedures, for removing people from the ballot who have not been active voters.
Arizona: Democrats are looking for a court order to make sure that the long lines that materialized in the primary will not reappear on election day. Awaiting a district court ruling.
Kansas/EAC: The D.C. Circuit is considering an appeal over the issue of whether an EAC bureaucrat exceeded his authority when he allowed Kansas and Arizona to require documentary proof of citizenship for voters who register to vote in federal elections using the federal form. There is also litigation over the “dual” voting system that SOS Kobach has put in place over the objections of voting rights activists.
[If you want details on any of these cases, use the search box on ELB or check out the Major Pending Election Cases at the indispensable Election Law @ Moritz website).
ADDENDUM: A News21 analysis in 2012 of 2,068 alleged election-fraud cases in 50 states found that while some fraud had occurred since 2000, the rate was infinitesimal compared with the 146 million registered voters in that 12-year span. The analysis found only 10 cases of voter impersonation, the only kind of fraud that could be prevented by voter ID at the polls. News21 is out with a new analysis. Review of States with Voter ID Laws Found No Impersonation Fraud:
This year, News21 reviewed cases in Arizona, Ohio, Georgia, Texas and Kansas, where politicians have expressed concern about voter fraud, and found hundreds of allegations but few prosecutions between 2012 and 2016. Attorneys general in those states successfully prosecuted 38 cases, though other cases may have been litigated at the county level. At least one-third of those cases involved nonvoters, such as elections officials or volunteers. None of the cases prosecuted was for voter impersonation.
“Voter fraud is not a significant problem in the country,” Jennifer Clark of the Brennan Center, a public policy and law institute, told News21. “As the evidence that has come out in some recent court cases and reports and basically every analysis that has ever been done has concluded: It is not a significant concern.”
And yet, Donald Trump’s “election observers” thugs want to go to the polls to intimidate voters — presumably voters of color who tend to vote Democratic — because “The Donald” says the only way he can lose is if the election is rigged. This redneck good ol’ boy should be flying his Confederate colors and not defiling the American flag.
Do you have any information on petition signature challenges in school board races?