The Lawsuits That Could Majorly Affect Voting Rights Around the Country This Election Day (Updated)

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Roundups Law and Policy

The Lawsuits That Could Majorly Affect Voting Rights Around the Country This Election Day (Updated)

Imani Gandy & Jessica Mason Pieklo

Some of the lawsuits challenge restrictions enacted after the U.S. Supreme Court in 2013 gutted the Voting Rights Act in Shelby County v. Holder.

As we inch toward Election Day, there are multiple lawsuits in place that could not just affect voter rights on Tuesday but could potentially affect the outcomes of the election. Below is a list of lawsuits to keep your eye on, ranging from allegations of voter intimidation to improperly targeting Black neighborhoods for polling place closures. Some of the lawsuits also challenge restrictions enacted after the U.S. Supreme Court in 2013 gutted the Voting Rights Act in Shelby County v. Holder, leaving nearly 900 fewer polling places this election. This post will be updated as necessary. (Last updated: Monday, November 7, 10:32 p.m.)

ARIZONA

Feldman v. Arizona (polling place reductions; provisional balloting process; mail-in ballot collection)

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In April 2016, the Democratic Party, the Hillary Clinton and Bernie Sanders campaigns, and several individual voters sued Arizona, alleging that the state violated the U.S. Constitution and Section 2 of the Voting Rights Act when it failed to provide a sufficient number of polling places in the March 2016 presidential primary, and that doing so had disenfranchised voters of color. In Maricopa County, plaintiffs say, voters waited in long lines for hours to vote after the county cut the number of polling places by 85 percent since 2008.

The plaintiffs also allege that Arizona’s provisional balloting process, which discounts provisional ballots of voters who cast them in the incorrect precinct, disenfranchises voters.

The suit also challenges Arizona’s restrictions on collecting and submitting the mail-in ballots of other voters, alleging that an Arizona law prohibiting individuals from engaging in “ballot harvesting” (collecting the early ballots of others) violates the Voting Rights Act, the 14th Amendment, and the First Amendment because it disproportionately and adversely affects voters of color, unjustifiably burdens the right to vote, and interferes with freedom of association.

STATUS:

Mail-in Ballot Collection: On September 23, the district court for Arizona denied plaintiffs’ request for a preliminary injunction to block Arizona’s restrictions on mail-in ballot collection. Plaintiffs appealed to the Ninth Circuit, which held expedited oral arguments on October 19. On October 28, a three-judge panel of the Ninth Circuit affirmed the district court’s order denying a preliminary injunction. On October 31, a judge made a sua sponte motion for a vote on whether to rehear the opinion en banc. Both parties submitted supplemental briefs on the matter on October 31. On November 2, Ninth Circuit Chief Judge Sydney Thomas ordered that the case be reheard en banc. On November 4, the full Ninth Circuit voted 6 to 5 to allow ballot harvesting for this election.

Update: On November 5, the Supreme Court stayed the Ninth Circuit’s order that barred Arizona from enforcing a law that makes it a felony for third parties to collect early ballots.

Out-of-precinct provisional ballots: On October 11, the district court rejected plaintiffs’ out-of-precinct provisional ballots claim, and refused to require Arizona to count out-of-precinct provisional ballots. On November 2, a three-judge panel of the Ninth Circuit affirmed the district court’s order. On November 4, Judge Sydney Thomas ordered that the case be reheard en banc.

Polling Place Closures: Plaintiffs settled their claims related to polling place closures in September. Polling places reopened in Maricopa County after the primaries, but others remain closed throughout the state.

Arizona Democratic Party v. Arizona Republican Party (voter intimidation)

On October 31, the Arizona Democratic Party filed a lawsuit against the Arizona Republican Party, the Trump campaign, and Trump ally Roger Stone, who is recruiting volunteers to patrol hundreds of voting precincts in Democratic-leaning cities with large populations of voters of color through his “Stop the Steal” effort. (Similar lawsuits were filed against the Republican Parties of Ohio, Nevada, and Pennsylvania.) The lawsuit accuses Trump, Stone, and the GOP of violating both the Voting Rights Act and the 1871 “Ku Klux Klan Act” by “conspiring to threaten, intimidate, and thereby prevent minority voters in urban neighborhoods from voting in the 2016 election.” Plaintiffs request an injunction blocking defendants from engaging in all voter intimidation activities.

STATUS:  The court set a hearing regarding plaintiffs’ request for injunctive relief for November 3.  

CALIFORNIA

ACLU of N. Cal. v. Padilla (ballot selfies)

In October 2016, ACLU filed a lawsuit in federal court challenging two California statutes that prohibit voters from taking photographs of their marked ballots to show their support for particular candidates or issues—so-called ballot selfies. “Plaintiffs also argue that the California legislature has already repealed the laws illustrating the lack of government interest in their enforcement; the repeals don’t kick in until 2017.

STATUS: On November 2, U.S. District Court Judge William Alsup denied the ACLU’s request.

GEORGIA 

League of Women Voters v. Newby (documentary proof of citizenship)

In February 2016, the League of Women Voters and state affiliates filed suit challenging letters that Election Assistance Commission (EAC) Executive Director Brian Newby sent to the secretaries of state of AlabamaGeorgia, and Kansas in January 2016. In those letters, he allowed the three states to require that applicants using the federal voter registration form provide documentary proof of citizenship.

Plaintiffs allege that Newby lacked the authority to make this decision, and that issuing the letters violated both EAC policy and federal law. ‪On June 29, the district court ruled that Alabama, Georgia, and Kansas can implement their proof of citizenship requirements for the 2016 election. Plaintiffs appealed this decision to the D.C. Circuit Court of Appeals.

STATUS: On September 9, 2016, the appellate court preliminarily enjoined the EAC from changing the federal voter registration form to allow Alabama, Georgia, and Kansas to require documentary proof of citizenship. That means that, as of now, documentary proof of citizenship will not be a required part of the federal form for the November 2016 election.

MASSACHUSETTS

Chelsea Collaborative v. Galvin (20-day cutoff rule)

On November 2, the Massachusetts ACLU filed a class action lawsuit in Suffolk County Superior Court alleging that Massachusetts’s Voter Cutoff Lawwhich requires that eligible voters register 20 days before an electionimpinges on the fundamental right to vote under the Massachusetts Constitution and disenfranchises eligible voters. Plaintiffs are asking the court to issue a preliminary injunction blocking defendants from enforcing the 20-day cutoff rule.

STATUS: A hearing for a motion for protective order is set for November 7. 

Update: In an order issued on November 7, state court judge Douglas H. Wilkins found that the 20-day cutoff disenfranchised three voters who were named as plaintiffs and who registered after the deadline. Judge Wilkins ordered the Secretary of State’s office to allow them to vote November 8. The judge scheduled a hearing for November 7 at 2 p.m. to discuss further proceedings in the case, namely whether the state voter cutoff law is unconstitutional.

MICHIGAN

Michigan Democratic Party v. Michigan Republican Party (voter intimidation)

On November 4, the Michigan Democratic Party filed a lawsuit against the Michigan Republican Party, the Trump campaign, and Trump ally Stone. (Similar lawsuits have been filed against the Republican Parties of Arizona, Nevada, North Carolina, Ohio, and Pennsylvania.) The lawsuit accuses Trump, Stone, and the GOP of violating both the Voting Rights Act and the 1871 “Ku Klux Klan Act” by “conspiring to threaten, intimidate, and thereby prevent minority voters in urban neighborhoods from voting in the 2016 election.” Plaintiffs requested an injunction blocking defendants from engaging in all voter intimidation activities.

STATUS: No action taken so far.

NEVADA

Nevada State Democratic Party v. Nevada Republican Party (voter intimidation)

On October 30, the Nevada State Democratic Party filed a lawsuit against the Nevada Republican Party, the Trump campaign, and Trump ally Stone. (Similar lawsuits have been filed against the Republican Parties of Arizona, Nevada, North Carolina, Ohio, and Pennsylvania.) The lawsuit accuses Trump, Stone, and the GOP of violating both the Voting Rights Act and the 1871 “Ku Klux Klan Act” by “conspiring to threaten, intimidate, and thereby prevent minority voters in urban neighborhoods from voting in the 2016 election.” Plaintiffs requested an injunction blocking defendants from engaging in all voter intimidation activities.

STATUS: An evidentiary hearing is set for November 3.

NEW JERSEY

Democratic National Committee v. Republican National Committee (voter caging and intimidation)

In 1982, the DNC filed a lawsuit against the RNC alleging that the RNC and the NJ Republican State Committee (RSC) had targeted voters of color in an effort to intimidate them in violation of the Voting Rights Act and the Constitution. To settle the lawsuit, the RNC and the RSC entered into a consent decree. Under the consent decree, the RNC agreed to refrain from organizing or directing efforts to investigate the qualifications of voters at their polling places. Specifically, the decree prohibits the RNC from “undertaking any ballot security activities” where “a purpose or significant effect of such activities is to deter qualified voters from voting.” The consent decree also bans the RNC from directing or permitting its employees to “interrogate prospective voters as to their qualifications to vote prior to their entry to a polling place.”

On October 26, the DNC filed a request for civil contempt, sanctions, and preliminary injunction claiming that the RNC has violated the consent decree by “supporting and enabling efforts of the Republican candidate for President, Donald J. Trump, as well as his campaign and advisors, to intimidate and discourage minority voters from voting in the 2016 Presidential Election.”

The DNC has asked that the RNC be (1) “prohibited from allocating any money to fund, reimburse expenses for, or provide support for Trump’s voter intimidation program or his supporters’ plans to ‘watch’ ‘certain sections’ and ‘other communities’”; (2) “prohibited from allocating any money to fund, reimburse expenses for, or provide support for any state political organization’s ‘ballot security’ or ‘ballot integrity’ measures”; (3) “directed to seek reimbursement from the Trump Campaign and all state political organizations for any funds previously allocated to fund any prohibited ‘ballot security’ measures”; (4) “required to distribute the Consent Decree and the relief rewarded via this action to every RN field office with instructions that no person employed by or affiliated with the RN shall participate in any ‘ballot security’ measures”; and (5) “required to report to the Court within 24 hours upon learning of any efforts by RNC agents, employees, or affiliates … to engage in prohibited ‘ballot security’ measures.”

STATUS: On October 31, the Court ordered that the RNC provide discovery responses to a wide range of requests seeking information about collaboration between the RNC and the Trump campaign. Discovery responses were due on November 2. An oral argument is set for hearing ‪on November 4.

NORTH CAROLINA

North Carolina NAACP v. McCrory (voter identification; same-day registration; early voting)

In August 2013, the Department of Justice, the NC NAACP, the League of Women voters, and affected voters filed suit alleging that HB 589, North Carolina’s sweeping elections law, violates the Constitution and the Voting Rights Act. Among the restrictive changes, the law eliminated same-day registration, reduced early voting, and created a voter ID requirement.

In April 2016, a trial court upheld all of the challenged provisions. Plaintiffs appealed to the Fourth Circuit Court of Appeals.

In July 2016, a unanimous panel of the Fourth Circuit Court of Appeals ruled that the law violates Section 2 of the Voting Rights Act because it was passed with racial discriminatory intent. The panel found that the laws had targeted Black voters “with almost surgical precision” and blocked all the challenged provisions.

North Carolina appealed the Fourth Circuit’s ruling to the Supreme Court and sought a stay. ‪On August 31, the Supreme Court issued a split decision, with four justices voting to grant the stay and four justices voting to deny it. The tie left the Fourth Circuit’s decision in place, which means HB 589 will not be enforced this November.

STATUS: On October 1, a group of plaintiffs in the case filed an emergency motion asking the district court to require the state board of elections to modify the early voting plans for five counties because they violate the Fourth Circuit’s order. On October 13, the district court judge denied this motion.

North Carolina NAACP v. State BOE (voter caging)

On October 31, the NC NAACP filed a lawsuit seeking declaratory and injunctive relief to prevent the North Carolina and County Boards of Elections from canceling the voter registrations of thousands of North Carolinians for changes in residence on the basis of single mailings returned as undeliverable, in violation of the National Voter Registration Act’s notice and two-cycle provisions.

STATUS: On November 2, the court heard oral arguments. On November 4, U.S. District Court Judge Loretta Biggs issued a TRO ordering defendants to “take all necessary steps to restore the voter registrations that were canceled in the 90 day period preceding November 8” and enjoined them from interfering with those voters’ right to vote and the right to vote of any voter who was targeted as a result of the voter caging process.

North Carolina Democratic Party v. North Carolina Republican Party (voter intimidation)

On November 3, the North Carolina Democratic Party filed a lawsuit against the North Carolina Republican Party, the Trump campaign, and Trump ally Stone. (Similar lawsuits have been filed against the Republican Parties of Arizona, Nevada, North Carolina, and Pennsylvania.) The lawsuit accuses Trump, Stone, and the GOP of violating both the Voting Rights Act and the 1871 “Ku Klux Klan Act” by “conspiring to threaten, intimidate, and thereby prevent minority voters in urban neighborhoods from voting in the 2016 election.” Plaintiffs requested an injunction blocking Defendants from engaging in all voter intimidation activities.

STATUS: No action taken so far.

OHIO

Ohio Organizing Collaborative v. Husted (early voting and voter registration)

In May 2015, the Ohio Organizing Collaborative and individuals engaged in voter registration drives filed a lawsuit alleging that the elimination of “Golden Week” (during which voters could register and vote early in one trip), restrictions to absentee ballot access, and other restrictive provisions violate the Constitution and Section 2 of the Voting Rights Act.

In May 2016, the trial court ruled that the elimination of Golden Week violated the 14th Amendment and the Voting Rights Act, because it disproportionately affects Black voters. The state appealed to the Sixth Circuit Court of Appeals. On August 23, a divided Sixth Circuit panel reversed the trial court’s decision, and ruled that Ohio may permissibly eliminate Golden Week.

STATUS: On September 13, the Supreme Court declined to stay the Sixth Circuit’s decision, meaning that Golden Week will not be in place for this November’s election.

Northeast Ohio Coalition for the Homeless v. Husted (absentee and provisional balloting)

Plaintiffs challenged two Ohio laws, SB 205 and SB 216, which provide for the invalidation of absentee and provisional ballots when voters fail to completely fill out the envelope information in a way that matches the information in the state’s voter registration database. Plaintiffs argued that this poses a hardship for homeless Ohioans, many of whom have mental health issues, are illiterate, or have difficulty filling out complex forms. In June 2016, the trial court blocked these portions of the laws as violations of Section 2 of the Voting Rights Act and the Constitution. Ohio appealed this decision to the Sixth Circuit.

STATUS: In September, a three-judge panel of the Sixth Circuit panel voted 2 to 1 to reverse much of the district court’s decision, particularly regarding provisional ballots. The appellate court denied plaintiffs’ request for en banc review of this decision. On October 25, plaintiffs filed an emergency application with the Supreme Court, asking it to stay the Sixth Circuit’s decision. On October 31, Justice Elena Kagan denied the application: The laws will remain in place as they are for now.

Ohio Democratic Party v. Ohio Republican Party (voter intimidation)

On October 30, the Ohio State Democratic Party filed a lawsuit against the Ohio Republican Party, the Trump campaign, and Trump ally Stone. (Similar lawsuits have been filed against the Republican Parties of Arizona, Nevada, North Carolina, and Pennsylvania.) The lawsuit accuses Trump, Stone, and the GOP of violating both the Voting Rights Act and the 1871 “Ku Klux Klan Act” by “conspiring to threaten, intimidate, and thereby prevent minority voters in urban neighborhoods from voting in the 2016 election.” Plaintiffs requested an injunction blocking defendants from engaging in all voter intimidation activities.

STATUS: On November 4, U.S. District Court Judge James Gwin issued a temporary restraining order (TRO) enjoining the Trump and Clinton campaigns, as well as Roger Stone, from engaging in voter intimidation activity. The TRO does not extend to the Ohio Republican Party. The Trump campaign has appealed the TRO to the Sixth Circuit Court of Appeals.

Update: The Sixth Circuit Court of Appeals issued a stay of the TRO, effectively halting its enforcement. Ohio Democrats appealed to the Supreme Court, which issued an order denying the request.

PENNSYLVANIA

Pennsylvania Democratic Party v. Nevada Republican Party (voter intimidation)

On October 30, the Pennsylvania Democratic Party filed a lawsuit against the Pennsylvania Republican Party, the Trump campaign, and Trump ally Stone. (Similar lawsuits have been filed against the Republican Parties of Arizona, Nevada, North Carolina, and Ohio.) The lawsuit accuses Trump, Stone, and the GOP of violating both the Voting Rights Act and the 1871 “Ku Klux Klan Act” by “conspiring to threaten, intimidate, and thereby prevent minority voters in urban neighborhoods from voting in the 2016 election.” Plaintiffs requested an injunction blocking defendants from engaging in all voter intimidation activities.

STATUS: Plaintiff ordered to submit motion for emergency injunctive relief on November 3. The preliminary injunction hearing is set for November 7.

Update: A federal judge November 7 refused Democrats’ request for an order that would prohibit the Trump campaign and its surrogates from engaging in voter intimidation tactics at the polls November 8.

VIRGINIA

Lee v. Virginia State Bd. of Elections (voter ID)

In June 2015, affected voters and the Democratic Party of Virginia brought suit arguing that Virginia’s strict voter ID law violates the Constitution and Section 2 of the Voting Rights Act.

After a February 2016 trial, the trial court upheld the voter ID law in May 2016.

STATUS: Plaintiffs appealed to the Fourth Circuit Court of Appeals, and a panel heard oral argument on September 22. It is unclear whether the panel will rule before Election Day.

Topics and Tags:

2016 Elections, Politics