Voting Rights Roundup: Using Jim Crow logic, federal court greenlights age discrimination in voting

LEADING OFF

●Indiana: A panel of three Republican-appointed judges on the 7th Circuit Court of Appeals has ruled against plaintiffs who were challenging a GOP-backed restriction that Indiana voters must present a non-COVID excuse to vote by mail this fall. Plaintiffs had argued that an exemption for voters aged 65 and above violates the 26th Amendment's ban on age discrimination in voting, but the appellate court disagreed in a manner that has potentially far-reaching consequences.

In their ruling, two of the three judges would effectively eviscerate any real protection from age discrimination. The plaintiffs argued that a law restricting the right to vote based on race or sex would violate the 15th Amendment or 19th Amendment, respectively, which the 26th Amendment mirrors with almost-identical language. But the majority wrote that those amendments themselves don't subject suspect voting laws to heightened judicial scrutiny, saying instead that such scrutiny comes from the 14th Amendment's Equal Protection clause.

The majority's position, in other words, is that the four amendments expanding voting rights—the 15th, 19th, 24th, and 26th—don't actually provide protections without the 14th Amendment backing them up. These four amendments, however, all contain the phrase "the right to vote ... shall not be denied or abridged on account of" the category they cover. But since age is not a protected class like race and gender under equal protection jurisprudence, the 26th Amendment would become almost meaningless in practice under this view.

This line of reasoning is almost indistinguishable from the jurisprudence advanced by judges during the Jim Crow era to deny the plain intent of the 15th Amendment when upholding laws that prevented Black citizens from voting in all but name, on the flimsy basis that they didn't explicitly ban African Americans from voting.

These Jim Crow laws, such as literacy tests, generally did not make it impossible for Black voters to exercise their rights in theory, much like the absentee excuse requirement doesn't prevent younger voters from voting in person in theory. In practice, however, Jim Crow rules did make voting impossible for Black voters, just as the pandemic has made in-person voting impossible for many voters.

The 7th Circuit's ruling also opens the door to laws that roll out the red carpet for older voters—a Republican-leaning demographic—and impose additional burdens on younger voters, who typically favor Democrats. It could even let GOP legislators pass laws with illicit racial intent by claiming their motives are based on age instead, since young voters tend to be much more diverse than older ones.

The plaintiffs have not yet indicated if they will appeal further. The possibility of an adverse ruling by the Supreme Court could stay their hand, as such a decision would have the effect of making the 7th Circuit's logic binding on the entire country.

In a separate case, a federal district court has temporarily stayed its ruling for a week after ordering that ballots must count if postmarked by Election Day and received a few days afterward in order to give the 7th Circuit time to consider the GOP's appeal.

VOTER SUPPRESSION

●Arizona: In early October, the U.S. Supreme Court announced it would take up Arizona Republicans' appeal in a case that could strike a crippling blow against the last remaining pillar of the Voting Rights Act.

This case involves two Republican-backed laws in Arizona that the 9th Circuit Court of Appeals found had both the effect and intent of discriminating against Black, Latino, and Native American voters. If both findings are overturned, it may become impossible to challenge such laws in the future.

Earlier this year, the 9th Circuit blocked the two laws: one that bars counting votes cast in the wrong precinct but in the right county, and another that limits who can turn in another person's absentee mail ballot on a voter's behalf.

Arizona had largely transitioned to mail voting even before the pandemic, but the 9th Circuit observed that only 18% of Native American voters receive mail service, and many living on remote reservations lack reliable transportation options. That has led some voters to ask others in their community to turn their completed ballots in, which Republicans have sought to deride as "ballot harvesting" in an attempt to delegitimize the practice. The law the court struck down had restricted who could handle another person's mail ballot to just a close relative, caregiver, or postal service worker.

The 9th Circuit's ruling also invalidated a separate provision prohibiting out-of-precinct voting, in which a voter shows up and casts a ballot at the wrong polling place but in the right county on Election Day. Under the invalidated law, voters in such circumstances could only cast a provisional ballot, which were automatically rejected if it was later confirmed that the voter had indeed showed up at the wrong polling place.

This ruling relied on Section 2 of the Voting Rights Act, which prohibits laws that have a discriminatory effect against racial minorities regardless of whether there was an intent to discriminate. The finding of a discriminatory effect is critical because it's often much more difficult if not impossible to prove that lawmakers acted with illicit intent, whereas statistical analysis can more readily prove that a law has a disparate negative impact on protected racial groups.

Consequently, it's this so-called "effects test" that is the key remaining plank of the Voting Rights Act following the notorious 2013 decision in Shelby County v. Holder. Some legal observers remain optimistic that the worst may not yet happen, since Arizona Republicans are not challenging the constitutional grounds for the VRA's effects test. However, others have noted that even if the effects test isn't formally struck down, the Supreme Court could make it so difficult to comply with the requirements to prove discrimination that the VRA would nevertheless become meaningless.

Chief Justice John Roberts has spent his entire career fighting to destroy the Voting Rights Act, beginning with his service as a young lawyer in the Reagan Justice Department. If Judge Amy Coney Barrett is confirmed to the Supreme Court, hard-right appointees would have a solid majority. Should that come to pass, the Voting Rights Act's days could very well be numbered, whether this case or another is the vehicle.

●U.S. Territories: Plaintiffs originally from Hawaii, including a civilian contractor with the military assigned to Guam, have filed a federal lawsuit challenging a federal law that prohibits them from voting for president and Congress solely because they reside in American Samoa, Guam, Puerto Rico, or the U.S. Virgin Islands. The plaintiffs note that U.S. citizens originating from the 50 states retain the right to vote for federal offices in their former state if they live in a foreign country or the Northern Mariana Islands but not in the other four territories. They argue that the system is unconstitutional by privileging citizens who move to one territory above the other four.

This lawsuit is similar to one that unsuccessfully tried to extend voting rights to U.S. citizens who moved to one of the first four territories above and became disenfranchised. In that case, the Supreme Court in 2018 declined to take up the plaintiffs' appeal after the 7th Circuit Court of Appeals ruled against the plaintiffs. Additionally in that case, the Trump administration proposed disenfranchising citizens in the Northern Mariana Islands as a solution to the purported equal protection violation.

ELECTORAL REFORM

●Maine: The U.S. Supreme Court has rejected the GOP's request to stay a state Supreme Court ruling that authorized the use of instant-runoff voting for the presidency this fall.

2020 CENSUS

●2020 Census: The Trump administration has asked the Supreme Court to block an order that the 9th Circuit Court of Appeals recently issued requiring census counting efforts to continue through Oct. 31 as originally scheduled instead of letting Trump cut them short by nearly a month.

ELECTION CHANGES

●Alaska: An Alaska state court has blocked a requirement that absentee voters have their ballots witnessed. An appeal to the state Supreme Court is possible.

●Arizona: A panel of three judges on the 9th Circuit Court of Appeals has temporarily rejected the state GOP's appeal of a recent lower court ruling that extended Arizona's voter registration deadline from Oct. 5 to Oct. 23, expressing doubt that the state Republican Party had the standing to appeal and instead inviting GOP state Attorney General Mark Brnovich to file his own appeal. Brnovich had filed a motion to intervene as defendant after Democratic Secretary of State Katie Hobbs declined to appeal, but the court has not yet ruled on his motion.

In a separate case, a panel on the 9th Circuit has sided with Brnovich and the GOP by staying a lower court ruling that had allowed voters up to have up to five days after Election Day to "cure" problems with a missing signature on their mail ballots instead of requiring such corrections be done by Election Day. Plaintiffs had challenged the law by noting that voters whose signature purportedly didn't match the one on file already had five days after the election to fix the problem but not if the signature was missing entirely.

●Georgia: A federal court has rejected a lawsuit seeking to require Gwinnett County, a large and diverse county in the Atlanta suburbs. to send out absentee ballot applications in Spanish, saying the plaintiffs lacked standing even though the county is the lone one in the state subject to the Voting Rights Act's language-minority protections due to its large Latino minority.

●Iowa: An Iowa state court has blocked a directive from Republican Secretary of State Paul Pate forbidding local election officials from sending out absentee ballot applications with voter information pre-filled. Pate has asked the conservative-dominated state Supreme Court to stay the ruling.

●Maine: A Maine state court has rejected a lawsuit by voting rights advocates seeking to have ballots postmarked by Election Day counted. Plaintiffs also wanted voters whose ballots are rejected for alleged signature mismatches the opportunity to fix any problems and have appealed the ruling to the state Supreme Court. Separately, Democratic Gov. Janet Mills says she will not issue an executive order requiring that ballots postmarked by Election Day be counted.

●Michigan: Democratic Gov. Gretchen Whitmer has signed a bill allowing election officials to begin processing mail ballots the day before Election Day. Previously, officials were only allowed to start doing so the morning of Election Day.

●Missouri: The Missouri Supreme Court has rejected voting advocates' appeal of a lower court ruling that dismissed their challenge to a GOP-backed requirement that absentee ballots cast by voters under the age of 65, who are typically less Republican than elderly voters, be notarized. In a separate federal lawsuit, a district court has ruled against the GOP and blocked a state law that prohibits voters from returning their mail ballots in-person; Republicans announced they will appeal.

●Montana: The Supreme Court has rejected an attempt by Republicans to block a directive by Democratic Gov. Steve Bullock allowing county election officials to decide whether to conduct next month's election by mail; counties home to 94% of Montana residents have opted to do so.

●Nevada: The Nevada Supreme Court has rejected a challenge by Republican Sharron Angle to the state's plan to hold next month's election by mail.

●New Hampshire: A New Hampshire state court has largely rejected a lawsuit seeking to have election officials count mail ballots postmarked by Election Day, prepay postage, provide drop boxes, and allow third-party ballot collection.

●New Jersey: A federal judge has rejected a Trump campaign challenge to New Jersey's plan to conduct next month's election by mail. Plaintiffs had specifically challenged provisions that allow election officials to start counting ballots up to 10 days before Election Day, and to accept ballots that lack a postmark up to two days after Election Day.

●North Carolina: A federal judge has temporarily blocked a settlement approved by a North Carolina state court between voting rights advocates and the state Board of Elections requiring that ballots postmarked by Election Day and received within nine days be counted. The agreement also effectively waived a requirement that absentee voters have their ballots witnessed.

●Ohio: A federal district court has overruled Republican Secretary of State Frank LaRose's recent directive barring counties from setting up more than one location for voters to drop off their absentee mail ballots, which LaRose instituted shortly after a state appellate court ruled last week that he was allowed but not required to let counties operate multiple locations. LaRose immediately appealed the federal ruling to the 6th Circuit Court of Appeals.

LaRose's attempt to limit mail ballot dropoff options to just one per county regardless of population size would disproportionately hurt Democrats if allowed to go forward, since Ohio's biggest counties lean Democratic while the smallest ones overall favor Republicans. It would also harm Black voters, since most live in large urban counties.

●South Carolina: The Supreme Court has overturned a 4th Circuit Court of Appeals ruling that had suspended the witness requirement for absentee mail ballots, ruling that it was too close to Election Day to make such changes under a principle designed to avoid voter confusion, but this ruling may just do that very thing.

In its Oct. 5 decision, the court held that those who had already voted by mail—more than 150,000 ballots had already been mailed out and an unknown number returned—could still have them count if they lacked a witness signature but were received by election officials no later than Oct. 7. However, in light of the Trump administration's effort to sabotage postal delivery service to stymie mail voting, voters could have legally mailed a valid vote days before the ruling only for it to arrive after the Oct. 7 deadline and thus be rejected.

Three of the most right-wing justices on the court—Samuel Alito, Neil Gorsuch, and Clarence Thomas—would have gone even further and thrown out even votes cast before the ruling came down if they lacked a witness signature.

Separately, voting rights advocates have filed two additional federal lawsuits seeking to expand voting access. The first one aims to require officials to notify voters and give them a chance to fix purported problems with their mail ballot signature. The second seeks an extension of South Carolina's Oct. 4 voter registration deadline, noting that the pandemic has upended normal avenues for voter registration activity.

●Tennessee: A federal district court has temporarily blocked a GOP-backed law that required certain newly registered voters to present a photo ID in-person to be able to vote by mail, ordering GOP officials to allow such voters who registered by mail to include a photocopy of their ID with their mail ballot instead. This law was likely to make it more burdensome for groups such as college students, who may not be on campus due to the pandemic, to exercise their right to vote.

●Texas: Texas' all-Republican state Supreme Court has issued a ruling blocking officials in Harris County, the state's largest, from sending mail ballot applications to all 2.4 million registered voters. The court ruled that the county couldn't mail applications to those beyond just voters age 65 and up, who had already been sent an application and are the only ones allowed to vote by mail without a non-COVID excuse.

Meanwhile, voting rights advocates have filed a second federal lawsuit and a new state-level lawsuit over GOP Gov. Greg Abbott's recent order prohibiting counties from setting up more than one drop box to receive mail ballots. That decision may make it disproportionately harder for Democrats and voters of color to vote since they are heavily concentrated in a handful of massively populated counties such as Harris; Texas' smaller counties are overall much whiter and more Republican. Plaintiffs argue that the order violates equal protection and the state constitution's right-to-vote guarantee.

●Wisconsin: A panel of three Republican-appointed judges on the 7th Circuit Court of Appeals has ruled 2-1 to reverse its earlier position and grant the GOP's request to stay a lower court decision that had ordered ballots to count if postmarked by Election Day and received by Nov. 9 and extended the deadline from Oct. 14 to Oct. 21 to register online or by mail (Wisconsin still allows in-person registration on Election Day).

Previously, this same panel had unanimously rejected the GOP's appeal on the grounds that Republican legislative leaders lacked the standing to represent the state on the basis of a prior state Supreme Court ruling. However, plaintiffs subsequently asked the Wisconsin Supreme Court to clarify that they did have standing, which the court's conservative majority did in a 4-3 ruling along ideological lines.

Consequently, the 7th Circuit panel sided with the GOP by saying it was too close to the election to change voting rules. However, Judge Ilana Rovner, a George H.W. Bush appointee, dissented by saying the majority's decision will cause "many thousands of Wisconsin citizens [to] lose their right to vote." She concluded her dissent, "Good luck and G-d bless, Wisconsin. You are going to need it." Democrats have not announced if they will appeal.

●Overseas Voters: Civilian voters residing abroad who retain the right to vote in federal races in their last state of residence have filed a federal lawsuit against officials in Georgia, Kentucky, New York, Ohio, Pennsylvania, Texas, and Wisconsin seeking the right to vote electronically due to the pandemic and delays with postal delivery, which may be exacerbated by the Trump administration's efforts to sabotage the Postal Service.

Active duty military service members stationed abroad already have the ability to cast their ballots electronically via fax or email. Civilians abroad, meanwhile, can obtain but not return their ballots electronically. Plaintiffs argue that there's a considerable risk that their ballots will not arrive in time and that the significantly higher cost of sending mail from a foreign country can be prohibitive. While extending electronic voting to overseas civilians would be one way to ensure they aren't disenfranchised, election security experts have widely warned that internet voting presents critical security risks.