By Ernest A. Canning on 2/29/2012, 3:35pm PT  

Guest editorial by Ernest A. Canning

Last September's hearings before the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights established that polling place photo ID restriction laws have nothing to do with eliminating "voter fraud."

They are, instead, part of what Judith Browne Dianis, a civil rights litigator at The Advancement Project, described at the time as the "largest legislative effort to roll back voting rights since the post-Reconstruction era" --- part of the partisan, multi-state effort by the billionaire Koch brothers-funded, Paul Weyrich co-founded American Legislative Exchange Council (ALEC)-fueled GOP exercise in voter suppression. Her testimony established, yet again, that such laws have a disparate impact upon minorities, the poor, the elderly and students (all of whom happen to have the unfortunate tendency of voting Democratic).

Despite the national nature of this coordinated, well-documented and well-funded assault on minority voting rights, so far the U.S. Department of Justice (DoJ) has confined its legal response to such newly-enacted laws to only the small number of "covered" jurisdictions, for example, South Carolina, that are subject to Section 5 of the Voting Rights Act (VRA). That section of the law requires federal preclearance for new election-related laws in those "covered" jurisdictions, since they each have demonstrated a long history of racial discrimination.

The narrow action taken by the DoJ to date, as based only on Section 5 of the VRA, could all change if they took the time to study the content of the new complaint, Jones v. Deininger [PDF], as filed last week in the U.S. District Court for the Eastern District of Wisconsin. The complaint alleges that Wisconsin's new polling place photo ID law ("Act 23") "is a voter suppression law that burdens African-American and Latino voters most heavily [which]...results in them having 'less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,' and, thereby, constitutes a denial and abridgment of their right to vote in violation of Section 2 of the Voting Rights Act."

The complaint in Jones, which was signed by attorney Charles T. Curtis, Jr. of Arnold & Porter, LLP, seeks to enjoin the implementation of Wisconsin's Act 23 and a declaration that it violates Section 2 of the VRA. When asked whether he contemplates seeking a preliminary injunction on the new law prior to the next election, Curtis was only able to tell The BRAD BLOG at this time that they "want to move the case as quickly as the Court will allow, and plan to request a pretrial conference to discuss motion and briefing schedules."

The additional question remains, however, will the U.S. DoJ defend federal law by opting to join this lawsuit as a plaintiff?...

The right to vote

The new complaint, in Jones, follows an earlier class-action lawsuit, Frank vs. Walker [PDF], filed by the ACLU last December in the same federal court. Frank seeks to have the same polling place photo ID law declared unconstitutional as an "as-applied" challenge under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

The lead plaintiff in Frank is 84-year old Ruthelle Frank. She had voted in every election since 1948, but may be now be barred from voting because, as we reported when the case filed, due to her home birth in Brokaw, WI, she lacks a birth certificate, as needed to obtain one of the official forms of state-issued IDs required by Wisconsin's draconian new polling place photo ID legislation.

The lead plaintiff in the newer Jones filing, meanwhile, is 77-year old Bettye Jones, an African-American, who recently moved to Brookfield, WI with her daughter. Jones, who was home-born in TN, has voted regularly since the 1950s. She possesses a valid Ohio driver's license. She and her daughter devoted substantial time and expense only to learn from TN officials that, despite a "thorough search," they cannot locate her birth certificate, according to her complaint. Without a birth certificate, Jones cannot obtain one of the official WI-issued forms of photo ID required to vote in the state. Jones has been disenfranchised.

Although individuals are expressly authorized to initiate such litigation personally, there are significant reasons why the DoJ should intervene in both Jones and Walker in order to place the full resources of the U.S. government into the defense of a right that lies at the core of democracy --- the right of U.S. citizens to vote.

Jones adds weight to ACLU's Equal Protection challenge

As we observed in, "ACLU's Federal Challenge to WI GOP's Photo ID Restrictions Could Reverse Similar Laws Nationwide", the "as-applied" challenge in Frank differs markedly from the "facial" challenge presented to the U.S. Supreme Court in Crawford vs. Marion County Board of Elections, the case out of Indiana which ultimate won U.S. Supreme Court approval for polling place photo ID restriction laws.

As is reflected by the Court's lead opinion in Crawford, written by Justice John Paul Stevens and joined by Chief Justice John Paul Roberts and Justice Anthony Kennedy, because the plaintiffs challenged the Indiana photo ID law only on the face of the statute, they did "not introduce evidence of a single, individual Indiana resident who will be unable to vote as a result of [the polling place photo ID statute] or who will have his or her right to vote unduly burdened by its requirements."

In the new Frank case, however, the ACLU, using representative plaintiffs, challenges the constitutionality of the state's photo ID law "as applied" to six categories of WI residents who lack the requisite form of photo ID mandated by the new Republican-instituted statute. The Frank complaint alleges that these WI plaintiff residents face a severe and, at times, impossible burden --- burdens which the lead opinion in the U.S. Supreme Court's Crawford decision suggests might have produced a different result in that case.

Jones, on the other hand, is an individual for whom the burden is not merely severe but impossible. She is a United States citizen who has been disenfranchised simply because she moved from Ohio to Wisconsin.

She is not alone. Already a Wisconsin resident, the wife of attorney Tim Verhoff was not allowed to cast a vote in the state's recent February primary election, the first to see the new law fully implemented, because she still had their old address on her WI driver's license.

DoJ should pursue Section 2 challenges to photo ID

Section 5 of the Voting Rights Act places the burden on "covered" jurisdictions themselves to prove that any change in their voting laws "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color or [membership in a language minority group]." Section 2, on the other hand, places the burden of proof on the government or with the individual who alleges a Section 2 violation.

Thus, Section 5 cases are easier to bring than Section 2 cases. Nonetheless, Section 5 has several drawbacks drawbacks as compared to Section 2.

For one, Section 5 is temporary. It expires, unless renewed yet again, in 2031. It applies only to a limited number of "covered" jurisdictions with a past history of discriminatory voting laws. Section 2, on the other hand, is permanent.

Section 5 also offers no protection whatsoever to citizens in states like Wisconsin because the Badger State is not one of the 16 "covered" jurisdictions. Section 2 applies to every U.S. jurisdiction.

While, to date, no challenges against it have succeeded, the issue of Section 5's constitutionality itself is still pending in our appellate courts. As noted by the DoJ, the constitutionality of Section 2 --- which likewise "prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in [a specified] language minority" --- was upheld by the U.S. Supreme Court in Mobile v. Bolden (1980) as simply a "restatement of the protections afforded by the 15th Amendment."

While it may well be appropriate, or easier, for the DoJ to continue to rely upon Section 5 in "covered" jurisdictions, it is manifestly inappropriate for the DoJ's Civil Rights Division to sit on the sidelines as those jurisdictions that are not covered by Section 5 abridge the constitutional rights of U.S. citizens, as afforded by the 15th Amendment.

Jones offers a significant Section 2 challenge

One caveat is in order before proceeding further with this writer's opinion. It is not universally shared.

U.C. Irvine Election Law Prof. Rick Hasen informed The BRAD BLOG there was "no way" the plaintiffs in Jones could "win on discriminatory effect," absent proof of discriminatory intent. Loyola Law Prof. Justin Levitt, whose testimony on photo ID laws formed a centerpiece during last September’s hearings before the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, believes the plaintiffs in Jones present a "plausible" means for prevailing, but one which will require "an awful lot of factual development" as the case will turn on statistics --- all the more reason, in this writer's opinion, that the DoJ should step forth with the resources of the U.S. government to develop a significant factual record.

Hasen directed us to a TPM interview of Samuel Bagenstos, the former number two official in the DoJ's Civil Rights Division. But Bagenstos did not say, during the interview, that it was necessary to prove discriminatory intent in this instance. Instead, Bagenstos averred:

In order to bring a Section 2 case, you’d have to as a practical matter show two things. One, that there’s a significant racial disparity and two, that the burden of getting an ID is significant enough for us to care about.

That two prong test seems to be met in the Jones case.

The plaintiff, in Jones, appears to be proceeding under a 1982 amendment to Section 2. As noted on the DoJ website:

In 1982 Congress... examined the history of litigation under Section 2 since 1965 and concluded that Section 2 should be amended to provide that a plaintiff could establish a violation of the section if the evidence established that, in the context of the 'totality of the circumstance of the local electoral process,' the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process.

The DoJ goes on to quote from the U.S. Supreme Court decision in Thornburg v. Gingles (1986) which wrote that the "essence of a Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives."

Jones, whose plaintiffs include the League of United Latin American Citizens (LULAC) of Wisconsin, the Cross Lutheran Church, the Milwaukee Area Labor Council, AFL-CIO and the Wisconsin League of Young Voters Educational Fund, alleges facts which meet that criteria. The complaint not only references studies that underscore the disproportionate numbers of African-Americans and Latinos in WI who lack driver's licenses --- one study revealed that "more than three-fourths of African-American men age 18-24" lacked the requisite ID --- but alleged that this was a "consequence of the historic discrimination against African-Americans and Latinos [who] reside disproportionately in urban areas and use public transportation to travel to and from work and tend to have lower incomes."

The complaint, in Jones, alleges:

The State's asserted justifications for Act 23 [the state's polling place Photo ID restriction law] --- including the purported problem of in-person voter impersonation --- are not supported by credible evidence. Nor are Act 23's extreme, unduly harsh and restrictive, and arbitrarily and unevenly administered provisions necessary or appropriately tailored (or even obviously related) to the accomplishment of any legitimate state interest in preventing voter fraud.

That allegation finds ample support in numerous academic studies and in the extensive testimony provided by Prof. Levitt and others during last September's U.S. Senate Hearings. The studies and testimony reveal that in-person voter fraud --- the only type of voter fraud that can possibly be prevented by polling place photo ID laws --- is about as scarce as hen's teeth. Polling place voter impersonation is certainly far more scarce than the growing number of documented cases of voter fraud allegedly committed by prominent Republicans, many of whom are ironically behind the push for polling place photo ID restriction laws.

The absurdity of the WI photo ID law was demonstrated in February when 62-year old Marge Curtin was barred from voting during the very first election under which the new had been fully in force. Curtin had lived in and voted in the same community for 40 years. Her name and address were listed in the poll book. She and one of the poll workers had been good friends since the 1960s. But she was not allowed to vote because she and her husband had been injured in an auto accident and did not feel "up to making the trek to the Department of Motor Vehicles to get a state-issued photo ID."

We should add, as The BRAD BLOG has previously detailed, it is no easy feat to get that supposedly-"free" photo ID from WI's DMV --- even for able-bodied voters.

Finally, even if discriminatory intent were required to successful win a Section 2 case, as Hasen suggests, when he appeared before the U.S. Senate (see first video below) and before the House of Representatives (see second video below) Assistant Attorney General Thomas Perez, the current head of the DoJ's Civil Rights Division, testified that the absence of evidence to support a valid reason for the adoption of photo ID is relevant to the question of discriminatory intent. Perez told Rep. Jerrold Nadler (D-NY) that, in jurisdictions not covered by Section 5, the DoJ is examining the facts and law under Section 2 of the VRA.

Jones provides ideal case for DoJ intervention

Cases listed at its website reveal that the DoJ has historically filed Section 2 challenges where, for example, an at-large Congressional district serves to dilute minority representation on a governing body. However, Prof. Levitt advised us, in response to a recent email query, that "there have been other Section 2 allegations against practices that disproportionately deny minority voters the ability to cast a ballot."

Because the percentages of WI African-Americans and Latinos who lack the requisite photo ID is so disproportionate as compared to the state's white population, the 'totality of the circumstances' of Wisconsin's polling-place photo ID law supports the conclusion that the Badger State's newly implemented polling-place photo ID statute is a "procedure [that has] the result of denying a racial or language minority an equal opportunity to participate in the political process," as contemplated by the 1982 amendment to Section 2 of the Voting Rights Act.

The DoJ should, therefore, seek to intervene in the Jones case as a party plaintiff. Further, since the DoJ should zealously guard the right of all qualified U.S. citizens to exercise the franchise, it should intervene in Frank as well in order to assist in bringing to an end this disgraceful, democracy-destroying chapter in our nation's history.

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Video of Asst. Attorney General Thomas Perez' 9/13/11 testimony before the U.S. Senate follows...

Video of Asst. AG Thomas Perez' 6/1/11 testimony in the U.S. House of Representatives follows...

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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