News

Supreme courtThe Supreme Court issued its first order list of the term this morning, with no decision yet on the seven pending same-sex marriage petitions.

The Court did take 11 new cases though, including a housing discrimination case out of Texas, a redistricting case out of Arizona and a campaign finance case out of Florida.

The housing case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., raises the question of whether disparate impact claims can be asserted under the Fair Housing Act.  It is the third such case the Court has taken in the past three years. The two previous cases settled before the justices could rule on the “disparate impact” question — Mt. Holly in 2013 and  Magner v. Gallagher in 2012.

The redistricting case, Arizona State Legislature v. Arizona Independent Redistricting Commission, involves that state’s use of a commission (as opposed to its legislature) to adopt congressional districts.

And the campaign finance case, Williams-Yulee v. The Florida Bar, asks whether a state judicial conduct rule prohibiting judges from personally soliciting campaign funds violates the First Amendment.

As  Adam Liptak noted in Sunday’s New York Times, writing about judges on the campaign trail:

Thirty of the states that elect judges ban such personal requests. Every state supreme court to address the bans has said they are justified by the need to protect the integrity of the judiciary and public confidence in the judicial system.

But federal appeals courts are split on the issue. Four of them, collectively covering 23 states, have struck down solicitation bans. In May, for instance, the United States Court of Appeals for the Ninth Circuit, in San Francisco,struck down Arizona’s ban, at least as applied to candidates for judicial office who are not yet judges.

This is not a concern in North Carolina, however, because the code of judicial conduct here expressly allows judges to personally solicit campaign funds.

News

Voter IDSaying that the right to vote is fundamental, the 4th U.S. Circuit Court of Appeals today ordered the federal district court in Greensboro to stay provisions of the state’s recently enacted voting changes which eliminated same-day registration and prohibited the counting of out-of-precinct provisional ballots.

In a  2-1 decision joined by U.S. Judge Henry Floyd, U.S. District Judge James A. Wynn, Jr. wrote:

Courts routinely deem restrictions on fundamental voting rights irreparable injury.And discriminatory voting procedures in particular are “the kind of serious violation of  the Constitution and the Voting Rights Act for which courts have granted immediate relief.” This makes sense generally and here specifically because whether the number is thirty or thirty-thousand, surely some North Carolina minority voters will be disproportionately adversely affected in the upcoming election. And once the election occurs, there can be no do-over and no redress. The injury to these voters is real and completely irreparable if nothing is done to enjoin this law.

So ruling, the court left intact other provisions of the so-called “monster voting law,” including these: the reduction of early-voting days; the expansion of allowable voter challengers; the elimination of the discretion of county boards of elections to keep the polls open an additional hour on Election Day in “extraordinary circumstances”; the elimination of pre-registration of sixteen- and seventeen-year-olds who will not be eighteen years old by the next general election; and the soft roll-out of voter identification requirements that go into effect in 2016. The judges said that plaintiffs may prevail on these claims later, but did not make enough of a showing to get a preliminary injunction.

Critical to the majority’s decision was the finding that the state’s elimination of same-day registration and its prohibition against counting out-of-precinct ballots likely violated Section 2 of the Voting Rights Act:

Everyone in this case agrees that Section 2 has routinely been used to address vote dilution—which basically allows all voters to ‘sing’ but forces certain groups to do so pianissimo. Vote denial is simply a more extreme form of the same pernicious violation—those groups are not simply made to sing quietly; instead their voices are silenced completely. A fortiori, then, Section 2 must support vote-denial claims.

The court then pointed to undisputed evidence showing that “same-day registration and out-of-precinct voting were enacted to increase voter participation, that African American voters disproportionately used those electoral mechanisms, and that House Bill 589 restricted those mechanisms and thus disproportionately impacts African American voters.”

U.S. District Judge Diana Gribbon Motz issued a dissenting opinion, noting that while she was troubled by portions of the lower court’s ruling she did not believe that ruling met the “clearly erroneous” standard needed for reversal.  Motz also agreed with the state that changes to current voting law should not be made this close to the election.

Attorneys for the challengers praised the court’s decision to block key parts of the new voting law.

“The court’s order safeguards the vote for tens of thousands of North Carolinians,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement. “It means they will continue to be able to use same-day registration, just as they have during the last three federal elections.”

“This is a victory for voters in the state of North Carolina,” Southern Coalition for Social Justice staff attorney Allison Riggs added. “The court has rebuked attempts to undermine voter participation.”

But Senate President Phil Berger and House Speaker Thom Tillis, while pleased with the court’s refusal to block several provisions of law, said they were troubled by the ruling on same-day registration and out-of-precinct balloting. “We intend to appeal this decision as quickly as possible to the Supreme Court,” they said in a statement.

Read the full decision here.

 

News

voteAs we posted earlier today, the justices of the Supreme Court were considering an emergency stay of lower court rulings finding Ohio voting law changes unconstitutional.

That request apparently went to the full court and, as Lyle Denniston at SCOTUSblog notes here, was granted:

With just sixteen hours before polling stations were to open in Ohio, the Supreme Court on Monday afternoon blocked voters from beginning tomorrow to cast their ballots in this year’s general election.  By a vote of five to four, the Justices put on hold a federal judge’s order providing new opportunities for voting before election day, beyond what state leaders wanted.

The order will remain in effect until the Court acts on an appeal by state officials.  If that is denied, then the order lapses.  It is unclear when that scenario will unfold.  The state’s petition has not yet been filed formally.

News

Supreme courtThe U.S. Supreme Court doesn’t officially open its new term until Monday October 6, but the justices are already at work, opening this week with two items of interest:  an Ohio-based voting law challenge that’s before Justice Elena Kagan on an emergency petition for a stay, and a conference scheduled for this morning to review several petitions for review on same-sex marriage.

At issue in the Ohio case is a recent law cutting back early in-person voting from thirty-five to twenty-eight days, barring voting on most Sundays in the coming weeks and eliminating voting in the early evening on any day.

A federal district court and the 6th U.S. Circuit Court of Appeals both found those voting changes unconstitutional, and the state is now asking the nation’s highest court to stay those rulings pending a review of the underlying merits — the upshot of which would be curtailed voting under the new law for the upcoming elections there. A decision is expected any time from Justice Kagan, who is the justice assigned for emergency relief in the Sixth Circuit.

A similar path is likely ahead for North Carolina’s challenged voting law, which is under review by the Fourth Circuit.  A decision on whether voting changes here will be in effect for the upcoming election is also expected at any time and then will head on an expedited basis to the Supreme Court, to be reviewed by Chief Justice John Roberts, who presides over requests for emergency relief from the Fourth Circuit.

For more on the Ohio case, read here.

Also before the court in conference today are seven petitions for review of lower court decisions on same-sex marriage — including three from the Fourth Circuit’s decision tossing Virginia’s marriage ban.

To read more about those petitions and the likelihood of the Court taking a same-sex marriage case this term, read here.

News

vote-stickerAfter all the hubbub about the state’s need to snuff out and tamp down voter fraud as a reason for recent extensive changes to voting laws, it appears that fraud of another type is percolating out there, according to reports in today’s News & Observer and Daily Tarheel.

As relayed by the N&O, state residents may be being duped into completing inaccurate voter registration forms, courtesy of Americans for Prosperity, the conservative group that recently mailed out an untold number of such forms:

Hundreds of North Carolinians – and one cat – have received incorrect voter registration information, according to the N.C. State Board of Elections.

The information – an “official application form” – was sent by Americans for Prosperity, a national conservative group with a state chapter based in Raleigh.

Since then, hundreds of people who received the forms have called and complained to the State Board of Elections, said Joshua Lawson, a public information officer for the board.

“It’s unclear where (Americans for Prosperity) got their list, but it’s caused a lot of confusion for people in the state,” Lawson said.

One resident even received a voter registration form addressed to her cat, he said.

“The phone calls have consistently been all day, every day,” Lawson said.

The Daily Tarheel has a similar report:

Lawson said state officials are looking into hundreds of potentially fraudulent registration forms flagged since August.

“When you have a stack of these forms delivered at once with no return address or with very similar handwriting and signatures, the county is required to check into these forms,” Lawson said. “We would interview the person listed on the form and they would say they did not submit the form.”

Lawson also told the Daily Tarheel that residents have been calling the Board about people going door-to-door and saying residents need to re-register because the state’s voter database went down.

“We don’t send out people to go door-to-door,” he said. “You do not need to re-register unless you have moved to a different county.” Read More