It’s All Happening: Key Legal Developments In Three States Begin to Set Stage for November

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Three significant court cases in three different states had key developments late last week – clarifying if not yet cementing the rules that will be in place for elections this fall.

In Virginia, the state Supreme Court – by a 4-3 vote – overturned an order by Governor Terry McAuliffe restoring voting rights to over 200,000 individuals who lost those rights due to conviction for a felony. NPR has more:

The Virginia Supreme Court has ruled that Gov. Terry McAuliffe doesn’t have the authority for a blanket restoration of voting rights to the state’s felons.

McAuliffe had issued a sweeping executive order in April that affected 206,000 ex-offenders in the state.

In a 4-3 ruling, the state’s justices said under the state constitution, McAuliffe didn’t have the authority for such a proclamation.

“Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request,” the majority wrote. “To be sure, no Governor of this Commonwealth, until now, has even suggested that such a power exists. And the only Governors who have seriously considered the question concluded that no such power exists.”

Nothing stops the governor from granting rights to felons on an individual basis, but the justices said it was unconstitutional to do it through a blanket order. They described it as the difference between making an exception to a rule, and changing the rule.

The court’s ruling calls for state registrars to cancel the voter registration of all felons who registered to vote under McAuliffe’s order.

In response to the court’s ruling, Governor McAuliffe has vowed to sign individual restorations:

McAuliffe had previously promised to restore voting rights one by one if his order were overturned, an in a statement late Friday, he reiterated that vow.

“I will expeditiously sign nearly 13,000 individual orders to restore the fundamental rights of the citizens who have had their rights restored and registered to vote,” he said. “And I will continue to sign orders until I have completed restoration for all 200,000 Virginians.”

He announced that he planned to issue new orders on a monthly basis, to extend the right to vote to felons released in the future.

In Wisconsin, the state has moved to appeal the latest ruling softening the state’s voter ID law. According to the Journal-Sentinel,

Wisconsin Attorney General Brad Schimel is seeking to fast-track his appeal of a federal-court decision that scaled back the state’s voter ID law.

On Friday, Schimel, a Republican, asked a federal judge to stay his decision made earlier this week, saying the court had acted improperly and that its ruling threatened to confuse voters in the run-up to an election.

The state says it will appeal the ruling to the 7th U.S. Circuit Court of Appeals in Chicago.

On Tuesday, U.S. District Judge Lynn Adelman in Milwaukee ruled that Wisconsin voters without photo identification can cast ballots by swearing to their identity. The decision creates a pathway for voters with difficulties getting IDs who have been unable to cast ballots under the state’s 2011 voter ID law.

“Although most voters in Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed for those voters who cannot obtain qualifying ID with reasonable effort,” Adelman wrote in his decision.

The judge issued his preliminary order because he found that those arguing for a pathway for some voters without IDs were “very likely” to succeed.

Rick Hasen has the following interesting nugget about the possible litigation future of the dispute:

The suit will go to the 7th Circuit, presumably to the Easterbook-led panel again—the same court that sent the case back to Judge Adelman in the district court and told him to entertain a remedy for those voters who face special burdens in obtaining the right form of ID.

The motion for a stay filed in the district court previews the kinds of arguments that Wisconsin will make when, as is inevitable, the trial court denies this motion and an emergency motion is filed in the 7th circuit. The main arguments are that the affidavit is unnecessary, as the DMV procedures are good enough, and that in any case the affidavit is overbroad (because it would allow filling in “other” and any excuse for filing the [ID affidavit].

What will the 7th Circuit do?  I’m not sure. It would not surprise me if the court trimmed the ID requirement back a bit. But it is possible that the court does nothing and sees how it goes this election, or that it rejects the affidavit entirely.

Whatever the 7th Circuit does could be taken en banc, and the last time that court divided 5-5 on what to do. That could happen again if the 7th Circuit gets rid of the affidavit entirely for the next election. [Update: Bill Groth reminds me: Since the 7th Circuit deadlocked 5-5 in Frank v. Walker, Judge Tinder, who voted with the Easterbrook faction to uphold the law, retired. There are now just 9 active judges with no confirmations imminent. Thus, there can’t be another 5-5 split if the case were to go en banc.” That could potentially be good news for supporters of the affidavit requirement.]

And finally in Texas, the trial judge and the parties in that state’s ID case are already hard at work fashioning a remedy in the wake of last week’s 5th Circuit opinion. First, the judge issued an order setting out the parameters for an acceptable remedy – the Houston Chronicle has more:

Texas will have to engage in a “meaningful” education campaign about its beleaguered voter ID law and some people lacking required photo identification may be allowed to once again use voter registration cards to cast ballots in the November election, a federal judge said Thursday.

In a two-page order, U.S. District Judge Nelva Gonzales Ramos in Corpus Christi provided the first blueprint for potential fixes for Texas’ voter ID measure – one day after a federal appeals court said the law violates federal protections against discrimination at the ballot box …

Ramos, however, narrowed the criteria for acceptable changes in her order, saying temporary fixes “must include” elements such as a safety net for people with an “impediment or indigency exception” who can’t obtain one of the seven approved photo IDs needed to vote. One potential solution on that front, Ramos wrote, is to revert back to a system of allowing voter registration cards to pass as acceptable ID for such voters …

Ramos also included in her order that “state must educate the public in a meaningful way about SB 14 ID requirements and all exceptions to those requirements” and that Texas will also have to re-educate and train poll workers to comply with changes.

Late last week, the parties came together to suggest a procedure to be used in an upcoming special election beginning this week in Bexar County (San Antonio), TX. Under the procedure, a voter without ID will complete a “Reasonable Impediment Affidavit” (to be provided by the Secretary of State), provide some other identifying information like a voter registration card, utility bill or last date of birth/four digits of SSN and then cast a provisional ballot. That ballot will be counted “unless there is conclusive evidence that the affiant is not the person in whose name the ballot is cast.”

As always, there is no guarantee – and little expectation, in an election year – that these developments are the last ones in each of these states. However, the fact that there are concrete developments underway in Virginia and Texas (and forthcoming in Wisconsin) is a positive sign that election officials and voters will get clarity sooner than later on what is required of them before Election Day. That will be increasingly vital as November 8 grows closer.

Stay tuned …

2 Comments on "It’s All Happening: Key Legal Developments In Three States Begin to Set Stage for November"

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