Assessment of Minority Voting Rights Access

Transcript

1 AN ASSESSMENT OF MINORITY VOTING RIGHTS ACCESS IN THE UNITED STATES An Assessment of MINORITY VOTING RIGHTS ACCESS in the United States ★ ★ ★ ★ ★ ★ ★ ★ ★ ★ 018 STATUTORY REPORT 2 U.S. COMMISSION ON CIVIL RIGHTS Washington, DC 20425 Official Business Penalty for Private Use $300 Visit us on the Web: www.usccr.gov

2 ★ ★ U.S. COMMISSION ON CIVIL RIGHTS e U.S. Commission on Civil Rights is an independent, bipartisan agency estab Th - lished by Congress in 1957. Congress directed the Commission to: • Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. Study and collect information relating to discrimination or a denial of equal pro - • tection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. Appraise federal laws and policies with respect to discrimination or denial of • equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. Serve as a national clearinghouse for information in respect to discrimination • or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin. • Submit reports, fi ndings, and recommendations to the President and Congress. • Issue public service announcements to discourage discrimination or denial of equal protection of the laws.* ★ ★ MEMBERS OF THE COMMISSION Chair Catherine E. Lhamon, Vice Chair Patricia Timmons-Goodson, Debo P. Adegbile Gail Heriot Peter N. Kirsanow David Kladney Karen K. Narasaki Michael Yaki Mauro Morales, Sta ff Director U.S. COMMISSION ON CIVIL RIGHTS 1331 Pennsylvania Avenue, NW Washington, DC 20425 (202) 376-8128 voice TTY Relay: 711 www.usccr.gov COVER IMAGE: Tetra Images/Creative/Getty Images *42 U.S.C. §1975a.

3 An Assessment of Minority Voting Rights Access in the United States 2018 Statutory Enforcement Report

4 [ This page intentionally left blank ]

5 UNITED RIGHTS CIVIL ON COMMISSION STATES y NW Ave., Pennsylvania 1331 20425 DC Washington, y 1150 Suite www.usccr.gov of Transmittal Letter 12, 2018 September Donald President Trump J. Vice President Mike Pence House Speaker Paul Ryan of the Civil On to pleased am I Commission”), (“the Rights on Commission States United the of behalf Voting Rights Access in the United our transmit An Assessment of Minority report, briefing at . The report is also available in States full on the Commission’s website . www.usccr.gov of voter access and voting discrimination for the and s examine report The recent state current and limited - English prof icient citizens. It also communities of color, voters with disabilities, United regarding Justice of Department States the the of record enforcement the examines Voting Rights Act of 1965 since the Act’s last reauthorization provisions in 2006, and of the since the Supreme Court decision in particularly Shelby County v. Holder in 2013. the following: T he right to key findings including The Commission voted unanimously to reach in and fragile proven has that right a however, is, It democracy. American of bedrock the is vote statutory protections. Racial discrimination in voting has need both Constitutional of and robust ican problem. Voter access issues, been a particularly pernicious and enduring Amer iscrimination, and barriers to equal access for d voters with disabilities and for voters with limited English proficiency continue today. The local and state by barriers of construction the deter and dislodge to works Act Rights Voting that right to vote of minority citizens. Especially following the jurisdictions or abridge the block v. Supreme Court decision in Shelby County 2013 Holder precluding operation of of parts certain mechanisms to halt discriminatory election t atutory he Rights Voting the narrowness of st Act, has with elections in resulted voting instituted are they before procedures discriminatory After an election takes place with discriminatory voting measures, it is often measures in place. if adequ ately to remedy the violation impossible even the election procedures are subsequently o fficeholders chosen under discriminatory least because overturned as discriminatory , not benefits les. rules have lawmaking power and the election of incumbency to continue those ru prevent some citizens from the voting — country, voting procedures that across states In wrongly identification of proof purges, roll voter laws, citizenship voter to: limited not but including

6 measures, challenges to voter eligibility, and polling plac es moves or closing s — have been and have a disparate impact on voters of color and poor citizens. enacted Commission unanimously voted for key recommendations, including that: Congress should The mend Rights Act to restore and/or the expand protect ions against voting discrimination a Voting are more streamlined and efficient than existing provisions of the A ct . In establishing the that an reach amended Voting Rights Act coverage provision , Congress should include current of of voting discrimination as well as evidence historical and persisting patterns of evidence of A new coverage provision should account for evidence discrimination. voting discrimination that tends to recur in certain parts of the country. It should take account of the reality that vot ing also discrimination may arise in jurisdictions that do not have extensive histories of discrimination since population s shift and efforts to impose voting impediments may follow. minority to should provide a streamlined remedy review c ertain changes with Importantly, Congress risks of discrimination before they take effect known not after potentially tainted elections. — The Commission also unanimously calls on the States Department of Justice to pursue United more Voting Rights Act enforcement in order to add ress the aggressive efforts by state and local citizens officials limit the vote of citizens of color, to with disabilities, and limited English proficient citizens. We at the Commission are pleased to share our views, informed by careful research and civil inv as well as civil rights expertise, to help ensure that all Americans enjoy estigation rights protections to which we are entitled. For the Commission, Catherine E. Lhamon Chair

7 Table of Contents i TABLE OF CONTENTS ... ... I ... TABLE OF CONTENTS ... ... ... ... V ACKNOWLEDGEMENTS ... ... ... EXECUTIVE SUMMARY ... 7 ... TION AND BACKGROUND ... ... 15 CHAPTER 1: INTRODUC ... ... ... 15 History of Minority Voter Suppression ... ... ... ... 22 Voting Rights Act of 1965 Su ... ... . 26 mmary of Major Voting Rights Act Provisions ... 31 Voting Rights Act Amendments and Reauthorizations ... Overview of Past Reports of the U.S. Commission on Civil Rights Related to Voting Rights for Minorities ... ... ... 41 ... EME COURT’S SHELBY COUNTY V. HOL DER DECISION CHAPTER 2: THE SUPR S AND ITS MAJOR IMPACT ... ... ... ... 43 The Decision ... ... ... 43 Shelby County v. Holder Brief Summary of Historical Context ... ... ... 43 What Were the Mechanics of Preclearance? ... ... 45 Shelby County ... ... 50 The Supreme Court’s Reasoning in ... ... ... ... 56 The Precise Holding Shelby County on Federal VRA Enforcement ... ... 57 The Impact of Immediate Post Shelby County Impact on Minority Voting Rights ... ... 60 - North Carolina and Texas, Before and After the Shelby County Decision ... 60 North Carolina ... ... ... 63 ... 74 Texas ... ... ... ... CHAPTER 3: RECENT C HANGES IN VOTING LAW S AND PROCEDURES THA T IMPACT MINORITY VOTE RS ... ... ... 83 Voter Identification Laws ... ... ... ... 83 ter Fraud and Other Arguments ... ... ... 102 Vo

8 An Assessment of Minority Voting Rights Access ii ... ... 121 Current Voter Registration Issues ... ... Documentary Proof of Citizenship 125 ... ... ... ... 135 Challenges of Voters on the Rolls ... ... ... ... Purges of Voters From the Rolls 144 ... ... ... 158 Cuts to Early Voting ... ... ... ... 167 Polling Place and Other Accessibility Issues ... Moving or Eliminating Polling Places ... 168 ... Language Access Issues ... ... ... 183 ... 193 Accessibility Issues for Voters with Disabilities ... G THE DATA ... ... ... 199 CHAPTER 4: EXAMININ ... Voter Registration and Turnout Statistics ... 199 ... 203 Perspectives on Voter Turnout as a Measure of Discrimination ... Recent Voter Turnout and Registration Patterns ... ... 207 Voting Rights Act Litigation Trends Pre - and Post - Shelby County ... ... 218 Trends in Incidents of Discrimination ... ... 218 ... Enforcement Actions ... 221 Trends in Section 2 and Section 5 Voting Rights Act Successful Section 2 Litigation Between the 2006 Voting Rights Act Reauthorization ion ... ... ... 224 and Shelby County Decis Shelby County Decision Successful Section 2 Litigation After the ... 226 ... ... 234 Summary of Current Conditions ... CHAPTER 5: EVALUATI ON OF THE DEPARTMENT OF JUSTICE’S ENFORCEMENT EFFORTS SINCE THE 2006 VRA R EAUTHORIZATION AND T HE 2013 DECISION ... ... ... 239 SHELBY COUNTY DOJ Section 5 Preclearance Efforts (in formerly covered jurisdictions) (2006 - 2013) ... 244 DOJ Objections Under Section 5 ... ... ... 244 Requests for Further Information ... ... 245 ... Declaratory Judgements (Non - Objections) ... ... 245 Litigation Under Section 5 ... ... ... 246

9 Table of Contents iii ges Submitted ... ... 248 Types of Voting Chan ... Section 5 DOJ VRA Lawsuits and Litigation Based Enforcement Actions ... 250 - Non - ... ... ... ... 250 Section 2 Cases - ess Cases and Enforcement Efforts in the Pre and Post - Shelby County Language Acc ... ... ... 256 Era ... — The Right to Assistance ... ... 260 Section 208 Cases Amici & Statements of Interest ... ... 263 ... ... ... 264 Testimony Regarding DOJ Performance and Priorities and Monitors ... ... 268 The Role of Federal Election Observers ... ... ... 275 Summary of Current Conditions CHAPTER 6: FINDINGS AND RECOMMENDATIONS ... ... 277 ENTS ... ... 287 COMMISSONERS’ STATEM ... Ch air Catherine E. Lhamon Statement, in which Vice Chair Patricia Timmons - Goodson Concurs ... ... ... ... . 287 Vice Chair Patricia Timmons - atement, in which Chair Catherine E. Lhamon Goodson St ... ... ... . 289 Concurs ... n, Vice Commissioner Debo P. Adegbile Statement, in which Chair Catherine E. Lhamo - Chair Patricia Timmons - Goodson, and Commissioner David Kladney Concur ... 295 which Chair Catherine E. Lhamon, Vice - Commissioner Karen K. Narasaki Statement, in Chair Patricia Timmons - ... 301 Goodson, and Commissioner David Kladney Concur el Yaki Statement, in which Chair Catherine E. Lhamon Concurs ... 307 Commissioner Micha ... Commissioner Gail Heriot Statement and Rebuttal 309 ... APPENDIX A: SUMMARY OF THE COMMISSION’S PAST VOTING RIGHTS BRIEFING REPORTS ... ... ... ... 329 APPENDIX B: CONGRES SIONAL RESPONSES TO SHELBY COUNTY THE 343 ... ... ... .. DECISION ... IC VOTER REGISTRATIO N ... ... 349 APPENDIX C: AUTOMAT APPENDIX D: U.S. COM MISSION ON CIVIL RIG HTS STATE ADVISORY COMMITTEES (SACS) RE RIGHTS ... ... 355 CENT WORK ON VOTING APPEND IX E: CHARTS OF VOT ING RIGHTS ISSUES BY STATE, COMPARING FORMERLY COVERED WIT H NON - COVERED JURISDICTION S ... 369

10 An Assessment of Minority Voting Rights Access iv YEARS PRIOR TO SHELBY APPENDIX F: SECTION 2 CASES IN THE FIVE ... ... ... ... ... COUNTY 373 APPENDIX G: FEDERAL OBSERVERS BY YEAR, S TATE, AND COUNTY ... 377 APPENDIX H: DOJ ELE CTION MONITORS BY YE AR, STATE, AND COUNT Y ... 379 APPENDIX I: JURISDI CTIONS COVERED UNDER SECTION 203 OF THE V OTING - 2016 RIGHTS ACT, 1977 ... ... ... ... 383 APPENDIX J: COPIES OF INTERROGATORIES A ND DOCUMENT REQUESTS ... SENT BY THE COMMISSI OF JUSTICE ON TO THE DEPARTMENT 389

11 Acknowledgements v ACKNOWLEDGEMENTS produced Commission’s of Civil Rights Evaluation (OCRE) Office this report under the The of Katherine Culliton - González, Esq., Director of OCRE. With Dr. direction Brenson, LaShonda Analyst, Culliton - González performed principal research and writing. Civil Rights Cozart, and Commissioner Special Assistants Sheryl Jason Lagria, Carissa Commissioners Amy Royce, Rukku Mulder, Alison Somin, and Irena Vidulovic conducted research, Singla, edited, and examined the report. General Counsel , Maureen Rudolph , reviewed and approved the report for The Commission’s sufficiency. legal Mussatt and Latrice David Foshee, in their role as the editorial review board, reviewed, edited, and provided comment s on report drafts. Multiple State Advisory Committees (SACs) provided findings and recommendations to the Commission voting rights issues w ithin their jurisdictions. on California Valentina Cannavo from University of at Berkeley and legal Undergraduate intern Madeline Cook from George Washington interns University Law School, Sabrina Escalera Flexhaug from American University Washington College of Law, Hayden Johnson from Georgetown University Law Center, Aaron Hurd from Indiana University Maurer School of Law, from Aime from Harvard Law School, Zachary Lutz Joo Harvard Law School, Scot Pollins from George Washington University Law School, Matt Robinson from University of Southern California School of Law, and Shimeng Zhang from Georgetown University Law writing Center provided valuable research and assistance.

12 An Assessment of Minority Voting Rights Access vi [ This page intentionally left blank ]

13 Chapter 1: Introduction and Background 7 EXECUTIVE SUMMARY has ed the United State s Commission on Civil Rights (“t he Commission ”) to direct Congress 1 civil rights enforcement efforts . ” “Federal In this report, the Commission examine annually minorit y voting rights access through the lens of examines federal government’s enforcement the 2 Voting Rights Act (VRA) of 1965 since the 2006 reauthorization of its special provisions. of the 3 briefing 2, 2018, the Commission held a field in Raleigh, North Carolina . February The On heard testimony from 23 voting rights experts, including former Unite d Commission States Department of Justice (DOJ or Department ) officials from both Republican an d Democratic 4 election officials, and voti ng rights experts and advocates . state The Commission administrations, received heard 33 members of the public, and 31 post - briefing written statements in also from with this investigation. The Commissio n invited connection officials from relevant offices within the DOJ , but they declined the Commission’s invitation to testify at our field briefing . The Department provided data and documents , which are in Chapter 5. The Department also discussed reviewed a draft of this report and provided comments . The Commission draws this report from the - referenced sources and independent research . F urther, the Commission has considered above 5 its informed by voting rights reports from State Advisory Committees (SACs). and been ince its formation in 1957, the Commission has played a central role in documenting and S and need to enact, explaining then maintain, a strong federal VRA . I n the late 1950s and early the ing 1960s the Commission reported on the pervasive discrimination in vot that then existed , 1 42 U.S.C. § 1975a(c)(1). 2 The “special provisions” of the VRA are temporary provisions that were set to expire and were reauthorized over time . See Chapter 1, Discussion and Sources cited therein at notes 101 - 48 , infra. The 2006 VRA Reauthorization extended Section 4, which was th e criteria requiring preclearance of all voting changes in certain jurisdictions, and 203, which provided for language access according to a threshold formula of minority voters unable to fully Section understand the ballot in English, from 2007 to 2032. F annie Lou Hamer, Rosa Parks, and Coretta Scott King Voting - Rights and Reauthorization Amendmen 4 (amending 52 U.S.C. § 246. 120 Stat. 577 at § ts Act of 2006, Pub. L. 109 (8) (formerly 42 U.S.C. § 1973b(a) and extending the preclearance criteri a for 25 years, with an - 10303(a)(7) ) evaluation required after 15 years); § (formerly 42 U.S.C. § 1973aa - 1a(b)(a) ) 7 (amending 52 U.S.C. § 10503(b)(1) so that Section 203 is in force until August 23, 2032). 3 U.S. Commission on Civil Rights, “Commission Briefing: Vot ing Rights, Morning Session, Raleigh, NC 2/2/18,” . Youtube Video, posted Feb 2, 2018, https://www.youtube.com/watch?v=eSb1vfk3WyM . 4 , U.S. C OMM ’ N ON IVIL R IGHTS Press Release, V OTING R IGHTS B RIEFING S CHEDULE (Feb. 2, 2018), C http://www.usccr.gov/press/2018/01 - 19 - PR - Briefing.pdf [ hereinafter Press Release, U.S. C OMM ’ N ON C IVIL R IGHTS , V OTING IGHTS ]. U.S. Commission on Civil Rights, “Commission Briefing: Voting Rights, Afternoon Session R https://youtu.be/dMCicLUn0Sc Session, Raleigh, NC 2/2/18,” Youtube Video, posted Feb. 2, 2018, ; U.S. ng: Voting Rights, Public Comment Session, Raleigh, NC 2/2/18,” Commission on Civil Rights, “Commission Briefi https://youtu.be/CKNDXMRYxig Youtube Video, posted Feb. 2, 2018, . 5 See, e.g., Advisory Memorandum from Alaska State Advisory Committee on Alaska Native Voting Rights to the U.S. Comm’n on Civil Rights, (Mar. 27, 2018) http://www.usccr.gov/pubs/2018/05 - 25 - AK - Vo ting - Rights.pdf ; see also New Hampshire Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in New Hampshire , (Mar. 2018), https://www.usccr.gov/pubs/2018/05 - 16 - NH - Voting - Rights.pdf [ hereinafter New Hampshire, Voting Rights Report] . For summaries of each SAC briefing and/or report issued in the last two years, relevent to voting rights, see Appendix D.

14 An Assessment of Minority Voting Rights Access 8 6 of the South and led to the passage of the VRA in 1965. most The Commission further throughout on efforts to enforce the VRA immediately after its passage , and provided reviews reported initial assisted Congress in deciding to extend that and expand the A ct’s temporary and analyses in 1970, 1975, and 1982. provisions of the central components of the VRA of 1965 was the preclearance process . As adopted, One the preclearance VRA’s Sections 4 and 5, required certain jurisdictions with discriminatory under val ng practices to seek federal pre - appro laws of any voting changes. Specifically, in voti and that were “ covered ” for preclearance , the federal government c jurisdictions prevent any ould changes that were enacted with a discriminatory intent or had a discriminatory retrogressive effect, mea against the status quo . as sured under observers the VRA, the federal government could send federal examiners or to Moreover, elections inside the polls, and federal examiners could also regi ster voters. Sections 4 and monitor were provisions that, u nlike the permanent nationwide antidiscrimination prohibition 5 under Section 2 of the VRA, had to be reauthorized at specified intervals to continue in force. After the voter the VRA, black passage reg istration increased significantly in the covered jurisdictions. of With bipartisan support, Congress reauthorized the VRA strong five times, each time under a different Republican president. Over the course of these reauthorizations, Congress expanded the pre clearance provisions of the VRA to cover more jurisdictions and to provide additional — such as requiring greater voting access and assistance for minority voters with protections reauthorize English proficiency. The preclearance provisions were last - d on July 27, 2006. limited 2006, Congress reauthorized preclearance for an additional 25 years. The 2006 VRA In of included 15,000 pages Reauthorization record evidence of ongoing discrimination in record 7 . Federal courts later described the Congressional record as follows: “The compilation voting countless ‘examples of flagrant racial presents since the last reauthorization; discrimination’ Congress also brought to light systematic evidence that ‘intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that [S] ection 5 preclearance is still 8 needed.” In addition, Congress found that as “registration and voting of minority citizens e would d] ... , other measures may be resorted to which increas dilute increasing minority v oting [ 9 .” strength 6 U.S. C OMM ’ N ON C IVIL R IGHTS , R EPORT OF THE U.S. C OMMISSION ON C IVIL R IGHTS XIII (1959), https://www.law.umaryland.edu/marshall/usccr/documents/cr11959.pdf [ hereinafter U.S. C OMM ’ N ON C IVIL R IGHTS 1959 ]. The Commission received its first voting complaint on Aug. 14, 1 958. Within a few days, t he Commission authorized a field investigation and promptly ordered such investigations of the other voting complaints that came in during succeeding months. at 54 . Id. 7 H.R. R EP . N O 109 - 478, at 5 and 11 - 12 (2006). . 8 Shelby Cty., Ala. v. Holder , 570 U.S. 529, 565 (2013) (Ginsburg, J., dissenting) (citing Northwest Austin Municipal , Util. Dist. No. One v. Holder 557 U.S. 193, 205 (2009) ) ; see also Shelby Cty., Ala. v. Holder 679 F.3d 848, 866 , ( D.C. Cir. 2012 ) . 9 City of Rome v. United States , 446 U.S. 156, 181 (1980) H.R. R EP . N O . 94 - 196, at 10 (1975) ) . (quoting

15 Chapter 1: Introduction and Background 9 June 2 5 , 2013, in the case of Shelby County v. Holder , the Supreme Court ruled that the VRA On determined unconstitutionally jurisdictions needed the federal government’s pre - approval which 10 minority voti ng procedures . Reasoning that voter access had progressed change their to Court conclud ed that the federal government should significantly, treat states equally . The the declared that Congress could no longer use data from the past to determine which Court must se ek federal approval to change their voting laws. jurisdictions The Court stated that adopt a different approach based on current conditions. While several legislative Congress could 11 have been introduce d in both chambers of Congress, a s of June 2 5, 2018, Congress has proposals en restore legislation to the preclearance process . not acted Section the Shelby County did not find that 5 was unconstitutional, by ruling that While decision formula in Section 4 was unconstitutional, the the decision removed the mechanism for carrying out preclearance. In practice, this means that until Congress passes a new preclearance formula, covered jurisdictions are not currently required to obtain preclearance before making previously 12 y laws , unless they are covered b voting a separate court order. in changes Shelby County , jurisdictions have made Since to their voting procedures that would not changes the federal government’s approval . received example, some jurisd ictions — including have For formerly covered and non - Section 5 co vered jurisdictions — have required strict both forms of voter ID , purged voter rolls, reduced polling locations, required documentary proof of citizenship to vote, and cut early voting, among other contested voting changes that, on the specific to register s in those states , operate to denigrate fact voting access in ways that would have violated minority preclearance requirements if they were still in effect D ata indicate that these voting procedure . changes disproportionately limit minority citizens’ ability to vote. After County , the federal government has limited tools to address these potentially Shelby voting procedures and hardly any tools to prevent voting discrimination before it discriminatory place Prior to Shelby County , the DOJ primarily enforc Section 5 of the VRA by . objecting takes ed in voting procedures, though jurisdictions could changes also seek preclearance from a three - to f ederal court. After Shelby County , under Section 2 judge of the VRA, the federal government and private groups can still f ile lawsuit s to argue that voting changes would reduce minority citizens’ vote , and these law suits have ability increased fourfold since the Shelby County decision . to Section However, to the Section 5 preclearance process, compared 2 reverses the burden o f proof: the federal government or private litigants must now prove that any voting procedure changes would minority voters , while those measures are in place. Moreover, Section 2 lawsuits often hurt o and therefore do not prevent elections from take ccurring under procedures later found to years . DOJ and private litigants can also file be lawsuit s to enforce Sections 4, 203, and discriminatory 208 in order to ensure access for voters with disabilities and voters with limited - English have proficiency. of lawsuits, other VRA enforcement tools Outside also been limited, as the DOJ has interpreted Shelby County to mean that it can now only send election observers if ordered by 10 557 , 570 U.S. Shelby Cty. . at 11 The Commission unan imously approved the text of this report and its findings and recommendations on June 26, 2018. 12 U.S. Dep’t of Justice, Fact Sheet on Justice Department’s Enforcement Efforts Following Shelby County Decision , https://www.justice.gov/crt/file/876246/download ( last accessed July 26, 2018) [ hereinafter DOJ Fact Sheet] .

16 An Assessment of Minority Voting Rights Access 10 court. This means the DOJ is without a critical source of evidence in voting discrim ination , as a actual are authorized to enter poll sites and witness firsthand behavior at the observers lection e on Election Day. polls the time period reviewed by this report’s investigation, t he DOJ has litigated few er During VRA than private groups. The DOJ has filed four of the 61 Section 2 cases since lawsuits enforcement Shelby County decision, one case about the VRA’s required language access measures , and no the about the right to assistance in voting. At the Commission’s briefing, experts disagreed cases on whether the DOJ has failed to provide necessary enforcement or whether voter discrimination has While private groups have filed and continue to file suits, VRA litigation can be decreased. for private parties due to their complexit y and the significant resources needed to challenging these cases . litigate voter turnout is an imperfect indicator of voter While data indicate that minority discrimination, voter turnout still lags behind white voter turnout. Moreover, voter turnout among non - black lags significantly behind minority white voter turnout. Similarly, minority voter groups behind white voter registration, especially registration among non - black minority groups. lags Compared to white voters, data show that minority citizens are more lik ely to say that their reason for registering to vote is due to registration requirements or difficulties , as opposed to not in the political process. disinterest following consists of five chapters , followed report by the Commission’s findings and The Chapter 1 ( “ Introduction and Background ” ) discusses the recommendations history of . relevant th th rights in the United States, from the time voting the 14 and 15 Amendments to the minority of Constitution to the present day. C hapter 1 also explains the VRA’s most significant U.S. and summarizes all subsequent reauthorizations including the 2006 VRA protections, historical , Appendix A summarizes the Commission’s while work on voting Reauthorization rights. hapter 2 ( “ The Shelby County Decision and Its Major Impacts ” ) examines the impact of C the 13 Court’s June 25, 2013 decision invalidating the VRA’s preclearance provisions. Supreme T his chapter the prior VRA preclearance regime and examines summarizes the status of minority voting rights after the 2006 VRA Reauthorization and prior to the Shelby County decision suspending preclearance. hapter 2 then discusses the Supreme Court’s decision, its re asoning that conditions C changed and its reliance on the principle of equal state sovereignty, as well as the had dramatically language of the decision regarding any future preclearance precise and the decision’s regimes, impact on federal VRA enforcement. also briefly studies the This impact of Shelby chapter County in North Carolina and Texas, where litigation ensued under one of the remaining provisions of the VRA, Section 2, which is the nationwide on discriminatory voting procedures. Although ban there was discrimination in voting in both states prior to Shelby County , data from litigation in both states show that due to the loss held of after Shelby County , elections were preclearance with voting procedures that federal courts of appeals later held to be intentionally racially discriminatory. 13 Shelby Cty. , at 557 . 570 U.S.

17 Chapter 1: Introduction and Background 11 3 examines four ways in which access to the ballot for minority voters has been impacted Chapter the period covered by this report (from the 2006 VRA Reauthorization to the present). in time restrictions i are: strict voter ID laws, ( ii ) greater ( on voter registration procedures, ( iii ) cuts These ) early voting, and ( iv ) voter access to polling places, language access , and access for persons to disabilities. and When relevant, this chapter discusses litigation other actions brought to with measures VRA and the results of those methods. Some of the issues, examined are address and others are . statewide, local 3 provides further detail by examining Chapter types of voter ID laws, and their impact on various This chapter then examines arguments that have voters. been used to justify voter ID laws minority measures restricting voter registration . The arguments examined include allegations of in - and person fraud, double voting, b loated voting rolls, noncitizen voting, and partisanship. voter 3 also examines changes in voter regist ration procedures that have been justified by these Chapter requirements, arguments, documentary proof of citizenship including challenges to voters same th e rolls, and removal of voters from the rolls. It then on cuts to early voting as well as examines place and voter acce ssibility issues . polling Finally, Chapter 3 summarizes testimony and various the Commission received from its SACs regarding information re cent voti ng rights issues . Appendix D includes further information about the proceedings and relevant findings from SAC investigations . reports and in Chapters 2 and 3 of this report show s the repeated and challenging nature of ongoing Research tion in voting discrimina states previously covered by Section 5 and in other states. These in chapters also analyze some emerging national of voter registration and election patterns administration practices that have a suppressive impact on minority voters , such as cuts to early voting, types of voter purging, strict voter ID requirements, and lack of accessibility. certain E provides a chart showing where these types of potentially discriminatory measures Appendix been the put in place, i llustrating their incidence across nation, while also comparing formerly have jurisdictions with states where the preclearance formula did not apply. The data show a covered incidence of these types of potentially discriminatory measures in the formerly covered higher jurisdictions. 4 ( “ Examining the Data ” ) reviews data about minority voters’ access to the ballot from Chapter VRA Reauthorization, until the Shelby County decision and up until the present the time. 2006 hapter also examines minority voter turnout an The registration over time, while also noting that c d turnout is not the only measure of current conditions evidence ongoing discrimination in whether voting. This chapter also includes research showing that current voter participation rates among Asian, , and Native American communities are lower than the level of turnout that the Latino the 1965 VRA considered to be indicia of discrimination. drafters of hapter 4 then provides an analysis of data regarding VRA C enforcement measures within the particular time frame of this report . Q uantitative analys of the data reveals several trends. One is key trend is that there are more successful Section 2 cases concentrated in the formerly covered jurisdictions. , comparing the five years prior to Moreover and five years after the Shelby County decision shows that the number of successful Section 2 cases ha ve quadrupled in the latter time period The data also demonstrate an inaccessibility of alternative . protections such as preliminary injunctions and judicial preclearance .

18 An Assessment of Minority Voting Rights Access 12 5 ( “ Evaluation of the DOJ’s VRA Enforcement Actions since the 2006 VRA Chapter ) the DOJ ’s VRA enforcement efforts since the 200 6 VRA Reauthorization ” examines provides to . Like Chapter 4, this chapter the a number of figures and graphs reauthorization present show trends in VRA enforcement over time. The Commission’s study of the DOJ’s VRA to actions time during this period shows that there has been a sharp decrease in actions enforcement to as enforce Section 2 of the VRA, as well similarly sharp decreases in enforcing the brought the the VRA that are intended to prote ct voting rights of voters with limited - English provisions of and voters with disabilities. proficiency chapter’s quantitative analysis also shows that the This number of DOJ enforcement actions are far fewer than the amount of successful VRA enforcement by nonprofit groups on behalf of minority voters in the post - Shelby County era. conducted and 6 of this report provides the findings recommendations . To conclude the Executive Chapter , the Commission highlights the following findings and recommendations made herein : Summary Findings right to vote is the bedrock of American democracy. It is, however, a right that has proven The in need of fragile both Constitutional and robust statutory protections. Racial discrimination and pernicious in has proven to be a particularly voting and enduring American problem. Voter access issues, discrimination, and barriers to equal access for voters with disabilities and for voters with limited - proficiency continue today. English VRA works to dislodge and deter the construction of barriers by state and local jurisdictions The block or abridge the right to vote of minority citizens. that local proved strong deterrent against state and officials seeking to suppress the Preclearance a power of growing minority communities through the enactment of electoral and policies procedures that violate d the protection s of the VRA . County , the Supreme Court acknowledged ongoing voting discrimination , and noted that In Shelby may draft new coverage criteria Congress preclearance based on current conditions that do not for treat states unequally based on conditions of di scrimination. past Without Section 5 preclearance, the DOJ has not been able to object to and prevent implementation of that courts later determined to have been specifically intended to limit black and Latino laws to vote. Americans’ right Shelby County decision had the practical effect of signaling a The loss of federal supervision in voting rights enforcement to states and local jurisdictions. The voting laws implemented in North Carolina and Texas immediately following the Shelby the County are examp les of the direct impact of decision decision on the behavior of state and local officials. In both states, after prolonged litigation, the changes were eventually found to be them discriminatory. A review of these voting changes and the litigation challenging show: x C hanges that were previously not pre cleared by the federal government under Section 5 in covered states were immediately implemented; x F ederal courts held that the laws were motivated by an intent to discriminate against minority voters, in one case , “with surgical precision; ”

19 Chapter 1: Introduction and Background 13 T x hese voting changes remained in place through several elections, though courts eventually found that the changes were motivated by racial discrimination and/or had discriminatory ffects; e and tatewide discriminatory voting c x hanges adversely impacted the rights of large numbers S of eligible voters and future judicial preclearance or “bail in” was not ordered by the courts , in the wake of findings of intentionally racially discriminatory election changes. face of ongoing discrimination in voting procedures enacted by states across the In the country, and litigation under Section 2 of the VRA is an inadequate, costly , and often slow enforcement for protecting voting method rights. of the remaining mechanisms to ha lt discriminatory election procedures before The narrowness are instituted has resulted in elections with discriminatory voting measures in place. they an election with discriminatory voting measures in place, it is often impossible to adequately After the violat remedy even if the election procedures are subsequently overturned as discriminatory. ion Officeholders chosen under discriminatory election rules have lawmaking power, and the benefits incumbency to continue those rules perpetuate their continued election. of across n the country, voting procedures that states wrongly prevent some citizens from voting I been enacted and have a disparate impact on voters have of color and poor citizens, including but not limited to: restrictive voter ID laws, voter roll purges, pr oof of citizenship measures, challenges to voter eligibility, and polling places moves or closing s . Because of the nature of voting rules being broadly applicable to all eligible voters, a single change in procedure, or practice can disproportionatel y affect large numbers of eligible voters and law, against certain groups of people whose voting rights are protected by the possibly discriminate VRA. to provide or make available legally required language access voting materials and to Failure comply Se ction 208’s requirement that allows voters to bring an assistant of their choosing with imposes barriers to voting for limited - English proficient unnecessary Asian, Latino , and Native American voters. Section 208 of the VRA has not been well - utilized or enforc ed. The DOJ appears to have limited its of Section 208 to language access cases , and failed to provide adequate guidance enforcement for compliance with Section 208 in or support of voters with disabilities. enforcement Recommendations of the depth of voting discrimination Because continues across the nation today, citizens need that strong, proactive federal protections — in statute and in enforcement — for the right to vote. Congress amend the VRA to restore should and/or expand protections agai nst voting discrimination that are more streamlined and efficient than Section 2 of the VRA. Congress should include x In establishing the reach of an amended VRA coverage provision , current evidence of voting discrimination as required by Shelby County as well as evidence of historical and persisting patterns of discrimination. A new coverage provision should

20 An Assessment of Minority Voting Rights Access 14 account for evidence that voting discrimination tends to recur in certain parts of the country. It also should take account of the reality that voting discrimination may arise in jurisdictions that do not have extensive histories of discrimination since minority , shift and efforts to impose voting impediments may follow. population s and the x Congress should invoke its powers under the Reconstruction Amendments Elections Clause to ground the new provisions upon the strong federal interest in protecting the right to vote in federal elections. should consider but Congress exclusively base any new coverage provision for Section 5 on not or turnout statistics for various demographic groups. registration x Congress should provide a streamlined remedy to review certain changes with known risks — not after potentially tainted elections. of discrimination before they take effect Congress should require gre - based, ater transparency and effective public, including web x disclosure of voting changes affecting federal elections sufficiently in advance , and do so surprised by changes and able to challenge of elections so that voters are less likely to be those that election - related have a discriminatory impact that would violate voting rights and laws. x Congress should take account of the range and geographic dispersion of racial and language - based coverage rule, for example, by addin minorities in any new geography g elements that identify certain practices that may require closer preclearance . Private litigants play a vital role as “private attorneys general” enforcing the VRA, however, litigation, without Section 5, requires significant resources that only the federal particularly able government to expend. The DOJ should pursue is more VRA enforcement in order to address the aggressive efforts by state and local officials to limit the vote of minority citizens and the many new efforts to limit access to the ballot in the post - Shelby County landscape .

21 Chapter 1: Introduction and Background 15 INTRODUCTION AND BAC CHAPTER 1: KGROUND in chapter reviews the history of racial discrimination briefly the United States , the T his citizenship and voting rights, the passage of relationship the Voting Rights Act of 1965 between its subsequent reauthorizations. The chapter then and a summary of the VRA , (VRA) provides examined in this report : Sections sections 2, 4, 5, 203, and 208. This historical chapte r also briefly voting turnout and registration rates by race have changed over time . Finally, this examines how , also i ncludes analyses the Commission’s p rior reports on voting rights which are also chapter of Appendix A . in summarized Voter Suppression History of Minority voting rights stem from citizenship, an understanding of the histor ical exclusion of people Since of from American citizenship is needed to understand the history of minority voting rights color the United States . The count r y was ded with the express recognition of slavery ; in 1787, in foun provided representation of “the whole Constitution number of free Persons,” including the servants (most of whom were white) , but exclud ed “Indians not taxed,” and it count ed indentured 14 , only thre e - fifths of a person. In 1857 , in the case of Dred Scott v. Sanford as the Supreme slaves former that even if slaves became free, held slaves and their descendants were legally Court 15 to be only three - fifths of a person and were not r ecognized as citizens. considered After the Civil th 16 th War, 1865, the 13 Amendment to the Constitution abolished slavery. n In 1868, t he 14 i 17 th every person naturalized or born in the U.S. is a citizen. The 14 that Amendment clarified also forbids states from denying any person due process of law or equal protection of Amendment 18 th In 1870, the the ratification of the 15 Amendment guaranteed all U.S. citizens the right to laws. 19 of “race, vote color, or previous condition of servitude.” regardless History that Reconstruction laws were initially demonstra successful in expanding access to the tes ballot box for recently freed slaves, and in providing voter protections for African - American 20 citizens outlawing any action taken to suppress their vote. T he Reconstructi on Era by 21 The African Americans’ political participation. political arena was the amendments galvanized area where black(s) and white(s) encountered each “only on a basis of equality — sitting other 14 I C ᴏ ɴ s ᴛ . rt. U.S. , § 2, cl. 3. a 15 60 U.S. 393 (1857). 16 . C ᴏ ɴ s ᴛ . a mend. XIII, § 1. U.S 17 . ᴏ ɴ s ᴛ C a mend. XIV, § 1. U.S. 18 Id. 19 U.S. C ᴏ ɴ s ᴛ . mend. XV, § 1. a 20 Gabriel J. Chin , The Voting Rights Act of 1867: The Constitutionality of Federal Regulation of Suffrage D uring Reconstruction , 82 N.C. L. R EV . 1581, 1582 (2004). 21 Rights and the Constitution in Black Life During the Civil War and Reconstruction , 74 J. A Eric Foner, . H IST . M 863, 8 83 (1987) [ hereinafter Foner, Rights and the Constitution ] . Also, according to this study, while women were not allow ed to hold political office or vote, black women were still politically active, and took part in rallies, parades, and they formed their own auxiliaries to aid in electioneering. Id. at 878. mass meetings, and

22 An Assessment of Minority Voting Rights Access 16 alongside on juries, in legislatures, and at political conventions; voting together on one another 22 [D]ay.” As historian Eric Foner has documented, “[b]y the early 1870s, biracial [E]lection government . . . was functioning effectively in many parts of the South, and [black] democratic 23 released from bondage were exercising recently political power.” only The Reconstruction men led to black voter registration rates surpassing white registration rates in Louisiana, Amendments 24 as South Carolina. and In other states, such Alabama and Georgia, black cit izens Mississippi, 25 nearly were percent of all registered voters. Over 700,000 black citizens voted for the first 40 26 in the 1868 presidential election. time In fact, during Reconstruction, not deterred by violence, 27 exceeded turnout in many elections 90 per cent . black voter addition to a significant increase in black voter registration and turnout during Reconstruction, In 28 were elected black state legislatures in former confederate states. to In South Carolina, citizens 29 of black a majority in the lower house legislators the legislature. In 186 9 , at the constituted national level, over 20 black citizens, some of whom were former slaves , were elected to the U.S. 30 Congress . Reconstruction in black political power during was fleeting. The Reconstruction e surge Th ensured Amendmen the voting right s o f African - American men and the federal government’s ts in protecting these rights, but after the Compromise of 1877 and the removal of federal troops role 31 South, concerted efforts by southern states to subvert the Recon struction Amendments the from civil rights laws of the time resulted in a backlash limiting access to voting for African - and 32 citizens. American th th this time frame, the Supreme Court was also considering what the 14 15 and During Amendments for other communities of color. I n 1884, the Supreme Court held that Native meant by did not surrender Americans their tribal citizenship and have it accepted who the United States 22 d . at 878. I 23 Anderson Bellegarde François, To Make Freedom Happen: Shelby County v. Holder , the Supreme Court, and the Creation Myth of American Voting Rights , 34 N. I LL . U. L. R EV . 529, 543 (2014) (quoting Eric Foner, Forever Free: The Story of Emancipation and Reconstruction 129 (2005)) [hereinafter François, To Make Freedom Happen ]. 24 Id. 25 Id. 26 Id. at 542. 27 Foner, Rights and the Constitution , supra note 21, at 878. 28 François, , supra note To Make Freedom Happen 23, at 543. 29 Id. 30 Id. 31 ILDERLEHRMAN Inst. of Am. Hist., Compromise of 1877 G The Gilder Lehrman . ORG (last accessed May 25, 2018) , https://new.gilderlehrman.org/history - by - era/reconstruction/ti meline - terms/compromise - 1877 (noting that the Compromise of 1877 was an informal agreement regarding the disputed 1876 Presidential Election that became an contingent upon Florida, Louisiana, and South Carolina. Seeing this, Republicans who supported Republic Rutherford Hayes met with moderate southern Democrats to negotiate the removal of federal troops in the South to ensure Hayes’ victory). 32 To Make Freedom Happen , supra note 23, at 5 44. François,

23 Chapter 1: Introduction and Background 17 33 naturalization not U.S. citizens. through The language of th e relevant Supreme Court were belief even after the Reconstruction Amendments, the shows remained that people of opinion that 34 “civilized” enough to be U nited States were citizens. Similarly, despite the guarantees color not th 14 Amendment, of was not until 1898 and the Supreme Court’s decision in United States the it Kim Ark that it was clear that children of nonwhite immigrants were entitled to birthright Wong v. 35 it was not until 1924, when Congress And passed the Indian Citizenship Act , that citizenship. Americans were entitl ed to U.S. citizenship and voting rights (and that this entitlement did Native 36 the individual’s right to remain a tribal member ). not impair tactics eliance suppress black voting rights expanded upon during the Jim Crow Era ( between R to 37 end of Reconstruction in 1877 and the beginning of the 1950s Civil Rights Movement ) , and the 38 Crow registration subsequently declined dramatically. Jim laws were pervasive and voter black 39 many aspects of life for African Americans — especially equal access to citizenship . controlled based during Jim Crow , voter suppression was Mississippi, on a new state constitution enacted In 40 1890, which specifically intended to exclude African Americans from political participation. in th Since 15 Amendment did not permit direct disenfranchi sement, Mississippi instead required the a poll tax that disparately burdened blacks, and literacy test that “required a person an annual to register to vote to read a section of the state constitution and explain it to the county seeking 41 . . . who was a lways white, [and who ] decided whether a citizen was literate not.” clerk This or effectively excluded “almost all black men, because the clerk would select complicated technical passages for them to interpret. By contrast, the clerk would pass whites by pickin g simple 42 sentences the state constitution for them to explain.” in 33 Elk v. Wilkins 103 (1884). , 112 U.S. 94, 34 d. at 106 - I 07 (“The national legislation has tended more and more toward the education and civilization of the Indians, and fitting them to be citizens. But the question of whether any Indian tribes, or any members thereof, have become so far advanced in civi lization that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are and whose citizens they seek to become, and not by each Indian for himself.”). 35 169 U.S. 649, 705 (1884). 36 Indian Citizenship Act, Pub. L. No. 68 - 175, 43 U.S. Stat. 253 (1924) (codified at 8 U.S.C. § 1401(b)). 37 s, Jim Crow was the name of the racial segregation system that operated mostly in southern and border state between 1877 and the mid - 1960s. See, e.g ., USC Gould School of Law, A Brief History of Civil Rights in the United , https://onlinellm.usc.edu/a - brief - States: Jim Crow Era - of - jim - crow - laws/ (last accessed July 25, 2018) . history 38 See, e.g., Smithsonian Nat’l Museum of Am. Hist., White Only: Jim Crow in America (last accessed June 21, 2018), http://americanhistory.si.edu/brown/history/1 segregated/white - only - 1.html (“In Mississippi, fewer than - - 9,000 of the 147,000 voting age African Americans were registered after 1890. In Louisiana, where more than 130,000 black voters had been registered in 1896, the number had plummeted to 1,342 by 1904.”). 39 Public Broadcasting Service (PBS), Freedom Riders: Jim Crow Laws, An American Experience , PBS, - http://w riders - jim - crow - laws/ (last accessed May 23, 2018). ww.pbs.org/wgbh/americanexperience/features/freedom 40 Constitutional Rights Foundation, Race and Voting in the Segregated South , CRF http://www.crf - usa.org/black - hereinafter history month/race - and - voting - in - the - segregated - south (last accessed May 23, 2018) [ - Constitutional Rights Foundation, ] . Race and Voting 41 Id. 42 Following hearings in February 1965 in Mississippi, the Commission found that Mississippi’s white applicants might be asked, for example, to copy out and interpret:

24 An Assessment of Minority Voting Rights Access 18 addition to poll taxes and literacy tests , other mechanisms to prevent African Americans from In clauses, were These practices included grandfather instituted. excluding prior (whit e) voting from the new strict rules, along with violence and registrants intimidation of blacks attempting to 43 44 vote. These laws resulted in and black voter registration. For example, register decreasing tests effectively restricted literacy right to vote of African Americans, because at that time over the 70 percent of black citizens were illiterate , whereas less than 20 percent of white citizens were 45 Moreover, black citizens were subjected to illiterate. more complex and difficult literacy tests 46 segregation than were. Additionally, d uring this era, white was not only in the South, or citizens only against blacks. I n New York, new ly arriving Puer to Rican citizens had their voting rights 47 limited highly complex English - literacy tests. by ISS . C ONST . M art. 12, § 240) . ( ARTICLE 12 Section 240. All elections by the people shall be by b allot. In contrast, the Commission found that Mississippi’s African - American applicants might be asked, for example, to interpret: surrendered ARTICLE 7 Section 182. The power to tax corporations and their property shall never be or abridged by any contract or grant to which the state or any political subdivision thereof may be a party, except that the Legislature may grant exemption from taxation in the encouragement of manufactures and other new enterprises of public utility extending for a period of not exceeding ten (10) years on each such enterprise hereafter constructed, and may grant exemptions not exceeding ten (10) years on each addition thereto or expansion thereof, and may grant exemptions not exceeding ten (1 0) years on future additions to or expansions of existing manufactures and other enterprises of public utility. The time of each exemption shall commence from the date of completion of the new enterprise, expansion, for which an exemption is granted. and from the date of completion of each addition or When the Legislature grants such exemptions for a period of ten (10) years or less, it shall be done by gen eral laws, which shall distinctly enumerate the classes of manufactures and other new enterprises of p ublic utility, entitled to such exemptions, and shall prescribe the mode and manner in which the right M ISS . C ONST . art. 12, § 240); see also U.S. C OMM ’ N ON C IVIL to such exemptions shall be determined. ( (1959), IGHTS V OTING IN M ISSISSIPPI 16 - 17 , R https://www.law.umaryland.edu/marshall/usccr/documents/cr12v94.pdf hereinafter U.S. , [ C OMM ’ N ON C IVIL R IGHTS , MS 1965]. 43 The Constitutionality of the Voting Rights Act of 1965 , 18 S TAN . L. R EV . 1, 1 (1965). Warren M. Christopher, 44 ., Sm i thsonian, supra note 38 (“ In the former Confederacy and neighboring states, local governments See, e.g - n American men constructed a legal system aimed at re establishing a society based on white supremacy. Africa were largely barred from voting. Legislation known as Jim Crow laws separated people of color from whites in schools, housing, jobs, and public gathering places. Denying black men the right to vote through legal maneuvering a first step in taking away their civil rights. Beginning in the 1890s, southern states enacted and violence was - ly Democratic Party primaries to literacy tests, poll taxes, elaborate registration systems, and eventually whites on effective. In Mississippi, fewer than 9,000 of the 147,000 voting - age exclude black voters. The laws proved very African Americans were registered after 1890. In Louisiana, where more than 130,000 black voters had been regi stered in 1896, the number had plummeted to 1,342 by 1904.”) . 45 Christopher, supra note 43, at 2. 46 . , Constitutional Rights Foundation , See, e.g , supra note 40. Race and Voting 47 Juan Cartagena, Latinos and Section 5 of the Voting Rights Act: Beyond Black and White , 18 N AT ’ L B LACK L.J. 201, 206 (2005); rings on H.R. Doc. No. 6400 Before Subcomm. No. 5 of the House see also Voting Rights: Hea Comm. on the Judiciary , 89th Cong., 1st Sess. 508 - 17 (1965) (statement of U.S. Rep. Herman Badillo, Judge Vidal Santaella, and community activist Gilberto Gerena - Valentín); see also United Stat es v. Cty. Bd. of Elections of

25 Chapter 1: Introduction and Background 19 th ring first half of the 20 Du Century, v o ting rights litigation did result in some increased access the Supreme the for communities of color. After the ballot Court invalidated the “white primary” to 48 in the case of Smith v. Allwright , in black registra tion and participation rates began to 1944 49 across the South. increase Since Texas law also barred Mexican Americans from the Democratic there primary, Latino participation may have also risen, but is little data about Latino voters Party 50 this era. in 51 v. Allwright Smith was also an example of how some states defied federal court orders. The th white had first ruled that Texas’ 1923 all - primary law violated the 14 Amendment Court Supreme 53 52 , an and then again in 1932 . And , “in 1953, the Court once again co nfronted in attempt by 1927 th ‘circumven[t]’ the 15 Amendment Texas by adopting yet another variant of the all - white to 54 primary[.]” beginning of the civil rights At movement the and with more aggressive litigation, black registration rates increased by 6 perce ntage points from 1947 to 1950 across the South — yet by the 55 mid , 75 percent of African Americans were not registered to vote. - The registration rate of 1950s , in Mississippi was still less than 5 percent and in states like Arkansas, Florida, black citizens 56 and Texas, it was about one third. Louisiana, At this time, it also became very clear that even if discriminatory state laws were overturned by successful litigation, nearly every law that was struck 57 as discrim inatory would be replaced with another one . C In light o f this , down ongress began to , 248 F. Supp. 316, 317 (W.D.N.Y. 1965) (inva lidating New York State’s English language literacy Monroe Cty. - test, holding Section 4(e) of the VRA prohibiting the condition of Puerto Rican’s voting rights on speaking English o be constitutional, and noting that though the VRA was “[b]orn out of the civil rights problems currently plaguing t the [S]outh . . . this Act . . . was not designed to remedy deprivations of the franchise in only one section of the country. Rather, it was - class citizenship wherever present.”). devised to eliminate second 48 321 U.S. 649, 66 4 (1944); see also O. Douglas Weeks, The White Primary: 1944 - 1948 , 42 A M . P OL . S CI . EV . R 500 10, n.3 (1948) (noting that white primaries were primary elections in the South where only white voters were - Southern elections, positions were often determined during allowed to vote. Since the Democratic Party dominated the party’s primary elections sinc e there was little chance of a Democrat losing in a general election. Therefore, ct on elections in the South white primaries essentially prevented black voters from having any significant effe despite their ability to vote in general elections.). 49 Id. at 506. 50 : White Primaries, University of Texas, The Texas Politics Project, Smith v. Allwright https://texaspolitics.utexas.edu/archive/html/vce/features/0503_01/sm ith.html (last accessed July 25, 2018). Texas’ 1923 white primary law limited the primary to Anglos only and excluded blacks and Latinos . Id. 51 321 U.S. at 657. 52 Nixon v. Herndon , 273 U.S. 536, 541 (1927). 53 , 286 U.S. 73, 89 (1932). Nixon v. Condon 54 Shel by Cty. , 570 U.S. at 560 (Ginsburg, J., dissenting) (citing Terry v. Adams , 345 U.S. 461, 469 (1953)). 55 The Rise and Fall of the Voting Rights Act 25 Charles S. Bullock III, Ronald Keith Gaddie, and Justin L. Wert, [ (2016) (Norman: University of Oklahoma Press) Bullock, Gaddie, and Wert, Rise ]. hereinafter 56 Id. at 7. 57 Id. ; see also Civil Rights Act of 1957, Pub. L. No. 85 - 315, 71 Stat. 634, § 101 (codified as amended at 42 U.S.C. § 1993), https://www.gpo.gov/fdsys/pkg/STATUTE - 71/pdf/STATUTE - 71 - Pg634.pdf (last accessed Aug. 3, 2018) ; 43 see also Christopher, supra note , at 10 (“In the past those intent on denying the rights guarant eed by the fifteenth amendment have managed to avoid court decrees and legislation by contriving new stratagems.”) .

26 An Assessment of Minority Voting Rights Access 20 federal consider to pr ohibi t in g state actor s from enacting and implementing racially legislation 58 voting . restrictions on discriminatory passed the Civil Rights Act in Congress ; it was a voting rights bill, which authorized the first 1957 General to file suit Attorney against local election officials in jurisdictions that had a pattern of 59 voters and secure prevent at ive relief. Protection of voting rights was thus discriminating against dependent upon actions brought by private individuals at their own expense, and possibly no longer the risk of physical and economic intimidation , as the bill also banned intimidati on , threat s or at 60 the right to vote of any person . coercion of 61 1957 act also created the U.S. Commission on Civil Rights, which then began to conduct This 62 the inequalities confronted by black people documenting in the South. The Commission studies numerous obstacles in conducting these field studies. In fact, some registrars would not faced one Commission to inspect their voter rolls and state in particular passed legislation that the permit 63 its voting registrars to destroy all past registration records. permitted In its first report, the and “agains t the prejudice of registrars declared jurors, the U.S. Government appears Commission 64 present laws to be helpless to make good the guarantees of the U.S. Constitution .” under The Commission proposed appoint ing temporary federal registrars who would have authori ty therefore been applicants after certification by the Commission that they had discriminated to register 65 previous attempts in register. against to Civil Rights Act of 1957 proved to be ineffective at providing adequate protections against The 66 on. In part, this voting inefficacy resulted because some lower courts ruled that the discriminati Court Act was unconstitutional. Although the Supreme Civil in United States v. Raines and Rights United v. State of Alabama invalidated the se States lower courts’ decisions, the Civil Rights Act of 1957 still proved to be insufficient in guarding against voting discrimination , as it did not 67 provide authority for the Attorney General to enforce its provisions . Congress later specific 58 Id. 59 The C ivil Rights Act of 1957 , Pub. L. No. 85 - 315, 71 Stat. 634 , pt. IV, § 131(c) (“Whenever any person has engaged or there are reasonable grounds that any person is about to engage in any act or practice which would deprive any other person of any [voting] right or privilege secured . . . the Attorney General may institu te for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, uding an application for a temporary or permanent injunction, restraining order, or other order.”), incl - - 71 - Pg634.pdf (last accessed Aug. 11, 2018). https://www.gpo.gov/fdsys/pkg/STATUTE 71/pdf/STATUTE 60 at pt. IV, § 131(b). Id. 61 at pt. I, § 101. Id. 62 See, e.g., U.S. C OMM ’ N ON C IVIL R IGHTS , 1961 U.S . C OMMISSION ON C IVIL R IGHTS R EPORT B OOK 1: V OTING , (1961) http://www2.law.umaryland.edu/marshall/usccr/documents/cr11961bk1.pdf , [ hereinafter U.S. C OMM ’ N XVI, ]. C ON IGHTS , V OTING 1961 IVIL R 63 Id. 64 U.S. C OMM ’ N ON C IVIL R IGHTS , 1959 , supra note 6, at 133 (emphasis added). 65 at 134 - 42. Id. 66 J UKE L. Voting Rights Act of 1965, 1966 OURN . 463 (1966), https:/ /scholarship.law.duke.edu/dlj/vol15/iss2/6 D ( last accessed Aug. 3, 2018). 67 ; United States v. Raines , 362 U.S. 17, 26 - 27 (1960) see also United States v. State of Ala. , 362 U.S. 602, 604 (1960) (recognizing federal authority under Civil Rights Act of 1960 to bring voting rights action against Alabama).

27 Chapter 1: Introduction and Background 21 68 69 Rights Act of 1960 the and Civil Rights Act of 1964 Civil to address the limitations of enacted 1957 the but the amended acts still proved to be largely inadequate in addressing voting Act, 70 discrimination. issued t his inadequacy in a The demonstrated in the early 1960s, which Commission report that progress towards equal voting rights in the United States had stagnated, and documented that argued disenfranchisement would continue unless additional federal legislation was enacted 71 stop it. For instance, the Commission noted in its 1961 report that: to [litigation] do successes, however, not indicate that current [1961] These affords with continued vigorous enforcement, a prompt solution legislation, even the existence of discriminatory denials of the right to vote on to of race or account color. The Government, under existing federal law, must still proceed — suit by suit, by county. Each suit, moreover, is expensive and time consuming; and county the increased [DOJ’s] Civil Rights Division has been repeatedly in s ize although voting budget, and has concentrated its efforts in the field, it has not been able and prepare and file all the suits that appear warranted. While it to be truly said that can present laws have proved to be effective tools to deal with discrimination i n voting, widespread are limited in scope. There is no the remedy to meet what is still tools 72 widespread discrimination. the Commission’s early reports In obstacles addition, that black voters, but not white documented voters, faced at the ballot box. In February of 1965, the Commission held hearings in Jackson, 73 Mississippi and found that black registration was declining in the state . , In addition, the found that two distinct practices led to the suppression of the minority vote in Commission counties: the collection of a poll tax , and a registration test that required that a person Mississippi 74 able to interpret a section of the state constitution. be In some cases, poll tax refused collectors payment from African - American voters, along with more subtle m ethods such as raising money he payment for white people but not or black people. Registrars often also used t offering for registration test to unfairly penalize African - American by giving them harder sections of voters the state constitutions to interpret , and by enforcing much stricter rules about any mistakes on the ir application s The Commission also found that there were cases of public officials ’ interfer ence . African to voter intimidation against the that - American community . Moreover, many amounted ack citizens bl were afraid of physical violence, economic reprisals, or losing jobs , and therefore 75 not even attempt to register or vote. As with did previous reports, the Commission recommended 68 . L. No. 86 - 449, 74 Stat. 89 (1960). Civil Rights Act of 1960, Pub 69 Civil Rights Act of 1964, Pub. L. No. 88 - 352, 78 Stat. 241 (1964). 70 Rise , supra Bullock, Gaddie, and Wert, note 55 . 71 U.S. C OMM ’ N ON C IVIL R IGHTS , V OTING 1961 , supra note 62. 72 Id . at 100. 73 U.S. C OMM ’ N ON C IVIL R IGHTS , MS 1965 , supra note 42, at 1 . 74 Id. at 13 - 14. 75 Id . a t 23.

28 An Assessment of Minority Voting Rights Access 22 76 literacy tests all and similar instruments be eradicated, and that the President should establish that affirmative to ensure that all citizens have the ability to program register and vote in all an 77 elections. Voting Rights Act of 1965 March 7, 1965, protesters led by Rev. Dr. Martin Luther King, Jr. and now - On ngressman John Co Georgia — who at the time was the chairman of the Student Non - Violent Coordinating Lewis of (SNCC) were beaten at the foot of the — Edmund Pettus Bridge in Selma, Alabama Committee 78 marching against unequal access to the ballot box. while Televi sion stations broadcast the extreme violence that peaceful demonstrators endured, including violent beatings by patrolmen on 79 a public outcry to members of prompted Congress to enact the VRA. horseback, which little over a week later, President Lyndon Ba ines Johnson issued a statement calling for A 80 to “eliminate illegal barriers to the right to legislation vote,” following many of the 81 made by the Commission as early as 1961. recommendations When the VRA passed in August 82 of the final version was eve n stronger 1965, than the legislation proposed by President Johnson in his speech, significantly incorporating several recommendations made by the Commission in its 83 voting report of May 1965. Just three months after the report was published, t he rights eliminated, that all literacy tests be s that all poll taxes be Commission’s recommendation and that federal poll watchers be sent to observe the elections and register voters were abolished, 84 part of the VRA. Congress all also took into account that s tates had manipulated voting made 76 For further information about poll taxes, literacy tests, grandfather clauses and other measures that were used to note , François, To Make Freedom Happen , supra see 23 . deny or abridge the voting rights of African Americans 77 U.S. C OMM N ON C IVIL R IGHTS , V OTING 1961 , supr a note 62, at 139 - 42. ’ 78 Kevin J. Coleman, The Voting Rights Act of 1965: Background and Overview , C ONG . R ESEARCH S ERV . 11 (2015), https://fas.org/sgp/crs/misc/R43626.pdf hereinafter Coleman, The Voting Rights Act of 1965 ]. [ 79 (New York: Picador, 2015), Ari Berman, Give Us The Ballot: The Modern Struggle For Voting Rights In America 22 [ ] Berman, Give Us The Ballot - . hereinafter at 21 80 President Lyndon Johnson, President Johnson’s Special Message to Congress: The American Promi se , - baines - johnson/speeches - films/president http://www.lbjlibrary.org/lyndon johnsons - special - message - to - the - - congress the - american - promise (last accessed July 26, 2018) [ - Johnson, President Johnson’s Special hereinafter Message to Congress ]. 81 U.S. C OMM ’ N ON C IVIL R IGHTS , V OTING 1961 , supra note 62, at 139 - 42 . Suggestions made in the 1961 report, th th such as the and 15 use of 14 Amendment powers to eliminate restrictions to voting rights, id. at 139, and the id. at 141, were embodied in prohibition of any “arbitrary action” to deny the registration of eligible voters, President Johnson’s speech when the Presid ent called for a bill that would “strike down restrictions to voting in all See also Johnson, elections,” and “insure that properly registered individuals are not prohibited from voting.” President Johnson’s Special Message to Congress , note 80. supra 82 Vo ting Rights Act of 1965, Pub. L. No. 89 - 110 (codified as amended at 52 U.S.C. § 10101), http://library.clerk.house.gov/reference - files/PPL_VotingRightsAct_1965.pdf (last accessed August 2, 2018) . 83 U.S. C OMM ’ N ON C IVIL R IGHTS , MS 1965 , supra note 42, at 61 - 6 3 . 84 Id.; Voting Rights Act of 1965, Pub. L. No. 89 - 110 (codified as amended at 52 U.S.C. § 10101 ).

29 Chapter 1: Introduction and Background 23 by either ignoring court orders, or, as the Supreme Court later stated in upholding the VRA’s rights constitutionality: favorable decisions have finally been obtained, some of the States Even when have merely switched to discriminatory devices not covered by the federal affected or have enacted difficult new tests designed to prolong the existing decrees 85 and Negro white registration. between disparity t he VRA of 1965 , Congress In strengthened the judicial remedies of the Civil Rights Act of 1957, and 1964, by allow ing direct federal oversight and protections of 1960, election processes to ameliorate the effects of years of discrimination against racial minority voters in the United 86 Section 5 of the VRA, jurisdict ions with Under a history of discrimination in voting had States. submit all voting changes for clearance by the federal government to determine whether they to 87 discriminatory, before would could be implemented. they This process was known as be to it wa s considered necessary preclearance, stop these jurisdictions from repeatedly and 88 voters of color. The jurisdictions discriminating that were “covered” under Section 5 against were identified by the following formula: (1) the use of discriminatory “tests and devices,” a nd (2) 89 disparately turnout. “Tests or devices” included literacy tests (in which English - language low or civics knowledge was required to register vote), poll taxes (in which literacy and/or was required to register or vote), and vouchers (wh erein a person had to be remuneration 90 by another voter to “vouched” or vote). register for Attorney General could certify the need to send federal Moreover, examiners to the covered the 91 and observe voter registration and voting processes, to to registe r voters. jurisdictions, By 1967 , f ederal examiners authorized under the VRA registered more than 150,000 black southerners to 85 , 383 U.S. 301, 314 (1966). South Carolina v. Katzenbach 86 U.S. C OMM ’ N ON C IVIL R IGHTS , V OTING R IGHTS A CT : T EN Y EARS A FTER , at 3 (1975) [ hereinafter U.S. C OMM ’ N ON IVIL R IGHTS , V OTING IN 1975] . The report also noted that the 1965 Act included specific protections against C Katzenbach v. Morgan . Id. at 21. See also English literacy testing for Puerto Rican , 384 U.S. 641, 645 (1966) voters (discussing the legislative history of Section 4(e) of VRA, 42 U.S.C. § 1973(b)(e) (1965)). The literacy test portion of Section 4(e) was rendered moot with the passage of the Voti ng Righ ts Amendments of 1970, which expressly prohibited literacy tests. See PROPA v. Kusper , 350 F. Supp. 606, 610 (N.D. Ill. 1972)). 87 52 U.S.C. § 10304(a). 88 notes , 383 U.S. at 314 - 15; see also Discussion of “ white primaries” and Sources cited therein Katzenbach supra 48 54. - 89 52 U.S.C. § 10303(b). Preclearance was required in: any State or in any political subdivision of a State which (1) the Attorney General determines maintained on November 1, 1964 , any test or device, and wi th respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on , November 1, 1964 of Novembe r 1964. or that less than 50 per centum of such persons voted in the presidential election 90 52 U.S.C. § 10304(a) - (b). 91 note Rise , supra Bullock, Gaddie, and Wert, 55 , at 19.

30 An Assessment of Minority Voting Rights Access 24 92 58 counties covered by Section 5. in Black registration rates changed dramatically after vote 93 re other key provisions of the VRA we implemented (see Table 1). 5 In particular, Section and table below illustrates that the VRA raised the black the registration rate to over 50 percent of the black voting age population across the states reported below, and increas ed the black registration 94 than rate pro - segregation states like Mississippi to more in eight times the pre - VRA rate . According to the historical data compiled by the Commission reproduced in Table 1, white registration also increased across most southern states included in this stud y , and rates in some 95 these rates increased over 20 percent . instances, 92 U.S. C OMM ’ N ON C IVIL R IGHTS , P OLITICAL P ARTICIPATION 12 (1968) , https://www.law.umaryland.edu/marshall/usccr/documents/cr12p753.pdf hereinafter U.S. C OMM ’ N ON C IVIL [ IGHTS P R ARTICIPATION 1968]. , 93 Id. 94 Id. at 13. 95 Voting rights historian Morgan Kousser has also documented ways in which the VRA tangibly benefitted poor white Americans who were disenfranchised. ., J. Morgan Kousser, Protecting the Right to Vote , L.A. T IMES See, e.g (Sept. 28, 2012), http://articles.latimes.com/2012/sep/28/opinion/la - oe - kousser - voter - id - 20120928 [ he reinafter Kousser, Protecting the Right to Vote ].

31 Chapter 1: Introduction and Background 25 Voter Registration by Race Before and After Passage of the Voting Rights Act Table 1: 96 of 1965 Pre rcent Post - VRA Pe - VRA Percent 97 98 of Voting of Voting Age VRA - Post VRA - Pre Number of Number of Population Population State Registered Voters Registered Registered Registered Voters Alabama: 99 51.6 248,432 92,737 19.3 Nonwhite... 1,212,317 69.2 935,695 89.6 White ... Arkansas: 77,714 Nonwhite... 121,000 62.8 40.4 65.5 555,944 White... 72.4 616,000 Florida: 63.6 299,033 Nonwhite... 240,616 51.2 2,131,105 1,958,499 81.4 White... 74.8 Georgia: Nonwhite... 332,496 27.4 167,663 52.6 62.6 1,443,730 White... 80.3 1,124,415 Louisiana: 164,601 31.6 Nonwhite... 58.9 303,148 1,037,184 80.5 White... 1,200,517 93.1 Mississippi: 28,500 263,754 59.8 6.7 Nonwhite... White... 69.9 525,000 91.5 665,176 North Carolina: Nonwhite... 277,404 258,000 46.8 51.3 1,602,980 96.8 1,924,000 83.0 White... 96 U.S. C OMM ’ N ON C IVIL R IGHTS P ARTICIPATION 1968 , supra note 92, at 12 - 1 3 . , 97 Id. at 13. According to the Commission’s 1968 report “Political Participation , ” the pre - VRA statistics came from the Information Center, U.S. Commission on Civil Rights, Registration and Voting Statistics, Mar. 1965. The voter . 1963; Florida, May 1964; Georgia, Dec . registration percentages for Alabama are as of May 1964; Arkansas, Oct 19 62; Louisiana, Oct. 1964; Mississippi, Nov. 1964; North Carolina, 1964; South Carolina, Nov. 1964; Tennessee, ; and Virginia, Oct . Nov. 1964; Texas, Nov. 1964 1964. According to this report, “[t]hese statistics represent estimates based on official and unofficial sources and vary widely in their accuracy. Even where official figures were available, registrars frequently failed to remove the names of dead or emigrated voters and thus reported figures which exceeded the actual registration. Un official figures which came from a variety of sources are subject to even greater inaccuracies.” 98 U.S. C OMM ’ N ON C IVIL R IGHTS , P ARTICIPATION 1968 , supra note 92 , at 13. Some of the post - VRA voter registration statistics were obtained from the U.S. of Justice as follows: for Alabama as of Oct. 1967; for Dep’t siana, Oct Georgia, Aug. 1967; for Loui 1967; for Mississippi, Sept. 1967; and for South Carolina, July 1967. All of . the other post - VRA voter registration statistics for the other states came from the Voter Education Project of the Southern Regional Council contained in Voter Registration in th e South , Summer 1966. The Voter Education Project accumulated its statistics during that summer . 99 Id. Non whites in this study were primarily African - American citizens, but in some instances, the race of the registrant was unknown.

32 An Assessment of Minority Voting Rights Access 26 Pre - Post VRA Percent rcent VRA Pe - 97 98 of Voting Age of Voting VRA - Pre Post - VRA Population Number of Population Number of State Registered Registered Voters Registered Registered Voters South Carolina: Nonwhite... 51.2 190,017 138,544 37.3 731,096 677,914 81.7 White... 75.7 Tennessee: 71.7 Nonwhite... 225,000 218,000 69.5 1,434,000 1,297,000 80.6 White... 72.9 Texas: 100 400,000 61.6 Nonwhite... 53.1 2,939,535 2,600,000 White... 53.3 (total) Virginia: Nonwhite... 243,000 144,259 38.3 55.6 61.6 1,190,000 White... 63.4 1,070,168 oting A ct ights Provisions Summary of Major V R Voting Rights Act was enacted by Congress in 1965 and has been amended since on a number The 101 to ions of This section will serve as a reference throughout this report, occas e xplain the major . VRA provisions that th is addresses. report Section 2 Section 2 of the VRA is a nation wide prohibition against denial or abridgement of voting rights, prohibit voting practices and procedures that discriminate on “any” the basis of race, color, or ing 102 in a language minority group. These voting practices may include, but are membership not discriminatory redistricting plans, at - large election systems, and vote r registration to, limited 103 procedures. E lection practices need not be intentionally discriminatory to be prohibited under 104 2, as practices that are shown to have a discriminatory result are also prohibited. Section Cases 105 be typically litigated under Section 2 b y the Department of Justice that may are related to 100 that the pr at 12 - 1 3 (noting Id. e - VRA percentages and totals of registered voters divided out by race were not available.) . 101 42 U.S.C. §§ 1973 to 1973bb - 1; 52 U.S.C. § 10301 (Section 2); U.S. Dep’t of Justice, Statutes Enforced by the DOJ Statutes] Voting Section - enforced - voting - section#vra [ hereinafter https://www.justice.gov/crt/statutes (last , accessed Aug. 3, 2018). 102 52 U.S.C. § 10301. 103 DOJ Statutes, supra note 101 . 104 Id. 105 See U.S. Dep’t of Justice, Voting Section Litigation , https://www.justice.gov/crt/voting - section - litigation [ hereinafter DOJ Litigation] (last accessed Aug. 3, 2018).

33 Chapter 1: Introduction and Background 27 107 108 106 districting plans, plans, voter ID , discriminatory treatment at the redistricting current 110 109 - large method voting systems. polls, and at plaintiff prove 2 violation, a a must show that : To Section on a totality of circumstances . . . the political processes leading based to election in the State or political subdivision are not equally open to nomination or . of the class of citizens protected . . in that its members have less members than other m embers of the electorate to participate in the political opportunity 111 elect representatives of their choice. process and 112 consuming. in this report, Section 2 litigation can be resource - intensive and time - As discussed and 5, and the 4 Court’s Shelby County Decision Sections Supreme 4 (b) of the VRA sets forth the criteria for identifying the jurisdictions covered Section the under 113 provisions of the Voting Rights Act. preclearance The preclearance formula was enacted in 1965 i in 1970, 1975, and 1982 , and 2006. U ntil June 2013, updated t applied in jurisdictions with a history of discrimination in voting. The preclearance provisions are in Section 5 of the VRA. Section 5 was enacted in 1965 to freeze any in election practices or procedures within jurisdictions co vered under Section 4 (b) , changes practice was reviewed through administrative review by the Attorney General or by a until the 106 Greig v. City of St. Martinville , No. 5:11 - CV 360 (W.D. Tex. 2013); Perez v. Perry , 2000 WL See, e.g., - (W.D. La. 200 0). 34610618 107 , United States v. The Sch. Bd. of Osceola Cty. , No. 6:08 - CV - 582 - ORL - 18DAB (M.D. Fla. 2008); United See, e.g. San Gabriel Valley Municipal Water Dist. , No. 2:00 - CV - 7903 (C.D. Cal. 2000). States v. Upper 108 See, e.g. , N. Carolina State Conference of NAACP v. McCrory , 831 F.3d 204 (4th Cir. 2016) ; Veasey v. Abbott , . 830 F.3d 216 (5th Cir. 2016) 109 , United States v. Sandoval Cty., N.M. , 797 F. Supp. 2d 1249 (D.N.M. 2011); United States v. Salem Cty. , See, e.g. (D.N.J. 2008); - CV - No. - JHR - AMD 1:08 United States v. City of Phila. , C.A. No. 06 - CV - 4592 (E.D. Pa. 03276 2007 ); United States v. City of Bos . , No. 05 - 11598 - EGY (D. Mass . 2005); Un ited States v. Berks Cty. , Pennsylvania , 277 F. Supp. 2d 570 (E.D. Pa. 2003) ; , N o . 6:02 - CV - 738 - ORL - 22JGG (M.D. Fla. United States v. Osceola Cty. United States v. City of Hamtramck , No. 00 73541 (E.D. Mich. 2000); United States v. Town of Cicero, 2000 2002); - - (N.D. Ill. 2000); United States v. Cibola Cty. , No. CV - 93 1134 - LH/LFG (D.N.M. 1993). WL 34342276 110 See, e.g. , United States v. Vill. of Port Chester , 704 F. Supp. 2d 411 (S.D.N.Y. 2010) ; United States v. Town of , Lake Park, Fla. (S.D. Fla. 2009); United States v. City of Euclid , 580 F. Supp. 2d 584 (N.D. Ohio WL 3667071 ; - , No. 1:08 - CV - 02832 2008) KMO (N.D. Ohio 2008); United States United States v. Euclid City Sch. Dist. Bd. of Ed. DCN (D.S.C. 2008); v. Georgetown Cty. Sch. Dist. CV - 00889 - - United States v. Osceola Cty., Fla. , 475 F. , No. 2:08 Supp. 2d 1220 (M.D. Fla . 200 6 ); United States v. Alamosa Cty., Colo. , 306 F. Supp. 2d 1016 (D. Colo. 200 6 ); United States v. Charleston Cty., S.C. , 365 F.3d 341 (4th Cir. 2004) United States v. Morgan City , No. CV - 00 - 1541 ; 0369 United States v. City of Santa Paula, No CV - 00 - (W.D. La. 2000); 1 - GHK (C.D. Cal 2000); United States v. . Benson Cty , C.A. No. A2 - 00 - 30 (D.N.D. 2000) . 111 52 U.S.C. § 10301(b). 112 See Discussion and Sources cited therein in Chapter 4, infra notes 1308 - 10 . 113 DOJ Statutes, supra note 101.

34 An Assessment of Minority Voting Rights Access 28 114 court . district This review was to ensure that change s in election practices had neither federal 115 nor effect s , and that they s were not retrogressive — under this standard, di purpose scriminatory 116 position changes that put minority voters in a that was worse than before. 5 Section blocked June 2013, Section 5 applied statewide in Alabama, Alaska, Arizona, Georgia, Louisia na, Until South Carolina , and Texas, and in certain counties or towns in California, Florida, Mississipp i, . New York, North Carolina, South Dakota , and Virginia In the states that were partially Michigan, only the local jurisdictions that were covered, covered had to submit a ny changes to their local voting rules for preclearance, but any statewide changes that impacted them also had to be 117 a jurisdiction could show that it had not discriminated in voting If 10 years, it precleared. for 118 out” of Section “bail 5 coverage. could D OJ reviewed thousands of voting changes under Section 5, and The objected to hundreds of it 119 changes that would have been discriminatory had they been implemented. proposed When the litigated changes in federal court, some were also blocked were under Section 5, if they were 120 retrogressive. O n June 25, 2013, in the case of Shelby County v. Holder , the United States Supreme Court ruled that formula in S ection 4(b) identif ying the jurisdictions that required Section 5 preclearance the 121 While the Shelby County decision did not find that Sec tion 5 was was unconstitutional. was by ruling that the formula in 4(b) unconstitutional, the decision removed the unconstitutional, echanism for carrying out preclearance. In practice, this means that until m passes a new Congress preclearance formula, previously covered jurisdictions are no t currently required to obtain mak ing changes in voting preclearance unless they are r equired to before do so by a separate laws 122 order . court Minority Provisions Language Sections 4(e), 4(f)(4), 203 , and 208 are the “language minority” provisions of the Voting Rights Act. 203 requires that the Census Bureau identify jurisdictions that contain a number of Section 123 - voters who are limited in language English proficiency (LEP ). their These jurisdictions minority across country must provide bilingual written voting the materials and voting assistance in the 124 languages covered by the VRA. include Jurisdict ions covered minority both those provided 114 52 U.S.C. § 10304 (describing VRA Section 5 enforcement procedures). See 115 DOJ supra note 101. Statutes, 116 See Discussion and Sources, notes 140 - 47 (explaining that the retrogression standard compares changes to infra prior “benchmark”). 117 See Discussion and Sources, note 867 and Table 12 (discussing the application of these rules in Florida). infra 118 See Discussion and Sources, infra notes 246 - 48 (explaining bailout procedures). 119 Discussion and Sources, infra notes 1387 - 92 (objections under Section 5 from 1982 See, e.g., present). - 120 See, e.g., United States v. Beer , 425 U.S. 130, 141 (1976). 121 ty. , 570 U.S. at 552. Shelby C 122 DOJ Statutes, supra n ote 101. 123 52 U.S.C. § 10503. 124 Id.

35 Chapter 1: Introduction and Background 29 125 Section (f)(4) and those under Section 203. under These sections mandate that bilingual 4 provided where the number of United States citizens of materials voting age i n a single election be either the jurisdiction who are LEP make up within more than 10,000 or more than language group percent 5 of all voting age citizens, and the ir illiteracy rate is higher than the national rate ; and also y Indian reservation where the LEP population exceeds 5 percent of all reservation within an 126 litigation under Section 203 relates to Typical failure to provide election materials residents. a 127 128 minorities , oral or a failure to provide access to for language assistance. A map of language the covered under Section 203 can be found in Chapter 3, Figure 10 . In addition, jurisdictions of 4(f)(4) requires that certain covered jurisdictions be subject to preclearance any changes Section 129 language access their programs. in 4(e) of the 1965 VRA fur ther provides rights for U.S. citi zens educated “in American flag Section 130 a language other than English. U nder Section 4(e) , c itizens educated in Puerto Rico in schools” Spanish may not have their right to vote “conditioned” on the ability to read and understand in jurisdiction , regardless of whether they live in a covered by the high population threshold English 131 Section 203 . of Section 208 the VRA mandates that particular voters who of require assistance to vote be provided 208 Section 132 their choice. disability, Whether by reason of bl indness, assistance or inability to read or of voter have the right to assistance by a person s of their choosing, other than their employer, write, 133 agent of their employer, an or an officer or agent of the voter’s union. Section 208 litigation by the D epart ment of Justice typically relate s to a failure to provide language assistance or a failure 134 to disabled person to choose their assist ance . a allow 125 52 U.S.C. § 10303(f)(4); 52 U.S.C. § 10503. 126 52 U.S.C. § 10303(f)(4) (describing bilingual election requirements); see also 52 U.S.C. § 10503(b)(2)(A) (describing the coverage formula); see also U.S. Dep’t of Justice, About Language Minority Voting Right s , https://www.justice.gov/crt/about - language - minority - voting - rights (last accessed July 26, 2018). 127 U.S. Dep’t of Justice, Cases Raising Claims Under Language Minority Provisions of the Voting Rights Act , See - - claims - under - language - minority - provisions - votin g - rights - act#ftbend (last https://www.justice.gov/crt/cases raising July 26, 2018) [ hereinafter DOJ Cases Raising]; see, e.g., United States v. Salem Cty. , No. 1:08 - CV - accessed - J HR - AMD (D.N.J. 2008); United States v. City of Phila . , C.A. No. 06 - CV - 4592 (E.D. Pa. 2007); United 03726 United States v. City of Bos a C States v. Cibol CIV - 93 - 1134 - LH/LFG (D.N.M. 2007); ty. . , No. 05 - 11598 - EGY , No. (D. Mass. 2005); Berks Cty., 277 F. Supp. 2d 570 ; United State s v. Osceola C ty. , N o . 6:02 - CV - 738 - ORL - 22JGG (M.D. Fla. 2002) . 128 DOJ Litigation, supra note 105. See 129 52 U.S.C. § 10303(f)(4). 130 52 U.S.C. § 10303(e). 131 52 U.S.C. § 10303(e)(1). 132 52 U.S.C. § 10508. See 133 Id. 134 See DOJ Litigation , supra note 1 05 ; see, e.g., United States v. Fort Bend C ty. , No. 4:09 - CV - 1058 (S.D. Tex . 2009); . , No. 06 - CV - 4592 Phila (E.D. Pa. 2007); United States v. Brazos C ty. , C.A. No. H - United States v. City of 06 2165 (S.D . Tex. 2006); Osceola C ty. , N o . 6:02 - CV - 738 - ORL - 22JGG . -

36 An Assessment of Minority Voting Rights Access 30 3 and 8 — Federal Observers and Judicial Preclearance Sections 3 and 8 of the VRA provide for federal observers to monitor inside polling places and Section s 135 with the VRA throughout E lection D ay. compliance Observers c an be designated ensure help 136 Attorney General in the jurisdictions covered for preclearance under Section 5 . by Section the (a) perm its a federal court to order that the Attorney General send federal observers, and 3 also 3 permits a federal court to order judicial preclearance of all voting changes , in Section (c) that have been found to have repeatedly intentionally discriminat ed in their voting jurisdictions 137 practices. Relationship Between The Section s 2 and 5 Both Sections 2 and 5 have proven useful in stop ping voting discrimination. Section 2 is a prohibition against discrimination in voting that requires bringing an affirmative nationwide 138 5 stopped discriminatory measures in whereas certain covered jurisdictions with a case, Section 139 of discrimination before they could be enacted. important Another history distinction is that 2, Section 5 unlike is based on a retrogression standard of review for discrimination, which Section ior evaluating the impact on minority voters operates of changes in voting in comparison to pr by “benchmarks” of the previous practices that were place. Specifically, the 1965 VRA required in review of “ any voting qualification or prerequisite to voting, or standard, practice, or procedure 140 with to voting different from that in force or eff ect on November 1, 1964.” F urthermore, respect 1976 the Supreme Court held that not all discriminatory election changes were prohibited under in , 5 changes that made minorities worse off than — they had been could be struck down Section only 141 preclearance. by is need for Section 2 The best illustrated by example. Under Section 5, long - standing, concurrent practices that were not already struck racially down could not be addressed if they discriminatory issue were enacted after 1965. This was an not with Mississippi ’s procedures requiring voters to register separately for state and federal elections, which were enacted a century earlier in order to make harder for black citizens to vote. When black voters wanted to challenge th is dual - it 142 in 1987, they had to bring an system affirmative case under Section 2. registration After that, the state was forced to adopt a voter registration procedure that did not cause an additional, 135 52 U.S.C. § 10305 . See 136 52 U.S.C. § 10303(b). 137 52 U.S.C. § 10302. 138 See 52 U.S.C. § 10 301. 139 52 U.S.C. § 10304(a). 140 Id. (emphasis added). Voting procedures as of that date were therefore the original benchmark for the states that were covered under Section 5 in 1965. ( For discussion of the coverage formula, see the following section of this rt.) For jurisdictions that came under its coverage after 1965, the benchmarks were those practices in place prior repo Nov. 1, 1968 (for those jurisdictions that came under coverage through the 1970 VRA Reauthorization) or Nov. 1, to 197 2 (for those that came under coverage through the 1975 or 1982 Reauthorizations) . Id . 141 - Beer , 425 U.S. at 141 42. 142 Mississippi State Chapter of Operation PUSH v. Allain , 674 F. Supp. 1245, 1247 (N.D. Miss. 1987).

37 Chapter 1: Introduction and Background 31 143 on poor voters, the majority of whom were black. burden Later, when Mississip pi discriminatory dual in 1995, it was successfully challenged registration under Section 5, because it resurrected retrogressive in that it made minority voters worse off than they had been after the 1987 was 144 2 litigation. However, unless the Section 2 case had been brought, Section 5 would not Section had been helpful to end the form of discrimination that been enacted during the Jim Crow era have had not yet been struck down by civil rights and prior to the VRA statutory benchmarks litigation 145 above (1964, 19 68 , or 1972) . discussed Still, preclearance was extremely useful, because to a history of discrimination were continuing come up with incrementally new jurisdictions with 146 to discriminate in voting , which could be struck down under Section 5 as retrogressive. ways continued in some This of the formerly covered jurisdictions up to and after the 2006 VRA pattern 147 Reauthorization. Section 2 was also needed to address discrimination Additionally, voting in jurisdictions that in 148 not covered preclearance. were by V oting R ights A ct Amendments and Reauthorizations Although 5 of the VRA was scheduled to expire in 1970, Congress has amended and Section 1982, VRA five times to date: in 1970, 1975, 1992, and 2006. Each time, it was reauthorized the 149 with overw helming bipartisan support. reauthorized One important detail that will be discussed below the criteria for identifying which jurisdictions would be required to preclear any voting are 150 they could be implemented, under Section 5. changes In 1965, 1970 , and 1975 , the before jurisdictions that were required to preclear their voting changes under Section 5 were identified by a - part formula, based on ( i ) low minority turnout in the most recent presidential election, and two 143 Id. 144 See , 520 U.S. 273, 281 - 82 (1997) (various iterations of changes in voter registration procedures Young v. Fordice Voting Determination Letter from Acting Assistant Attorney requir ed to be precleared); U.S. Dep’t of Justice, General Isabelle Katz Pinzler to Mississippi Special Assistant Attorney General Sa ndra M. Shelson (Sept. 22, 1997), - determination - letter - https://www.justice.gov/crt/voting (noting that the DOJ objected to dual registration 22 procedures as discriminatory and retr ogressive). 145 52 U.S.C. § 10304(a) (outlining benchmarks of 1964, 1968, or 1972, depending on when the jurisdiction became covered). 146 Jenigh J. Garrett, The Continued Need for the Voting Rights Act: Examining Second - Generation See Discrimination , 30 S T . L OUIS U. P UB . L. R EV . 77, 84 (2010), http://law.slu.edu/sites/default/files/Journals/plr30 - 1_garrett_article.pdf . 147 infra , Chapter 5, Table 13, and Sources cit ed therein. See 148 See, e.g Spirit Lake Tribe v. Benson C ty. , 2010 WL 4226614, No. 2:10 - CV - 095 (D.N.D. 2010); Large v. ., Fremont C ty. , 709 F. Supp. 2d 1176 (D. Wyo. 2010); United States v. Vill . of Po rt Chester , 704 F. Supp. 2d 411 (S.D.N.Y. 2010) City of Euclid , 580 F. Supp. 2d 584; Osceola C ty. , 475 F. Supp. 2d 1220 . ; 149 Coleman, The Voting Rights Act of 1965 , supra note 78, at 18 - 23. 150 52 U.S.C. § 10304(a).

38 An Assessment of Minority Voting Rights Access 32 151 ii whether they had a discriminatory “test or d evice in place.” ) In 1982 and 2006, Congress ( 152 the coverage formula . renewed Amendment 1970 lengthy C ongressional hearings, the Voting Rights After Amendments of 1970 w ere passed in Act 153 Senate after a 64 - 12 roll call vote, the then passed in the House of Representatives by a roll call 154 of 272 - 132, vote and signed into law by President Richard Nixon shortly thereafter. T he 1970 the prohibition of any “tests amendments or device [ s ] ” as prerequisites to voting or extended voter 155 that were considered purposefully discriminatory practices for 10 years . registration Second, the preclearance formula updated the turnout disparities formula . Thus, Section 5’s preclearance 151 The preclearance formula was as follows: The provisions of subsection (a) [requiring preclearance] shall apply in any State or in any of a State which (1) the Attorney General determines maintained political subdivision , any test or device, and with respect to which (2) the Director of the November 1, 1964 on an 50 per centum of the persons of voting age residing therein Census determines that less th were registered on November 1, 1964 , or that less than 50 per centum of such persons voted Augu st 6, 1970 , in addition to in the presidential election of November 1964. On and after r political subdivision of a State determined to be subject to subsection (a) any State o pursuant to the previous sentence, the provisions of subsection (a) shall apply in any State ntained or any political subdivision of a State which ( i) the Attorney General determines mai November 1, 1968 , any test or device, and with respect to which (ii) the Director of the on Census determines that less than 50 per centum of the persons of voting age residing therein Novemb were registered on , or that less than 50 per centum of such persons voted er 1, 1968 August 6, 1975 , in addition to in the presidential election of November 1968. On and after any State or political subdivision of a State determined to be subject to subsection (a) pursuant to the visions of subsection (a) shall apply in any previous two sentences, the pro State or any political subdivision of a State which (i) the Attorney General determines November 1, 1972 maintained on , any test or device, and with respect to which (ii) the at less than 50 per centum of the citizens of voting age Director of the Census determines th were registered on November 1, 1972 , or that less than 50 per centum of such persons voted in the Presidential election of November 1972. 52 U.S.C. § 10303(b). 152 The Voting Rights Act of 196 5 , supra note 78, at 16. Also, in 1992, Congress expanded the language Coleman, access protections to include more groups of minority voters based on findin gs of ongoing disparities and expanded definitions of “tests or devices”; H.R. 4312, 102nd Cong. (19 92), see also James Thomas Tucker, accessed July 26, 2018) https://www.govtrack.us/congress/bills/102/hr4312 see also (last ; Enfranchising Language Minority Citizens: The Bilingual Election Provision s of the Voting Rights Act , N.Y.U. J. L EG . & P UB . P OL ’ Y 215 (2016), http://www.nyujlpp.org/wp - content/uploads/2012/11/TUCKER - ENFRANCHISING - - MINORITY - CITIZENS - TEH - BILINGUAL - ELECTION - PROVISIONS - OF - LANGUAGE fter THE - RIGHTS - ACT.pdf [ hereina VOTING Tucker, Enfranchising Language Minority Citizens ] . - 153 116 C ONG . R EC . 6 , at 7336 (M ar. 13, 1970) ( Voting Rights Act Amendments of 1969 ) . 154 ) 115 C ONG . R EC . 28 , at 38, 536 - 3 7 (Dec. 11, 1969) ( Extension of Voting Rights Act of 1965 . 155 T]est or device” became defined as Coleman, The Voting Rights Act of 1965 , supra note 78, at 19. “[ follows: The phrase “test or device” shall mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any ed ucational achieveme nt or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. 52 U.S.C. §10304(c).

39 Chapter 1: Introduction and Background 33 156 extended to all jurisdictions where ( i ) a “test or device” (su ch as a literacy requirements were or registered poll tax) was used, and ( ii ) less than 50 percent of voting age residents were or test 157 in the 1968 presidential election. In addition, the 1970 VRA amendment introduced a voted ban on literacy tests, which was exten ded to all states, and the voting age was lowered specific 158 21 to 18. The 1970 Amendments extended Section 5’s from preclearance requirements for five years, meaning that the states that were originally covered and any other jurisdictions that fell formul a due to low black registration were required to submit their voting changes for under the review, and they had to prove that the changes would not be discriminatory before federal they 159 be implemented in any election. could Specifically, jurisdictions had to submit any proposed changes either the DOJ or a federal court, to and demonstrate that the proposed change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of 160 race color.” or 1975 Amendment The second of the VRA occurred in 1975. reauthorization Voting Rights Act Extension of The was 1975 in both the House and Senate by strong bipartisan majorities, and signed into law passed 161 President Gerald Ford. This by reauthorization extended Section 5 preclearance requirements seven years. The definition of permanently prohibited “test [ s ] for or device [ s ] ” was another expanded include: to or requirement by any which any practice State or political subdivision provided any registration or voting notices , forms, instructions, assistance, or other materials or relating to the electoral process, including ballots, only in the information Census where the Director of the English determines that more than five language, 156 52 U.S.C. § 10304(a). 157 “Sec. 4 . Section 4(b) of the Voting Rights Act of 1965 (79 Stat. 438; 42 U.S.C. 1973b) is amended by adding at the end of the first paragraph thereof the following new sentence: “On and after August 6, 1970, in addition to any State determined to be State or political subdivision of a subject to subsection (a) pursuant to the previous sentence, the provisions of subsection (a) shall apply in any State or any political subdivision of a State which (i) the Attorney General determines maintained on November 1, 1968, a ny test or device, an d with respect to which (ii) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1968, or that less than 50 per centum of such persons voted in the presidential ele ction of November 1968.” See Voting Rights Act of 1965, Pub. L. No. 89 - 110 (codified as amended at 52 U.S.C. § 10101), http://library.clerk.house.gov/reference - s/PPL_VotingRightsAct_1965.pdf . See also 52 U.S.C. § 10303(b). file 158 . The Voting Rights Act of 1965 , supra note 78, at 19 - 20 Coleman, This provision of the Voting Rights Act Amendments of 1970 was enacted amidst the Vietnam War, during which youth argued that if they were old enough to be drafted, they should be old enough to vote on the policies that led to the war. It was immediately challenged, after which the Supreme Court found that Congress had the right to regulate the voting age in federal elections but n ot in state and local elections. See also Oregon v. Mitchell , 400 U.S. 112 (1970). In 1971, the Constitution was amended to pro vide that the right to vote of citizens over 18 “shall not be denied or abridged by the United States or age C ONST any State on account of .” U.S. a mend. XXVI (emphasis added). . 159 52 U.S.C. § 10304(a). 160 Id. 161 Coleman, The Voting Rights Act of 1965 supra n ote 78, at 20. ,

40 An Assessment of Minority Voting Rights Access 34 centum per the citizens of voting ag e residing in such State or political of 162 of a single are minority. language subdivision members 5 additional coverage adopted in 1970 Section and 1975 extended its protections The geographic 163 counties and other political subdivisions of in a number to additional states, including more and Texas in their entirety, and portions of California, Florida, Michigan, and Alaska, Arizona, 164 Dakota. Further, the formula for preclearance under Section 5 was also updated to include South and minority voter tu rnout in the 1968 1972 presidential elections, and the 1975 disparately low established a penalty of a substantial fine or five years in prison for voting more reauthorization 165 in a federal election. than once 1975 also created Section 203 of the VRA, amendments which requires voting materials to be The in the language of the provided “applicable minority language group” of the voting jurisdiction, Latinos, Asian and Pacific Islanders, includes Native Alaskans, and Native which 166 After Congressional Americans. findings of discrimination and intimidation of voters with - proficiency, which had led to ongoing socioeconomic disparities and low literacy English limited the 1975 amendments also included a formula under a new Section 203 for determining rates, s would be required to provide jurisdiction bilingual election materials and voter which 167 assistance. 1982 Amendment 1982, when t he 1975 seven - ye ar extension was set to expire, Congress amended the VRA to In was it again . The Voting Rights Act Extension of 1982 passed in the House and then in the extend where an amended version eventually passed on June 18, 1982, with an 85 - Senate, roll call 8 168 The House later approved the amended bill, and the VRA was renewed again and enacted vote. 169 have by President Ronald Reagan. Whil e into he had argued that a national formula might law been more appropriate than focusing on the originally covered in 1965, upon signing jurisdictions the 1982 amendments, Reagan remarked that: [T]he to vote is the crown jewel of American liberties, an d we will not see its right unbending . . . This legislation proves our luster commitment to voting diminished settled . . It rights also proves that differences can be . in good will and good faith . . . 162 52 U.S.C. § 10303(f)(3). 163 Political subdivisions refer to “any county or parish, except that, where registration for voting is not conducted under the supervision of a county or parish, t he term shall include any other subdivision of a State which conducts registration for voting.” 52 U.S.C. § 10310(c)(2). 164 Bullock, Gaddie, and Wert, Rise , supra note 55 , at 24 - 5. See also 52 U.S.C. § 10303(b) . 2 165 supra Id. The Voting Rights Act of 1965 , ; Coleman, note 78, at 21. 166 5 2 U.S.C. § 10503; see also U.S. Dep’t of Justice, Civil Rights Division, Language Minority Citizens, st https://www.justice.gov/crt/language - citizens (la minority accessed Aug. 3, 2018). - 167 See Chapter 3, Lan guage Access, infra notes 1434 - 46 . 168 Coleman, The Voting Rights Act of 1965 , supra note 78, at 21. 169 Id.

41 Chapter 1: Introduction and Background 35 so many of our people — our Americans of Mexican descent, our black To is this is as important symbolically as it measure practically. . . . It — Americans to every individual: “Your vote is equal. Your vote is meaningful. Your vote says 170 constitutional. is 1982 amendment left in place the same precleara nce formula. B ased on extensive The an of ongoing discrimination in the record that had been covered, congressional jurisdictions 171 extended preclearance for the covered jurisdictions for another 25 years. Congress The 1982 amendments also made significant chan ges to Section 2 of the VRA. In particular, Section 2 was laws that racial minorities could challenge existing and election practices without the amended so to prove discriminatory intent. According to Bullock et al., the decision to amend Section 2 need that as in w respon s e to the Supreme Court’s decision in City of Mobile v. Bolden , holding proof of 172 intent was required to establish a 2 violation. discriminatory Congress replaced the Section intent requirement in Section 2 with a “results” or “effects” test. Under this test, voting practice s are if they are “imposed or applied . . . in a manner which results in a denial or prohibited o the right of any citizen of the United States to vote on account of race or color, abridgement r of 173 a minority language group].” [membership in new “results” test reduced the burden of proof for plaintiffs, since This discriminatory proving intent had become increasingly difficult, due in part the fact that blatant discrimination in the to form of fi rst - generation tests like poll taxes and literacy tests was no longer as common as in 1965. However, forms of discrimination had become apparent. These included diluting the right to other vote minority communities through discrim in atory forms of of at - lar ge elections, annexations, and 170 Howell Raines, Voting Rights Act Signed by Reagan , N. Y. T IMES , June 30, 1982, https://www.nytimes.com/1982/06/30/us/voting - - act - signed - by - reagan.html . rights 171 The Voting Rights Act of 1965 , Coleman, note 78, at 25. supra 172 Bullock, Gaddie, an d Wert, Rise , supra note 55, at 25 ; s ee also City of Mobile v. Bolden , 446 U.S. 55, 75 (1980). 173 52 U.S.C. § 10301(a). The new language of Section 2 also pro vided that a violation was established if, “based on the totality of circumstances, it is shown that the political processes leading to the nomination or election in the State or political subdivision are not equally open to participation by members of a c lass of citizens protected . . . in that its members have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice.” Id. at §10301(b).

42 An Assessment of Minority Voting Rights Access 36 174 s The amended Section 2 made it possible to prosecute these and other types of . redistricting 175 could even in cases where intent practices, not be proven. voting discriminatory 1982 amendments also included a new standard allowing jurisdictions The to terminate (or bail ) preclearance coverage if they could prove they from had not discriminated in voting for the out 176 10 years. last Amendment 1992 177 . t he VRA a fourth time in 1992 amended The 1992 amendments extended the voting Congress assistance requirement s for another 15 years. They also expanded the bilingual voting language rules coverage to include not only jurisdictions in which 5 percent of eligible voters were limited - English proficient ( LEP) and members of a minority group, but to also include language jurisdictions that did not meet the high 5 percent threshold but had at least 10,000 LEP citizens who also members of a single language minority group, thereby reaching Latino - and Asi an - were 174 ; supra note 78, at 14 , see also Daniel D. Polsby and Robert D. Popper, Coleman, The Voting Rights Act of 1965 92 M ICH . Ugly: An Inquiry into the R EV . 652, Problem of Racial Gerrymandering under the Voting Rights Act, L. 682 (1993) (analyzing the jurisprudence surrounding racially discriminatory redistricting (when redistricting is done concentr ates ly in a manner that either divides or over minority voters in districts that dilute their voting power) and - large elections (when representatives are elected from one large district rather than at the community level, at - member districts) and the impact of these practices in diluting the impact of the minority vote); through local, single Racial Gerrymandering and Vote Dilution: Shaw v. Reno in Doctrinal Context , 26 see also James F. Blumstein, UTGERS L.J. 517 (1995) (citing Davis v. Bandemer , 478 U.S. 109, 132 - 33 (1986) (opinion of White, J.) , that vote R ’ s or a group dilution occurs “when the electoral system is arranged in a manner that will consistently degrade a voter Paul W. Bonapfel ); see also of voters influence on the political process as a whole” , Minority Challenges to At - ’ s: The Dilution Problem , 10 G A . L. Large Election EV . 353, 354 - 55 (1976) (“At - large elections, in which one vote R counts toward the election of several candidates, over represent their constituents to the detriment of voters in - - member or smaller multi - single r icts. In the geographically compact areas . . . minorities have the votes member dist to determine the outcome of an election in a single - member district or ward system. By virtue of a multi - member or at - ’s l arger voting population. The majority elects all of large plan, however, they remain a minority in such a system the representatives, of course, and therefore candidates preferred by the minority group are consistently defeated. The consequence of this submerging of their votes, they argue, is to deny representation heir particularized views of t and needs. This asserted reduction in the ability of their votes to secure their preferred representation is alleged to see also amount to unconstitutional dilution of their votes.”); Edward Still, Voluntary Constituencies: M odified At - , 9 Y ALE L. & P OL ’ Y R EV . Large Voting as a Remedy for Minority Vote Dilution in Judicial Elections 354, 368 (1991) (“Finally, the Court discussed the possibility that at large voting to minimize or cancel out the voting - tic . . . The minority group might also legitimately oppose modified strength of racial or poli al the voting population at - large elections because the minority group will have to vote more or less uniformly to avoid splitting its ); strength.” see also Chandler Davidson and George Ko rbel, At - Large Elections and Minority - Group Representation: A Re - Examination of Historical and Contemporary Evidence, 43 T HE J OURN . OF P OL . 982, 1005 (1981) (demonstrates through statistical analysis and independent research the effect of at - ections in diluting large el see also Thornburg v. Gingles the minority vote); , 478 U.S. 30, 74 (1986) (holding that voter dilution took place - large electoral system effectively submerged minority vote) ; see also Garrett, supra when the at note 146 , at 77, 80 (expl aining how these procedures may dilute minority voters’ impact on the political process, in violation of VRA’s key protections against racial discrimination in voting). 175 Coleman, The Voting Rights Act of 1965 , supra note 78 , at 22. 176 Bullock, Gaddie, and Wert, Rise , supra note 55 , at 30. 177 Coleman, The Voting Rights Act of 1965 , supra note 78 , at 22.

43 Chapter 1: Introduction and Background 37 178 voters large cities such as Los Angeles, Philadelphia, and San Francisco. American The 1992 in also expansive language access coverage formulas for Native included amendments more 179 on Indian Reservations. living Americans Reauthorization 2006 President George W. Bush sign ed the Finally Fannie Lou Hamer, Rosa Parks, and Coretta Scott , Rights Act Reauthorization and Amendments Act of 2006 , which had passed in the King Voting 180 a 390 - 33 vote , and in the Senate, unanimously. The 2006 reauthorization eliminated House by ability of federal election examiners to be sent under Section 5 to register voters, but extend ed the 181 Section 5 and other VRA provisions for 25 years. the remaining the debate on the House floor, some Republicans claimed that this reaut horization unfairly During 182 certain states and infringed upon state sovereignty in their election processes. targeted Four changing then presented, covering everything from the Section 5 coverage were amendments 183 to “accelerating the sun setting of the law ,” formula but all were defeated. 184 the Senate side, while voting 98 - 0 in favor of the 2006 reauthorization, On Senat ors also held extensive regarding the constitutionality of the bill and questioning the continued need for debates 185 President Ge orge W. Bush had publicly But declared his support for the House preclearance. 186 “without [a proposed] amendment [eliminating preclearance] ,” bill and the more fulsome bill was to the Senate floor and unanimously approved. Congressional findings included a moved based for continued the preclearance provisions of the VRA need on evidence of ongoing voter 178 H.R. 4312, 102 nd Cong . (1992) , supra note 152. See Chapter 4, infra for discussion . 179 Enfranchising Language Minority Citizens , supra note 15 2 , at 225 - 2 6. Tucker, 180 , supra note 78, at 22. The Voting Rights Act of 1965 Coleman, 181 Id. at 23. 182 Nathaniel Persily, he New Voting Rights Act , 117 Y ALE L.J. 174, 182 (2007), The Promise and Pitfalls of t . https://www.yalelawjournal.org/pdf/606_21wshzpe.pdf 183 Id. at 183. 184 R C ONG . EC . 96 (daily ed. July 20, 2006) (Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting 152 Rights Act Reauthorization and Amendments Act of 2006), https://w ww.gpo.gov/fdsys/pkg/CREC - 2006 - 07 - 6.pdf 20/pdf/CREC - 07 - 20 - pt1 - PgS7949 - 2006 (last accessed Aug. 3, 2018). - 185 Kristen Clarke, The Congressional Record Underlying the 2006 Voting Rights Act: How Much Discrimination Can the Constitution Tolerate? , 43 H ARV . C.R. - C.L.L. 385, 387 n.9 (2008) (“Summarizing his overall impressions of the process leading up to the renewal of the expiring provisions of the VRA, Senator Patrick Leahy (Democrat - m their votes,’ including a VT) observed that ‘Senators had available to them an extensive record to infor ‘voluminous Senate Judiciary Committee record,’ a full record before the House of Representatives, the House Committee Report, the full debate on the House floor, and debate surrounding four proposed amendments that were ected. 152 Cong. Rec. S8372 - all rej 73 (2006). Senator Leahy also noted that Senate members were provided ‘some of the extensive evidence received in the Judiciary Committee about the persistence of discriminatory practices in covered jurisdictions that supports r eauthorization of this crucial provision.’”). 186 White House, President George W. Bush Addresses NAACP Convention , https://georgewbush - whitehouse.archives.gov/ne ws/releases/2006/07/20060720.html (last accessed July 26 , 2018) .

44 An Assessment of Minority Voting Rights Access 38 187 discrimination In its review of over 15,000 pag es of evidence, the House against minorities. continued was evidence “of that efforts to discriminate [against minority voters] determined there 188 [preclearance] to reauthorize the temporary need provisions.” The Senate continuing and the C ongressional R ecord deve loped by the House and hosted additional hearings. incorporated of Senators concern about the seeming lack expressed relevant differences between the Two 189 uncovered jurisdictions and the 25 - year period of extension. covered and particular, as discussed in the Supre me Court’s 2013 decision in Shelby County v. Holder , In 190 focused significant debate on the constitutionality Congress of the preclearance formula. In 2006, most M embers of Congress wanted to renew Section 5, but there was considerable be wheth er the underlying formula regarding which jurisdictions would disagreement about 191 preclearance needed to to be updated. subject much debate, in June 2006, both c hambers reauthorized the temporary provisions of the VRA After bipartisan 25 years with for support, and approv ed the same preclearance formula that was another down in Shelby County . Moreover, later after 21 hearings, the 2006 VRA Reauthorization struck ecord included 15,000 pages of record evidence , including significant attenti on to ongoing R 192 in voting. record Justice Ginsburg later described the Congressional discrimination as follow s : “ The compilation presents countless ‘examples of flagrant racial discrimination’ since the last Congress also brought to light s ystematic evidence that ‘intentional racial reauthorization; in in remains so serious and widespread covered jurisdictions that [S] ection discrimination voting 193 preclearance is still needed.’” that: Based on this record, Congress found 5 signifi has directly caused The cant progress in eliminating first - generation VRA ballot access, leading to a marked increase in minority voter registration barriers to and the number and minority elected officials. 2006 Reauthorization § turnout of 2(b)(1). But despite this progress, “secon generation barriers constructed to d prevent minority voters from fully participating in the electoral process” continued to as well as racially polarized voting in the covered jurisdictions, which exist, political vulnerability of racial and language minorities in those increased the §§ 2(b)(2) - (3), 120 Stat. 577. jurisdictions. Extensive “[e]vidence of continued discrimination,” Congress concluded, “clearly show[ed] the need for continued 187 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 , P ub. L . No. 109 - 246 , 120 Stat. 577, §§ 2(b)(4) - (5) (second - generation barriers and racially polarized votin g continued to exist) and §§ 2(b)(5) (“ e vidence clearly show[ed] the continued need for Federal oversight” in covered jurisdictions). 188 Voting Rights Act After the Supreme Court’s Decision in Shelby County: Hearing Befo re the H. Subcomm. on the Constitution and Civil Ju stice of the H. Comm. on the Judiciary , 113th Cong. 61 (2013), - content/uploads/2016/02 /113 - 35 - 81983.pdf (last accessed https://judiciary.house.gov/wp July 26, 2018). 189 Persily, note 182, at 174, 189. supra 190 Id at 189 - 92. . 191 Id . at 189. 192 R EP . N O . H.R. 109 - 478, at 5, 11 - 12 (2006). 193 Northwest Austin ty. , 570 U.S. at 565 (Ginsburg, J., dissenting) (citing Shelby C , 557 U.S. at 205 ) .

45 Chapter 1: Introduction and Background 39 Federal covered jurisdictions. §§ 2(b)(4) - (5), id., a t 577 - 578. The oversight” in to the federal record lawmakers that, “without the overall demonstrated of Voting Rights Act of 1965 the protections, racial and language continuation citizens will be deprived of the opportunity to exercise their right to vote, minority will their votes diluted, undermining the have significant gains made by or 194 years.” last 40 in the minorities also found that as “registration and voting of minority citizens increas e[d] , other Congress 195 may be resorted to measures which would dilute increasi ng minority voting strength.” From the period of 1982 to 2006, there were 700 objections to voting changes under Section 5 of these changes were blocked because they were considered ; by the D OJ or a federal court the VRA 196 be racially discriminatory. to Additionally, over 800 proposed voting changes were withdrawn 197 amended after the DOJ requested more information from the submitting jurisdiction. or All 198 other DOJ actions under Section 5 and occurred in the formerly covered jurisdictions. objections For a map of jurisdictions that were covered in this era (in January of 2008), see Chapter 2, Figure 2 . The covered states were Alabama, Alaska, Arizona, Georgia, Louisian a, Mississippi, South , Texas , and the counties and other subdivisions that w ere covered were located in and Carolina Carolina, Florida, Michigan, New Hampshire, New York, North South Dakota , and California, 199 . Virginia were also a number of successful Section There 2 cases from 1982 to 2006. These were cases in which federal courts held that ju risdictions had violated the nationwide prohibition against racial discrimination voting — and most were brought in in the jurisdictions that were covered under Section 5’s preclearance formula. The following graph generated by voting rights expert J. Morgan Kousser that the highest number of successful Section 2 cases were brought between 1982 shows and that the great majority were brought in 2006, the formerly covered jurisdictions. and 194 Id . at 566. 195 City of Rome , 446 U.S. at 180 (quoting H.R. R EP . N O . 94 - 196, at 10 (1975)). 196 . H.R. R EP . N O . 109 - 478, at 21 (2006) ; H.R. R EP . N O . 109 - 478, at 40 - 41 (2006) 197 H.R. R EP . N O . 109 - 478 , at 645 (2006). 198 52 U.S.C. § 10304(a). 199 See infra Figure 2 (DOJ map of jurisdictions covered under Section 5) (Jan. 17, 2008). Chapter 2,

46 An Assessment of Minority Voting Rights Access 40 1: Successful Section 2 Cases in Covered and Non c overed Jurisdi ctions, Figure 200 2014 - 1957 the years Kousser reviewed for the above graph (1965 - 2014), an average of five out In of six (82.7 201 of successful Section 2 cases occurred in formerly covered jurisdictions. ) percent 2006, Congress determined that In the ongoing objections under Section 5 and the over - concentration of Section 2 violations provided evidence that th e covered jurisdictions had higher of discrimination than other jurisdictions. The ongoing 2006 Congress also took into incidents jurisdictions account many (but not all) of these that had abandoned “first - generation” forms of discrimination consisting of denial or abridgement of access to the ballot, yet the y had found new ways discriminate in voting, through discriminatory forms of redistricting and o ther changes to 202 districts and rules of representation that diluted the weight of minority votes. regarding electoral President George W. Bush signed the 2006 When reauthorization into law, he commented that: In four decades since the Voting Rights Act was first passed, we ’ ve made progress toward equality, yet the work for a more perfect union is never ending. We ’ ll by continue build on the legal equality won to the civil rights movement to help ensure that every person enjoys the opportunity that this great land of liberty offers. 200 note Protecting the Right to Vote , supra Kousser, 95 , at 17. 201 Id . 202 H.R. R EP . O . 109 - 246, at 1 (2006 ). N

47 Chapter 1: Introduction and Background 41 we a bill that helped bring a community renew on the margins into the life Today, American democracy. My administration of will vigorously enforce the provisions 203 law, and we will defend it this in court. of ts of the U.S. Commission on Civil Rights Related to Voting Rights Overview of Past Repor for Minorities he U.S. Commission on Civil Rights was created through the enactment of the Civil Rights Act T Act Among other civil rights goals , the . provided that the Commission sh ould “investigate 1957 of in writing under oath or affirmation that certain citizens of the United States are being allegations 204 of their right to vote . . . by reason of their color, race, religion, or national origin[.]” deprived Since creation, the Commissi on has met this obligation by consistently investigating the state its rights across the country , and reporting the of findings. The Commission has released over voting 205 reports focused on the topic of voting 20 rights. In addition to issuing briefing reports briefing with findings and recommendations to the President and Congress, the Commission has issued a number educational reports for general public consumption of to both inform and instruct the public on the complexities of voting rights laws. 203 President Bush Signs Voting Rights Act Rea uthorization and Amendments Acts of Press Release, White House, https://georgewbush - whitehouse.archives.gov/news /releases/2006/07/20060727.html 2006, (last accessed July 26, 2018) . 204 (codified as amended at Rights Act of 1957, Pub. L. 85 - 315, 71 Stat. 634 , §104(a)(1) Civil 42 U.S.C. § 1993 ) . 205 See Appendix A for a summary of each of the Commission’s reports on voting rights.

48 An Assessment of Minority Voting Rights Access 42 left [ page intentionally This blank ]

49 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 43 THE SHELBY COUNTY V. CHAPTER 2: SUPREME COURT’S DECISION HOLDER AND ITS MAJOR IMPACT S in examines the Supreme Court’s 5 - 4 chapter decision first the Shelby County v. Holder case, This struck down the preclearance formula of the Voting Rights Act (VRA). It which what explains and where it applied, and examines the structural changes in VRA enforcement preclearance was the the Court’s decision. It also discusses lting rationale for the Supreme Court’s holding resu from states and local jurisdictions with a history of discrimination in voting that were covered that under the prior preclearance formula should no longer be subje ct to federal preclearance. This chapter majority forth the precise language of the opinion’s acknowledgement that Congress may also sets a new preclearance formula based on current conditions. Appendix B describes various enact that ha ve attempt ed to Congressional legislate new VRA preclearance criteria based on bills Shelby in the wake of current County . conditions then examines Chapter of the major immediate 2 impacts of the Shelby County decision, in some North Carolina and Texas. These states have some of the most extensive post - Shelby County litigation, both states altered pending legislation immediately following the Shelby County and to include additional voting laws that no longer needed approval by the federal decision 206 under 5 of the VRA . Section government Shelby County v. Holder Decision The Summary of Historical Context Brief he VRA was enacted in 1965, and subsequently reauthorized T and extended in 1970, 1975, 1982, 1992 and 2006. After its enactment in 1965, and after subsequent reauthorizations, the Supreme , 207 But Court the constitutionality of the entire VRA . upheld a s discussed below, in June 2013, the Supreme Court held that the formula for the preclearance process in Section 5 was 208 unconstitutional. 206 H.R. 589, 2013 2014 Gen . Assem b. (N.C. 2013), - (last accessed July 26, 2018) [ hereinafter https://www.ncleg.net/Sessions/2013/Bills/House/ PDF/H589v9.pdf see also Ryan J. Reilly, Harsh Texas General Assembly of North Carolina, H.R. 589]; Voter ID Law ‘Immediately’ Takes Effect After Voting Rights Act Ruling , H UFFINGTON P OST (Apr. 7, 2014), http://www.huffingtonpost.com/2013/06/25/texas - voter - id - law_n_3497724.html ; see also Jennifer L. Patin , IGHT L C OMMITTEE FOR CIVIL R IGHTS UNDER L AW , T HE V OTING R ’ S A CT AT 50: T HE T EXAS V OTER ID AWYERS S TORY (2015), http://lawyerscommittee.org/wp - content/uploads/2015/08/The - Voting - Rights - Act - at - 50_printable.pdf [ hereinafter Patin, The Voting Rights Act at 50 ]. 207 Lopez v. Monterey Cty. , 525 U.S. 266, 287 (1999); City of Rome , 446 U.S. at 158; Katzenbach , 383 U.S. at 337; Katzenbach v. Morgan , 384 U.S. 641, 658 (1966). 208 , 570 U.S. at 557 . Shelby Cty.

50 An Assessment of Minority Voting Rights Access 44 th th was passed to ensure the guarantees of the 14 The and 15 Amendments of the U.S. 1965 VRA 209 discrimination in against voting. It does this through various provisions, Constitution racial prohibitio n of discrimination in voting a in Section 2; a nationwide including: nationwide of poll taxes, literacy tests , and other “tests and devices” that limit access to the ballot prohibition Additional minority and protections against voter intimidation. voters; protections for vo ters for 210 - English proficiency were enacted in 1975. with These and other remaining provisions limited 211 the VRA were not struck down by the Shelby of decision. The only part of the VRA that County the Shelby County decision struck down was the preclearance formula of the 2006 212 preclearance formula in Section 4(b) of the VRA determined which reauthorization. The the were and required to comply with preclearance regime set forth under jurisdictions “covered” 213 5 of the VRA. Section As will be explained in furth er detail below, preclearance meant that jurisdictions with a history of discrimination had to submit any changes in voting procedures to or a federal court , and prove that the the new voting procedures would not be DOJ 214 o If they could not d discriminatory. so , the proposed change s in voting procedures would not be 215 precleared could not be implemented. Historians have documented that Section 5’s and because: rules enacted were preclearance drafters of the VRA clearly recognized that the historical reco rd The a made for ongoing oversight and protection case the voting rights of African powerful of just as the Fifteenth Amendment had been circumvented by devices Americans: Voting literacy tests, the intent of the Rights Act could readily be as such ed through other devices or alterations in the structure or mechanisms circumvent was The pre - clearance provision elections. designed to prevent such of 216 which would deprive American citizens of their political rights. circumventions, Prior the Shelby County decis ion, the VRA’s preclearance rules applied to states and local to 217 states as counties) with jurisdictions a history of discrimination in voting. These (such and local 209 Morgan , 383 U.S. at 308, 341 - ; Katzenbach , 384 U.S. at 651 . 42 210 See Ch apter 1, Summary of Major Voting Rights Act Provisions , supra notes 101 - 48 . 211 , 570 U.S. at 557 (“Our decision in no way affects the permanent, nationwide ban on racial Shelby Cty. n voting found in § 2. We issue no holding on § 5 itself, only on the coverage formula.”) . discrimination i 212 Id. 213 52 U.S.C. § 10303(b). 214 52 U.S.C. § 1 0304(a). 215 Id. 216 Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry: Hearing Befo , 109th Cong. 242, 247 - 48 (2006) (statement of Alexander Keyssar, re the S. Comm. on the Judiciary Kenn. Sch. of Gov., Harv. U.), https://www.scribd.com/document/333618920/SENATE - HEARING - 109TH - CONGRESS - RENEWING - THE - - TEMPORARY PROVISIONS - OF - THE - VOTING - RIGHTS - ACT - LEGISLATIVE - OPTIONS - AFTER - LULAC - V - . PERRY (last access ed June 12, 2018 ) 217 52 U.S.C. § 10304(a).

51 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 45 were subject to heightened scrutiny of voting changes until the Shelby County jurisdictions of . See Figure s 2 and 3 for maps ( jurisdictions that were subject to preclearance.) ecision d an important preliminary matter, the Commission notes that data examined in this report show As from the time of the 2006 VRA Reauthorization until the Shelby County decision, there were that violations of Sections 2 and 5 of the VRA in the formerly covered jurisdictions, and that ongoing 218 Section 2 violations were concentrated in the formerly covered jurisdictions. the during Also, the 2006 reauthorization, “Congre ss found there were more DOJ objections [blocking proposed changes under Section 5 due to determinations that they would be discriminatory] between voting 219 and (626) than there were between 1965 the 1982 reauthorization (490).” and 1982 2004 Mechanics of Preclearance? What Were the 5 of the VRA required that jurisdictions Section falling under the preclearance formula submit and receive approval of the federal government or a federal court before implementing any change in 220 DOJ That requirement meant that the procedures. or a federal district court were voting statutorily required to review any changes in “ any voting qualification or prerequisite to voting, or 221 standard, or procedure with respect to voting” in jurisdictions covered u nder the practice, The federal government would review the proposed changes to determine if they would formula. 222 black, Latino, Asian , or Native American voters. A three - judge federal discriminate against court would either issue a declaratory district app roving or rejecting the change, or the judgement 223 Attorney General would approve, object, or request more information. U.S. Below are the major components of preclearance that were suspended by the Shelby County decision. First, u nder Section 5, any voting law, prac tice , or procedure was subject to preclearance review 224 prior Shelby County , including : to A ; x ll redistricting done after each decennial Census A ; x ny other changes to voting district lines liminating or moving polling places to less accessible areas or to locations that could be x E , such as Sheriff ’s offices ; perceived as intimidating x ew voter purge procedures ; N 218 See Chapter 5, infra Table Sources cited therein. 13 and 219 Shelby C ty. , 570 U.S. at 571 (Ginsburg, J., dissenting) (“On that score, the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490). ” Voting Rights Act: Evidence of Continued Need : Hearing B efore the H. ); . on the Co nstitution of the H . Subcomm Comm . on the Judiciary , 109th Cong. 172 (2006) . 220 52 U.S.C. § 10304(a). 221 Id. 222 Id. 223 See 28 C.F.R. § 51.10. 224 3 04(a); see also 28 C.F.R. § 51.10; A llen v. State Bd. of Elections , 393 U.S. 544 , 548 - 89 (1969). 52 U.S.C. § 10

52 An Assessment of Minority Voting Rights Access 46 English x ; - language literacy tests ew voter ID laws N ; x - ; utting early voting or same day voter registration x C x M oving Election Day to a day that would be inconvenient to an identifiable set of voters, such as a religious holiday, or taking away Sunday voting and limiting voting to a Tuesday, ; and 225 ny other change in registration, voting, or election procedures. A x which is constitutionall y required after the Redistricting 2020 Census, and any and all other , in voting procedures in the post changes Shelby County era, large and small, will not be subject to - 226 they used to be, unless Congress enacts a new preclearance formula. preclearance as the prior t o the Shelby County decision, in jurisdictions covered under the formula (see Second, 2 , below ), the DOJ or a federal court had to preclear or approve any proposed relevant Figure voting before the change could be implemented in any election. The standard for change grappled with whether voting law changes “ ha [ve] the purpose” or “will have the preclearance of denying or abridging the right to vote on account of race or color, or in contraventio n of effect set forth in section 10303(f)(2) [the language minority requirements] of [the guarantees the 227 Moreover, VRA].” burden to prove that the change would not be discriminatory fell on the the 228 (not the DOJ or private plaintiffs). jurisdiction The Code of F ederal Regulations made clear that 229 this the jurisdiction had to provide racial impact data to the federal government. None of meant is required after Shelby County . this 5 as briefly discussed in 1 , Section of the VRA prohibited retrogressi on. Third, Chapter essentially means going backwards by decreasing access to the polls for Retrogression of voters color. T he measure of whether a change in voting practices was racially discriminatory (or not) 230 in comparison to prior benchmarks. For made example, if a state expanded early voting was then sought to cut it (and if cuts to early voting disparately impacted voters of color), then the 225 and S Ch apter 5, infra Figure 24 ources cited therein. See 226 Shelby Cty. , 570 U.S. at 530 (2013); U.S. Dep’t of Justice , Jurisdictions Previously Covered by Section 5 , - previously https://www.justice.gov/crt/jurisdictions covered - section - 5 ( last accessed June, 7, 2018) [ hereinafter - DOJ Section 5] . 227 52 U.S.C. § 10304(a). 228 Id.; s ee also 28 C.F.R. § 51.10 ; Allen , 393 U.S. at 548 - 49 . 229 28 C.F.R. § 51.27(n) (required contents of submission of voting changes for preclearance review include See “Other information that the Attorney racial impact assessment); 28 C.F.R. § 51.27(r) (required contents also include: General d etermines is requi red for an evaluation of the purpose or effect of the change. Such information may § 51.28 include items listed in and is most likely to be needed with respect to redistrictings, annexations, and other complex changes. In the interest of time such informat ion should be furnished with the initial submission relating to v oting changes of this type. When such information is required, but not provided, the Attorney General shall notify iled demographic data will facilitate the in the manner provided in § 51.37.”); § 51.28 (deta submitting authority review) . 230 Under Section 5, voting changes must be measured against the benchmark practice to determine whether they would lead to a retrogression in the position of racial minorities with respect to their effective e xercise of the “ electoral franchise. ” Beer , 425 U.S. at 141.

53 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 47 231 not be precleared because it was retrogressive. would Or if a state or county cut back on change to number polling places , or changed an election date of a less convenient or accessible date, the 232 could object if there were sufficient evidence the change would be the DOJ retrogressive. included public notice requirements: individuals and groups could Additionally, preclearance the with the DOJ receive weekly notice of submissions of voting changes received by register to 233 DOJ or via federal court. the As part of the preclearance review process, the DOJ also affirmatively reached out to members of the local minority community, to ask for their views on information voting changes, and took into account “relevant provided by individuals the proposed 234 gr oups.” or since the Shelby County decision struck down the preclearance formula, unless But until and Congress updates it based on current conditions, Section 5’s preclearance requirements do not 235 changes Now, voting changes — including anywhere. later proven to be discriminatory — apply may be implemented immediately, the burden of proof is no longer on the jurisdiction but instead on in a lawsuit (either impacted voters with access to counsel or the D OJ ) , no notice or plaintiffs 236 impact is required, and retrogression is no longer clearly prohibited. about data the Pre - Shelby County Was Preclearance Geographic Scope Criteria? What he Shelby County c ourt struck down the preclearance geographic scope criteria of the 2006 VRA T advance halting heightened federal scrutiny in of voting changes in effectively reauthorization, 237 where the criteria applied. jurisdictions The criteria covered more than just states, because the 238 of the VRA apply to any jurisdiction that conducts voter registration . rules These range from 239 states counties, to cities and townships and other subdivisions. The impacted states and to Figure mapped out below in localities 2 . are 231 Id . 232 See, e.g. , U.S. Dep’t of Justice, Section 5 Objection Letters , https://www.justice.gov/crt/section 5 - objection - - letters (last accessed July 26, 2018). 233 28 C.F.R. § 51.33. 234 28 C.F.R. § 51.53; see also 28 C.F.R. §§ 51.2 9 - 51.31, 51.38; s ee also U.S. Comm’n on Civil Rights Briefing Meeting Feb. 2, 2018 (2018) at 41 42 (statement by Bishop Dr. William Barber II, President & Senior Lecturer of - hereinafter ]. Repairers of the Breach) [ Briefing Transcript 235 DOJ Fact Sheet supra note 12. , 236 Id . See also Chapter 4, Examination of the Data , infra Figure 21, and Sources cited therein (documenting cases whe re discrimination was proven under Section 2 with an overall limited ability to block such discriminatory voting changes through preliminary injunctions or judicial preclearance). 237 Id. 238 52 U.S.C. § 10310(c)(2) (“ political subdivision ” shal l mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” ). 239 DOJ viously Covered by Section 5, supra note 226. , Jurisdictions Pre

54 An Assessment of Minority Voting Rights Access 48 preclearance geographic scope criteria identified jurisdictions with a history of discrimination The 240 were whose record gave rise to the need for more extensive federal oversight. voting, These in 241 jurisdictions” or “jurisdictions covered under “covered 5.” As discussed in called Section 1, this approach was originally based Chapter finding jurisdicti ons with very low black voter on registration and turnout, and with racially discrim inatory barriers to the ballot. As conditions 242 the criteria were updated, changed coverage reached more jurisdictions. preclearance and on recent preclearance criteria were based The the 2006 Congressional record documenting most what Congress found to be ongoing discrimination in voting in states and local jurisdictions that had been determined to have used discriminatory “tests and devices” and to have had previously 243 tely low minority voter turnout. nine This criteria covered dispara states and 56 local a jurisdictions history of discrimination in voting. Below is with a map that was issued by the DOJ, showing the jurisdictions that were covered after the 2006 reauthorization , which since Shelby 244 County now termed “formerly covered jurisdictions.” are 240 Katzenbach , 383 U.S. at 331 . 241 . , DOJ Section 5, See, e.g note 226. supra 242 See Chapter 1, Dis c ussion and Sources , supra notes 87 - 95 and 153 - 92 . 243 EP H.R. R EP . N O . 109 - 478 (2006); S. R . N O . 109 - 295 (2006). 244 DOJ Section 5 , supra note 226.

55 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 49 245 Section 5 Formerly Covered Jurisdicti ons 2: Figure formerly covered were subject to Section 5’s preclearance rules unless they These jurisdictions “bail out.” A statutor y bailout was granted by a federal court to jurisdictions could could show that 246 they had not discriminated in voting for over 10 years. that If the se jurisdictions could the make requisite showing, then they were no longer to heightened federal scrutiny via preclearance. subject Between 198 5 and 2013, 40 counties and other sub - jurisdictions such as cities and townships in Alabama, Georgia, New Hampshire, North Carolina , Texas, and Virginia, bailed out California, 247 2 5. A of portion (2 3 out of 4 Section ) of these bailouts were granted from 2010 - substantial 248 2013. After these bailouts and immediately prior to Shelby County , the coverage map looked like this — although is important to note that Alaska also remained covered it (and that to provide the county - 245 Id. 246 52 U.S.C. § 10303(a). 247 U.S. Dep’t of Justice, t ( see “Jurisdictions Currently Bailed Out” subsection), Section 4 of the Voting Rights Ac https://www.justice.gov/crt/section - 4 - voting - rights - act#bailout_list (last accessed July 26, 2018) [ hereinafter DOJ Section 4 Bailed Out Jurisdictions]; Appendix D for summary of New Hampshire State Advisory see also Committee Briefing (discussing bailout). 248 Id.

56 An Assessment of Minority Voting Rights Access 50 researcher’s detail in other states in the map below, the visual map had to cut off Alaska of level 249 Hawaii). and 3: Counties Covered Under Preclearance Figure Morgan Kousser, Counties Covered Under Section 4 J. [the geographic scope criteria] at the : Source 250 of Shelby County Time v. Holder [excluding Alaska which was also covered on a statewide basis]. The Supreme Court’s Reasoning in Shelby County opinion, was a 5 - 4 decision of the Supreme Court. Justice Roberts wrote the Shelby County leading 251 Justices Scalia, Kennedy, Thomas , and Alito which Justice Thomas wrote a concurring joined. 252 and Justice Ginsburg wrote a dissenting opinion, in which opinion, Justices B reyer, Sotomayor , 253 on joined. and Justice Roberts based the majority opinion (1) a finding that there had Kagan 254 “dramatic progress” in voting rights since the 1965 been VRA was enacted, and (2) a conclusion u in the South should not be treated states nequally, based on “the principle of equal that 255 developed in the Court’s recent voting rights jurisprudence. sovereignty” It was mainly b ased 249 Do the Facts of Voting Rights Support Chief Justice Roberts's Opinion in Shelby County? J. Morgan Kousser, RANSATLANTICA 1, Map 2, 6 (2015), http://journals.openedition.org/transatlantica/7462 [ hereinafter Kousser, T Facts of Voting Rights ] . 250 Id. 251 ty. , 570 U.S. 529. Shelby C 252 In his concurrence, Ju stice Thomas joined with the majority but also wrote separately to argue that not only the 570 U.S. at 557 (Thomas, J. precle unconstitutional. Shelby C ty. , was , arance formula, but also Section 5 itself, concurring). 253 Shelby C ty. , 570 U.S. at 559 (Ginsburg, J., dissenti ng). 254 Id . at 556 (quoting Northwest Austin , 557 U.S. at 201 (2009)) (quotation marks omitted). 255 Id .

57 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 51 these two factors that the majority held that the most recent (2006) VRA preclearance criteria on certain tes and counties were unconstitutional , and sta therefore could no longer be covering 256 those jurisdictions. Justice Roberts also stated that “Congress may draft applied a nother in 257 based current conditions.” on formula in Voting Rights Progress majority of the Cou rt discussed that past discrimination in voting leading to the 1965 VRA The “flagrant,” “widespread” and “rampant,” and “pervasive,” that this level of discrimination was the extraordinary measure of requiring states justified local jurisdictions with a hi story of and discrimination in voting to preclear any changes to their voting procedures with the federal 258 C ourt reasoned that it was based upon The those conditions that in the case of government. Carolina v. Katzenbach in 1966 and subsequent cases , the Court held that the original South preclearance and subsequent iterations during VRA reauthorizations were constitutional , criteria 259 were based on “exceptional conditions.” as they Congress reauthorized the But VRA in 2006 for after another 25 years, a Tex as municipal utility district immediately challenged the preclearance criteria and argued that the preclearance requirements unconstitutional. I n its 2009 ruling in Northwest Austin Municipal Util. Dist. were the v. Holder [ hereinafter “ Northwest Austi n ”] , Supreme Court took into account that this No. One had never sought bailout, which would have alleviated the preclearance burden, and jurisdiction 260 to rule on the therefore of the preclearance formula of the VRA. constitutionality declined its opinion on Northwest Austin However, the Court “expressed serious doubts about the in , 261 Rights] Act’s continued constitutionality.” [Voting In to believing that Section 5 addition “imposes substantial federalism costs,” in 2009, the Court justified its decision by com menting that have changed in the South. Voter turnout and registration rates now approach parity. “[t]hings office evasions of federal Blatantly decrees are rare. And minority candidates hold discriminatory 262 unprecedented levels.” at 256 Id .; Justice Ginsburg vehemently disagreed, arguing that any improvements in decreasing discrimination i n voting were due to preclearance, and wrote in her dissent that: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” She lby C ty. , 570 U.S. at 590 (Ginsburg, J., dissenting). 257 at 557. Id. 258 . at 554. Id 259 Id. at 545 (discussing Katzenbach , 383 U.S. 334). In Katzenbach , the Court relied in part on data that the at USCCR gener ated regarding discrimination in voting in the South. 383 U.S. at 309 n.5, 311 n.10, 323 n.33, 337 n.51. 260 Id. at 539 - 40 (discussing Northwest Austin , 557 U.S. 193). 261 Id. at 529 . 262 Id. a t 540 (quoting Northwest Austin , 557 U.S. at 202); see also Kousser, Facts of Voting Rights , supra note 249 , arguing that: Devot ing only two short sentences to the painstaking 84 - page opinion of federal district court judge John Bates and only seven more to the thorough 32 - page majority opinion of the Court of Appeals for the District of Columbia by Judge David S. Tatel, Chief Just ice Roberts dismissed the 15,000 -

58 An Assessment of Minority Voting Rights Access 52 contrast to the Nor thwest Austin utility district , Shelby County , Alabama could not seek bailout In of the General had recently objected to some Attorney its voting changes as racially because Because Shelby County could not prove that it had discriminatory. not discriminated i n voting in 263 10 years, the Supreme Court found that last it had standing to challenge the constitutionality the the preclearance provisions of the of VRA. With standing established to challenge the VRA, the majority opinion then reviewed the type of past d iscrimination leading to the 1965 VRA. In prior majority noted that to 1965: particular, the States had enacted a variety of requirements and tests “specifically Several African prevent” designed - Americans from voting. Case - by - case litigation had to proved to prevent such racial discrimination inadequate in voting, in part because States “merely switched to discriminatory devices not covered by the federal decrees,” difficult new tests,” or simply “defied and evaded court orders.” “enacted Act, en actment of the Voting Rights only 19.4 percent of African - Shortly before of voting age were registered to vote in Alabama, only 31.8 Americans percent in Louisiana, and only 6.4 percent in Mississippi. Those figures were roughly 50 264 points or more below e figures for whites. percentage th The majority also noted that in 1965, “Congress chose to limit its attention to the geographic areas 265 where action seemed necessary.” Furthermore, those areas were places where immediate page record compiled by Congress, which the lower courts discussed e xtensively, as irrelevant because “Congress did not use the record it compiled to shape a coverage formula grounded in rts reminded us, “did not end in 1965. By the time the Act was current conditions.” “History,” Robe reauthorized in 2006, there had been 40 more years of it.” Yet apart from comparing voter registration rates in 1965 and 2004 in six Deep South states and making a brief, misleading reference o the rate of DOJ objections to election law changes, the Chief Justice ignored that history. t What if we delve into the history that Chief Justice Roberts disregarded? What if we look at where proven violations of the VRA and related laws and constitutional provisions actually took place and How do the g at the course of those violations over time? eographical and temporal patterns from the years shortly before the passage of the Act in 1965 through the years after its latest renewal in 2006 d reflect on the adequacy of the Section 4 coverage formula that the Chief Justice summarily rejecte on decades - old data and eradicated practices?” What can we learn about how voting rights as “based law has actually worked by arraying the patterns of legal actions involving minority voting rights in maps and charts? Although Chief Justice Roberts’s opi nion rested entirely on his assertions that voting rights violations had severely declined and that they were no longer concentrated in jurisdictions covered under Section 4 of the VRA, he only briefly and superficially examined the Chief Justice Warren before him considered key to “the “historical experience” that he and Constitutional propriety of the Voting Rights Act.” When we examine that experience in detail, will we reach the same conclusions that Chief Justice Roberts announced in Shelby County ? (int ernal c Id. itations omitted). 263 Id . - 40. at 539 264 Id . at 545 - 46 (quoting Katzenbach , 383 U.S. at 310 - 14 (internal pinpoint citations omitted) ) . 265 Id . at 546 (quoting Katzenbach , 383 U.S. at 328).

59 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 53 voting “tests and devices” for voter registration were used, and where in the 1964 discriminatory 266 below was at least 12 points turnout the national average. Election, Presidential 267 opinion also considered that “tests and devices” The made ill egal 40 years ago. majority were the 2006 reauthorization, Congress said in “[s]ignificant progress has been made Furthermore, that eliminating first - generation barriers experienced by minority voters, in including increased numbers of registered minority voters, minor ity voter turnout, and minority representation in 268 The legislatures, and local elected offices.” opinion then included the following Congress, State emphasizing that it features voter registration data by race that were chart, compiled before 269 reau thorized the preclearance formula in 2006: Congress 270 Registration Rate by Race, Table 2: , 2004 1965 Voter 1965 2004 White Black White Black Gap Gap % 69.2 % 19.3 % 49.9 % 73.8 % 72.9 % 0.9 Alabama % 62.[6] 27.4 % 35.2 % 63.5 64.2 % - 0.7 % % Georgia 80.5 % 31.6 % 48.9 % 75.1 % 71.1 % 4.0 % Louisiana % % 6.7 % 63.2 % 72.3 69.9 76.1 % - 3.8 % Mississippi South % 75.7 % 37.3 % 38.4 % 74.4 % 71.1 % 3.3 Carolina % 61.1 38.3 % 22.8 % 68.2 % 57.4 % 10.8 % Virginia majority noted The in the covered jurisdictions, “largely because of the Voting Rights Act, that voting tests were abolished, disparities in voter registration and turnout due to race were erased, 271 Commission - Americans attained political office in record numbers.” and However, the African 266 Id. 267 Id . at 547. 268 Id . (citing Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 , P ub. L . No. 109 - 246 , 120 Stat. 577, § 2(b)(1)). During the reauthorization, Congress contrasted “first - nt progress” in generation barriers to ballot access,” which the VRA had made “significa “eliminating,” with “second generation barriers constructed to prevent minority voters from fully participating in the (citing §§ 2(b)(2) . at 565 - electoral process” which continued to exist. Id - (3)). 66 269 Id. at 548 (citing S. Rep. No . 109 - 295, at 11 (2006); H.R. Rep. No. 109 - 478, at 12 , and noting that: “The 2004 figures come from the Census Bureau. Census Bureau data from the most recent election indicate that African - American voter turnout exceeded white voter turnout in five of the six States originally covered by § 5 , with a gap in the sixth State of less than one half of one percent.”) . 270 Id. 271 Id . at 553.

60 An Assessment of Minority Voting Rights Access 54 that t he Court did not take into account turn out data among Asian, Latino , and Native notes 273 272 also protected under the VRA, including Section 5. Americans, who are take into account that during the majority 2006 reauthorization, Congress relied heavily The did “second - generation barriers” regarding “vo te dilution” as on to vote denial (or barriers to opposed 274 Chief Justice Roberts described these second - generation barriers that Congress ballot access). various on in the 2006 reauthorization — which were forms of racial gerrymandering and relied distri ct lines to dilute the political power moving minority voters — as “not impediments to the of 275 of ballots but rather electoral arrangements that affect the weight of minority votes.” casting The record stated that “Congress did not use the it compiled to shape a coverage Court’s opinion grounded in current conditions. It instead reenacted a formula based on 40 - year - old facts formula 276 logical relation having to the present day.” no 277 1, e could refer back to the 1975 VRA Reauthorization. This As discussed in Chapter phras in renewing the preclearance formula during the VRA Reauthorization, Congress took into 1975 account updated black voter registration and turnout numbers, while also adding rev iew of low 278 turnout other voters of color. In contrast, the 1982 and 2006 VRA Reauthorizations were among based upon turnout. Instead, the later reauthorizations took into account ongoing Section 5 not - the formerly covered jurisdictions, an o ver concentration of Section 2 violations in violations in and the fact that these jurisdictions were inventing them, ways to discriminate against minority new 279 The majority opinion did not review this newer type of data underlying the differential voters. which states in the 2006 VRA Reauthorization, of showed a higher rate of discrimination treatment 280 the previously covered jurisdictions. that However, the Court’s holding certainly shows in it 281 found geographic scope criteria resulting from the data to be unconstitu tional. Chief Justice the that: “Regardless of how to look at Roberts [2006] record, however, no one can fairly wrote the 272 infra .; Cf. Ch apter 4, Disaggregation of Racial Disparities , and sources cited therein Id notes 1262 - 72 at (discussing bl ack voter turnout and showing large turnout gaps and under 50 percent participation rates in recent years among these groups) . 273 the voting change in a covered jurisdiction For example, Section 5 determinations are evaluated based on whether neither has the purpose nor will have the e “ ffect of denying or abridging the right to vote on account of race or color, section 10303(f)(2) of this title or in contravention of the guarantees set forth in [protecting ‘language minority groups’].” 52 U.S.C. § 10304(a). This language has been used to object to voting changes on the basis that they Native Americans . See, e.g ., 52 USC § 10310(c)(3) (“ The term discriminated against Asian, black, Latino and “language minorities” or “language minority group” means persons who are American Indian, Asian American, Alaskan Natives or of Spanish h eritage.”). 274 570 U.S. at 554 (“Viewing the preclearance requirements as targeting such efforts simply highlights Shelby Cty., o the the irrationality of continued reliance on the § 4 coverage formula, which is based on voting tests and access t ballot, not vote dilution.”). 275 Id. 276 Id. at 554 . 277 i d . at 538. See 278 67, Chapter 1, Discussion and Sources cited in notes 162 - See supra . 279 See Chapter 1, Discussion and Sources cited in notes 172 and 202 , supra . 280 See Shelby Cty. , 570 U.S. at 554. 281 Id .

61 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 55 that it shows anything approaching the ‘ pervasive, ’ ‘ flagrant, ’ ‘ widespread, ’ and ‘ rampant ’ say clearly that Congress in 196 5, and that faced distinguished the covered jurisdictions discrimination 282 rest of the Nation at that time.” from Moreover as discussed below, the Court also held that the criteria to be constitutional, current conditions would have to show compelling preclearance for easons to treat states differently. r Principle of Equal Sovereignty The principle of equal sovereignty among the states originated in The the context of evaluating whether 283 admit new states, and became a states’ rights theory during the Reconstruction Era . to In in constitutionality of the Voting Rights Act 1966, the Supreme Court concluded upholding the 284 the principle of equal sovereignty did not apply in the voting rights context. that While relying on pre - 1966 cases, equal sovereignty was resurrected by t he Supreme Court’s 2009 decision in 285 286 , Northwest and became a pillar of the Shelby County decision. Austin The principle of equal sovereignty simply means that states, as entities, should not be discriminated against all states should be treated equally. It does not mean that states could never be treated and 287 upon their records. In its modern application, in the Northwest Austin and differently, based County cases, the Supreme Court has held that this principle means that states in the South Shelby and jurisdictions covered by the preclearance provisions of the VRA should not be treated other 288 history. other states based only on their than differently This iteration of the states’ rights principle represents the majority’s criticism that the VRA preclearance criteria fell too harshly 282 Id . 283 Id. 544. at 284 at 545 s ee also id. at 544 (“Not only do States retain sovereignty under the Constitution, there is also a Id. ; equal sovereignty’ among the States. Northwest Austin , supra , at 203 (citing United St ates ‘fundamental principle of v. Louisiana , 363 U.S. 1, 16 (1960); Lessee of Pollard v. Hagan , 3 How. 212, 223 (1845) ) ; see also Texas v. White , - ( emphasis added). Over a hundred years ago, this Court explained that our Nation 7 Wall. 700, 725 726 (1869); tates, equal in power, dignity and authority.’ Coyle v. Smith , 221 U.S. 559, 567 (1911). ‘was and is a union of S Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which cerned the admission of new States, and [ the Republic was organized.’ Coyle co n Id Morgan v .] Katzenbach . at 580. [deciding the constitutionality of the 1965 VRA in 1966] rejected the notion that the principle operated as a bar on differential treatment outside that context. 383 U. S. at 328 - 2 9. At the sam e time, as we made clear in Northwest Austin , the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate . treatment of States. 557 U. S. at 203.”) 285 557 U.S. at 203. 286 Shelby C ty. 570 U.S. at 544. , 287 See, e.g ., id. at 557 (the majority of the Roberts Court held that Congress may draft a new VRA preclearance formula based on current conditions, which presumably means that the formula would not apply the same way in every state, as it would have to be based on a ctual a nd current conditions that vary from state to state); s ee also Northwest Austin, at 203 (requiring “disparate geographic coverage” to be “sufficiently related” to its 557 U.S. targeted problem). 288 The Shelb y County c ourt explained that the “fundamental principle of equal sovereignty” among states was first re - established in the Court’s decision in Northwest Austin in 2009, and it considered the principle to be “highly 570 U.S. at 544 (citing pertinent” in evaluating disparate treatm ates. Shelby C ty. , ent of St Northwest Austin , 557 U.S. at 203).

62 An Assessment of Minority Voting Rights Access 56 up modern South. For example, in applying the principle of equal sovereignty in Shelby the on writing stice for the majority, Chief Ju Roberts considered that: County , States 1965, be divided into two groups: the those with a recent history of In could tests and low voter registration and turnout, and voting without those those based its coverage formula on that di stinction. Today the characteristics. Congress is no longer divided along those lines, yet the Voting Rights Act continues Nation 289 treat it as if it were. to with analyzing whether the jurisdictions were treated equal respect for their sovereignty In covered comparison to other places in the country, Chief Justice Roberts also reasoned that Congress in did change the VRA’s prior coverage formula during their 2006 reauthorization (as discussed not identifying prior coverage criteria was a formula , jurisdictions based on pas t above the “tests or devices” and low minority turnout). The majority held that while the old discriminatory formula was justified in 1965, current conditions had improved in the covered coverage defending the VRA in 2013 , the federal government h ad argued before the Court In jurisdictions. there was ongoing discrimination in the jurisdictions that were originally covered by the that 290 formula in 1965, 1970 , and 1975 , - and based that jurisdictions could also bail out if they turnout 291 prove that they had not discr iminated in voting in 10 years. could But writing for the majority, Justice reasoned that “history did not end in 1965. By the time the [Voting Rights] Act Roberts 292 in 2006, there had been 40 more years of it.” reauthorized In sum, along with quantitative was 293 turnout 1965 and 2004 black registration and comparing numbers, based on the qualitative ata d 294 that conditions had “dramatically improved” in the South, assessment the Court held that the 295 criteria used in the 2006 VRA Reauthorization were unco nstitutional. preclearance The Precise Holding immediate and ongoing implications of the Shelby County decision are discussed in The subsequent of this report. But it is important sections to note that the majority opinion also acknowledged ongoing discrimination, an d that the Chief Justice clearly stated that Congress may draft set of preclearance criteria based on current conditions. The precise language of the another the holding bears repeating Supreme as a guidepost to the role of Court’s federal government in pr minority voting otecting going forward: rights Our decision in no way affects the permanent, nationwide ban on racial discrimination voting found in § 2. We issue no in holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current 289 . at 551. Id 290 describing turnout formula). 52 U.S.C. §10303(a)(1) ( 291 Shelby C ty. , 570 U.S. at 539. 292 Id . at 552. 293 Id . at 549. 294 Id . at 550. 295 Id . at 556.

63 Shelby County v. Holder Decision Chapter 2: The Supreme Court’s 57 296 a formula i s an initial prerequisite to a determination that Such conditions. an exist justifying such conditions “extraordinary departure from exceptional still traditional of relations between the States course and the Federal Government.” the v. Etowah Cty. Comm’n Presley 502 U.S . 491, 500 - 501 (1992). Our country has , while any racial discrimination in voting is too much, Congress must changed, and that that the legislation it passes to remedy problem speaks to current ensure 297 conditions. text provides an opportunity to evalua te current conditions upon which Congress may This constitutionally another preclearance formula. The Shelby County holding makes clear that base such an updated preclearance criteria to be constitutional, it should not treat states unequally for ongoing on past conditions of discrimination that are not in the present. This opinion also based examination of whether the remaining provisions of the VRA are sufficient to protect our justifies discrimination its citizens from in voting. and nation Res ponses to the Shelby County Decision Congressional the Shelby County decision directing that to Congress “must ensure that the legislation Subsequent 298 passes to remedy that problem [of discrimination in voting] speaks to current conditions,” it 299 despite condition s evidencing ongoing discrimination in voting, Congress has not passed current VRA to address new preclearance criteria. In contrast, Congress had previously legislation and the VRA on f ive separate occasions each reauthorization received overwhelmin g reauthorized 300 support. The post - Shelby County VRA bills bipartisan that have been introduced but not voted . discussed in Appendix B upon are e Shelby County on Federal VRA Enforcement Th Impact of most immediate and profound impact The the Shelby County decision is that formerly covered of jurisdictions are no longer required to obtain preclearance for voting changes before they can be implemented. the decision, the DOJ issued a Fact Sheet on Justice Department’s After Enforcement Following Shelby C ounty Decision (“DOJ Efforts Fact Sheet”), describing its view 301 the impacts. formula, It stated that, “In the areas covered by the Section 4(b) [preclearance] of 296 Shelby County decision. He stated Chief Justice Roberts even commented on Congressional inaction prior to the that in striking down an Act of Congress [the 2006 VRA Reauthorization Act]: We do not do so lightly. That is why, in 2009, we took care to avoi d ruling on the constitutionality of the Voting Right s Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of . Congr ess could have updated the coverage formula at that t the Act . 570 U.S. at ime, but did not do so 556 7 (emphasis added). - 297 . at 557. Id 298 Id . 299 Chapters 3 - 4 and Sources cit See d therein, infra . e 300 Berman, Give Us The Ballot , supra not e 79 , at 137, 140. 301 DOJ Fact Sheet , note 12. supra

64 An Assessment of Minority Voting Rights Access 58 department used to be able to block discriminatory changes to election rules and practices the they effect... One of the impacts of Shelby took County is that now, those discriminatory before 302 department into and remain in effect while the pursues litigation.” can In Chapter 5 go changes this report, the Commission will evaluate the Department’s pre - and of - Shelby County federal post enforcement efforts. voting rights DOJ’s DOJ Fact Sheet and other public statements set forth view that it can no longer send The observers federal by the Office of Personnel Management (OPM) who may enter the trained polling pl ace to observe elections in formerly covered jurisdictions, because their certification by 303 coverage General is based in part on the formula in Section 4(b). The Commission the Attorney that DOJ may still send federal observers if so ordered by a fed eral notes court. Also, DOJ may still send its own personnel to monitor elections, but unlike observers, they have statutory right no 304 enter the polls and the voting process. to watch Another impact of Shelby County is in the area of language access. Section 4(f )(4) of the VRA requires jurisdictions to provide election - related materials and information in languages specific the English ; these are jurisdictions in which Attorney General determined that an illegal other than test or device was in place in 19 68 and that participation was less than 50 percent of citizens voting 305 age at that time. voting The DOJ Fact Sheet states that Section 4(f)(4) jurisdictions are of 306 “dependent part of the Section 4(b) formula,” but on does not provide any citation to the statut e a 307 that analysis. Therefore, for DOJ believes that jurisdictions formerly covered under Section 302 Id . 303 see also see also 52 U.S. C. § 10305 (a)(2); .; U.S. Dep’t of Justice, Attorney General Loretta E. Lynch Id Delivers Remarks at the League of United Latin American Citizens National Convention (July 15, 2014), - general - loretta - e - lynch - delivers - remarks - league - united - latin - american https://www.justice.gov/opa/speech/attorney - citiz . (“Unfortunat ely, our use of observers is la rgely tied to the preclearance coverage formula that the Supreme ens Court found to be unconstitutional in Shelby County and so our ability to deploy them has been severely curtailed.”) . 304 Cf . 52 U.S.C. § 10305 (d) (“ Observers shall be authorized to (1) enter a nd attend at any place for holding an — election in such subdivision for the purpose of observing whether persons who are entitled to vote are being votes cast at any election held in such permitted to vote; and (2) enter and attend at any place for tabulating the subdivision for the purpose of observing whether votes cast by pers ons entitled to vote are being properly tabulated.”) (emphasis added); see also Justin Levitt, Loyola L. Sch., Written Testimony for the U.S. Comm’n on s Testimony at 15 - 16 [ hereinafter Levitt, Written Civil Right ] (noting that in 2016 DOJ had sent more , Feb. 2, 2018 than 500 observers to observe elections in 67 jurisdictions in 28 states). 305 52 U.S.C. § 10303(f)(4) (“ political subdivision subject to the prohibitions of the second Whenever any State or sentence of subsection (a) provides any registration or voting notices, forms, instruc tions, assistance, or other materials or information relating to the electoral process, including ballots, it shall provide them in the language of the applicable language minority group as well as in the English language: Provided , That where the language of the applicable minori ty group is oral or unwritten or in the case of Alaskan Natives and American Indians, if the predominate language is historically unwritten, the State or political subdivision is only required to furnish oral instructions, assistance, or other inf ormation relating to registration and voting.”) (emphasis added); 52 U.S.C. § 10303(b). 306 DOJ Fact Sheet , supra note 12. 307 Id .

65 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 59 no longer have to provide language access (unless they are also covered under other 4(f)(4) language provisions of the VRA). minority jurisdictions the very process of required that provide data about the racial Finally, preclearance of any proposed voting changes, and that the DOJ contact minority impact members community 308 the jurisdiction to investigate the impact on their communities. in Absent preclearance, D OJ is required to contact minority community members no regarding their views , and affected longer jurisdictions no longer required to provide to DOJ are data regarding the racial impact of proposed voting changes. Summary the Impact of V nto effect immediately, unless litigation is quickly brought and 1. oting changes go i secures a preliminary injunction under the remaining provisions of the successfully VRA, the Constitution, or another state or federal law; rly covered jurisdictions (unless DOJ is no longer sending federal observers to forme 2. they are separately ordered by a court); 3. DOJ no longer believes that previously covered jurisdictions have to provide language access under Section 4(f)(4); Neither the DOJ nor voters have the right to receive notice of ch anges in voting 4. procedures, shifting the burden of monitoring election changes to voting rights groups, and imposing a large burden on communities, who must now stretch limited resources 309 to track changes themselves in the absence of government transparency ; Section 5’s rule against retrogression, or determining the impact of voting changes on 5. minority voters as compared to a prior benchmark, is no longer in operation; 6. Formerly covered jurisdictions no longer have to provide the DOJ or the public n or notice about the racial impact of their voting changes; and informatio 308 51.27(n) (Required contents) (“a statement of the anticipated effect of the change on members of 28 C.F.R. § 51.38 (Processing of e minority groups.”); 28 C.F.R. § [Section 5] Submissions, Obtaining racial or languag Information From Others). 309 See, e.g ., Democracy North Carolina, Election B oard Monitoring https://democracync.org/take - action/board - of - , elections monitoring (last accessed - see also Go Vote Georgia, Election Board Monitoring , June 6, 2018); https://www.govotega.org/current - issues/election - board - monitoring (last accessed June 6, 2018); see also Common Cause Georgia, Help Wanted: Sign Up to Monitor Local Board of Elections for Voter Suppr ession, to - - engagement/2017/9/10/help - wanted - sign - up https://159georgiatogether.org/159 civic - monitor - local - board - of - - elections - for - voter - suppression ( last accessed June 6, 2018) ; see also Patin , The Voting Rights Act at 50 , supra note 206 see also Tomas Lopez, Executive Director, Democracy North Carolina, Written Testimony for the U.S. ; Comm’n on Civil Rights, Feb. 2, 2018 [ hereinafter Lopez, Written Testimony ] (Lopez states that since 2013, Democracy North Carolin - level boards of elections a has: established a program monitoring the activities of county (CBOEs), which determine critical ballot access policies; established a poll monitoring program to document the impact of changes to state voting rules in H.R. 589 o n voters and the voting experience; engaged in substantial public education efforts to inform the general public about changes in state and local voting rules, including those relating to H.R. 589 and related litigation; and participated as plaintiffs in l itigation to remedy voting rights violations).

66 An Assessment of Minority Voting Rights Access 60 DOJ no longer regularly reaches out to members of impacted communities to hear their 7. 310 point of view about the impact of proposed voting changes. - Impact on Minority Voting Rights Shelby County Immediate Post hours after the Supreme Court issued its Within decision in the Shelby County case, the Texas two Attorney General tweeted that the state would immediately reinstitute its strict state ID photo 311 which had previously b een struck down by a federal court under the VRA’s prior law, County The day after the Shelby procedures. decision, the North Carolina General earance precl amended a pending bill to make its voter ID law stricter, and added Assembly other provisions 312 or restricting opportunities to vote that had been beneficial to minority voters. eliminating states ederal later found these actions in both courts to be intentionally racially discriminatory , F 313 years of litigation . before But in the intervening years after the lit igation process led to their 314 struck down, the discriminatory provisions went into effect in elections. being post - Shelby In County era, new state restrictions on the voting have resulted in at least 10 final 315 of Section 2 violations by federal courts, and there are findings other indicia of ongoing 316 discrimination voting in the formerly covered jurisdictions and in other states. Whether and in dis conditions across the nation evidence racial crimination in voting is examined in how current in the following sections and chapters of this report. depth Shelby County Decision North Carolina and Texas, Before and After the this section, the Commission analyzes the status of voting rights challenges in Nor th Carolina In and Texas, where some of the most intense litigation over VRA issues in this era occurred. The Commission’s report examines conditions from the 2006 VRA Reauthorization to the present, including and after the June 25, 2013 Shelby County decision. Cases in these two states before show several fact patterns: changes that were not cleared by the federal government previously were immediately implemented; the changes remained in effect through several elections despite 310 51.33 - 5 1.50 (DOJ Processing of [Section 5] Submissions, covering notice, release of information to 28 C.F.R. §§ public, consideration, obtaining information from submitting authority, supplemental informatio n and related ) . submissions, judicial review and record of decisions 311 Abbott (@GregAbbott_TX), Twitter (Jun. 25, 2013 9:19 AM), Greg 32390336643075 https://twitter.com/GregAbbott_TX/status/3495 accessed May 1, 2018). (last 312 See The Post - Shelby County Voter Information Verification Act (VIVA/HB 589), at notes 336 - 42, infra . 313 Findings of Discriminatory Intent , at notes 354 - 69, infra . See 314 See One of Several Preliminary Injunctions Nullified by the Supreme Court Just Prior to the 2014 Election, at note 347 - 53 , infra (noting that in major VRA cases including in North Carolina and Texas, limited preliminary injunctions were stayed by the Supreme Court, just prior to the November 2014 election). 315 Chapter 4 of this report documents these cases. 316 Chapter 3 of this report documents various typ es of voting changes in this era, and their impact on minority voters.

67 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 61 eventual findings that the changes were racially discriminatory; and judicial preclearance courts’ not was in the wake of findings of r acially discriminatory changes. ordered 317 2006, there North were ongoing VRA violations up until Carolina, and prior to Shelby County . In immediately after the Shelby County decision, mi nority voters were Moreover, to subjected utbacks in same - day registration, early voting, and out - of - precinct voting, along with a strict voter c 318 all of which were found by a federal , court of appeals to be intentionally discriminatory . ID law Texas, there was a In high number of ongoing VRA violations continuing into the post - 2006 VRA 319 pre - Shelby County era. Reauthorization, But the impact of Shelby County was felt soon after the Texas’ strict voter ID law that had been struck down under preclearance was decision, when 320 put back into place. voter An amended, less strict immediately ID law was recently adopted in 321 but Texas; despite intense litigation under Section 2, three years had passed with the state’s iginal or s trict voter ID law in place , which , federal courts have found was enacted with intentional 322 against black and Latino voters . discrimination impact of the loss of preclearance is also evident through intervening elections in both states. The bot North Carolina and Texas, multiple elections h were held, during which practices were In that federal courts determined to have been intentionally racially discriminatory applied in and 323 of longstanding constitutional and federal law. violation ven when int entional discrimination has been proven, it has been challenging E for minority voters j to the protections of judicial preclearance. The receive udicial preclearance prov ision of the VRA 324 one of the statute’s remaining pro visions, and some advocates argue that it is will suffice in the place the former federal administrative preclearance provisions that were struck down by the of 317 See N . Carolina State Conference of NAACP v. McCrory , 831 F.3d 204, 224 - 2 5 ( 4 th Cir. 2016) (several Section - that North 5 objections since 2000, with 55 successful Section 2 cases from 1980 2013). The Fourth Circuit held Carolina “state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day.” 318 Id. at 215 - 18 . 319 Ch apter 5, Evaluation of the DOJ ’s Enforcement Efforts Since the 2006 VRA Reauthorization and the 2013 See , Shelby County , Table 13 infra Decision and Sou rces cited therein. 320 See Discussion and Sources cited in section on Texas, notes 405 - 20, infra. 321 https://legiscan.com/TX/text/SB5/id/1625211/Texas - 2017 - SB5 - S.B. 5, 85th Leg., Reg. Sess. (Tex. 2017), accessed July 26, 2018) [ hereinafter Texas Senate Bill 5] . Enrolled.html (last 322 racially discriminatory , 830 F.3d at 241 (finding sufficient evidence of intent for remand to the district Veasey court ). 323 See Discussion and Sources cited in notes 3 47 - 53 and 530 (intervening elections in North Carolina) , and 443 - 44 and the nonprofit sector r and 531 infra . Litigators from the DOJ (intervening elections in Texas), epresenting minority voters tried to get preliminary injunctions to stop discriminatory procedures from being implemented in elections. But as documented below , they were only partially successful, and the Supreme Court overturne d them. See Discussi on and Sources cited in note s 347 - 51 . The Commission notes that the communities most impacted are minority voters, as federal courts’ findings of Section 2 violations in both states show that members of these groups “less opportunit y than other members of t he electorate to participate in the political process and to elect had representatives of their choice. ” 52 U.S.C. § 10301(b). 324 Shelby C ty. , 570 U.S. at 557.

68 An Assessment of Minority Voting Rights Access 62 325 decision. County Judicial preclearance enable s a court to order that any changes in voting Shelby have to be precleared by the court before they could be implemented, in jurisdictions procedures 326 of has been a federal judicial finding ongoing, intentional discrimination. there It’s where 327 is discretionary. T he DOJ was apt at winning judicial precleara nce application such decrees in 328 a dozen prior cases. about However, in the post - Shelby County era, Section 3 remedies have 325 Hans A. von Spakovsky, Legal Fellow, Heritage Manager, Election Law Reform Initiative and Senior Written Testimony for the U.S. Commission on Civil Rights, Feb. 2, 2018 Foundation, at 8 - 9 [ hereinafter von Spakovsky, Written Testimony]. 326 ; see also Jeffers v. Clinton , 740 F. Supp. 585 c) (E.D. Ark. 1990) , appeal dismissed 111 S. Ct. 52 U.S.C. § 10302( , on subsequent appeal 992 F.2d 826 , on remand 835 F. 1096 (upon finding violation of voting Supp. 1101 guarantee 14th and 15th Amendments (which require proof of intent), court has discretion in determining s of ial preclearance remedy)). whether to order a judic 327 The statutory language includes the term “shall,” but it is limited to equitable relief, which is a subjective test. 52 U.S.C. § 10302( or an aggrieved person und er any c) (“If in any proceeding instituted by the Attorney General th th in any State or political subdivision the court or 15 statute to enforce the voting guarantees of the amendment 14 th th finds that violations of the or 15 14 amendment justifying equitable relief have occurred within the territory of or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such State appropriate and during such period no voting qualification or prerequis ite to voting or such period as it may deem re with respect to voting different from that in force or effect at the time the proceeding standard, practice, or procedu was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, ctice, or procedure does not have the purpose a nd will not have the effect of denying or abridging the right to pra vote on account of race or color[.]”) (emphasis added) . 328 , Brief for Respondent, Shelby C ty. v. Holder , 2013 WL 315242 (U.S.) , Jurisdiction See, e.g. s That Have Been rt to Comply With Preclearance Requirement Pursuant to Bail in Mechanism in Section Ordered by a District Cou - 3(c) of the Voting Rights Act: - United States v. Thurston Cty., (1) C.A. No. 78 Thurston County, Nebraska, 0 - 380 (D. Neb. May 9, 1979); see see McMillan v. Escambia Cty., (2) Escambia County, Florida, - 0432 (N.D. Fla. Dec. 3, 1979) (559 F. C.A. No. 77 Supp. 720 (N.D. Fla. 1983); Alexander County, Illinois, see Woodring v. Clarke, C.A. No. 80 - 4569 (S.D. Ill. Oct. 31, 1983); (3) 589 F. Supp. 953 (N.D. Fla. istrict, Florida, N. A.A.C.P. v. Gadsden City Sch. Bd., Gadsden County School D (4) see ; 1984) State of New Mexico, (5) Sanchez v. Anaya, C.A. No. 82 - 0067M (D.N.M. Dec. 17, 1984); see (6) see United States v. McKinley Cnty., No. McKinley County, New Mexico, - 0029 - C (D.N.M. Jan . 13, 1986); 86 (7) Sandoval County, New Mexico, see United States v. Sandoval Cty., C.A. No. 88 - 1457 - SC (D.N.M. May 17, 1990); No. CIV City of Chattanooga, Tennessee, Brown v. B d. of Comm ’ rs of City of Chattanooga, - 1 - 87 - 388 (E. D. (8) see Tenn. Jan. 18, 1990); 1, Montezuma Cortez School District RE01, Colorado, see Cuthair v. Montezuma - Cortez Sch. Dist. No. RE - - No. (9) 89 - C - 964 (D. Col. Apr. 8, 1990); (10) State of Ark ansas , see Jeffers v. Clinton , 740 F. Supp. 585 (E.D. Ark. 1990) , appe al di smissed , 498 U.S. 1129 (1991) ; CV 88 Los Angeles County, California, Garza v. Los Angeles Cty., (11) see - 5143 KN (Ex) and CV 88 - C.A. Nos. 5435 KN (Ex) (C.D. Cal. Apr. 26, 1991); (12) Cibola County, New Mexico, see United States v. Cibola Cty., C.A. No. 93 - 11 34 - LH/LFG (D. N.M. Apr. 21, 1994); (13) Socorro County, New Mexico, see United States v. Socorro Cty., C.A. No. 93 - 1244 - JP (D.N.M. Apr. 11, 1994); C.A. No. C 95 (14) see United States v. Alameda Cty., Alameda County, California, - 1266 (SAW) (N.D. Cal. Jan. 2 2, 1996);

69 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 63 329 through federal court opinions in only two known cases. granted Similarly, Section 3(a) been to courts order that federal observers be deployed to monitor elections, either under an permits order or through a final judgment, if intentional discrimination has been found and interlocutory 330 court considers this relief necessary. Considering that the DOJ is no longer sending federal the 331 formerly covered jurisdictions, to these provisions could be useful in the post - Shelby observers era. County as this section documents, to date, judicial preclearance was not ordered in what However, be may the most harmful instance of intentional discrimination in the post - Shelby County era, in which 332 were targeted “with almost surgical precision.” Future litigation may show that minority voters preclearance will be more available in the post - Shelby County era, but as shown below, in judicial and Texas, this alternative North method of preclearance has been elusive. Carolina Carolina North 333 Commission held its national voting rights briefing in North Carolina , The where significant legislation, litigat ion, and statewide discussion of voting rights issues have arisen. The following section documents the effects of the Voter Information Verification Act (HB 589) , which the state 334 legislature immediately after the Shelby County decision. This secti on also documents enacted Shelby County history of discrimination in voting in North Carolina, and - a federal court of the pre regarding its holding ongoing impact. appeals he Post - Shelby County Voter Information Verification Act (VIVA / HB 589) T two months of the Shelby County decision, North Carolina enacted the Voter Information Within 335 336 (VIVA or HB Verification 589 ). This bill put in place Act a strict photo ID law and cut back ( 15 ) Bernalillo County, New Mexico, see United States v. Bernalillo Cty., C.A. No. 93 - 156 - BB/LCS (D.N.M. Apr. 22, 1998); 16 ) Buffalo County, South Dakota, see Kirke v. Buffalo Cty., C.A. No. 03 - CV - 3011 (D.S.D. Feb. 10, 2004); ( C.A. No. 05 ) Charles Mix Coun ty, South Dakota, see Blackmoon v. Charles Mix Cty., 17 - CV - 4017 (D.S.D. Dec. 4, ( 2007); and 18 ) Village of Port Chester, New York, ( United States v. Village of Port Chester, C.A. No. 06 - CV - 15173 see (S.D.N.Y. Dec. 22, 2006). 329 Allen v. City of Evergreen , 2014 WL 12607819, No. 13 - 0107 (S.D. Ala. 2014); Patino v. City of Pasadena , See 230 F. 3d 667 (S.D. Tex. 2017). Supp. 330 52 U.S.C. § 10302(a) . 331 See Discussion and Sources cited in The Impact of Shelby County on Federal VRA Enforcement , sup ra notes 309 - (regarding DOJ Fact Sheet with decision to no longer send observers to formerly covered jurisdictions). 10 332 , 831 F.3d. at 214. McCrory 333 Press Release, U.S. C OMM ’ N ON C R IGHTS , V OTING R IGHTS , supra note 4. IVIL 334 , supra note 206. neral Assembly of North Carolina, H.R. 589 Ge 335 Id. 336 Strict photo ID laws are defined as those requiring a state - issued photo identification with current name and address in order to vote (rather than voter registration cards or more ypes of IDs accessible forms of ID). These t require underlying documentary proof of citizenship such as birth certificates or naturalization papers. See Discussion and Sources cited in Ch apter 2, Section 1 at notes 464 - 65 , infra .

70 An Assessment of Minority Voting Rights Access 64 337 and voting procedures. or The North Caroli na State Conference of the eliminated registration ( the Advancement of Colored People for NC NAACP), the North Carolina National Association of Women Voters , and several other local groups and individuals sued the state of North League over 589. The DOJ also filed sui t against HB North Carolina, and its lawsuit was Carolina 338 the other actions . combined Plaintiffs alleged violations of Section 2 of the VRA, for with th th th and effect, as well as violations of discriminatory 14 , 15 intent , and 26 Amendments of the the 339 Constituti on. U.S. After three - and - one - half years of litigation, the Fourth Circuit Federal Court 340 held that HB 589’s strict photo ID law, along with its cuts to same - day registration, of Appeals voting, and out - of - precinct voting, were enacted with illegal early discrimination intentional 341 African Americans “with almost surgical precision.” targeting Between 2013 and 2017, the 342 over five million dollars defending election State changes stemming from HB 589. spent Preliminary Injunction Temporarily Halting Some Di scriminatory Provisions As began, plaintiffs were concerned about the impact of the comprehensive cutbacks on voter 2014 upcoming midterm elections, including in early voting. The North Carolina NAACP access in a preliminary injunction on May 19 , 2014, but on August 8, 2014, the federal district requested 343 it. Plaintiffs appealed, and on October 1, 2014, the Fourth Circuit Court of Appeals court denied 344 reversed the lower court’s decision and issued a preliminary injunction, partially but it only applied t o block the elimination of same - day registration and counting out - of - precinct ballots , as 337 Carolina NAACP v. McCrory , 997 F. Supp. 2d 332, 334 (M.D.N.C. 2014) . N . 338 Id. 339 Id. 340 Id. see United States Courts, Court Role and Structure, Court of For a description of federal courts of appeals, http://www.uscourts.gov/about Appeals, federal - courts/court - role - and - structure (last accessed July 26, 2018) - (“There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called the U.S. Courts of dicial districts are organized into 12 regional circuits, each of which has a court of Appeals. The 94 federal ju The appellate court’s task is to determine whether or not the law was applied correctly in the trial court.”); appeals. U.S. Courts, see also fferent from Trial Courts , http://www.uscourts.gov/about - federal - How Appellate Courts are Di courts/court - role - and - structure/about - us - courts - appeals (last accessed July 26, 2 018). (“At a trial in a U.S. District Court, witnesses give testimony and a judge or jury decides who is guilty or not guilty — or who is liable or not There is no liable. The appellate courts do not retry cases or hear new evidence. They do not hear witnesses testify. jury. Appellate courts review the procedures and the decisions in the trial court to make sure that the proceedings were fair and that the proper law was applied correctly.”) . 341 , 831 F.3d at 214. McCrory 342 NAACP Legal Defense and Educational Fund, Democracy Diminished: State and Local Threats to Voting Post - Shelby County, Alabama v. Holder 34 (2018), hereinafter http://www.naacpldf.org/files/case_issue/States%27s%20responses%20post%20Shelby%206.22.18.pdf [ NAACP LDF, ] . Democracy Diminished 343 McCrory , 997 F. Supp. 2d at 354 . 344 The Fourth Circuit considered that plaintiffs m et the high standard set by the Supreme Court for a preliminary injunction: plaintiffs were likely to succeed on the merits of their Section 2 claims against these practices; the plaintiffs were likely to suffer irreparable harm absent an injunction; the balance of hardships weighed in their favor; and the injunction was in the public interest. League of Women Voters of N. Carolina , 769 F.3d 224, 236 (4 th Cir. 2014) citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ( (stand ard for preliminary injunction) ) .

71 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 65 345 evidence that these measures most clearly targeted black voters . was The appeals court there preliminary relief regarding the other challenged injunctive prov isions, because plaintiffs denied 346 show that they would be immediately harmed could the upcoming election. not in Several Preliminary Injunctions Nullified by the of Supreme Court Just Prior to the One Election 2014 mplementation I of North Carolina ’s elimination of same - day registration and out - of - precinct have been enjoined during the November 2014 election; however, on October 8 , voting would 347 Supreme Court stayed the Fourth 2014, Circuit’s injunction. the months before In 2014 federal election , in the cases in Ohio, North Carolina, Wisconsin , and the Texas, plaintiffs tried to bring complex cases as quickly as possible, in order to secure relief from allegedly provisions before they could be implemented during the upcoming discriminatory 345 League of Women Voters , 769 F.3d at 244 - 45. The Fourth Circuit took into account that of N. Carolina day - “Plaintiffs’ expert presented unrebutted testimony that African American North Carolinians have used same registration at a higher rate than whites in the three federal elections during which it was offered. Specifically, in percent 2012, 13.4 of African American voters who voted early used s ame - day registration, as compared to 7.2 percent and 5.4 of white voters; in the 2010 midterm, the figures were 10.2 percent , respectively ; and in percent percent and 8.9 percent .” Id. 2008, 13.1 at 233. And with regard to out of - precinct voting, the Fourt h Circuit took into account that: - percent of African The district court found that (1) between the years 2006 and 2010, an average of 17.1 ina moved within the State, as compared to only 10.9 of whites; and (2) 27 Americans in North Carol percent of poor African Americans in North Carolina lack access to a vehicle, compared to 8.8 percent of percent rican Americans poor whites...According to calculations the district court accepted, the total number of Af - of - precinct voting represents 0.342 percent of the African American vote in that election. The total using out - of - precinct was 0.21 percent . Id. House Bill 589 bars county share of the overall white vote that voted out boards of elections from counting s uch ballots. Id . at 233 - 34 (internal citations omitted) . The Fourth Circuit did not preliminarily enjoin the cuts to early voting, despite the evidence that “in 2010, 36 of all African American voters that cast ballots utilized early voting, as compared to 33.1 percent of white percent of African American voters n the presidential elections of 2008 and 2012, over 70 percent voters. By comparison, i percent used early voting compared to just over 50 Id . at 234. This was because the court of of white voters.” pose “significant risk” of “substantial burden” to the State, appeals considered that a preliminary injunction would due to the fact that the ruling was issued only two weeks before the start of the full early voting schedule, were it to Id . at 236. be restored. 346 . at 236 - 3 7. No tably, the photo ID provision was difficult to enjoin because unlike the other provisions of HB Id - . at Id 589 taking immediate effect, it was subject to a “soft roll out” in which it would be implemented later in time. - ncerns about lack of poll worker training to injunction denied despite co 230 (soft roll out) and 237 (preliminary properly implement soft roll out; although injury may be shown at trial, irreparable injury in upcoming election was - “speculative”). 347 N orth Carolina v. Lea g ue of Women Voters of N. Carolina , 135 S. Ct. 6 (2 014); League of Women Voters of N. Carolina , 769 F.3d 224. On April 6, 2015, the Supreme Court denied certiorari on the case and effectively restored North Carolina v. League of Women Voters of N. Caroli na , 135 the Fourth Circuit’s partial preliminary injunction. S. - day registration and out - of - precinct voting were Ct. 1735 (2015). This meant that in North Carolina, same temporarily restored until there was a decision on the merits — but this was after the November 2014 election had already occurred. , 831 F.3d at 219. Furthermore, implementation of the other challenged provisions of HB McCrory 589 — including others that were also later found to be unconstitutional due to being intentionally racial discriminatory — was never enjoined. Id .

72 An Assessment of Minority Voting Rights Access 66 But a series of rapid decisions in which both plaintiffs and defendants asked for in election. September 24 - October 18, the Supreme from Court decided against making any stays, emergency 348 the voting procedures too close to to election. The Court so ruled eve n with changes existing in to those changes that would seem to be designed to prevent irreparable harm to voters regard 349 election. In addition, t hese upcoming were inconsistent, as preliminary injunctions the decisions upheld in Ohio and Wisconsin (where discriminator y effect, but not intent, was found), but were 350 North Carolina or Texas (where intentional discrimination had been found). not Another new in Shelby was that in deciding on these post - County preliminary injunctions, the Court development counted new voting restrictions as the existing procedures that should not be changed effectively 351 to an election. In contrast, under Section 5, the benchmark was considered to be the close too 352 prior to the new voting change s . conditions Moreover, under Section 5, the new restr ictions 353 not have gone into effect in the first place in North Carolina and Texas . would Fi ndings of Discriminatory Intent , in its final ruling on the merits in 2016 the Fourth Circuit held that in enacting HB After appeal, the North Carolina state legislature and governor had violated the VRA’s prohibition against 589, th intentional under Section 2, a s well as the 14 Amendment to the United States discrimination 354 355 The Constitution. court of appeals held that HB 589’s voter ID law, federal cuts to early strict 348 Husted v. Ohio Conferen ce of N.A.A.C.P . , 135 S. Ct. 42 (2014); North Carolina , 135 S. Ct. 6; Frank v. Walker , 135 S. . 7 (2014); Veasey v. Perry , 135 S. Ct. 9 (2014). Ct 349 N orth Carolina , 135 S. Ct. 6 and discussion above. See, e.g. , 350 Cir. 2014) 5 th , 769 F.3d 890, 892, 895 ( . Veasey v. Perry 351 See, e.g., Veasey , 135 S. Ct. at , dissenting) (“Texas need only reinstate the voter 10 (2014) (Ginsburg, J. identification procedures it employed for ten years (from 2003 to 2013) and in five federal general elections. To ime, Senate Bill 14, has been applied in only three low - — namely, two date, the new reg participation elections h voter turnout ranged from 1.48 percent to statewide primaries and one statewide constitutional referendum, in whic 9.98 percent .”) . 352 Beer , 425 U.S. at 141 (under preclearance, voting changes must be measured against the benchmark practice to determine whether they would “ lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise. ” ). 353 52 U.S.C. § 10304(a). 354 McCrory 831 F.3d. at 219. , 355 Id s voter ID law, such that voters who declare they . This was the holding even though North Carolina amended it had a reasonable impediment to getting current, government - issued photo ID with their cur rent name and address may be challenged by another voter, whether or not they were from the same county. H.R. 836, Gen. Assemb., §§ 163 - 82.1B(a) (N.C. 2015) [ hereinafter North Carolina General Assembly, H.R. 836] . North Carolina voters also ha ve to presen t their current voter registration card, or the last four digits of their social security number and date of birth as part of the reasonable impediment declaration process. North Carolina General §§ 163 - Assembly, H.R. 836, ballot wo uld not be counted if they were challenged 66.15(c). Also, their provisional by another voter with grounds “to believe the [reasonable impediment] declaration is factually false, merely denigrated the photo identification requirement, or made obviously nonsensical statements;” or if the vo ter’s registration could not be confirmed, or if they were otherwise disqualified. Id. at §§ 163 - 82.1B(a). Anita Earls, former Executive Director of the Southern Coalition for Social Justice, testified before the Commission about the “reasonable impediments” procedure not being well - implemented, because the list of reasonable impediments was so narrow and interpreted in limiting ways by poll workers. See Anita Earls, Former Executive

73 Shelby County v. Holder Decision Chapter 2: The Supreme Court’s 67 same registration, out - of - precinct voting , and pre - registration were enacted “with day - voting, intent” and “target[ed] African American [voters] with almost surgical discriminatory 356 The factors examined included the precision.” sequence of events lea ding up to enactment : County it [the North Carolina legislature] moved forward with what [A]fter Shelby restricted acknowledged was an omnibus bill that voting mechanisms it knew it used disproportionately by African Americans, and so likely would not have were passed And, after Shelby County , the legislature substantially preclearance. debated the one that it had fully before. As noted above, the changed provision Assembly completely revised the list of acceptable photo IDs, removing General list the IDs held dispropor tionately by African Americans, but retaining the from disproportionately held by whites. This fact alone undermines the possibility those 357 the post - Shelby County timing was merely to avoid the administrative costs. that Th e fact that the legislature also asked for data about the racial impact of each and every one of changes, found that they would have a racially discriminatory the , impact and then contemplated 358 changes without any further debate, enacted also indicated discriminatory purpose. The those also found it probative that the Fourth data revealed that white voters disproportionately Circuit used absentee voting, yet the state legislature did no t restrict absentee voting in any way. Instead, the law “drastically restricted all of these other forms of access to the franchise, but exempted new 359 court from the photo ID requirement. ” absentee The voting went on to conclude that “[i] n sum, relying on this racial data, the General Assembly enacted legislation restricting all — and only — , Testimony for the U.S. Commission on Civil Rights , Feb. 2, Director, Southern Coalition for Social Justice Written hereinafter 2018 [ Earls, Written Testimony ] . 356 McCrory , 831 F.3d. at 214 - 15. 357 Id. at 229 (internal citations omitted). 358 Id. at 216. 359 Id. at 230.

74 An Assessment of Minority Voting Rights Access 68 360 used by African Americans.” disproportionately Additionally , taken al together, the practices 361 effect was cumulative. discriminatory 360 at 230. Regarding the strict photo ID law: Id. [D]ata showed that African Americans dispr oportionately lacked the most common kind of photo ID [required], those issued by the Department of Motor Vehicles (DMV). The pre version - Shelby County 381 provided that all government - issued IDs, even many that had been expired, would of SL 2013 - atisfy the requirement as an alternative to DMV - s - 15. After Shelby County , issued photo IDs. J.A. 2114 with race data in hand, the legislature amended the bill to exclude many of the alternative photo IDs ll retained only the kinds of IDs that white North used by African Americans. As amended, the bi , 831 F.3d. at 216. Carolinians were more likely to possess. McCrory “60.36 and 64.01 percent of African Americans voted early in 2008 and Regarding the cuts to early voting: percent percent and 49 .39 percent 2012, respectively, compared to 44.47 of whites . . . In particular, African Americans disproportionately used the first seven days of early voting.” , 831 F.3 d at 216 (citing McCrory , 182 F. McCrory Supp. 3d 320 (M.D.N.C. 2016), reversed and remanded by McCrory , 831 F.3d 204 ). Regarding elimination of same - day registration: The legislature’s racial data demonstrated that, as the district court found, “ le that it is indisputab - day registration] when it was available. . . . African American voters disproportionately used [same ” African American registration applications constituted a disproportionate percentage of the incomplete t African Americans “are more likely to move between registration queue. And the court found tha - register.’ As evidenced by the types of errors that counties,” and thus ‘are more likely to need to re person assistance likely would placed many African American applications in the incomplete queue, in - , 831 F.3d. at 217 - 18 (internal citations disproportionately benefit African Americans. McCrory omitted). - Regarding elimination of out - precinct voting: of Legislators additionally requested a racial breakdown of provisional voting, including out of - precinc t - which required . . . voting each county to count the provisional ballot of an Election Day voter who . . . appeared at the wrong precinct, but in the correct county, for all of the ballot items for which the voter isted those who moved frequently . . . was eligible to vote. This provision ass The district court found that the racial data revealed that African Americans disproportionately voted provisionally. In fact, the General Assembly that had originally enacted the out - of - precinct voting legislation had specifically found that “of those registered voters who happened to vote provisional ballots outside their resident precincts’ in 2004, ‘a disproportionately high percentage were African American.’” With SL 2013 381, the General Assembly altogether eliminated out - of - precinct voting. - , 831 F.3d. at 217. McCrory - - - and 17 registration of 16 year - olds: Regarding elimination of pre African Americans also disproportionately used preregistration. Preregistration permitted 16 - and 17 - year - olds, when obtaining driver’s licenses or attending mandatory high school registration drives, to identify themselves and indicate their intent to vote. This allowed County Boards of Elections to verify eligibility and automatically registe r eligible citizens once they reached eighteen. Although preregistration increased turnout among young adult voters, SL 2013 381 eliminated it. McCrory , 831 - F.3d at 217 - 18. 360 The Fourth Circuit reasoned that “a court must be mindful of the number, characte r, and scope of the modifications enacted together in a single challenged law . . . Only then can a court determine whether a legislature

75 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 69 t federal court of appeals a lso took into account the tenuous relationship between the Finally, he reasons fraud for the restrictions — “to combat voter and promote public confidence in the asserted and the record evidence that the legislature — would not have enacted its photo electoral system” 362 requirement “if it had no disproportionate impact on African American voters.” In ID particular, the had been unable to “identify even a single individual who has ever been charged with state 363 - person voter fraud in North Carolina. ” voter The overbreadth of the committing ID in as considered to be “most stark requirement in the General Assembly’s decision to exclude was acceptable identification all forms of state - issued ID disproportionately held by African 364 the Similarly, the opinion stat es that Americans.” State’s proffered administrative interests in eliminating - day registration, cutting early voting (particularly on Sundays), and eliminating same - precinct voting were not logical, and the - goals could have been accomplished by out of 365 means. And regarding nondiscrimin eliminating pre - registration of 16 - atory 17 - year olds, and which was also disproportionately used by African - American voters, the sponsor of the law said ts impact on African American voters.” McCrory would have enacted the law regardless of i 831 F.3d at 234. It , consider ed that: For example, the photo ID requirement inevitably increases the steps required to vote, and so slows the process. The early voting provision reduced the number of days in which ci tizens can vote, resulting in more voters gether, these produce longer lines at the polls on Election Day, and absent out - - voting on Election Day. To of y have precinct voting, prospective Election Day voters may wait in these longer lines only to discover that the gone to the wrong precinct and are unable to travel to their correct precincts. Thus, cumulatively, the panoply of restrictions results in greater disenfranchisement than any of the law’s provisions individually. McCrory , 831 F.3d. at 231. 362 McCrory , 831 F.3d at 235. The photo ID law was also complex because it was amended on June 18, 2015, on the eve of the July 2015 trial on the merits. The amendment permitted people who did not have an unexpired, state - issued photo ID (excluding state - issued student IDs) to cast a provisional ballot if they completed a government See declaration under penalty of perjury that they had “reasonable impediment” to acquiring such an ID. General H.R. 836, § 8(d https://www.ncleg.n et/Sessions/2015/Bills/House/PDF/H836v6.pdf Assembly of North Carolina, ), accessed Aug. 3, 2018) . North Carolina argued that this was akin to the reasonabl e impediment provision a (last federal court had approved under Section 5 of the VRA, in the case of South Carolina’s voter ID law. See South Carolina v. United States in Chapter 3, Section (A), and Sources cited therein at notes 506 Discussion of 08, - infra . But North Carolina’s law was more stringent as North Carolina voters would be required to list the specific reasonable impediment under penalty of perjury. General Assembly of North Carolina, H.R. 836, §§ 163 66.15(e), - following boxes, under penalty of perjury: requiring the voter to check one of the Lack of transportation. a. Disability or illness. b. Lack of birth certificate or other documents needed to obtain photo identification. c. d. Work schedule. e. Family responsibilities. f. Lost or stolen photo identification. g. Photo identification applied for but not received by the voter voting in person. h. Other reasonable impediment. If the voter checks the “other reasonable impediment” box, a further brief the reasonable impediment shall be required, including the option to indicate that written identification of State or federal law prohibits listing the impediment. 363 McCrory , 831 F.3d. at 235. 364 at 236. Id. 365 Id. at 236 - 39.

76 An Assessment of Minority Voting Rights Access 70 was to “offer some clarity and some certainty as to when” a “young person is eligible to vote,” it 366 hold Circuit concluded “that explanation does not Fourth water.” the The Fourth Circuit held but “[HB 589 was] not tailored to achieve its purported justifications, a number of which were in that: events insubstantial. In many ways , the challenged provisions . . . constitute solutions in search all 367 a problem.” Because Section 5 also prohibited changes in voting procedures that were enacted of 368 the intentional discrimination, unconstitutional it is clear that provisions of HB 589 w ould with been struck down and their implementation would have have prohibited under the prior been 369 regime that the Supreme Court quashed in Shelby County . preclearance Polarized Voting and Ongoing History of Discrimination Racially deciding that the State had violated the VRA, the Fourth Circuit also took into account high In of racially polarized voting in North Carolina . Under the VRA , r acially polari zed voting or levels occurs when racial “the white majority votes sufficiently as a bloc to enable it — in the absence bloc circumstances, such as the minority of candidate running unopposed — usually to defeat the special 370 minority’s candidate . ” In evaluating the ro le preferred of racially polarized voting in th e post - Shelby County VRA case in North Carolina , the Fourth Circuit noted that recent scholarship suggested in the years following President Obama’s election, racial discrimination and racially that 371 had increased in jurisdictions formerly covered by Section 5. voting The research polarized mere that, gap is not the result of partisanship, for even when controlling for showed “[t]his identification, race is a statistically significant predictor of vote choice, e specially in the partisan 372 covered The court of appeals recognized that racially polarized voting alone does jurisdictions.” racial discrimination, “[b]ut it does provide an incentive for not intentional discrimination prove 373 regulation of elections.” in the onally, the Fourth Circuit took Additi account the impact of HB 589’s provisions with regard into to the history of discrimination in voting in North Carolina, which it considered to be extensive and While the trial court had found the record free of “of ficial discrimination” from 1980 ongoing. the appeals court took into account that the to DOJ had issued over 50 objection letters under 2013, Section 5 regarding proposed election law changes in North Carolina from 1980 to 2013 , including 366 . at 238. Id 367 Id. 368 52 U.S.C. § 10304(a); Beer , 425 U.S. at 141 (holding that reapportionment legislation that enhances the position if of racial minorities in the electoral process does not violate Section 5 it discriminates on the basis of race or color al protections a ). as to violate the constitution gainst intentional discrimination 369 , 5 70 U.S. 529. Shelby Cty. 370 Gingles , 478 U.S. at 51 (internal citations omitted). 371 McCrory , 831 F.3d. at 221 - 22 (citing Stephen Ansolabehere, Nathaniel Persily & Charles Stewart III, Regional Differences in Racial Po larization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act , 126 H ARV . L. R EV . F. 205, 206 (2013) ). 372 ) (alteration in original). Id . at 222 (quoting Ansolabehere, supra note 371 373 Id .

77 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 71 374 2000. since Also during the same period, private plaintiffs brought 55 successful cases several a Section of the VRA in North Carolina, and 2 few months before the Fourth Circuit under a federal court had found that a redistricting plan enacted by the North Carolina Gen eral decision, violated of the Equal Protection Clause the U.S. Constitution because it was Assembly 375 motivated by race. The Fourth Circuit held that “[t]he district court failed to take impermissibly these cases and their important takeaway: that state officials continued in their efforts into account 376 restrict or dilute African American voting strength well after 1980 and up to the present day.” to Considering context, the court of appeals ruled that the legislature enacted HB 589 with this intent. I t emphasized that: discriminatory the conclusion does not mean, and we do not suggest, that member of Our any harbored racial hatred or Assembly toward any minority group. General animosity the totality of the circumstances — North Carolina’s history of voting But nation; African the surge in discrimi American voting; the legislature’s knowledge Americans voting translated into support for one party; and the swift that African of the tools African Americans had used elimination to vote and imposition of a new barrier at the first opportunity to do so — cumulatively and unmistakably reveal that the General Assembly used SL 2013 - 381 [HB 589] to entrench itself. It did so by voters who, based on race, were unlikely to vote for the majority party. targeting 377 done for partisa n ends, that constituted racial discrimination. if Even upon law requires that any voting changes based discriminatory purpose must be struck The 378 Therefore, based on its conclusion that the North Carolina down. state legislature enacted HB discriminatory racially 589 intent, the Fourth Circuit did not have to (and did not) address with 589 also violated Section 2’s whether prohibition of discriminatory effects. After sev eral years HB the Fourth Circuit reversed and remanded litigation, the lower court’s decision, instructing that of it issue an order permanently enjoining HB 589’s intentionally discriminatory provisions. The State to the Supreme Court, but on May 15, 2017, the Court declined the State’s petition petitioned 379 the case. to review Denied Judicial Preclearance and the DOJ had also requested Plaintiffs preclearance under Section 3 of the VRA, but judicial 380 court of appeals denied this request. D espite the findi ngs of discriminatory purpose the and th of the 14 consequent Amendment , the Fourth Circuit “decline[d] to violation impose any of the 374 Id at 22 4 (citing U.S. Dep’t of Justice, Voting Determination Letters for North Carolina (DOJ Letters) (Aug. 7, . 2015), https://www.justice.gov/crt/voting - determination - let ters - north - carolina ) (further citations omitted). Twenty - seven objections were to laws originating in or a pproved by the General Assembly. Id. 375 . at 224 - 25. Id 376 Id. at 225. 377 Id. at 233. 378 Id. at 240 (citing Veasey , 830 F.3d at 268). 379 North Carolina v. N. Carolina State Conference of NAACP , 137 S. Ct. 1399 (2017). 380 McCrory , 831 F.3d at 241.

78 An Assessment of Minority Voting Rights Access 72 additional discretionary available under § 3 of the Voting Rights Act, including imposing relief electio ns and subjecting North Carolina to observers ongoing preclearance poll during 381 uch federal case it found that “ [ s ] remedies ‘[are] rarely used’ and are Citing requirements.” law, 382 here in light of our injunction [of HB 589].” not This may be because current case necessary hows that judicial preclearance may only be granted if it is imperative — and regarding North law s Fourth Circuit reasoned that its , permanent injunction striking down HB 589 made Carolina the 383 “not necessary.” remedies such Issues Testimony and Ongoing Voting Rights in North Carolina Relevant the Commission’s February 2 briefing, Bishop Dr. William Barber II, President and Senior During Lecturer Repairers of the Breach , testified that in 2016 a Republican party official of and distributed a memo to Republican members of the C ounty B oard of produced decisions lection instructing them to make party line in drafting new early voting E s including voting against Sunday hours or voting and maintaining decreased plans, hou rs at sites, particularly on weekends. This resulted in 2016 [that there of number 158 fewer early voting sites in the 40 previously covered counties, [than the were] polling places] that we had in 2012. of This is another example of [a] blatant number 384 . . attempt to block the power of the African - American and minority vote. . His is corroborated in detail by reporting summarizing the email records of the testimony Director of the state’s Republican Party, Dallas Woodhouse, which were obtained by Executive 385 of The News & Observer . r ecords Woodhouse’s emails were sent to Republican public request 386 of county boards of elections, who are political ly appointed. After the members Fourth Circuit HB 589’s reductions ruled in early voting, county boards of elections still had to set and against the actual early voting schedules, as well as vote the number, location , and hours of polling upon 387 be open during early voting. places In addition to to the directions to reduce polling places, the party Executive Director’s emails also told county election officials to end early voting on Sundays (stating “six days of voting . . . is enough”) and same - day registration (stating that it was only that 388 early voting and “ripe with available voter fraud, or the opportunity commit i t”). And during regarding places on college campuses, the party chair polling wrote that: “No group of people are entitled to their own early voting site, including college students, who already have more voting 381 Id. 382 Supp. 1430, 1442 (E.D. Ark. 1994) (quoting Conway Sch. Dist. v. Wilhoit . ). Id , 854 F. 383 Id . 384 Briefing Transcript supra note 234 , at 41 - 42 (statement by Bishop Dr. William Barber II). , 385 Colin Campbell, NC Republican Pa rty Seeks “Party Line Changes” to Limit Early Voting , T HE N EWS AND O (Aug. 17, 2016 ), http://www.newsobserver.com/news/politics - government/election/article96179857.html BSERVER [ hereinafter Campbell, NC Republican Party ]. 386 Id. 387 Id. 388 Id.

79 Shelby County v. Holder Decision Chapter 2: The Supreme Court’s 73 389 than other citizens.” options There may be V RA concerns regarding student voting issues most voters they (or may not) disparately impact student may of color, especially on historically because 390 Hispanic college campuses. generation Moreover, the younger black attending is or colleges 391 diver se than older generations. more racially addition, Bishop Barber testified about the visible presence of KKK members and swastikas on In 392 derogatory pro - voting marches as well as comments from bystanders. near For Barber, streets reemergence of voter suppression tactics in North Carolina is a result of the loss of this 393 to the Supreme Court’s decision in Shelby County . due The Commission notes that preclearance in high levels of racial ly polarized voting Nor th Carolina, targeting African - American because of 394 can a way of targeting Democratic voters. be The allegedly partisan motives for reducing voters to polling places are beyond the scope of this report; however VRA issues may possibly access 395 results partisanship is mixed with racially discriminatory when (and/or intent), as was the arise 396 in the cuts t o early voting and other measures in HB 589 in North Carolina. case Therefore, it is possible, still unproven, that the Republican Party State Executive Direct or’s proposed although 158 polling places could be of concern under Section 2 (and if it were still elimination of Section 5). These issues show yet a nother likely negative impact of the loss of applicable, impact the very least, it is impossible to know if there is a racial ly discriminatory at preclearance: 397 the data that the preclearance process would have provided. without 389 Id. 390 See, e.g. , Emily Foxhall, Waller County Backs Off Plan to Limit Early Voting , H OUSTON C HRONICLE (Jan. 5, 2016), https://www.houstonchronicle.com/news/houston texas/houston/article/Waller - Co - backs - off - plan - to - l imit - - - voting 6739007.php (describing local officials’ plans to operate no early voting locations within walking early - distance of an HBCU campus). 391 See, e.g ., OurTime.org and the Advancement Project, The Time Tax: America’s Newest Form of Voter Suppression for Millennials, and How it Must be Eliminated to Make Voting Accessible for the Next Generation , 2 - O UR T IME . ORG AND T HE A DVANCEMENT P ROJECT 3, https://advan cementproject.org/resources/the - (Nov. 18, 2013), time tax/ . - 392 Written Testimony for the U.S. Comm’n on Civil Rights , Feb. 2, 2018 [ hereinafter Bishop Dr. William Barber II, Barber, Written ]. Testimony 393 Id . 394 See, e.g ., McCrory , 831 F.3d at 214. Notably, according to NC G OP Executive Director Woodhouse, the Democratic P . S ee Campbell , NC Republican Party, supra arty was also involved in advocacy regarding early voting 385. note 395 League of United Latin Am. Citizens v. Perry , 548 U.S. 399, 440 (2006); s ee also Discussion and Sources cited in Chapter 4, Section B at notes - 37 1334 (discussion of allegations of partisanship in voting rights litigation; discussion of partisanship m ixed with racial discrimination). 396 McCrory , 831 F.3d at 216 (“The racial data provid ed to the legislature revealed that African Americans disproportionately used early v oting in both 2008 and 2012,” particularly the first seven days and during “souls to - - - .”) and 238 (“The only clear the polls Sundays in which African American churches provided transportation to voters factor linking these various ‘reforms’ is their impact on African American voters. The record thus makes obvious that the ‘problem’ the majority in the General Assembly sought to remedy [by cutting early voting and other reform s] was emerging support for the minority party. Identifying and restricting the ways A frican Americans vote was an easy and effective way to do so.”). 397 See 28 C.F.R. §§ 51.33 - 1.50 (preclearance regulations) , supra note 310. 5

80 An Assessment of Minority Voting Rights Access 74 In is current litigation about alleged discriminatory challenges of voters in North addition, there discussed which in Chapter 3, in the Current Voter is Registration Issues section of this Carolina, 398 . report recently, on June 7 , 2018 , North Carolina House Speaker Tim Moore and other House Most 2018 a ballot measure for the November election through which voters Republi proposed cans 399 on a constitutional amendment requiring voter ID. The would proposed ballot language decide Every as follo ws: “Photo identification for voting in person. person offering to vote in person is 400 present photo identification before voting in the manner shall prescribed by law.” Their amendment would leave the actual voter ID requirements up to the state legisla ture, although it 401 402 absentee voting, not which is disproportionately used by whites in the state. cover would amendment the bill sponsor stated that the constitutional is “a commonsense measure to While the integrity of our elections system[ ;]” Allison Riggs of the secure Southern Coalition for Social Justice commented that, “It’s certainly not constitutional to embed discrimination in the state 403 constitution.” Texas 404 state of Texas has the highest number of The recent VRA violations in the nation , and that record renders in depth analysis of the state’s importance in this report. Moreover, during its recent national briefing on voting rights in North Carolina, the Commission received extensive field concerning voting rights access issues in Te xas. The following section documents the testimony litigation, of strict voter ID legislation in Texas, relevant and its impact on minority voters. effect Voter ID Litigation in Texas Spans the Pre - and Post Ongoing Shelby Count y Era to the Present - The ongoing saga of Texas voter ID litigation shows the differences in ability to protect minority voting before and after the Shelby County decision. rights Prior to Shelby County , it was possible to stop a discriminatory change in voting procedures befor e it could deny or abridge access for 14) voters color. Under the pre - Shelby County legal regime, Texas’ strict voter ID law (SB of was 398 . Discussion and Sources cited at notes 835 - 4 3 , infra See 399 Travi s Fain, Amendment Would Put Voter ID in NC Constitution , WRAL (June 7, 2018), https://www.wral.com/a mendment - would - put - voter - id - in - nc - constitution/17611888/ . 400 . Id 401 Id. 402 McCrory , 831 F.3d at 230. 403 Ari Berman, North Carolina Republicans Want a Constitutional Amendment to Require ID to Vote: The Voter ID Putting It On the November Ballot , Law Was Struck Down in Court, So Now the GOP Is OTHER J ONES (June 7, M 2018), https://www.motherjones.com/politics/2018/06/nort h - carolina - republicans - want - a - constitutional - amendment - - to - id - to require vote/ . - 404 See, e.g ., Chapter 4, Table 12 (Chart of Successful Post - Shelby County Section 2 Cases), infra, note 13 22 - (showing that five of the 21 cases (23.8 percent ) of successful Sect ion 2 cases in the post Shelby County era were in Texas).

81 Shelby County v. Holder Decision Chapter 2: The Supreme Court’s 75 405 , in and blocked by a federal court in 2011 2012 as it failed the preclearance process enacted 406 5 of the VR A , due to it being retrogressive. Of all types of under voter ID laws, Texas’ Section strictest in the country and it disproportionately impacted African - American and Hispanic was the 407 The . data that Texas was required to submit part of the preclearance proce ss showed voters as 408 over 6 percent of the state’s registered voters did not have identification required by SB 14. that In the DOJ’s analysis of this data demonstrated that Latino voters in Texas were over 45 addition, 409 by likely than others to lack identi fication required SB 14. That was enough to percent more retrogression, so the DOJ did not require further information about the impact on black show did it evaluate whether SB 14 was enacted with discriminatory intent. Texas appealed nor voters, DOJ’s decision , and a federal court found that the cost of obtaining the underlying documents the 410 to get the ID required to vote in Texas ranged from $22 to $354. needed The court reviewed more data, and determined the state failed to demonstrate that SB 14 would not have a expansive 411 - retrogressive impact on African - American and Latino American voters. It held disparate and that: 412 of the burdens associated with obtaining an EIC None [the “free ever to vote] has ID” before been imposed on Texas voters. Based on the required 405 S.B. 14, 82d Leg., R eg . S ess . (Tex. 2011). (In May 2011, Texas’ SB 14 amended the amount and type of acceptable documents that voters were required to present in order to cast a ballot); Texas v. Holder , 888 F. see also (describing vacated and remanded by Texas v. Holder , 133 S. Supp. 2d 113, 115 (D.D.C. 2012), Ct. 2886 (2013) that prior to SB 14, registrants could vote by presenting a voter registration certificate or sign an affidavit along with presenting one of various forms of identification, including state - issued photo IDs as well as a utility bill, expired driver’s license, “official mail addressed to the person . . . from a governmental entity,” any “form of identification containing the pe rson’s photograph that establishes the person’s identity,” or “any other fo rm of identification Under SB 14, these types of identification were no longer permissible . prescribed by the secretary of state.” ). 406 Texas 888 F. Supp. 2d at 144 - 45 (holding that SB 14 was retrogressive and violated Section 5) , vacated and , on June 27, 2013, based on Shelby Cty. , 570 U.S. 529 (2013), after which the s tate put SB 14 immediately remanded back into effect. 407 Veasey v. Perry F. Supp. 3d 627, 642, 659 (S.D. Tex. 2014), affirmed in part, reversed in part, and vacated in , 71 part Veasey , 830 F.3d 216 (5th Cir. 2016) . by 408 of Justice, U.S. Attorney General, U.S. Dep’t Thomas Pérez, Asst. Voting Determination Letter by at the Department of Justice to Keith Ingram, Director of Elec tions in Texas , https://www.justice.gov/crt/voting - determination - letter - 34 (last accessed July 26, 2018) ; see also T EX . E LEC . C ODE A NN . § 65.0541, https://capitol.texas.gov/tlodocs/82R/billtext/html/SB00014F.HTM l ( Voters were required to present either a that is no more than 60 da driver’s license, personal identification card ys expired, U.S. military ID card that is no more than 60 days expired, U.S. citizenship certificate with a photo, U.S. passport that is no more than 60 days present identification required by SB 14 at expired, or a license to carry a concealed handgun. Voters who did not were permitted to vote provisionally, but in order for the ballot to count the voter had to present the polling location . ). the required identification within six days 409 . Id 410 Texas at 116 . , 888 F. Supp. 2d 411 Id. at 142. 412 § 521A.001(e) T EX . T RANSP . C ODE A NN . (If registrants were unable to obtain an ID to satisfy SB 14, the State offers an Ele see also Texas , 888 F. Supp. 2d at 117. However, ction Identification Certificate (EIC) free of charge); SB 14 require d EIC applicants to show Department of Public Safety officials at least one of the following forms of identification: an expired Texas driver’s license or personal ID card, an original or certified copy of a birth certificate, U.S. citizenship or naturaliz ation papers, or a court order indicating a change of name and/or gender.

82 An Assessment of Minority Voting Rights Access 76 evidence before us, it is virtually certain that these burdens will record affect disproportionately minorities. Simply put, many Hispanics and African racial burdens in the last election will, because of the who imposed by Americans voted 413 next be unable to vote in the 14, election. This is retrogression . SB likely court ruled that the photo ID law imposed “strict, The burdens on the poor , and racial unforgiving 414 Texas , ” who disproportionately live in poverty. Because the voting change failed minorities in under Section 5, Texas voters not obliged to comply with SB 14’s strict photo preclearance were 415 in 2012 and rules 2013 elections . ID early Shelby County , the same discriminatory measure was implemented After elections and during could only be stopped aft er several years of litigation. Two hours after Shelby County , the Texas 416 tweeted that the state’s strict voter ID law would be re - enacted. General The following Attorney bill plaintiffs filed a lawsuit a lleging that the was adopted with unconstitutio nal discriminatory day, , and that it also violated Section 2 through its discriminatory effect on black and Latino intent 417 voters. Similar to the prior ruling, a federal court found that SB 14 had a discriminatory effect burdened Texans living in pov erty, because a disproportionate number of whom are African it 418 American Latino , but this time the court and also found that SB 14 constituted an 419 poll tax. It unconstitutional issued a preliminary injunction to block its implementation, which was by the court of appeals, but in October 2014, the Supreme Court overturned it, affirmed 420 strict voter ID law in place in Texas during the November 2014 election. the leaving held a on the merits, SB 14 was also to have been enacted with racially discriminatory After trial against black and Latino voters in Texas . And intent n determining on the merits whether SB 14 i violated Section 2 of the VRA , the federal court followed the requir ements of the leading Supreme analyzed Thornburg v. Gingles , under which it case, the state’s history of discrimination in Court 421 422 and its ongoing effects. This was part of a “totality of circumstances” analysis voting that was 423 not under Section 5. After relevant testimony, the court found that since 1970, “ [ i ] n necessary cycle since 1970 , Texas has been found every to have violate d the VRA with racially redistricting 413 320, 324 888 F. Supp. 2d at 141 (emphasis a dded) (citing Reno v. Bossier Parish Sch. Bd., 528 U.S. Texas, ) . (2000) 414 . at 144. Id 415 Patin, , supra The Voting Rights Act at 50 206 , at 8. note 416 Reilly, Harsh Texas Voter ID Law , supra note 206; see also Patin , The Voting Rights Act at 50 , supra note 206. 417 Identity Crisis: V easey v. Abbott and the Unconstitutionality of Texas Voter ID Law SB14 , 37 Mary Kate Sexton, S S OC . J UST . B.C.J.L. E. & UPP . 75, 79 (2016), http://lawdigitalcommons.bc.edu/jlsj/vol37/iss3/7 . 418 Id . at 80. 419 Veasey , 71 F. Supp. 3d at 633, affirmed in part, reversed in part, and vacated in part by Vea sey , 830 F.3d 216. 420 at 707 (where SB 14 was preliminarily enjoined on the basis of likelihood of success on the merits for Id. , but this was stayed intentional discrimination and with regard to Section 2’s prohibition of discriminatory effects Veasey , 769 F.3d at 896, and the motion to vacate the stay was denied, upon appeal, , 135 S. Ct. 9 ). Veasey 421 , 71 F. Supp. 3d at 633 - 37 (discussing expert testimony regarding Texas’ all - white primaries, literacy Veasey tests, poll taxes , voter purgi ng, and redistricting). 422 52 U.S.C. § 10301(b). 423 52 U.S.C. § 10304(a).

83 Shelby County v. Holder Decision Chapter 2: The Supreme Court’s 77 424 districts The court also found that in Texas, even intimidation at the p olls was gerrymandered .” 425 to impact minority voters. After continued testimony from numerous expert and and ongoing witnesses, the trial court made its decision lay on the merits , and found that: as a whole (including the relative scarcity of incidences of i n - person [T]he record addresses impersonation fraud, the fact that SB 14 no other type of voter voter the anti - immigration and anti - Hispanic sentiment permeating the 2011 fraud, legislative and the legislators’ knowledge that SB 14 would clearly impact session, ies and likely disenfranchise them) shows that disproportionately SB 14 was minorit 426 motivated. racially without preclearance and with the time and complexity of Section 2 litigation , However, 427 SB 14 was not blocked until 2016. The Fifth Circuit Court of Appeals also of implementation that despite its finding of discriminatory intent, the State of Texas would not be subject to the held 428 remedy of judicial preclearance under Section 3 of the VRA. alternative A lso, a subsequent , July en banc decisi on of the entire Fifth Circuit affirmed the discriminatory results ruling 2016 ruling 14 but remanded the discriminatory intent for further consideration by the regarding SB 429 court, ing while also order lower the federal district court to fashion an appropriate interim 430 before the November 2016 election. remedy It stated that: law [A]ny would present a new circumstance new not addressed here. Such a new law may cure the deficiencies addressed in this opinion. Neither our ruling here nor any of the district court on remand should prevent the Legislature from acting ruling 424 Veasey, 71 F. Supp. 3d at 636 (internal citations omitted). 425 that: The court found Johnson testified that Minorities continue to have to overcome fear and intimidation when they vote. Revere nd there are still Anglos at the polls who demand that minority voters identify themselves, telling them that if they have ever gone to jail, they will go to prison if they vote. Additionally, there are poll watchers who dress in law forcement - style clothing for an intimidating effect. State Representative Ana Hernandez - en Luna testified that a city in her district, Pasadena, recently made two city council seats into at large seats in order to dilute the - Id - 37 (internal citations omitted). Hispanic vote and representation. . at 636 426 Id . at 659 (internal citations omitted). 427 Veasey v. Abbott , 796 F.3d 487 (5 th Cir. 2016) (holding that SB 14 was intentionally racially discriminatory, and sending the case back to the district court to deter mine the proper remedies), affirmed in part, reversed in part, and the , 830 F.3d 216 (5th Cir. 2016) (en banc) ; in Aug. 2016 sey parties then agreed to an interim vacated in part by Vea d in May 2017, Texas amended SB 14 and introduced SB remedy for the 2016 election, which the court accepted, an medy and provided for new exceptions to the strict voter ID bill, 5, which “essentially mirror[ed]” that interim re including a “reasonable impediment procedure” and an expansion of the list of acceptable Veasey v. identifications ( , 888 F.3d 792 , 804 Abbott (5th Cir. 2018) ). 428 Veasey v. Abbott , 888 F.3d 792, 804 (5th Cir. 2018). 429 Veasey , 830 F.3d at 265. En banc is way to ask for reconsideration of a ruling by only several judges. See En banc , Law.com, https://dictionary.law.com/Defaul t.aspx?selected=625 ( last accessed June 14, 2018) ( en banc is way to ask for reconsideration of a ruling by only several judges). 430 Veasey , 830 F.3d at 271.

84 An Assessment of Minority Voting Rights Access 78 would ameliorate issues raised in this opinion. Any concerns about a new bill the to 431 subject of a new appeal for another day. the be this order, the After two parties agreed to an amended version of Texas’ strict photo ID law that for voters with “reasonable impediments” exceptions getting current, state - issued provided to 432 ID, which was accepted by the court. photo Implementation of the strict photo ID law ( SB 14 ) 433 finally blocked in 2016 . was then DOJ the new A dministration , in February 2017, withdrew its discriminatory intent claim, Under in part on the parties’ agreement to an interim remedy providing for “reasonable based and to the strict voter ID rules, exceptions Texas’ plan to enact substantively the impediment” 434 provisions that the parties had agreed to . same In May 2017, Texas enacted an amended voter 435 ID ( SB 5 ) wit h these exceptions to the strict photo ID rules . law 2017, the federal district court ruled that SB 5 does In not ameliorate the discriminatory August SB 14 aspects but rather “perpetuates” them, and permanently prohibited Texas of from enforcing 431 (emphasis added). Id. 432 Veasey v. Abbott , 265 F. Supp. 3d 684 , 687 (S.D. Tex. 2017). 433 Veasey , 796 F.3d at 493 (holding that SB 14 was intentionally racially discriminatory, and sending the case back down to the district court to determine the proper remedies), affirmed in part, reversed i n part, and vacated in part Veasey Aug. 2016 parties then agreed to an interim remedy for the 2016 election, which the by , 830 F.3d 216; in sentially mirror[ed]” that court accepted, and in May 2017, Texas amended SB 14 and introduced SB 5, which “es interim remedy and provided for new exceptions to the strict voter ID bill, including a “reasonable impediment Veasey , 888 F.3d 792, 804. procedure” and an expansion of the list of acceptable identifications . 434 See United States’s Motion for Voluntary Dismissal of Discriminatory Purpose Claim without Prejudice, Veasey Abbott , v. WL 3670954 (S.D. Tex. 2017). Despite granting the DOJ’s Motion for Voluntary Dismissal because 2017 it was unopposed, the district court noted that: - behind It is well settled that new legislation does not ipso facto eliminate the discriminatory intent older legislation and moot a dispute regarding the violation of law. Hunter v. Underwood, 471 U.S. 222 232 - 33, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (events over 80 years to change the terms of the , law do not eliminate its original discriminatory i ntent); Miss. State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400 , 408 - 09 (5th Cir. 1991) (each bill must be evaluated on its own terms for discriminatory purpose); 831 F.3d 204 , 240 (4th Cir. N.C. State Conference of NAACP v. McCrory, able impediment amendment does not eliminate all lingering effects of law that was 2016) (reason Perez v. Texas, 970 F.Supp.2d 593 , 603 (W.D. Tex. 2013) (claims of discriminatory when passed); ubsequent legislation so intentional discrimination in connection with legislation are not mooted by s Perez v. Abbott, 253 F.Supp.3d long as requested relief is available for purposeful discrimination); 864, 872 (W.D. Tex.) (finding intentional discrimination claims not moot so long as relief was available to remedy the associated harm, even if remedy for discriminatory effects claim was mooted by later legislation). Veasey v. Abbott , 248 F. Supp. 3d 833, 835 (S.D. Tex. 2017). 435 This “re asonable impediment” exception is available if a voter could not reasonably obtain the necessar y ID due to one of seven given reasons: (1) lack of transportation, (2) lack of birth certificate or other documents needed to obtain acceptable form of photo ID , (3) work schedule, (4) lost or stolen identification, (5) disability or illness, (6) family r See Texas Senate Bill 5 , esponsibilities, or (7) acceptable form of photo ID applied for but not received. supra note 321.

85 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 79 436 14 and SB 5. SB The district court therefore found that SB 5 violated Section 2 of the VRA both 437 it the U.S. Constitut ion , and permanently enjoined as s enforcement . well But t he federal as 438 ruling was overturned by a 2 - 1 vote of district he Fifth Circuit in April 2018 , reversing court’s t 439 that SB 5 was tainted with intentional discrimination ruling As of June 25, 2018, five years the . the Shelby County decision, after 5 is still subject to potential litigation regarding whether it SB should be invalidated as the fruit of intentional discrimination , or permitted unless ongoing 440 can be proven . As of this writing, SB 5 was in effect during the March effect discriminatory 441 442 primary, 2018 and will continue to be in effect in the 2018 federal elections in Texas. federal Absent Section 5 , it has taken several elections and of litigation, which likely is not over as years of th e writing of this report, to determine which aspects of Texas’ post - Shelby County voter ID law against minority voters. discriminated Testimony and Ongoing Voting Rights Issues in Texas Relevant the February 2 national briefing, the Commission heard extensive testimony from various During about the voter ID litigation in Texas. NAACP Legal Defense Fund ( LDF ) experts President and 436 - 98, affirmed in part, reversed in part, and vacated in part by Veasey , 888 F.3d at Veasey , 265 F. Supp. 3d at 697 796. The district court also left open the possibility of imposing the additional VRA remedy of Section 3(c) Id preclearance. . at 700. 437 at 688 - 89. Derrick Robinson , Victory for Voters: Judge Rules New Texas Voter ID Law is Still Id. See also L AWYERS ’ Discriminatory and Doesn’t Fix Damage Caused by 2011 Law, C OMMITTEE FOR C IVIL R IGHTS U NDER L (Aug. 23, 2017), https://lawyerscommittee.org/2017/08/victory - voters - judge - rules AW new - texas - voter - id - law - - still - discriminatory - doesnt - fix - damage - caused - 2011 - law/ . 438 , 888 F.3d at 796 (“Nothing we conclude today disposes of any potential challe nges to SB 5 in the Veasey future. Plaintiffs may file a new lawsuit, and bear the burden of proof, if the promise of the law to remedy disparate impact on indigent minority voters is not fulfilled. They did not challenge SB 14, for instance, for several years a fter its effective date. As a remedy for the deficiencies found by this court in however, there is no evidentiary Veasey II, or legal basis for rejecting SB 5, and the district court was bound not to take the drastic step of enjoining it. Further, because SB 5 constitutes an effective remedy for the only deficiencies testified to in SB 14, and it essentially mirrors an agreed interim order for the same purpose, the State has acted promptly following this court's mandate, and there is no equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c).”) (internal citations omitted). 439 The Fifth Circuit remanded the case to the district court, which issued its judgment in accordance. Veasey v. - CV , No. 2:13 193 (S.D. Tex., J une 19, 2018). Abbott - 440 See, e.g ., Manny Fernandez, Texas’ Voter ID Law Does Not Discriminate and Can Stand, Appeals Court Rules , N.Y. T IMES (April 27, 2018), https://www.nytimes.com/2018/0 4/27/us/texas - voter - id.html (also noting that an - appeal from the 3 judge court’s ruling that SB 5 was not prohibited as the fruit of intentional discrimination by the see also Vease y , 888 F.3d at 804 - 05 (Justice Plaintiffs to the full Fifth Circuit or the Supreme Court “seems likely”); Jones’ discussion of potential new case in which disparate impact evidence may be developed (for a Section 2 claim based in discriminatory results)). The staff - generated portion of this report was adopted by the Commission on June 25, 2018. Subsequent developments are therefore not reported here. 441 See, e.g ., Alexa Ura, What to Expect in Texas’ Voting Rights Court Fights in 2018 , T EX . T RIB . (Jan. 3, 2018), court https://www.texastribune.org/2018/01/03/what - texas - voting - rights - expect - fights - 2018/ ; see also Texas Sec’y - of State, Important Election Dates , SO S . STATE . TX , https://www.sos.state.tx.us/elections/voter/2018 - important - election (last accessed dates.shtml July 26, 2018) . - 442 See, e.g ., Texas Sec’y of State, Wh at Kind of Identification is Required to Vote in Person?, V OTE T EXAS . GOV , www.votetexas.gov/faq (last accessed June 24, 2018).

86 An Assessment of Minority Voting Rights Access 80 Counsel Director Ifill testified that while the Texas vote r ID litigation has been pending, Sherrilyn the U.S. Senator in 2014, elected 36 members of the Texas delegation to a U.S. House Texas all Representatives, Governor, Lieutenant Governor, Attorney General, Controller, various of Commissioners, four Justices of the Texas Supreme Court, candidates for special statewide the state Senate, state boards of education, 16 state senators, all 150 members of the election in 443 House, over 175 district judges, and over 75 district attorneys. In the meantime, Texas’ state voter ID law (SB 14) was found to be discriminatory in both intent and effect, in violation of strict U.S. Constitution and Section 2 of the VRA. SB 14 had been blocked by preclearance, and but the 444 Shelby County decision, it would not have been implement ed. for the reflecting Texas on the process of Section 2 litigation in following the Shelby County decision, In that DOJ Voting Section Historian Peyton McCrary remarked it is “slow, time - intensive, former 445 it ties up precious resources” and can take years t o work its way through the courts. [and] ACLU Project Director Dale Ho stated that Section 2 litigation is like “a ray of light,” but Rights Voting that litigation is inherently not fast enough believes to keep up with the discriminatory voting he 446 en acted in Texas a nd around the country. provisions H o noted that it will be difficult to not only prosecute 2 cases in a timely matter, but also to have the resources to bring such complex Section in the first place. He added that the ACLU alone has brough t more Section 2 cases than litigation 447 DOJ, and the current administration is shifting gears away from a focus on voting rights. the Rights former Deputy Assistant Attorney General for Civil in the DOJ, stated in his Levitt, Justin testimony that “the Federa l Judicial Center determined that of 63 different forms of written rights cases are the sixth most voting cumbersome for the courts: more cumbersome litigation, 448 an antitrust case, and nearly twice as cumbersome as a murder trial.” than Levitt offered his vi ews that since the Supreme Court’s 2006 ruling about Texas in LULAC v. also 449 , recognizing indicia of ongoing intentional Perry discrimination in voting, “[w]hen it comes to racial Texas has unfortunately proven themselves to misconduct, be an unrepentant recidi vist... 443 Briefing Transcript , supra note 234 , at 90 (statement by Sherrilyn Ifill ) . 444 52 U.S.C. § 10304(a) (requirement that any alterations in voting procedures be approved through preclearance by deral court, before they may be implemented). the Attorney General or a fe 445 Dr. Peyton McCrary, George Wash. U. L. Sch., Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, at 12 [ hereinafter McCrary, Written Testimony]. 2018 446 Dale Ho, Director, Voting Rights Project, American Civil Liberties Union, Written Testimony for the U.S. see also hereinafter Ho, Written Testimony Comm’n on Civil Rights, Feb. 2, 2018 at 12 [ Briefing Transcript , ]; supra note 234 at 96 - 97 (statement by Sherrilyn Ifill) (Ifill also notes that the recent voting litigation in Texas has established that Section 2 litigation takes too long and in the meantime, harm is being done to minority communities). 447 Id. 448 Levitt, Written Testimony , supra note 304, at 8 (citing Federal Judicial Center, 2003 - 2004 District Court Case - Weighting Study: Final Report to the Subcommittee on Judicial Statistics of the Committee on Judicial Resources of https://www.fjc.gov/sites/default/files/2012/CaseWts0.pdf ) . the Judicial Conference of the United States (2005), 449 League of United Latin Am. Citizens , 548 U.S. at 440 - 41.

87 Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 81 450 legislature passed a restrictive ID law also found to be intentionally discriminatory.” the same 451 that if preclearance still existed it would believes have blocked Texas’ voter ID law. also He American Legal Defense and Educational Fund (MA LDEF) Litigation Director Nina Mexican testified about repeated, successful lawsuits against voting rights violations in Texas, Perales 452 regarding discriminatory redistricting. that Perales pointed out while the Latino particularly Texas, and political participation have grown in the state has been intransigent population Latino 453 are continued enact redistricting plans every decade that to found to be discriminatory. Jerry and , Director of the Democracy Program at the Asian American Legal Defense and Vattamala violations ( AALDEF ) , also testified about recent of Section 208 of the VRA, Education Fund the rights of Asian voters to receive required language assistance in Texas until litigation limiting 454 its state to change law . forced the voting rights experts commented on DOJ’s switching positions in the Texas voter ID Several remarks of litigation, disappointment and serious qualms about the future of the Justice with Department’s rights enforcement efforts. Vanita Gupta, the voting former head of the Civil R ights Division and current President and CEO of the Leadership Conference on Civil and Human Rights, stated it was “really troubling” that this decision reversed a position that DOJ lawyers had that 455 for years. pursuing In her written testimony to the Commission, she characterized the been 456 of position as “embracing a vote suppression agenda,” change with “wholesale DOJ’s 457 458 evidenced in DOJ actions in programmatic the North Carolina, Ohio , and Texas cases. shifts” Justin Levitt, Ezra Rosenberg, Dale Ho, Pey ton McCrary, Sherrilyn Ifill, Gerry Hebert, Lorraine expert Nina Perales — who all provided Minnite, testimony at the Commission ’s briefing — and 459 the DOJ switching positions in the critiqued Texas voter ID. also 450 Briefing Transcript , supra note 234 , at 36 (statement by Justin Levi tt ) . 451 . at 15. Id 452 supra note 234 , at 92 - 93 (statement by Nina Perales, Vice Pres. of Litigation , Mexican Briefing Transcript , )) (MALDEF . American Legal Defense and Educational Fund 453 , Written Testimony for the U.S. Comm’n on Civil Rights, at 2 - 3 [ hereinafter Perales , Nina Perales Feb. 2, 2018 see also Written Testimony]; , 548 U.S. 399; see also Perez v. Abbott , 253 F. League of United Latin Am. Citizens Supp. 3d 864 (W.D. Tex. 2017) (Congressional maps); see also Perez v. Abbott , 274 F. Supp. 3d 624 (W.D. Tex. 2014 see also Benavidez v. Irving Indep. Sch. Dist. , 2017) WL 4055366 (N.D. Tex. 2014); (state legislative maps); , 944 F. Supp. 2d 23 (D.D.C. 2013); see also Patino , 230 F. Beaumont Indep. Sch. Dist. v. United States see also Supp. 3d 667 (gran ting 3(c) remedy). 454 Briefing Transcript , supra note 234 , at 181 - 82 (statement by Jerry Va t tamala, Director of Testimony , Asian American Legal Defense and Education Fund (AALDEF) ) see also Jerry Va t tamala, Written Statement for the U.S. ; Rights, Feb. 2, 2018 hereinafter at 9 [ Comm’n on Civil Vattamala, Written Testimony] (discussing the c ase of , brought to enforce Section 208 of the VRA). Organization of Chinese Americans v. Texas 455 Id . 456 Vanita G upta, Pres. and CEO, Leadership Conference on Civil and Human Rights, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018 at 3 [ hereinafter Gupta, Written Testimony] . , 457 Id. at 6. 458 Id . at 3 - 6. 459 Briefing Transcript , supra note 234 at 26, 78, 1 09, 212 and 219. ,

88 An Assessment of Minority Voting Rights Access 82 March 18, 2018, in a briefing held by the T exas SAC to the Commission, Assistant Professor On Law at the University of Houston Teddy Rave declared the importance of running election of 460 through preclearance as an “additional institution” would have partisan interests. not decisions noted that preclearance was established by the DOJ, it served as an “external check” on He when decisions and helped ensure that legislation was not enacted if partisan was created with the goal it of assuming a partisan advantage. Rave noted that the DOJ is “not beholden to the same interests succeed, election officials” which allowed preclearance to when it was enforced before as local County . At the same briefing, AALDEF’s Jerry Vattamala pointed out Shelby the recent lack of enforcement of voting rights by the DOJ, and st ressed the utmost importance of the Department’s 461 role in monitoring elections. Not Just a North Carolina and Texas Problem At 23 states have enacted newly restrictive statewide voter laws since the Shelby County least 462 findings of federal courts show that North The Carolina’s HB 589, Texas’ SB 14, and decision. electoral changes have violated Section 2 of similar VRA and negatively impact minority the 463 voters. main following chapter, the Commission reviews In the types of ch anges in voting procedures the that impact minority voters and are relevant to federal VRA enforcement, from the 2006 VRA Reauthorization the present. to 460 Tex. ittee Assist Prof. of Law, Univ. of Houston, to the U.S. Comm’n on Civil Teddy Rave, Advisory Comm , Mar . 13, 2018 at 22 - 30 [ hereinafter Houston Meeting ]. Rights 461 Houston Meeting , at 97. Jerry Vattamala, 462 392 , Written Testimony, supra no te Barber , at 1. According to the Brennan Center, since 2010, 23 have passed new restrictions on voting. In addition, 13 have more restrictive voter ID laws, 11 introduced stricter rules for voter registration, 6 cut back on early voting days and hours, and 3 made it harder for persons with past felony convictions to vote. See also The Brennan Cen t. for Justice , New Voting Restrictions in America , T HE B RENNAN C ENT . FOR accessed J https://www.brennancenter.org/new - voting - restrictions - america (last , July 26, 2018) [ hereinafter USTICE Brennan, New Voting Restrictions in America ] . 463 Ch apter 4, Table 12 at note 1322, infra (listing and citing 23 See successful Section 2 c ases in the post - Shelby County era).

89 Chapter 3: Recent Changes in Voting Laws and Procedures 83 RECENT CHANGES IN VO CHAPTER 3: TING LAWS AND PROCEDURES THAT IMPA CT MINORITY VOTERS some of the main changes in voting laws and procedures from the time of examines This chapter Reauthorization of the Voting Rights Act the until the pre sent, providing an analysis 2006 (VRA) the impact of these measures on minority voters. When relevant, this chapter discusses litigation of other actions and brought to address VRA issues, and the results of those methods. The analysis at the state and local level, and includes inform ation about relevant proceedings of herein focuses Commission’s SACs . the 3 begins by examin ing voter ID laws and their impact on minority voters. It then Chapter and evaluates various arguments about voter documents fraud that have been used to justify voter ID laws and other measures discussed in this chapter. This chapter then examines the impact on voters of recent state rules requiring documentary proof of citizenship for vo ter minority , voters on the rolls, and removal challenges or purges of voters from the voter registration of list. The impact of recent c uts to early voting are also registration . Finally, this chapter documented discusses various polling place and accessibility is sues, including moving or closing polling access issues, and accessibility for places, voters with disabilities. Appendix E language showing overall results in a table summarizes where potentially discriminatory issues have the occurred across the nation, in a state - by - state chart. Research shows that in the 15 formerly covered states, were an average of at least two potentially discriminatory voting changes per state there one time period studied in this report. In comparison, there was an average o f less than during the voting change per state in the discriminatory states that were not formerly covered. potentially 35 total , 55.4 percent of the potentially discriminatory voting changes occurred In the 15 formerly in covered states, while 44.6 percent occur red in other states. Voter Identification Laws identification (ID) laws that require eligible voters to present identification when casting a Voter in ballot a highly debated and contested issue are state legislatures and courtrooms throughout the United States. This section illustrates the various types of voter ID laws and which states have enacted It briefly discusses relevant federal legal background, then summarizes the status of them. laws in the states (from 2006 to the voter present). The Commi ssion then examines further ID whether and how voter ID laws have about a discriminatory impact on minority voters. As detail will be discussed below, federal court decisions as well as current, available data show that different of voter ID laws enacte d by types different states have different levels of discriminatory impact , ranging from those that federal courts have found to be racially discriminatory and in violation of the VRA, to those that may have negligible impact .

90 An Assessment of Minority Voting Rights Access 84 are the various types of voter ID l aws regarding found in the following graph and map: Data Figure : Type of Voter Identification Law in U.S. States, 2000 - 2016 4 464 National Conference ource: State Legislatures S of 464 Nat’l. Conf. of State Legislators (NCS ) , History of Voter ID , http://www.ncsl.org/research/elections - and - L campaigns/voter - id - history.aspx ( last accessed July 26, 2018) [ hereinafter NCSL, History of Voter ID ] . NCSL documented that these states adopted four types of voter ID laws. These are: strict photo ID laws (government - required to vote), non issued photo strict photo ID laws (photo IDs are IDs are not required, but requested before - voting), strict non - photo ID laws (non - photo IDs are required to vote), and non - strict non - photo ID laws (non - photo IDs are requested before voting). NCSL adds that strict voter ID laws are also characterized by the inability of v oters without ID to have even provisional ballots counted, unless the person presents appropriate ID within several days after Election Day. Id.

91 Chapter 3: Recent Changes in Voting Laws and Procedures 85 5: Voter Identification Laws in Effect in 2018 Figure 465 National Conference of State Legislatures Source: Background Legal 466 ID laws were not prominent until the late 2 0th century. Prior to Voter the 1965 VRA, poll workers sometimes required other voters or poll workers to “vouch” for the voter’s identity or 467 qu This practice was used in alifications. a racially discriminatory manner in some such jurisdictions, particularly in the South, that the 1965 VRA legislated a permanent, nationwide ban 465 hill, Voter Identification Requirements , NCSL (May 15, 2018), Wen dy Under Underhill, and campaigns/voter - id.aspx - [ hereinafter - Voter ID http://www.ncsl.org/research/elections uirements ] . Req 466 NCSL, , supra note 464. History of Voter ID 467 - 110, § 4(c) (codified as amended at 52 U.S.C. § 10303(c)), Voting Rights Act of 1965, Pub. L. 89 - files/PPL_VotingRightsAct_1965.pdf http://library.clerk.house.gov/reference (prohibited tests and devices as prerequisites to voting or registration included any requirement that a person “prove his qualification by the voucher of registered voters or members of any other class.”); see also NAACP LDF, Jim Crow Era Voucher Laws “Have No Place in Modern Day Alabama,” NAACP LDF (May 29, 2014), http://www.naacpldf.org/press - release/naacp - U.S. legal defense - fund - calls - state - alabama - stop - using - discriminatory - voucher - tes t ; see also - C OMM ’ N ON C IVIL , R V OTING 1961 , supra note 62 IGHTS at 26, 50, 53 (displaying evidence of this practice of requiring s omeone to vouch for a potential voter’s identity or qualifications).

92 An Assessment of Minority Voting Rights Access 86 468 Between this time and 2008, states verified the identity of voters through a variety vouchers. on 2008, and informal methods. In other the Supreme Court summarized these methods: of formal at methods of identifying eligible voters different the polls. Some merely employ States off the names of registered voters who i dentify themselves; others require voters to check can registration or other documentation before they cards vote; some require voters present sign their names so their signatures can be compared with those on file; and in recent to 469 an increasing years of states have relied primarily on photo identification. number 470 addition, state and federal law include criminal penalties for impersonating another voter. In he RA itself provides criminal penalties , including fines of $10,000 V and 5 years ’ imprisonment, T 471 voting twice. for first law requiring voters to show identification at the polls was passed in The Carolina in South 1950, followed by four other states — Hawaii (1970), Texas (1971), Florida (1977), and Alaska 472 all passed laws. — T hroughout the next (1980) several decades , several more states began that 473 voter ID laws and by the 2000 election, 14 states passed voter ID laws. Since considering the 474 2000 Election, the number of state voter ID laws has been on the rise. After the Presidential the Florida tha t changed the initial results of 2000 election, Congress enacted the Help recount in 475 Vote Act (HAVA). In addition to other reforms, America HAVA included a new federal law every requirement person who registers to vote must either present identification at that time, that 476 the or if the person is a first - time at registrant in that jurisdiction. The types of ID that polls, HAVA considers acceptable are: a current driver’s license or state ID card, or a “current utility bill, statement, government check, paych eck, or other government document that shows the bank 477 address of the voter.” HAVA also name a provision for “fail - safe voting” and if the includes 468 (c) .; see also Voting Rights Act of 1965, Pub. L. 89 - 110, § 4(c) ( 52 U.S.C. § 10303 Id ). codified as amended at 469 Crawford v. Marion Cty. , 553 U.S. 181, 197 (2008). 470 U.S. Dep’t of Justice, Federal Prosecution of Election Offenses , D EPT . OF J USTICE 26 (7th Edition, May 2007) https://www.justice.gov/sites/default/files/criminal/legacy/2013/09/30/electbook - (According to the rvs0807.pdf ccur when “Voting in federal elections for individuals who do not personally Justice Department, this can o participate in, and assent to, the voting act attributed to them, or impersonating voters or casting ballots in the names §§ 1973i(c), 1973i(e), 1973gg Thomas J. 10(2).”). See also of voters who do not vote in federal elections (42 U.S.C. - Kyle L. Kreider, Of the People, by the People, For the People: A Documentary Record of Voting Rights & Baldino 631 (2010) (Santa Barbara, Calif.: Greenwood); The Heritage Foun dation, and Electoral Reform , Voter Fraud Cases T H ERITAGE F OUNDATION , HE (last accessed Aug. 2, 2018) [ hereinafter https://www.heritage.org/voterfraud Heritage, Voter Fraud Cases ] (noting their database of 1,132 “proven insta nces of voter fraud” from 1979 to 2018). 471 52 U.S.C. § 10307(e). 472 History of Voter ID, supra note 464. NCSL, 473 Id . 474 Id . 475 Help America Vote Act of 2002, Pub. L. No. 107 - 252, 116 Stat. 1666 (codified as amended in scattered sections of 32 U.S.C., 56 U.S.C.), ; s ee also 2000 and 2001 USCCR voting https://www.eac.gov/assets/1/6/HAVA41.PDF investigations discussed in Appendix A. 476 52 U.S.C. § 21083(b) (also stating that the State shall implement these requirements “in a unif orm and nondiscriminatory manner”). 477 52 U.S.C. § 21083(b)(2)(A)(i)(II).

93 Chapter 3: Recent Changes in Voting Laws and Procedures 87 does not bring ID to the polls , by providing for provisional ballots , which are special ballots voter ad must offer to voters who believe they ministrators are eligible but are rejected at the election due to state or local polls after which administrators must notify voters as to whether their rules, 478 479 counted. vote HAVA, however, does not require states to count provisional ballots. was of definitions of the N ational Conference the State Legislatures , HAVA therefore includes Using 480 “ no n - strict voter ID rule .” to However, HAVA also permits states a adapt their own, more 481 restrictive strict voter ID rules. or 478 52 U.S.C. § 21083(b)(2)(B ). 479 leaving method of implementation to the states). S ee, e.g ., Nat’l. Conf. of State 52 U.S.C. §§ 21082(a), 21085 ( L Provisional Ballots: What are the Reasons for Rejecting/Accepting a Provisional Ballot , NC S ? ( June , Legislators ) http://www.ncsl.org/research/elections - and - campaigns/provisional 19, 2015 ballots.aspx#Accept/Reject (discussing - widely varying state laws on whether provisi ounted). onal ballots are c 480 52 U.S.C. § 21083(a)(5)(i) (stating HAVA’s ID requirements as a , supra note 464; History of Voter ID NCSL, minimum. “Except as provided in clause (ii), notwithstanding any other provision of law, an application for voter regist ration for an electio n for Federal office may not be accepted or processed by a State unless the application includes [a drivers’ license or the last 4 digits of the applicant’s social security number, which will then be verified through presentation of ID he voter registration verification requirements under 52 U.S.C. when they vote].”) T §21083(b) of the statute include the following: V (5) REGISTRATION INFORMA TION ERIFICATION OF VOTER (A) Requiring provision of certain information by applicants (i) Except as provided in clause (ii), notwithstanding any other provision In general of law, an application for voter registration for an election for Federal office may not be accepted or processed by a unless the application includes — State in the case of an applicant who ha d valid driver’s license, the (I) s been issued a current an applicant’s driver’s license number; or (II) in the case of any other applicant (other than an applicant to whom clause (ii) applies), the last 4 digits of the applicant’s social security number. (ii) rule for applicants without driver’s license or social security number : Special If an applicant for voter registration for an election for Federal office has not been issued a current and valid driver’s license or a social security number, the shall assign the applic ant a State number which will se rve to identify the applicant for voter registration purposes. To the extent that the State has a computerized list in effect under this subsection and the list assigns unique identifying numbers to registrants, the number assigned under this clause shall be the unique tifying number assigned under the list. iden Determination of validity of numbers provided : (iii) The State shall determine whether the information provided by an individual is sufficient to meet the requirements of this subparagraph, in accorda nce with State law . 481 see also 52 U.S.C. § 21083(b)(5)(A)(II)( iii) ; 52 U.S.C. §§ 21082(a), 21085 ( leaving decision of whether to count provisional ballots without ID to the states).

94 An Assessment of Minority Voting Rights Access 88 482 to 2016, 34 states adopted various forms of new voter ID laws , 2000 which are analyzed From below further . County Reauthorization and Post 2006 Shelby VRA Voter ID Litigation - Post - adopted the nation’s first voter ID law that required voters to sho Indiana an unexpired, state - w 483 ID , with their current name and address , at photo polls in order to vote . Indiana’s law issued the 484 not an entirely strict photo ID law , for because it does not apply at all is voters , persons absentee 485 at licensed care facilit ies, or voters with religious objections . voting Additionally, indigent procuring sign an affidavit permitting them to vote after a free photo ID card at the voters may 486 B ureau of Motor Vehicles. law Indiana’s photo ID state was immediately challenged and the to the Supreme Court. I n 2008, in Crawford v. Marion County Election Board , the Court case rose th that Indiana’s law requiring photo identification when casting a ballot did not violate the 14 held 487 of U.S. Constitution. Amendment the deciding apply Crawford , the Court reasoned that in prior constitutional cases, it did not “any In restrictions” test’ that would neatly separate valid from invalid on the right to vote, and ‘litmus “a court must identify and evaluate the interests put forward by the Sta te as justifications for that imposed by its rule, and then make the ‘hard judgment’ that our adversary system burden the 488 versus This balancing test, evaluating state interests the burden on voters, impacts demands.” 489 challenges to voter ID laws have been d ecided since Crawford , even under VRA claims. how 482 Voter ID Requirements , supra note 465. Underhil l, 483 S. Enrolled Act (SEA) 483, §1, 114th Leg., 1st Sess. Ind. 2005), ( [ SEA 483] (requiring that in order to cast a http://www.in.gov/legislative/bills/2005/SE/SE0483.1.html hereinafter ow proof of identification as follow s: ballot, voters must sh Proof of ide “‘ refers to a document that satisfies all the foll owing: ntification’ (1) The document shows the name of the individual to whom the document was issued, and the name conforms to the name in the individual's voter registration record. (2) The document shows a photograph of the individual to whom the document was issued. The do (3) (i) is not expired; or (ii) expired after the date of cument includes an expiration date, and the document the most recent general election. (4) The document was issued by the United States or the state of Indiana .”) 484 Id .; Cf. NCSL , History of Voter ID (with definitions of types of voter ID laws), supra note 464. 485 supra note 483. SEA 483, 486 . Id 487 Crawford , 553 U.S. at 202 - 04 . 488 Id. at 189 - 90 (citing Anderson v. Celebrezze , 460 U.S. 780 (1983)) (plurality opinion of Justices Stevens, Roberts, and Kennedy, who were joined by Justices Scalia, Thomas , and Alito in a concurring opinion) and at 200 (resulting in a 6 - t Indiana’s photo ID law was constitutional). 3 majority holding tha 489 , 76 , cert. denied See, e.g., Frank v. Walker 135 S. Ct. 1551 (2015); Frank v. 8 F.3d 744, 748 (7th Cir. 2014) Walker II , 819 F.3d. 384, 386 - 87 (7th Cir. 2014); but see McCrory , 831 F.3d at 235 (distinguishing Crawford ’s balancing test in case of voter ID by stating that “at least in part, race motivated the North Carolina legislature. Thus, we do not ask whet her the State has an interest in preventing voter fraud — it does — or whether a photo ID

95 Chapter 3: Recent Changes in Voting Laws and Procedures 89 Crawford the Court agreed that the following three interests put forth by the state were In , modernizing election administration, preventing voter fraud, and “safeguarding voter compelling: 490 in ite the of specific evidence of Desp - person voter fraud, which the Court confidence.” lack is the only type of voter fraud that Indiana’s photo ID law would address, it noted found that each 491 these three state interests were valid. of Regarding the burden on voters, the Court reasoned that 492 have a government - issued photo ID, and furthermore: most people J ust as other States provide free voter [ registration cards, the photo identification ] Vehicles by Indiana’s [Bureau of Motor issued (BMV)] are also free. For cards most voters who need them, the inconvenience of making a trip to the BMV, gathering required documents, and posing for a photograph surely does not the vote, a substantial burden on the right to or even represent a significan t qualify as 493 over the usual burdens of increase voting. tutes one way to serve that interest — — but whether the legislature would have enacted SL requirement consti it may 381’s photo ID requirement if it had no disproportion ate impact on African American voters”). - 2013 490 Crawford, 553 U.S. at 191. 491 Id ation, the Court took into account the legislative language of HAVA, as well as . Regarding election administr - 2005 and stating that establishing voter the findings of the bipartisan Carter Baker Commission report issued in uld enhance the integrity in elections without adding identification connecting directly to a voter’s registration wo See Commission on Federal Election Reform, Building Confidence in the U.S. additional costs to participation. Elections 6 (September 2005); see also NCSL, History of Voter ID , supra note 464 . (The Commi ssion was chaired by former President Jimmy Carter and former Secretary of State James A. Baker III in order to increase voter Id. - 94 . (In participation and assure integrity in U.S. elections.) The Court found that this interest was valid. at 193 Baker Commission: “There is no evidence of particular, the Court took into account this finding of the Carter - extensive fraud in U.S. elections or of multiple voting, but both occur, and it could affect the outcome of a close election. The electoral s ystem cannot inspire public confidence if no safeguards exist to deter or detect fraud or to the identity of voters. Photo [identification cards] currently are needed to board a plane, enter federal confirm portant.”). Regarding voter fraud, the majority in buildings, and cash a check. Voting is equally im was Crawford oter fraud that SEA 483 [Indiana’s voter ID law] addresses is in person voter very clear that: “The only kind of v - raud actually occurring in Indiana at impersonation at polling places. The record contains no evidence of any such f any time in its history.” Id . at 194 - 95. However, the Court he ld that even so, the state still had a general interest in protecting election integrity. Id . And regarding voter confidence, the Crawford opinion noted tha t, “While that interest is closely related to the State’s interest in preventing voter fraud, public conf idence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.” . at 197. Id 492 Id . at 198. 493 Id . at 199. In their concurring opinion, Justices Scalia, Thomas , and Alito found the evidence presented by opponents of Indiana’s voter ID law even more lacking and wrote that: The lead opinion assumes petitioners’ premise that the voter - identification law “may have imposed a special burden on” some voters, but holds that pe titioners have not assembled evidence to show that the special burden is severe enough to warrant strict scrutiny. That is true enough, but for the sake of clarity and finality (as well as adherence to precedent), I prefer to decide these cases on the grou nds that petitioners’ premise [of voter ID laws burdening voters] is irrelevant and that the burden at issue is minimal and justified. Id . at 204 (emphas is added) .

96 An Assessment of Minority Voting Rights Access 90 their plurality (or “leading”) opinion, Justices Stevens, Roberts , and Kennedy also took into In 494 evidentiary record in th e case, the and weak determined that “Indiana’s voter photo ID account imposed only a ‘limited burden’ on voting rights that is justified by the state law interest in 495 integrity.” Thus, on the factual record before it, the Court characterized election protecting 496 “nondiscriminatory.” ID law as “neutral” and voter Justice Kennedy’s leading opinion Indiana’s held that, “on the basis of the record that has simply been made in this litigation, we cannot conclude that the statute imposes ‘ excessively burdensome requirements ’ on any class of 497 voters.” type of legal challenge that the Crawford C The reviewed was also important. The majority in ourt rejected a facial challenge (i.e., a case to invalidate the entire statute), brought Crawford without any showing of individual harm, but it left open the possibility of challenges to particular 498 of such laws (“as - applied” challenges). s T he leading opinion also cautioned that application voter ID laws might be unconstitutional in certain circumstances , if the laws could be shown to 499 burden voters. Yet a lthough the Crawford opinion left open the po ssibility that voter particular , laws be challenged by individual as - applied claim s these types of claims can be difficult ID could bring for several reasons. First, the individual plaintiffs who would bring these claims are less to have the resources neede d to pursue litigation since they are also the people who are to likely 500 to obtain a photo ID. unable Second, it is possible that some plaintiffs who were previously 501 in their application would be granted an ID after litigation was brought, likely mooting rejected 494 Id . at 200. 495 Eric A. Fisher, R. Sam Garrett, and L. Paige Whitaker State Vo ter Identification Requirements: Analysis, Legal , , 6 C ONG . Issues, ESEARCH S ERV ., R42806 (2016), and Policy Considerations R . https://fas.org/sgp/crs/misc/R42806.pdf 496 , 553 U.S. at 203 - 04. The Court also noted that: Crawford [I]f a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because part isan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for SEA 483 are both neutral and sufficiently strong to require us to reject petitioners’ facial attack on the statute . The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the Id . at 204. integrity and reliability of the electoral process.” 497 . at 202. Id 498 Id . 499 Id .; see also Richard Sobel, The High Cost of ‘Free’ Photo Voter Identification Cards , at 4, H ARV . L. S CH . I NST . F OR ACE & J USTICE (June 2014), https://today.law.harvard.edu/wp - R ] /uploads/2014/06/FullReportVoterIDJune20141.pdf [ content fter Sobel , High Cost . hereina 500 Kathleen M. Stoughton, Note, A New Approach to Voter ID Challenges: Section 2 of the Voting Right Act , 81 G EO . W ASH . L. R EV . 292, 302 (2013) , http://www.gwlr.org/wp - content/uploads/2013/01/Stoughton_81_1.pdf . 501 Wex Legal Dictionary explains the doctrine of mootness as follows: resolve actual disputes (see Because Federal Courts only have constitutional authority to ) Case or Controversy legal actions cannot be brought or continued after the matter at issue has been resolved, leaving no live dispute for a court to resolve. In such a case, the matter is said to be “moot.” For Supreme Court decisions focusing on mootness, see, e.g., Arizonans for Official English v. Arizona , 520 U.S. 43 (1997) and Hicklin v. Orbeck , 437 U.S. 518 (1978) . Wex Legal Dictionary, Moot (Legal Information In stitute, Cornell Univ.), https://www.law.cornell.edu/wex/moot .

97 Chapter 3: Recent Changes in Voting Laws and Procedures 91 502 ut viability of further litigation on behalf of that plaintiff. Although federal courts may o the that tactic of making changes in the face the of litigation (as opposed to permanent, recognize 503 is not a permanent solution to voting rights violations, systemic in private litigation, changes) 504 plaintiffs who are in jured are still needed for standing, and in order to prove the case. individual laws these hurdles, after the Crawford decision, voter ID were challenged in a number of Despite states in the pre - and post - Shelby County era. The research shows that in addition to other the above factors, the success of these challenges has been closely dependent upon the factual details each case. of 505 precleared Shelby County , voter ID laws been under Section 5 in Georgia (2011) to Prior had South Carolina (2012), but as discusse d in Chapter 2 of this report , Texas ’ strict voter ID law and 506 was precleared (2012). The DOJ also objected to South Carolina’s voter ID law as not it was eventually retrogressive, by a federal court after the state but added a “reasonable precleared 507 exception. impedimen Specifically, the t” court stated that: . . . South Carolina’s new law, Act R54, does not require a photo ID to vote. Rather, under expansive “reasonable impediment” provision in Act R54 — as the interpreted by the responsible So uth Carolina officials, an authoritatively on which we base our decision today — voters with the non - photo interpretation pre registration card that sufficed to vote under - existing law may still vote voter a photo ID. Those without simply must sign an affidavit at th e polling place voters 508 list the reason that they have not obtained a photo ID. and was Texas’ In strict photo ID law (SB 14) contrast, struck down as retrogressive in litigation under 509 5 , primarily because of the racially discriminatory impact Section of requiri ng photo ID in order 502 , P ITTSBURGH P OST - G AZETTE ( Aug. Jessica Parks, Lead Plaintiff in Pennsylvania Voter ID Case Gets Photo ID voter - http://www.post plaintiff - in - Pennsylvania - gazette.com/news/state/2012/08/18/Lead - ID - case - gets - 18, 2012), - - ID/stories/201208180187 ( photo - year - old Viviette Applewhite (lead plaintiff) was given ID after showing that 93 she testified that she could not get ID needed to vote after various attempts at the Pennsylvania Department of Motor Vehicles). 503 Puerto Rican Org. for Political Action v. Kusper , 350 F. Supp. 606, 611 (N.D. Ill. 1972). 504 See Applewhite v. Com. , 2014 WL 184988, No. 330 M.D. 2012 (Pa. Commw. Ct. 2014) , - - 0115 - 0009.pdf . PA https://www.clearinghouse.net/chDocs/public/VR 505 See, e.g ., Press Release, Rome News Tribune, Secretary of State: Georgia’s Voter ID Requirement Cleared by Feds , R OME N EWS T RIBUNE (April 4, 2011), http://www.northwestgeorgianews.com/rome/secretary - of - state - 3 georgia - voter - id - requirement - cleared - by/article_ec638578 - 2423 - 57b s - a792 - e5b7eae70647.html [ hereinafter - Rome News Tribune, Georgia’s Voter ID ] . 506 DOJ Section 5 , supra note 226 ( last updated Aug. 6, 2015) ; see also South Carolina v. United States , 898 F. vacated and remanded Supp. 2d 30 (D.D.C. 2012); pp. 2d at 144 - 45 (D.D.C. 2012), , 888 F. Su , 49 F. Supp. 3d Texas 27 (D.D.C 2014) (2013) (remanded based on Shelby C ty. ). 507 South Carolina , 898 F. Supp. 2d at 32. 508 Id . 509 See Texas , 888 F. Supp. 2d at 144 - 45 .

98 An Assessment of Minority Voting Rights Access 92 vote, to racial disparities in access to the underlying documents , and disparities in access ongoing 510 a and transportation needed to get time government - issued photo ID. the to in Indiana, t o mitigate some of the strict voter ID law s they have enacted , some states have As free voter IDs to registrants who lack the proper identification demanded by the begun offering 511 Review columnist John Fund testified during the Commission ’s briefing that a statute. National voter ID card would be like the “Freedom Cards” supported by Martin Luther King III and free Atlanta Mayor Andrew Young, in that it would not only enable a person to vote, but also former 512 “poor and disadvantaged” people to enter “mainstream American life.” enable Despite any the benefits, many opponents of voter ID laws equate these laws to the poll taxes of the Jim potential era. They argue that even if the ID itself is offered free of charge, there are other costs Crow must pay in order to receive these IDs. For instanc e, expenses for documentation (e.g., citizens travel, and wait times are significant — especially for low - income voters (who are certificate), birth 513 voters of color) — and they typically range anywhere from $75 to $175. often According to inflation, Sobel, even after being adjusted for Richard these figures represent far greater Professor th 514 than the $1.50 poll tax outlawed by the 24 costs Amendment in 1964. Similarly, during the Commission’s Hampshire S AC briefing on voting rights, advocates commented that althoug h New state’s voter ID law is not strict, it still presents barriers for homeless, disabled , and elderly their 515 voters. 3 summarizes the status of litigation of voter Table laws in the time period studied by the ID in this report. Post - 2006, p Commission - Sh elby County cases include Section 5 matters in re Georgia, South Ca rolina , and Texas, and a Section 2 claim in Arizona. P ost - Shelby County , voter ID law s have been challenged through litigation of Section 2 claims in Alabama, North Carolina, Texas, Virginia , and Wisconsin; and during this time period, voter ID laws in Arkansas, Missouri , North Pennsylvania , and Tennessee were challenged in state courts under state Dakota, herein State constitutional claims are included because due t o the constitutional protections. of Section 2 litigation, advocates are complexity reaching for non - VRA theories to protect voting 516 rights. 510 See Discussion and Sources cited at notes 421 26 , supra . - 511 See Sobel, High Cost , supra note 499 , at 2 ( n oting that many states post - Crawford began offering “free” photo voter IDs, specifically no ting Pennsylvania, South Carolina and Texas as three states who have done such , programs). 512 John Fund, Written Testimony for the U.S. Comm’n on Civil Rights, Feb . 2, 2018 , at 2 [ hereinafter Fund, Written Testimony] (“The Freedom Card would eliminate some of the worst barriers to poor people participating in our banking industry. In addition, the Freedom Card would - 9 employee significantly improve the integrity of the I verification process since it would be much harder for a person applying for a job to use another worker’s card”). 513 Sobel, High Cost , note 499, at 2 . supra 514 Id. at 2, 30 - 31. 515 Appendix D for a s ummary of N ew See State Advis ory Comm ittee (also discussing only 2 Hampshire documented cases of voter fraud from 2000 - 2012 (0.0003 percent of all voters). 516 See, e.g ., NAACP Legal Def ense and Educational Fund, The Cost (in Time, Money, and Burden) of Secti on 2 of the Voting Rights Act Litigation , NAACP LDF (Oct. 25, 2017), http://www.naacpldf.org/files/case_issue/Section%202%20costs%2010.25.17.pdf (discussing Section 2 cases

99 Chapter 3: Recent Changes in Voting Laws and Procedures 93 the following chart, an “amended” photo ID law means that an original, strict photo ID law was In or to exceptions, such as the provision of free IDs the ability for a voter to cast a amended include without an ID based on an affidavit. The chart il lustrates that VRA ballot against voter ID claims laws are not always successful, and that to date, success varies with whether an extensive can be developed to prove discriminatory impact evidentiary in a timely manner, and record are whether exceptions to the photo ID rule. there 3 Results of Major Litigation Challenging Voter Identification Laws (2006 - Present) : Table State (date of ruling(s)) Status Type of Claims 517 Precleared under Section 5 likely based on exceptions Georgia (2011) Section 5 affidavits swearing they could permitting voters to sign not get photo ID and vote without ID. 518 South Carolina (2012) Precleared under Section 5 based on “reasonable Section 5 impediment” type of exceptions permitting voters to sign affidavits swearing they could not get photo ID and vote without ID. 519 Arizona (2012) Section 2; U.S. Ninth Circuit affirmed lower federal court’s opinion facial challenge (based on the limited rejecting Constitution evidence brought in haste to try to get a preliminary . injunction) Strict photo ID enjoined (2012) and an amended photo State constitutional Pennsylvania (2012 and 520 ID law was struck down because even with “free ID,” claim 2014) still burdened state constitutional rights to vote the law for those without state ID who would have to procure one (2014 ). Section 2; U.S. Strict photo ID law (SB14) struck down under Section Texas (2012, 2014, 2016, 521 5 (2012), but this was vacated 2 days after Shelby 2018) Constitution costing millions of dollars, and that Section 2 cases take 2 - 5 years to resolve); see also Dale Ho, Voting Rights , 17 N.Y.U. J. L EG . & Litigation After Shelby County, Mechanics and Standards in Section 2 Vote Denial Claims 705 (2014), UB P OL ’ Y 675, 697 - . http://www.nyujlpp.org/wp - content/uploads/2014/11/Ho - Voting - Rights - P Litigation - After - Shelby - County - 17nyu jlpp675.pdf (discussing fewer Section 2 precedents and complexity of elements in vote denial cases and need to develop new legal precedents in the wake of Shelby County ). 517 Georgia’s Voter ID , supra note 505. See, e.g., Rome News Tribune, 518 South Carolina v. United States , 898 F. Supp. 2d 30 (D.D.C. 2012). 519 Gonzalez v. Arizona, 677 F.3d 383, 407 (9th Cir. 2012). 520 , 2012 WL 3332376, No. 330 M.D. 2012 (Pa. Commw. Ct. 2012), vacated , 617 Pa. 563, 54 Applewhite v. Com. ; https://www.clearinghouse.net/chDocs/public/VR PA - A.3d 1 (2012), - 0001.pdf - see also Applewhite v. Com. , 0115 2014 WL 184988, No. 330 M.D. 2012 (Pa. Commw. Ct. 2014), https://www.clearinghouse.net/chDocs/public/VR - PA - 0115 - 0009.pdf . 521 ing voter ID in Texas in this era: (1) Texas , 888 F. Supp. 2d at 144 - 45 There are four main decisions regard , vacated and remanded , Texas v. Holder , 570 U.S. 928 (2013) (remanded on June 27, 2013, based on (D.D.C. 2012) Shelby County , after which the SB 14 was immediately put back into effect); (2) Veasey , 71 F. Supp. 3d at 707 (SB 14 was preliminarily enjoined on basis of likelihood of success on the merits for i ntentional discrimination and with regard to Section 2’s prohibition of discriminatory effects) , at upon appeal, Veasey , 769 F.3d but this was stayed

100 An Assessment of Minority Voting Rights Access 94 State (date of ruling(s)) Type of Claims Status ; then preliminarily enjoined under Section 2 County intentionally (2014) and permanently enjoined as discriminatory (2016); amended photo ID law (SB 5) was struck down by lower court (201 7), but recently th Circuit panel (April 27, 2018). overturned by 5 th 522 th 14 Strict photo ID law of 2011 upheld by state supreme Tennessee (2013, 2015) and 26 ) court ( Amendments of ; amended in 2013 to limit acceptable IDs 2013 issued IDs only. Students sued - to federal or Tennessee U.S. Constitution alleging discrimination, particularly against out state - of - state’s motion to students, but the court granted the dismiss (Dec. 22, 2015). 523 Wisconsin (2014 and 2016) Section 2; U.S. Strict and amended photo ID laws struck down by th lower federal court under Section 2; overturned by 7 Constitution Circuit (2014); with subsequent lim ited success on U.S. Constitutional claims as applied to college IDs (2016). 524 North Carolina (2016) Strict photo ID law and amended version both struck Section 2; U.S down by Fourth Circuit due to discriminatory intent Constitution . (2014) 525 Virginia (2016) Fourth Circuit upheld lower federal court’s opinion that Section 2; U.S. photo ID law with significant exceptions and free ID Constitution have or provisions did not present undue burden discriminatory effect (2016) . , 830 F.3d Ct. 9 (2014) (denying motion to vacate stay); (3) Veasey , 898 at 272 (SB 14 found to be 135 S. on remedies); in the intentionally racially discriminatory, remanded to district court on equal protection claim and interim, Texas amended SB 14 and introduced SB 5, which provided for new exceptions to the strict voter ID bill, ing a “reasonable impediment procedure,” as well as expanding the list of acceptable identifications. SB 5 was includ Veasey v. Abbott , 248 F. Supp. 3d 833 , also found to be intentionally discriminatory in (4) 835 - 37 (S.D. Tex. 2017) (holding that SB 5 must be in validated as tainted fruit of intentional discrimination), but after the Fifth Circuit (en banc) affirmed the relevant decision and remanded the remedies issue, on remand, on April 27, 2018, a three - judge the en banc ruling of the full Fifth Circuit, based on the theory panel of the Fifth Circuit concurred to strike down , 888 F.3d 792 Veasey v. Abbott , that Texas’ appeal was not moot and that SB 5 should be independently evaluated. , 2018 WL 1995517 (5th Cir. 2018). In this latest ruling, which i 795 - 1 96, 799 - s likely to be appealed, in the 2 decision, of the three judges, one ruled that the lower court’s opinion was based on inequitable remedies because SB . at 801 - 02 , the se cond agreed Id 5 was not “tainted” by prior discrimination and that the state’s appeal was moot, with overturning the permanent injunction because it was moot as the legislature should be allowed to solve Id problems, 804 - 06 , and the third judge that it was still “tainted.” Id . at 823 . . at 522 , 155 City of Memphis v. Hargett nn. 2013). See also , 414 S.W.3d 88 (Te Nashville Student Org. Comm. v. Hargett F. Supp. 3d 749 (M.D. Tenn. 2015) (granting state’s motion to dismiss). Notably, the ma yor of Memphis found a unique way to provide access to voters, by issuin g a library card that qualifies. See Brentin Mock, The Overlooked Fight Against Voter ID in Tennessee , ACING S OUTH (Nov. 1, 2013), https://www.faci ngsouth.org/2013/11/the - F - - - overlooked - voter - id fight in - tennessee.html . against 523 Frank , 768 F.3d 744. But see One Wisconsin Ins t . v. Walker , 186 F. Supp. 3d 958 (W.D. Wis. 2016) (state did not have a rational basis for excluding expired college or universit ). y IDs 524 McCrory , 831 F.3d at 236 - 37 (2016), cert. denied 137 S. Ct. 1399 (2017). 525 Lee v. Virg inia Bd. Elections , 843 F.3d 592 (4th Cir. 2016).

101 Chapter 3: Recent Changes in Voting Laws and Procedures 95 Status Type of Claims State (date of ruling(s)) 526 North Dakota (2016) Preliminary injunction issued due to likelihood of Section 2; U.S. and success under U.S. Constitutional claims, holding that state constitutions the state could not enforce its new strict law requiring photo ID with a current address that excluded P.O. - boxes and did not have fails safe mechanis m, which burdened Native Americans, and required the state to return to previous voter ID guidelines that included affidavit option (2016); state complied. 527 Arkansas (2014 and 2018) The state Supreme Court struck down a strict photo ID State constitutional s Constitution ’ holding law, that it violated the state claim (2014); amended version also enjoined (2018) but stayed (May 2, 2018). 528 ts’ Motion to Dismiss Alabama (2018) A federal court granted Defendan Section 2 claims against photo ID rule with affidavit option plaintiffs recently appealed. (2018), but Shelby County Considerations - Post the In - Shelby County era, due to the lack of preclearance in formerly covered jurisdictions , post potentially discriminatory voter ID laws are and implemented soon after their enactment. As strict above, discussed speedy implementation occurred within hours of the Shelby County decision this 529 the case of Texas, and in North Carolina, the day after. in Since elections occur with frequency ID United States , post - Shelby County voter in litigation is on an accelerated timeline . For the on example, 2014 in North Carolina, elections were held in May 6 (local school board and federal th plus 12 primary, Congressional district special election) and November 4 (local school board, 530 statewide measure and federal general election). In Texas in 2014, elections were held on ballot election, (state house special election), March 4 (primary), May 10 (state senat e special January 28 board elections), May 13 (one 56 board election), May 27 (primary runoff election school school 531 and November 4 (federal, statewide ballot and 28 school board elections). date), measure 526 , 2016 WL 7118548, No. 1:16 - CV - 0008 (D.N.D. Aug. 1, 2016), Brakebill v. Jaeger - North Dakota - Ruling.html . https://www.documentcloud.org/documents/3002700 - 527 , 444 S.W.3d 844 (Ark. 2014); see also Andrew DeMillo, Arkansas Supreme Court Says State Martin v. Kohls , A SSOCIATED P RESS , Can Enforce Voter ID Law (May 2, 2018), https://apnews.com/656a45047efc4e9d998a61de714ad892 (discussing current and prior decisions). 528 Ministries v. Merrill , 284 F. Supp. 3d 1253 (N.D. Ala. 2018), Greater Birmingham - AL - Voter https://www.documentcloud.org/documents/4346593 ID - Decision.html ; see also Press Release, NAACP - LDF, LDF Files Notice of Appeal in Alabama Photo ID Case , NAACP LDF (Jan. 12, 2018), - http://www.naacpldf.org/press - files - notice - appeal - alabama release/ldf photo - id - case . - 529 See Discussion and Sources cited in Chapter 2, at notes 311 - 12, supra . 530 Ballotpedia , North Carolina Elections, 2014 , BALLOTPEDIA, https://ballotpedia.org/North_Carolina_elections,_2014 (last accessed July 30, 2018). 531 https://ballotpedia.org/Texas_elections,_2014 Ballotpedia, Texas’s 2014 Elections, BALLOTPEDIA, (last acc essed July 30, 2018).

102 An Assessment of Minority Voting Rights Access 96 Professor who has participated in a nd studied voting rights litigation, testified at the Michael Pitts, plaintiffs briefing it is challenging to locate individual that in time to petition for Commission’s 532 before the next election. Other litigation experts injunctive also testified that the relevan t relief 533 is time - consuming and expensive. is It exceedingly also critically imp actful that the litigation Court held in various recent cases (in 2014 in particular) that injunctive relief may not Supreme 534 granted too close be Election Day, making the rush to the courthouse to file a case even more to time sensitive. Because the Supreme Court has made clear that it will be hesitant to grant injunctive - election, the two month s before a federal plaintiffs must be identified, preliminary relief during 535 must be collected, and their case must be filed evidence in advance of Election Day. well Furthermore, the number and complexity of voter ID cases summarized above show that this is a 536 ly developing area of law, particularly under Section 2 of the VRA. decision Since its 2008 rapid in , the Supreme Court has not yet heard the as - applied voter ID case it would seem to Crawford less a case to determine what the parameters of Section 2 are in voter ID case s . welcome, much is clear is that in states formerly subject to preclearance under Section 5 of the What these VRA, new laws are being tested on voters during elections, rather than being put on hold until they could 537 proven to be nondiscriminatory. be 532 Briefing Transcript ; see also supra note 234, at 187 (statement by Michael J. Pitts, Professor, Indiana U.) , , 677 F.3d at 407 (“The record does include evidence of Arizona’s general history of discrimination against Gonzalez Latino s and the existence of racially polarized voting. But Gonzalez adduced no evidence that Latinos’ ability or inability to obtain or possess identification for voting purposes (whether or not interacting with the history of discrimination and racially polari icipate in the political zed voting) resulted in Latinos having less opportunity to part to elect representatives of their choice. Without such evidence, we cannot say that the district court ’ process and s clearly erroneous. Therefore we affirm the district court s denial ’ finding that Gonzalez failed to prove causation was s VRA claim.”) ; and i d of Gonzalez ’ . at 389 (plaintiffs filed shortly after passage of the voter ID law). 533 McCrary, Written Testimony , supra note 445, at 7 (discussing the Texas voter ID litigation cost “well into six see also Briefing Transcript , supra note 234, at 187 (statement by Michael J. Pit t s); see also Briefing figures.”); Transcript , supra note 234, at 90 (statement by Sherrilyn Ifil l) (noting Texas voter ID case that was filed in 2014 is still ongoing and has lasted four years, during which a voter ID law that was found to be intentionally discriminatory has not been enjoined. Therefore, elections are being conducted while an estimat ed 600,000 eligible voters, who are Briefing Transcript disproportionately black and Latino, lack the type of ID needed to vote); supra note see also , , at 29 (statement by Vanita Gupta) (testif ying that voting rights litigation is “slow,” “time - 234 ve,” and takes intensi many “resources” to do correctly. ; but see 42 U.S.C. § 1988 ( allowing, h owever, attorneys’ fees and litigation costs ) be granted eventually to private litigants (but not the DOJ) in these cases ) . Some advocates do not see the merit in to cha llenging voter ID laws . S ee Briefing Transcript , supra note 234 , at 189 (statement by Cleta Mitchell, Partner, Foley & Lardner LLP , ying that litigation against voter ID laws is part of what she derided as “the professional testif . grievance industry.”) 534 See Husted , 135 S. Ct. 4 2; North Carolina , 135 S. Ct. 6; Frank , 135 S. Ct 7; and Veasey , 135 S. Ct. 9. 535 Purcell v. Gonzalez Id see also .; , 549 U.S. 1, 4 - 5 (2006). 536 See, e.g ., Dale Ho, Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Si nce Shelby , 127 - Y L. J. (2017 - 2018), https://www.yalelawjournal.org/forum/the - new - vote - denial - litigation ALE since - shelby - county (discussing feder t of appeals circuit splits over the standards of proof in Section 2 vote denial cases, including al cour voter ID cases in North Carolina, Texas , and Wisconsin). 537 52 U.S.C. §10304(a).

103 Chapter 3: Recent Changes in Voting Laws and Procedures 97 of Voter ID Laws on Racial Minorities Impact studies Various found that photo ID laws have a racially discriminatory impact. A recent have Stewart MIT political scientist Dr. Charles by surveyed 10,000 registered voters conducted study all 50 states and Washington, D.C. and found that in comparing from types of ID possessed, the had some form of government identification; however, the registered voters great majority twice that did not vote strict photo ID states were as likely to state they did not vote surveyed in 538 to a lack of identification . like As discussed bel ow, due others, Stewart also found significant 539 differences, with black and Latino voters disproportionately lacking photo ID. racial In addition this study, several large - scale surveys of the American public have documented significant to 540 race, possession of government issued IDs by age , and income. in F ederal courts disparities the found that this absence of ID is in have part due to less access to the underlying documents large needed to secure a government - issued photo ID, such as a birth certificate or naturalization 541 both of which are costly to documents, Furthermore, several courts and scholarly replace. studies have found that socioeconomic disparities may make the cost of finding out about voter ID rules visiting government offices — which may n ot be accessible in terms of hours, location, and 542 factors — disproportionately burden some to voters of color. other and Stewart’s 2012 survey also found that black and Latino voters were asked to present ID more Dr. 543 than white voters , even in jurisdictions that do not require voter ID . often Other research suggests in jurisdictions where voter ID laws are established, poll workers disproportionately ask 544 of for identification. As shown in Table racial below , a 2012 national survey minorities adults 4 538 Voter Id: Who Has Them? Who Shows Them? , 66 O KLA . L. Charles Stewart, R EV . 2 1, 22 (2013), https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1063&context=olr (“[W]hile few non - voters attribute their failures to vote to their lack of identification, the type of voter - identification regime does matter — nonvoters in states with strict photo identification laws are twice as likely to state they failed to vote ion, compared to nonvoters in states in which such laws are less strict (or even non - due to the lack of identificat existent).”). 539 Id . at 25. 540 Matt The Disproportionate Impact of Voter - ID Requirements on See Barreto, Stephen Nuño, & Gabriel Sánchez, New Evidence from Indiana , PS: the Electorate P OL . S CI . & P OL ., 42(1), 111 - 116 (2009), — http://mattbarreto.com/papers/PS_VoterID.pdf ; see also M.V. Hood III & Charles S. Bullock III, Worth a Thousand Words?: An Analysis of Georg , 36 A M . P OL . R ESEARCH 555 (July 2008) (unofficial ia’s Voter Identification Status https://www.brennancenter.org/sites/default/files/ - version available at: work/download_file_50886.pdf ). legal 541 McCrory , 831 F.3d at 236 (regarding “the General Assembly’s decision to exclude as acc eptable forms See, e.g., - issued ID disproportionatel y held by African Americans”). of state 542 Keesha Gaskins & Sundeep Iyer, T HE C H ALLENGE OF O BTAINING V OTER I DENTIFICATION , The Brennan Center for Justice http://www.brennancenter.org/publication/challenge - obtaining - voter - identific ation ; see also (2012), Voter Identification Laws and the Suppression of Minority Zoltan Hajnal, Nazita Lajevardi & Lindsay Nielson, , 79 T HE J. OF P OL . Votes 363 (2017) [ hereinafter Hajnal, Lajevardi, Nielson, Voter Identification Laws ]; see also Applewhite , 2014 WL 184988 , https://www.clearinghouse.net/chDocs/public/VR - PA - 0115 - 0009.pdf . 543 III, MIT, Survey of the Performance of American Elections , iii (2012), Charles Stewart . https://elections.delaware.gov/pdfs/SPAE_2012.pdf 544 Id . ; also Stephen Ansolabehere, Effects of Identification Requirements on Voting: Evidence from the see , 42 PS: P O L . S CI . & P OL . 127 (2009). Experiences of Voters on Election Day

104 An Assessment of Minority Voting Rights Access 98 18 aged also found that even in places without photo ID laws, black and Latino millennials - 29 show ID more than their white counterparts. to were asked : Percentage of Young Voter Asked for ID by Type of State Law 4 Table s No ID Requirem ent (%) ID Required (%) Group 48.6% 86.1% All Youth 65.5% 94.3% Black Youth 42.8% 84.3% White Youth 81.8% 55.3% Latino Youth 545 November 2012 Black Youth Quarterly Survey Source : “Jim Crow 2.0? Why States Consider and Adopt Restrictive Voter Access Policies,” Keith G. In and Erin E. O’Brien examine d the factors associated with the introduction and enactment Bentele 546 they refer to as “restrictive voter access” proposals from 2006 to 2011 , of defin ing what relate voter access legislation as those pol icies that to photo ID requirements for casting restrictive ballot, proof of citizenship requirements, laws that introduce restrictions on voting, or restrictions a 547 and early voting. The authors found that restrictive voter access legislation was absentee on ntroduced from 2006 to 2011 in nearly every state, but these proposals passed more frequently in i 548 states in which federal elections are highly contested. southern The models the researchers employed found that the racial composition of a state is statistical to the proposed changes that would restrict voter access. That is, restrictive voter strongly related laws were substantially more likely to be introduced in states with a larger access of African - share American person s, noncitizen populations, and hig her minority voter turnout , as well as in states 549 both minority and low - turnout recently increased. where income In 2017, a n in - depth study by r esearchers Zoltan Hajnal, Nazita Lajevardi, and Lindsay Nielson found strict photo ID laws have a disproportionate negative impact on the turnout of racial that 550 especially minorities and general elections. This disparity wa s in pronounced in primaries 545 Our Time.org The Ti me Tax, supra note 391 (citing and reproducing results of Nov. 2012 Black Youth Quarterly , Survey, as analyzed by Professors John G. Rogowsky and Cathy J. Cohen. The original survey data are availa ble at http://blackyouthproject.com/wp - content/uploads/2015/11/voter_id_effect_2012.pdf ). 546 Jim Crow 2.0?: Why States Consi der and Adopt Restrictive Voter Access Keith G. Bentele & Erin E. O’Brien, 11 ERSPECTIVES IN P OL . 1088 (2013), P Policies, [ hereinafter https://scholarworks.umb.edu/cgi/viewcontent.cgi?article=1010&context=sociology_faculty_pubs and O’Brien, Jim Crow 2.0 Bentele . ] 547 Id . 548 Id. at 1089. 549 Id measure turnout amongst . (The authors demonstrate this finding both from their independent variables that , and communities of color in previous presidential elections larger fraction of African Americans who are the statistically significantly associated with more proposed restrictive access legislation. In addition, the authors found t hat restrictive voter access legislation is more likely to be proposed where low - income registrants turned out to vote in higher rates in the previous presidential elections, and where there is a larger share of noncitizens.) . 550 Hajnal, Lajevardi, Nielson, Voter Identification Laws , supra note 542 ( The authors coded a state’s voter identification law as “strict” if required voters are required to show photo identification to cast ballots. The authors

105 Chapter 3: Recent Changes in Voting Laws and Procedures 99 elections, and the researchers suspect ed is due to these elections being generally seen as primary ballot sa and because any additional costs to accessing the box disproportionately affect lient, less 551 minority voters. racial Hajnal study also found that in the period The - 2014 that the study analyzed , Latino turnout 2006 percent lower in strict voter I D states 7.1 general elections, and 5.3 percent lower in was in the black turnout gap was primaries; negligible in general elections, but 4.6 percent lower in primaries; Asian turnout was 5.4 percent lower in general, and 6.2 percent lower in primaries; l was 5.3 percent lower in general, and turnout 6.7 percent lower in primaries; while multiracia 552 turnout was 0.2 percent higher in general, and 0.4 white percent higher in primaries. The authors found a substantial increase in the white vs. non - white voter turnout g ap in strict voter 553 states. Their results are ID robust because even after controlling for state - level electoral laws, campaign and individual characteristics, communities of color were found to be dynamics, 554 negatively affected. and Mor eover, the white vs. non - white gaps were disproportionately pronounced among Latino - and Asian - A merican voters. For example, in comparing especially states with strict voter ID laws vs. states with no n - strict voter ID laws: in turnout The predicted Latino - white gap in turno ut ra tes for a general election jumped from 4.9 x ID laws to 13.5 percent in states with strict voter ID percent in states without strict voter 555 d in primary elections; laws; and this gap more th an triple - American voters, the voter turnout gap re lative to white voters increased For Asian from x .8 percent in 6.5 percent to 11.5 percent in general elections, and from 5.8 percent to 18 556 primary elections; x percent less likely to turn out in states The model predicts that Latino Americans were 10 r ID laws than in states without strict voter ID laws, and that with strict vote these effects 557 percent ) in primary elections; were almost as large (9.3 not require photo identification, and they also identified also study more lenient voter identification laws that do several other gaps in the literature on the impact of voter ID laws. For instance, much of the previous research relied - reported voter turnout data instead of verified voter turnout data . Using self - reported estimates of voter upon self turnout makes it more difficult to study the impact of these laws on minority voters, as racial minorities are more likely to over report their participation than white registered voters, and therefore, under - report any negative impacts - report turnout differ by race and class from those ) See of voter ID laws i d . at 375 (“More critically, those who over - . who do not over - report turnout. Racial minorities, in par ticular, are particularly prone to over - report their participation in elections.”). T his study analyzed 51 elections — 26 general and 25 primary — across 10 states from 2006 to 2014 with strict voter ID law s using validated voter turnout data from the Cooperat ive Congressional Id. at 369. Election Study (CCES). 551 Id . at 368. 552 Id . 553 Id .; see also Ho, Written Testimony , supra note 446 , at 7 . 554 Voter Identification Laws , supra Hajnal, Lajevardi, Nielson, , at 368. note 542 555 Id . a t 369. 556 Id . at 368. 557 Id .

106 An Assessment of Minority Voting Rights Access 100 African American t urnout could be expected to decrease by 8.6 percent in strict voter ID x - 558 states ; and 559 could be expected to decrease by 12.5 percent. Asian American turnout Similarly, - x plethora of statistical evidence Despite in th eir article, the authors concluded that the presented 560 not demonstrate a causal connection between voter ID laws and they turnout. It is could to disaggregate the impact of voting procedures from other factors such as extremely challenging 561 562 on candidates, and even the weather Election Day. of However, the evidence the popularity in th e article strongly suggests that where presented voter ID proposals are enacted, racial strict and ethnic minorities are less apt to vote. Voting Morenoff, Executive Director of the Equal Rights Institute, a public - interest law But Dan that seeks to protect every Americans’ fundamental right to vote and electi on integrity, while firm 563 “redeem seeking the VRA” as they believe it has been used to create “racial entitlements , ” to believes is false. He argues i n his written this testimony to the Commission that there is significant scholarly disagreement on the impact of laws enacted or enforced post - Shelby County , including 564 strict ID laws and their effect on voter turnout. M orenoff testified that while one study voter voter ID laws have dramatic impact in decreasing minority voters, other articles with found that istically significant results found that these laws may actually increase turnout for minority stat 565 So, voters. on the one hand, Morenoff asserts that it is not possible to know if turnout has been 558 . Id 559 Id . 560 Id . 561 Gustavo Lopez & Antonio Flores, Dislike of C andidates or Campaign Issues was Most Common Reason for not Voting in 2016 , P EW C ENT . R ESEARCH (June 1, 2017), http://www.pewresearch.org/fact - tank/2017/06/01/dislike - of - candidates - - campaign - issues - was - most - common - reason - for - not - voting - in - 2016/ [ hereinafter Lopez and Flores, or ] Dislike of Candidates . 562 Anna Bassi, Weather, Mood, and Voting: An Experimental Analysis of the Effect of Weather Beyond Turnout , NI OF ( June 2, 2013), https://www.unc.edu/~abassi/Research/wea ther - mood - voting.pdf . U N.C. 563 Equal Voting Rights Institute, Our Mission , http://equalvotingrights.org/our - mission/ See (last accessed July 30, 2018) . 564 Daniel Mo renoff , Written Testimony for the U.S. Comm’n on Civil Rights , Feb. 2, 2018 , at 5 [ hereinafter Morenoff, Written Testimony]. 565 . at 5, n.14; see also Hajnal, Lajevardi, Nielson, Voter Identification Laws , supra Id ( the authors found note 542 that voter ID laws skew the elections to the right.) ; but also see Justin Grimmer, Eitan Hersh, Marc Mered ith, Jonathan Mummolo, & Clayton Nall, Comment on “Voter Identification Laws and the Suppression of Minority Votes ,” (Aug. 17, 2017) , S TANFORD , https://stanford.edu/~jgrimmer/comment_final.pdf . (However, a replicated study led by Justin Grimmer questioned the validity of their research, suggesting that although the effects of voter ide ntification laws may exist, the study employed flawed data and made miscalculations that impeded the authors’ about the impact of voter identific ability to make conclusions According to Grimmer and colleagues, the ation laws. Hajnal et al. study’s conclusi ons are problematic for several reasons. First, the data employed in the study estimated voter turnout rate was 10 15 states . points below the verified turnout rates in Id . at 3. Second, according to the authors of the replication study, the researchers ha d significant miscalculations and misinterpretations of their data and results. Id . at 9. Lastly, Grimmer et al. demonstrated that when the errors were corre cted, they could recover positive, negative, or null estimates of the effect of voter ID laws on tu rnout, making it difficult to claim any firm conclusions concerning the impact of voter ID laws on turnout. Id .) .

107 Chapter 3: Recent Changes in Voting Laws and Procedures 101 at all by the influx of voter ID laws; and on the oth er, whatever the impact is, it might impacted 566 enough to determine an election. be substantial The Commission also received testimony not another panelist , John Park, Counsel with Strickland Brockington Lewis LLP, stating that from the laws implementation of voter ID in Georgia and Indiana, voter turnout increased, and in after registrars and experts reported little to no impact on voting or registration because of the Virginia, 567 voter ID enacted law. recently scholarly data on impact on turnout seem to be spl it, as various expert witnesses noted, the While legal test as to whether voter ID laws may be discriminatory does not depend on turnout. Under VRA, the test of whether a voting procedure is discriminatory depends on whether voters of the do or do not have equal access to political participation. Therefore, even if turnout has not color 568 or even increased, decreased if voters of color have less access or higher barriers to political participation and the ability to elect representatives of their choice, strict vo ter ID laws may violate case their under the VRA. This has been the rights i n North Carolina and Texas, where federal courts found that black and Latino voters disproportionately lacked access to the type of photo IDs 569 required vote. to his testimony be fore the Commission, Professor Justin Levitt argued that voter ID laws are not In since require every state already has provisions that voters to confirm their identity when needed, 570 voter Levitt added that the controversy surrounding ID laws is not about whether casting ballots. should or should not have an identification or a security system. Instead, according to Levitt, we 571 is that there are states that are quite restrictive in the documentation they allow. the issue testified that these r estrictions disparately impact minority voters and in some Moreover, Levitt 572 were proven to have been enacted because of that cases impact. Therefore, the disparate disparate impact is not a condition of having an system in place; rather, it is the result identification of particular choices that some state legislatures have made. Concerns about these laws arise when 573 they enacted with discriminator y intent or have a discriminatory effect on minority voters. are ID any discriminatory impact, proponents of voter legislation posit that voter ID But despite is necessary to protect the integrity of the electoral process and legislation guard against voter 574 For instance, Kansas Secretary of State Kris Kobach, a fraud. of strict voter ID laws, proponent 566 Id . 567 John Park, Written Testimony for the U.S. Comm’n on Civil Rights , Feb. 2, 2018, at 10 [ hereinafter Park, Written Testimony]. 568 , e.g ., Briefing Transcript , supra note 234 at 175 (statement by Sherrilyn Ifill ) . See, 569 See Discussion and Sources cited at notes 193 (NC) and 288 (Tex.), supra . 570 , supra note 234 , at 66 (statement by Justin Briefing Transcript ; see also HAVA rules discussed in the text Levitt) accompanying notes 381 - 82, supra . 571 Briefing Transcript , supra note 234 , at 67 (statement by Justin Levitt) . 572 . at 68. Id 573 Id . 574 See von Spakovsky , Written Testimony , supra note 325 ; see also Fund, Written Testimony , supra note 512 ; see also Cleta Mitchell, Written Testimony for the U.S. Comm’n on Civil Rights , Feb. 2, 2018 [ hereinafter Mitchell, Written Testimony] ; see also Hans von Sp akovsky, Voter Photo Identification: Protecting the Security of Elections ,

108 An Assessment of Minority Voting Rights Access 102 “[f]ear that elections are being stolen erodes the legitimacy of our government,” and “voter argues, 575 laws this legitimacy.” identification In additio n, these experts argue that IDs are protect 576 obtain, easy and needed in everyday life. Other s to contend that the photo IDs should ubiquitous, 577 easy to acquire, as this will also help be navigate other aspects of society . made These people discussed and relevant data are analyzed in the following section of this chapter. arguments are Voter Fraud and Other Arguments prominent argument championed by supporters of voter laws and similar measures is that The ID prevent voter fraud. Voter fraud they allegatio ns of : in - person voter fraud, noncitizen includes voting, double voting, and voter registration rolls that are “bloated” and contain ineligible voters should be removed. Each of these allegations arose during the Commission’s national briefing who ID minority votin rights as reasons for strict voter laws and other measures discussed in this on g (these include: cuts to early voting, requiring chapter documentary proof of citizenship to register , challenges to voter eligibility , and purges of voter registration rolls ) . After a general review of data regarding voter fraud, each of the major regarding voter fraud that the Commission allegations heard testimony about are examined in turn below. A study by the Republican National Lawyers Association found that from 20 00 to 2010, 21 2011 578 only one or two conviction s each “ for some form of voter irregularit y .” Professors states had Cottrell, Michael C. Herron , and Sean J. Westwood examined the main types of voter fraud David 579 2016 (impersonation, double voting alleged i neligible voting) and to determine how common in 580 in the 2016 Presidential Election. They used they aggregate election statistics to exami ne were and found that: allegations existing literature, Consistent do not with uncover any evidence supportive of we Trump ’s assertions of systemic voter fraud in 2016. Our results imply neither that there no fraud at all in the 2016 General Election . . . . They do strongly suggest, was and however, the expansive voter fraud concerns espoused by Donald Trump that - HE ERITAGE F OUNDATION T https://www.heritage.org/report/voter H photo - identification - protecting - (July 13, 2011), the - security - elections . 575 , The Case for Voter ID , W ALL S T . J. (May 23, 2011), Kris Kobach . https://www.wsj.com/articles/SB10001424052748704816604576333650886790480 576 . Id 577 Fund, Written Testimony, note 512, at 1 - 2. supra 578 See Debbie Hines, New Republican Data Shows No Need for Voter ID Laws , H UFFINGTON P OST (Feb. 11, 2012), (discussing underlying data https://www.huffingtonpost.com/de hines/voter - fraud - statistics_b_1139085.html - bbie found at Republican National Lawyers Association, Election Integrity News , http://www.rnla.org/votefraud.asp) . 579 David Cottrell, Michael C. Herron , & Sean J. Westwood, A Rigged Election? Evaluating Donald Trump’s 30 (Feb. Allegations of Massive Voter Fraud in the 2016 Presidential Race E LECTORAL S TUDIES 123, 129 - , 51 2018) . 580 Id . at 124 (abstract).

109 Chapter 3: Recent Changes in Voting Laws and Procedures 103 allied with him are not grounded in any observable features of the 2016 those 581 election. commissioned - year independent study by News In 10 by the Knight Foundation (“News21 a 21 researchers examined public news and court records of all allegations of vo ter fraud in Study”), 50 states. Researchers found that there were 2,068 cases of alleged fraud from 2000 - 2010, but all cases of allegations of in - person voter fraud (approximately one case per every 15 million only 10 582 voters). co They found that the most eligible mmon form of reported allegations of voter fraud was absentee ballot fraud (24.2 percent ), followed by “unknown” (19.0 percent ), registration fraud 583 casting ineligible votes (13.0 percent ), and ), double voting (7.4 percent ). This (17.8 percent was updated on a smaller scale in 2016, when data about cases from five states in wh ich research politicians alleged voter fraud showed that no prosecutions were brought for in - person voter had 584 fraud. 2007, Professor Levitt reviewed nationwide allegations of In vote r fraud and found that “by any 585 voter fraud is extraordinarily rare,” and that it is many times attributable to measure, “clerical 586 or errors” or bad data matching that leads to “jumping to conclusions.” In 2014, typographical a comprehens ive study of in - person voter fraud from 2000 to 2014, and found Levitt conducted there were 31 credible instances among one billion votes cast in general and primary that 587 In December 2016, writing for elections. the Washington Post , Philip Bump found that there 588 four documented cases of voter were in the 2016 election. fraud only 581 Id . 582 EWS 21, Co mprehensive Database of U.S. Voter Fraud Uncovers No Evidence That Photo ID Is Needed, N fraud/ EWS N (Aug. 12, 201 2), https://votingrights.news21.com/article/election - 21 ; see also the des cribed database at N EWS 21, Election Fraud in America , N EWS 21 (Aug. 12, 2012), http://votingrights.news21.com/interactive/election - fraud - [ hereinafter , N EWS 21, Election Fraud ] (documenting 2,068 allegations of voter fraud between 2000 database/ News21 is a student reporting project created by the Carnegie Corporation of New York and 2012, and noting that and the John S. and James L. Knight Foundation, and based at Arizona State University’s Walter Cronkite School of Journalism). 583 Id . 584 , N EWS 21 (Aug. 20, 2016), Sami Edge & Sean Holstege, Voter Fraud Is Not a Persistent Problem - fraud - is - not - a - persistent - problem/ [ hereinafter Edge and Holstege, https://votingwars.news21.com/voter Voter Fraud Is Not a Persistent Problem ]. 585 ENT , 7 T HE B RENNAN C The Truth About Voter Fraud . J USTICE (2007), Justin Levitt, . https://www.brennancenter.org/sites/default/files/legacy/The%20Truth%20About%20Voter%20Fraud.pdf 586 Id - 9. . at 7 587 Justin Levitt, A Comprehensive Inve stigation of Voter Impersonation Finds 31 Credible Incidents Out of One See Billion Ballots Cast , W ASH . P OST (Aug. 6, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/08/06/a - out comprehensive - of - voter - impersonation - finds - 31 - credible - incidents - investigation - of - one - billion - ballots - - cast/?utm_term=.71e2bad379f3 (lin king to underlying data). 588 Philip Bump, There Have Been Just Four Documented Cases of Voter Fraud in the 2016 Election , W ASH . P OST of (Dec. 1, 2016), fix/wp/2016/12/01/0 - 000002 - percent - - - all - the - ballots - https://www.washingtonpost.com/news/the cast - in - the - 2016 - election - were - fraudulent/?utm_term=.e7c658b95c21 (explaining methodology (Nex is news - aggregation database search) and describing the four cases).

110 An Assessment of Minority Voting Rights Access 104 the Alabama S AC briefing, Alabama Secretary of State John Merrill testified that he has secured At 589 year voter fraud in Alabama during his three - for tenure as Secretary of State. convictions He 6 testified that before he became Secretary of State in January 2015, more than a decade had also 590 since any voter fraud conviction had been secured in Alabama. Moreover, before passage passed a state ID law that he championed to address electio n integrity, he knew of no evidence of voter 591 voter fraud in Alabama. In of balancing these interests, he has also publicly challenged the NAACP LDF to show him any cases of voters who have been unable to get Alabama’s free voter 592 ID. by database of election f raud was collected Another the Heritage Foundation, which compiled instances of what they term “ Proven Voter Fraud ” in the last two years, with 983 criminal 1,132 593 and 48 civil penalties in the country. convictions Reviewing the data from the Heritage of n database shows that the most common forms Foundatio election fraud it contains are in the following categories, related most to political operatives and not individual voters: absentee ballot fraud, signatures on ballot petitions, vote buying, electi on insiders , and voter fraudulent 594 intimidation. discussed above, this section of the Commission’s As address es the type of voter fraud that report ID laws and the other major types of recent restrictions on voting that impact minority voters voter 595 in to c orrect. re Therefore, allegations of enacted - person voter fraud, double voting, “bloated” we rolls, and noncitizen voting are each examined below. These allegations have been used voting 596 in combination to justify voter ID laws, or requirements of documentary proof of alone 597 598 599 challenges to voter citizenship, eligibility, removal of voters from the rolls, cuts to early 589 Transcript : Access to Voting in Alabama State Advisory Committee to the U.S. Comm’n on Civil Rights at 5 [ hereinafter Sec. of State of Ala., (Feb. 22, 2018) Merrill, Alabama SAC, , statement by John Merrill, Alabama . Briefing ] 590 . Id 591 d . at 14 . I 592 Id . . at 25 593 note 470. , supra Voter Fraud Cases Heritage, 594 Id . 595 different from the most common forms of fraud identified by either the Heritage Foundation or These are News21. For example, none of the main types of restrictions discussed herein (voter ID, documentary proof of citizenship, challenges to eligibility, purges, cuts to early voting , or decreasing access to the polls) are designed to Id . ; see address absentee ballot fraud, which is the most common type of voter fraud identified in both databases. also N EWS 21, Election Fraud , supra note 582 . 596 , e.g., D iscussion and S ources cited , sup ra notes 362 See 64, 490 - 99 and 571 - 76 ( strict voter ID laws justified by - allegations of in - person of voter fraud , relevant court findings ). 597 See, e.g., Discussion and Sources, infra notes 697 - 710 (arguments that documentary pr oof of citizenship requirements justified by allegations of various types of voter fraud). 598 42 and 848 e.g., Discussion and Sources cited, infra notes 835 See, - 50 (arguments that challenges of voters on - the rolls justified by allegations of various types of voter fraud). 599 See, e.g., Discussion and Sources cited, infra notes 858 - 60, 867, 873 - 880, 884 - 89, 918, 926 - 28 and 938 (systemic voter roll purging based on allegations of various types of fraud, eligibility, and election integrity concerns).

111 Chapter 3: Recent Changes in Voting Laws and Procedures 105 600 601 cuts to language access. and Before examining the allegations, the Commission notes voting, resu the to remedy them have at times measures lted in restricting or infringing upon the that used 602 of voters and disparately impacted minority voters. rights eligible Person Voter Fraud - In Heritage Foundation found 12 instances during the past two years of “impersonation voter The of at the polls,” defined at “[v]oting in the name other legitimate voters and voters who have fraud 603 moved away, or lost their right to vote because died, they are felons, but remain registered.” Current data from Heritage Foundation indicate that impersonation voter fraud at the po lls 604 1.06 percent of all cases in the last two years. amounted to 605 N ews 21 Study found there is “utterly no evidence” that points to The any significant level of - in instances person voter fraud. Out of 2,068 incidents of alleged voter fraud from 2000 - 2012, of 606 voter (0.5 percent ) were allegations of in - person only fraud. The News 21 Study found that 10 in - person voter fraud allegations were only 0.5 percent of all allegations in all 50 states for over 607 10 Yet, in - person voter fraud is the only type of voter fraud that voter ID laws protect years. 608 against. a the Commission’s briefing, Professor Levitt testified that In number of other empirical studies 609 found that in - person voter fraud is exceedingly rare. have Courts have also taken into account 610 611 - person voter fraud is “extremely rare,” that and a “truly isolated phenomenon.” in Moreover, 600 McCrory , 831 F.3d at 235; Ohio State Conference of N.A.A.C.P. v. Husted , 768 F.3d 524, 547 - 58 (6th Cir. See vacated on other grounds , Ohio State Conference of The Nat. Ass’n For The Advancement of Colored People 2014), (6th Cir. Oct. 1, 2014) v. Husted WL 10384647 , No. 14 - 3877 2014 (staying the preliminary injunction pending , petition of writ of certiorari) ; see also Discussion and Sources supra , notes 365 - 67 (North Carolina) and infra , note 995 (Ohio) (the Sixth Circuit concluded that the district court “prope rly identified that the specific concern — that the vote of an EIP [early in person] voter would be counted Defendants expressed regarding voter fraud - was to concerns with voting and regis — tering on before his or her registration could be verified not logically linked the same day.” ). 601 See D iscussion and S ources , infra notes 1124 - 27 (alleging fraud among arguments against providing language access). 602 830 F.3d 216 McCrory , 831 F.3d 204 ; Veasey , ., ; Arcia v. Detzner , 908 F. Supp. 2d 1276 (S.D. Fla. See, e.g 2012), d sub nom. Arcia v. Fla. Sec ’ y of State , 746 F.3d 1273 (11th Cir. 2014), opinion vacated and superseded , rev’ 772 F.3d 1335 (11th Cir. 2014), and rev’d and rema nded sub nom. Arcia v. Fla. Sec ’ y of State , 772 F.3d 133 5 (11th Cir. 2014), and vacated , 2015 WL 11198230 , No. 12 - 22282 - CIV (S.D. Fla. Feb. 12, 2015) . 603 Voter Fraud Cases , supra note 470. Heritage, 604 Id. 605 Edge and Holstege, Voter Fraud Is Not a Persistent Problem supra note 584 . , 606 Heritage , Voter Fraud Cases , supra note 470 . 607 . Id 608 See, e.g., Frank v. Walker , 773 F.3d 783, 783 (7th Cir. 2014) (denial of rehearing en banc) (Posner, Wood, Rovner, Williams, and Hamilton, J.J., dissenting) . 609 Briefing Transcript , supra note 234, at 77 - 78 (state ment by Justin Levitt). 610 Id . (citing sources). 611 Id . (citing sources).

112 An Assessment of Minority Voting Rights Access 106 voter fraud occurs, it is often aggressively prosecuted, even if the person was mistaken that when 612 person the right to vote and did not intend to vote illegally. the had voter also that b ecause instances of in - person show fraud account for such a small Studies of voter fraud, curr ent prohibitions outside of voter ID laws seem to be effectively percentage 613 it. At the Commission’s briefing Peyton McCrary, a historian who was employed at preventing Justice Department for almost 40 years, testified that “ [ t ] here is no evidence of which I am the there’s in - person voter fraud at the polls. The only kind of casting ballots that is covered aware that the photo ID by requirement of these laws exist s anywhere in the United States except in a handful 614 cases , and I mea n literally a handful , in most states throughout the millions of votes cas [ t ] .” of some acknowledge that in some states there is degree of election fraud with absentee McCrary does 615 However, the majority of voter ID laws do not apply to absentee ba ballots. or any related llots is reform. McCrary added that there absentee another kind of election fraud that may be ballot one partisan election officials, and there was perpetrated relevant case brought by the DOJ, by fraud v. Ike Brown , that dealt with United by party officials in Noxubee County, States 616 That case did Mississippi. not involve in - person voter fraud, but instead involved possible 617 fraudulent of election officials. conduct of “Bloated ” Voting Rolls and Double Voting Allegations type of vo ting fraud is due to a voter “double voting” can occur if an individual Another which ballots under different registration records in multiple the same election. Many argue that casts voting rolls, in which there are more registered “bloated” voters on the rolls than there should be , pose a significant risk of double or invalid votes. The Commission received testimony about this 618 panelists. Moreover, John issue Park , Counsel with Strickland Brockington Lewis L.L.P., from that the independent, nonprofit group out Government Accountability Institute ( GAI ) pointed raise d concern about inaccurate voter rolls that contain registrants who are no longer eligible , as follows : Pew Research found 24 million (one in eight) voter registrations were In 2012, invalid or significantly inaccurate. About 1.8 million deceased voters were either 612 Michael Wines, Illegal Voting Gets Woman 8 Years in Prison, and Almost Certain Deportation , N.Y. T IMES See https://www.nytimes.com/2017/02/10/us/illegal - voting - gets - texas - woman - 8 - (Feb. 10, 2017), - in - prison - and - years certain deportation.html ; see als o - , Texas woman jailed for five years for accidental voter fraud , BBC BBC News N EWS (Mar. 30, 2018), http://www.bbc.com/news/world - us - canada - 43597908?SThisFB (discussing former felony conviction in Texas). 613 - person Voter Fraud Made up 0.00002 Percent of All Votes in North Carolina , V OX German Lopez, In 2016, In - www.vox.com/policy https:// - politics/2017/4/26/15424270/voter - fraud - north - carolina . (Apr. 26, 2017), and 614 Briefing Transcript supra note 234 , at 63 - 64 (statement by , Peyton McCrary ). 615 Id. at 64. 616 Id. ; see also United States v. Brown , 561 F.3d 420 (5th Cir. 2009). 617 , supra note 234 , Briefing Transcript at 62 (statement by Peyton McCrary ). 618 Park, Written Testimony , supra note 567 , at 9; see also Briefing Transcript , supra note 234 , at 178 - 7 9 and 200 (statement by John Merrill ) .

113 Chapter 3: Recent Changes in Voting Laws and Procedures 107 on state voter rolls, and 2.75 million people were registered to vote in discovered but than state. These findings alone do not equate to voter fraud, one show a more 619 with error a vulnerability. rife system nd Sharad Goel and colleagues conducted a study on double voting in the 2012 Researchers U.S. 620 Their findings suggest that double voting is not carried out in a systematic Presidential Election. of thus not presenting a threat to the inte grity American elections. In an election in which way, 129 million votes were cast, at most 33,000 votes cast were a double vote, which about only 621 to 0.02 percent of votes cast. equates The authors stressed this estimate should be considered an bound of the potential for double votes and contrasted it to erroneous estimates of double upper 622 in the millions. numbering Goel et al. conclude their study by stating : voting any policies that would reduce the potential for fraud also make [M] more difficult it for some legitimate votes to be cast. Likewise, many policies that make voting more fraud. increase opportunities for accessible Emphasizing accessibility or also to consideration for integrity, the other, is likely without lead to poor election 623 administration . A 2016 report by the GAI studied voter registration lists from 21 states and found that it is “highly likely” 8,741 votes cast in the 2016 election were duplicate votes cast by voters who voted in that 624 and one state. Hans von Spakovsky , attorney senior legal fellow in The Heritage more than Edwin Meese III Center for Legal and Judicial Studies , has written about this report Foundation’s from that the GAI extrapolated the data and 21 states to all 50 states, used a conservative stated 625 syste m, and found name “high reliability” that there are “45,000 duplicate votes.” - matching with However, t he Heritage Foundation database currently indicates that there have been 84 instances of duplicate voting that were confirmed through a government adjudicative process in the last two 626 years. Regarding the Heritage Foundation database and conclusion s , the Brennan Center 619 s supra note 567 , Park, Written Testimony ; , ee also Go vernment Accountability Institute, America the at 9 , GAI 4 - 5 (2017), http://www.g - a Vulnerable: The Problem of Duplicate Voting i.org/wp - - content/uploads/2017/07/Voter Fraud - Final - with - Appendix - 1.pdf (citing The PEW Center on the States, Inaccurate, - , PEW (Feb. 2012), Costly and Inefficient: Evidence That America’s Voter Registration System Needs an Upgrade ). http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2012/pewupgradingvoterregistrationpdf.pdf 620 Sharad Goel, Marc Meredith, Mich One Person, One Vote: Estimating the ael Morse & David Rothschild, Prevalence of Double Voting in U.S. Presidential Elections (Oct. 24, 2017), working paper, https://www .dropbox.com/s/bbzgpeo1rh1s7dy/ OnePersonOneVote.pdf?dl=0 [ hereinaf ter Goel et al., One Person, One Vote ]. 621 . at 29. Id 622 Id. at 27 - 28. 623 Id . at 29. 624 Park, Written Testimony , supra note 567 , at 9 (citing GAI , The Problem of Duplicate Voting , supra note 619 ). 625 A. von Spakovsky, New Report Exposes Thousands of Illegal Votes in 2016 Election , Hans T HE H ERITAGE F OUNDATION ( July 28, 2017 ), https://www.heritage.org/election - integrity/commentary/new - report - exposes - thousands illegal - votes - 2016 - election . - 626 Heritage, Voter Fraud Cases , supra note 470.

114 An Assessment of Minority Voting Rights Access 108 that their analyses of double voting cases show that “clerical errors and confusion are commented 627 be the culprit than intent to to defraud t he election system.” likely more 628 no evidence to support allegations that double registration leads to double voting. There Many is are registered in two states because they moved without filing a change of address form voters states the Postal Service, which may be used by to update their voter rolls under the with U.S. 629 Voter Registration Act (NVRA). A jurisdiction’s failure National to perform voter list maintenance and fulfill its duties under the NVRA to remove voters who have moved state - to - 630 move, notice h as been attempted to verify such a after , also does not mean that the voter state 631 voted in both states. b Additionally, has ecause voters of color and other low - income voters move more often than white voters do, aggressive removal programs may lead to disparate impact as because names are thus more likely to appear their duplicate registrations if they fail to cancel their previous voter registration at their old address . November 2016 U.S. Census data reflected that: highest mover rates by race were for th e black or African - American alone The (13.8 alone percent) and the Asian population (13.4 percent). These two population rates were not statistically different. The white alone population moved at a mover of 10.3 percent. The Hispanic or rate population (12.6 percent) were more Latino 632 than the non - Hispanic white population (9.8 percent). mobile justify of persons being registered to vote in two However, are often used to allegations states aggressive voter list maintenance to remove voters the rolls. Agg ressive removal programs from are also sometimes justified by the simple fact that there are more voters on the rolls than the most 627 , T HE B RENNAN C ENT . FOR J USTICE 5 (Sept. 8, 2017), Rudy Mehrbani , Heritage Fraud Database: An Assessment [ Mehrbani , https://www.brennancenter.org/sites/default/files/publications/HeritageAnalysis_Final.pdf hereinafter ]. raud Database: An Assessment Heritage F 628 Id see also Sam Levine, Trump Claims Without Evidence that Millions of People Are Voting Illegally in .; , California UFFINGTON P OST (Apr. 5, 2018), https://www.huffingtonpost.com/entry/trump - california - voter - H fraud_us_5ac68372e4b0337ad1e5eb06 (noting that the White House pointed to a study that showed there were te to support the President’s claim that millions voted nearly 3 million people registered in more than one sta illegally). 629 See 52 U.S.C. § 20507(c)(1) (stating that notice to voter to confirm change of address before removal may be - of address information supplied to Postal Serv sent after information change ice is received). 630 52 U.S.C. § 20507(a)(4) requires that “each State shall . . . conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of — the death of the reg istrant; or (B) a change in the residence of the registrant [after appropriate notice is sent to the voter’s address to confirm is either confirmed or not returned, and after 2 federal election cycles].” 631 Kurtis Lee, President Trump says it’s il legal to be registered to vote in two states — but he’s wrong , L.A. See e.g., multiple IMES (Feb. 1, 2017), http://www.latimes.com/nation/la - T - voters - registered - - states - 20170127 - story.html . na 632 See Press Release, U.S. Census Bureau, Americans Moving at Historically Low Rates , U.S. C ENSUS B UREAU (Nov. 16, 20 , https://www.census.gov/newsroom/press - releases/2016/cb16 - 189.html (including racial data on 16) frequency of moving as per Geo graphical Mobility: 2015 to 2016 , a collection of national - and regional - level tables from the Current Population Survey Annual Social and Economic Supplement).

115 Chapter 3: Recent Changes in Voting Laws and Procedures 109 633 data indicate as the number of citizens of voting age in the jurisdiction. Census This could recent that mean who have mo ved, died, are ineligible or otherwise become ineligible (through voters 634 on certain states) are wrongfully in the voting rolls. convictions criminal Supreme Court has held that “bloated” voting rolls, in T conjunction with interest in protecting he voting fraud and safeguarding voter confidence in elections, may be sufficient against potential for ID laws. In Crawford , the Court held that: “Even though Indiana’s ow n justification photo may have contributed to the serious negligence inflation of its registration lists when SEA 483 [the state’s photo ID law] was enacted, the fact of inflated voter rolls does provide a neutral and 635 require the State’s decision t o supporting photo identification.” The nondiscriminatory reason further explained that the combination of Indiana’s interests were “both neutral and Court 636 strong” to survive a facial invalidation against its sufficiently ID law, SEA 483. photo Regarding list maintenance, t he Publi c Interest Legal Foundation (PILF), headed by J. Christian sent letters to 248 jurisdictions stating recently that their voter registration lists contained Adams, too many voters ; PILF has brought several lawsuits alleging that the high number of voters on the 637 rolls that there are ineligible voters on the lists. However, some of PILF’s and their indicates have been unsuccessful, and recently a federal judge in Florida found in her rulin g allies’ lawsuits 638 claims were “ misleading , ” that because the Cen sus data they relied on was outdated and the the 639 county they sued was growing in population. that facilitate to address “bloated” voter rolls, states have coordinated In one another to order with keeping accurate voter rolls. Two existing systems have been de veloped: Interstate Voter Registration Crosscheck Program (Crosscheck) and Electronic Registration Information Center (ERIC). Crosscheck 640 be problematic due to high error Crosscheck It operates by including data from can rates. voters in all registered e pa rt icipating states, then comparing their first names, last names , and th 633 See Sample October 2017 “NVRA Violation” Letter 2(f) , PILF (Sept. 15, Public Interest Legal Foundation, 2017), https://publicinterestlegal.org/files/Sample - 2017 - notice.pdf [ hereinafter PILF, Sample NVRA Violation ] . 634 . Id 635 553 U.S. at 196 - 97. Crawford, 636 Id . at 204. 637 e PILF, Sample NVRA Violation Se supra note 633. , 638 Order, Bellitto v. Snipes , No. 16 - CV - 61474 (S.D. Fla. 2018), https://publicinterestlegal.org/files/Broward - Trial - Order.pdf , at 19 20 (due to using American Community Survey data that do not provide an accurate com parison to - “the Court finds that the registration rates presented by ACRU are inaccurate. ACRU’s argument registered voters, reasonably high is, therefore, unsupported by any credible evidence that Broward County’s registration rates are un tion that [Broward County Supervisor of Elections] Snipes failed and necessarily fails to support ACRU’s conten to comply with the NVRA’s list maintenance requirements.”) . 639 Id . 640 See Discussion and Sources cited at notes 643 44 and 652 - 56 , infra . -

116 An Assessment of Minority Voting Rights Access 110 641 birth, to generate lists of voters who may be registered in more than one state. of Currently, dates participate in the Crosscheck system created by states Kansas. Here is a map of states 7 2 in Crosscheck , participating the states participating in Crosscheck colored red, and the states with not participating in Crosscheck colored green : Participation in the Interstate Crosscheck Figure System 6: pation Source: State of Democracies: Partici Health in the Crosscheck System of While allegations of double voting are used to justify aggressive purges of purported “bloated” 642 voter and the use of Crosscheck , the Crosscheck 2014 Participation Guide states that: rolls that the crosscheck program indicates “Experience a significant number of apparent double in 643 votes.” false positives and not double are votes The Crosscheck Participation Guide therefore recommends using “other information” such as middle name, suffix , or the last four Social Security 641 , Intersta te Voter Registration Crosscheck, 2014 Participation Guide , 4 (Dec. 2014), See, e.g. https://wei.sos.wa.gov/agency/osos/en/press_and_research/weekly/Documents/Participation%20Guide%20with%20 (“An apparent duplicate registration is produced when first names, last names and dates of birth i n Comments.pdf two records match exactly. Other information such as middle name, suffix and SSN4 should be used to confirm whether the two records are matches. It may be necessary to contact another jurisdiction to obtain more information, 2014 Participation Guide herein after such as signatures.”) [ ] . Crosscheck, 642 See, e.g ., Goel et al., One Person, One Vote , supra note 620 , at 5 ( the authors note that “ [l] ittle existing election forensics work examines the issue of double voting, despite it being one of the most commonly asserted forms of voter fraud and a factor in the purging of voter rolls.”) . 643 Crosscheck, 2014 Participation Guide , supra note 641, at 4.

117 Chapter 3: Recent Changes in Voting Laws and Procedures 111 confirm whether names that are flagged as apparent duplicate records are actually to digits Number 644 before cancelling the record or taking other action. records duplicate of voter data is another issue. As of February 2018, “in l ight of recent insecurity Security Alaska, Florida, Kentucky, Massachusetts, New York, Oregon, Pennsylvania , and revelations,” 645 State had left the Washington program. At the Commission’s 2018 Indiana S AC briefing on voting rights, testimony included criticisms of t he state’s removal of voters from the rolls, without 646 permission, using the Crosscheck program. Indiana notification was sued by the local or NAACP, Women Voters , and Common Cause about League its state law permitting the use of of 647 for voter lis t maintenance. temporarily On June 8, 2018, a federal judge Crosscheck enjoined Indiana using Crosscheck, due to likely violations of federal law provisions that protect from from being removed through systems that are not reasonable, uniform , and eligible voters 648 ndiscriminatory. no the Commission’s briefing, John Park testified that he At that Crosscheck is the solution believes to “bloated” voting rolls and protecting against double votes. written testimony stated : His 644 Id. 645 Russ Feingold, The Crosscheck Database is a Security Threat , T HE N ATION (Feb. 22, 2018), https://www.thenation.com/article/the - - voter - database - is - a - security - threat/ (noting that the voters’ data crosscheck e unencrypted and therefore vulnerable to being hacked). ar 646 See Appendix D for a summary of Indiana State Advisory Advisory Committee Briefing; Complaint, Indiana , No. 1:17 - CV - 393 6 (S.D. Ind. 2018), State Conference of Nat’l Ass’n for Advancement of Colored People v. Lawson - ; Indiana https://www.brennancenter.org/sites/default/files/legal work/Indiana_NAACP_v._Lawson_Complaint.pdf nce of Nat’l Ass’n for Advancement of Colored People v. Lawson , 2018 WL 2752564, No. 117 - CV - State Confere - TWP - MPB (S.D. Ind. June 8, 2018) (granting plaintiffs’ motion for preliminary injunction), 02897 - https://ecf.insd.uscourts.gov/cgi - 63 . bin/show_public_doc?12017cv2897 647 See Lawson , 2018 WL 2752564, at *14 (granting plaintiffs’ motion for preliminary injunction) (“Plaintiffs argue that the Crosscheck system has inherent flaws and limi tations, which make it an unreliable source on which to base voter registration cancellations without further investigation. Plaintiff’s offer evidence that Crosscheck produces many false positives because many people have a matching first name, last name, and birthdate, but in reality, they e same person. Crosscheck and the state’s voter registration system are unreliable because they do not are not th collect or disseminate the actual voter registration documents, thereby depriving states of the opportunity to verify the conclusory data with the underl ying documents. The system also has limited data and functionality, which reduces its reliability for county officials to cancel voter registrations based solely on Crosscheck and the data uploaded i the data definitions are not consistently used or nto the statewide voter registration system. Furthermore, applied by each of the participating states, and thus, some data may be missing or may be used in disparate ways by the different states. This is es pecially true of the dates of registration. Plaintiffs po int out that, because of these inherent limitations with Crosscheck, historically, it has been used only as a starting point in Indiana’s voter cancellation process. Crosscheck will now be used to de termine whether a duplicate voter registration exists and then cancellation of the Indiana registration will promptly follow.”) . 648 at * 23 (“Because SEA 442 removes the NVRA’s procedural safeguard required in particular cases of Id. a waiting period, the Court determines that Plaintiffs h ave a high likelihood of success on providing for notice and the merits of their claim. The Court briefly notes that it appears the implementation of SEA 442 will likely fail to be uniform based on the evidence that King and Nussmeyer provide differing guidance to county officials on how to determine whether a particular registered voter is a duplicate registered voter in a different state. This is also true based on the evidence that county officials are left to use wide dis cretion in how they determine a duplicate registered voter , and they have used that discretion in very divergent ways.”) .

118 An Assessment of Minority Voting Rights Access 112 Interstate Voter Registration Crosscheck program can identify potentially The Idaho entries voter rolls in different states. In a letter to a local on duplicative Idaho’s Secretary of State reported 28,113 potential duplicates newspaper, that found in 2016, and that approximately 9,000 of them w ere from a single were 649 county. its also that: “The Department of Justice should put stated resources to use in enforcing the Park list statutory obligations of the States. There is no good reason for a county . . . to maintenance more registered voters than eligible citizens. Likewise, states should participate have the in 650 Voter Registration Crosscheck program. ” Interstate However, Ezra Rosenberg , Co - Director of Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law , expressed the ns Crosscheck targeting minority voters, and cited studies about showing that Crosscheck concer 651 highly inaccurate. is discussed, Crosscheck uses first name, last name , and date As birth to compare the voting rolls, of and provides states with lists of voters who may be registered in two states. However, comparing 652 and three fields of first name, last name , only date of birth leads to numerous errors. the Statistical research analysis demonstrates that among a list of only 23 people, there is a more than 653 50 cent chance that at least two will share the same birthday. In another study, Professors per and McDonald also found a high prevalence of common names such as William Smith Levitt and 654 Rodríguez showing up hundreds of a on state election rolls. í Mar times re cent study by scholars from Stanford, University of Pennsylvania, Harvard, A Yale, and Microsoft found that there were three million cases in a national voter file of 2012 in which the 655 date a common first name, last name , and shared of birth. voters More gr anular data (such as last four digits of social security number and other data available to election officials) show that fewer 0.02 percent could have been double votes; but Crosscheck’s recommended strategy of than registrations earlier registration record when a pair of purging is found with match of first the 649 note 567 , supra Testimony , at 4 - 5 (citing Lawrence Denney, Idaho Secretary of State, Letter to the Park, Written r, Edito acts of the Crosscheck Program , B ONNER C OUNTY D AILY B EE (Nov. 16, 2017), The True F http://www.bonnercountydailybee.com/letters_to_the_editor/20171116/the_true_facts_of_the_crosscheck_program . 650 supra note 567, at 7. Park, Written Testimony, 651 Ezra Rosenberg, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018, at 9 - 10 , 10 n.31 See Rosenberg, Written Testimony]. Rosenberg pointed to the Goel et al. study, stating that “researchers hereinafter [ recently found that using Crosscheck to purge the voter rolls in one state would ‘impede 200 legal votes for ‘every evented.’” Id. (quoting Goel et al., double vote pr , supra note 620, at 33). One Person, One Vote 652 Goel et al., One Person, One Vote , note 620. supra 653 Michael McDonald & Justin Levitt, Seeing Double Voting: An Extension of the Birthday Problem , 7 E LECTION L. J. 2 (2008), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=997888 . 111, 11 654 . at 120. McDonald and Levitt examined voter files from New Jersey ’ s 2014 elections. In those elections, the Id most common names — William Smith, Maria R odriguez, etc. — showed up hundreds of times, reflecting their prevalence in the general population. 655 Id . ; Goel et al., One Person, One Vote supra note 620 , at 1. ,

119 Chapter 3: Recent Changes in Voting Laws and Procedures 113 last name, date of birth, would still “ eliminate more than 300 registrations used to cast a name, 656 legitimate for every double vote prevented.” seemingly vote election official Hampshire recently reported that of state the 94,000 voters that had the New s first name, last name , and date of birth as a voter in a same different state and would thus be flagged 657 all but 142 were confirmed as different people. Associate Attorney General of by Crosscheck, Hampshire Anne Edwards clarified that “t hose unverified voters do not indicate that those New cast an unlawful vote ” and supported the individuals that the number of possible invalid conclusion 658 duplicate votes in the 2016 election was “statistically miniscule.” or Crosscheck’s system of name - matching may disparately impact voters of color. A Furthermore, by the for American Progress on the Health of State Democracies summarized report Center finding that: studies percent of people of color share a common surname, while only 50 30 percent of white people do — this leads to a greater number of flagged potential double voters, of a significant overrepresentation and minority voters on the Crosscheck list: thus voter na mes are underrepresented white by 8 percent, African American While voters are overrepresented by 45 percent; Hispanic voters are overrepresented by 659 24 and Asian voters are overrepresented by 31 percent. percent; Virginia 2012, a voter claimed he was purged becau se the Crosscheck system said he had moved In 660 moved state, when in fact he had recently from South Carolina to Virginia. the The from removed 40,000 voters from the rolls prior to Election Day on the basis Commonwealth of 661 from Crosscheck . information One lo cal registrar refused to purge any voters as was requested because he found that nearly 10 by percent of the names given to him for Virginia removal from 662 voter rolls were eligible voters. the Electronic Registration Information Center (ERIC) Another syst em is the Electronic Registration Information Center (ERIC) system ; evidence indicates ERIC could reduce bloated voter rolls while not removing the same number of that 656 , , supra note Goel et al., 620 One Person, One Vote at 3. 657 Jo hn DiSato, Exhaustive Investigation Reveals Little Evidence of Possible Voter Fraud in NH , WMUR9 (May 29, - http://www.wmur.com/article/exhaustive investigation - reveals - little 2018), evidence - of - possible - voter - fraud - in - - nh/20955267?wpmm=1&wpisrc=nl_daily202 . 658 . Id 659 Lauren Harmon, Charles Posner, Michele L. Jawando & Matt Dhaiti, , 25 T HE The Health of State Democracies C ENTER FOR A M . P ROGRESS A CTION F UND (July 7, 2015), https://www.americanprogressaction.org/issues/courts/reports/2015/07/07/116570/the - - of - state - democracies/ . health 660 RENNAN nathan Brater, Virginia Offers Lessons for Voter List Ma intenance T HE B Jo C ENT . FOR J USTICE (Nov. , 25, 2013) , https://www.brennancenter.org/analysis/virginia - offers - lessons - voter - list - maintenance . 661 Clark, This System Catches Voter Fraud and the Wrath of Critics , Dartunorro N EWS (Aug. 12, 2017) NBC https://www.nbcnews.com/politics/white - house/system - catches - vote - fraud - wrath - critics - n790471 . 662 Id .

120 An Assessment of Minority Voting Rights Access 114 voters legitimate with Crosscheck . According to the 2013 bipartisan Presidential Comm ission as are Election (PCEA), “States that participate in ERIC Administration able to check their voter on lists against data gathered from other states and registration several nationally available lists, such 663 maintained by the U.S. Postal Service or the Social Security Administration.” ERIC as those have information to states about which voters may died, moved , or changed their provides — and it provides states with information about which eligible voters might not be names 664 that they can reach out to them and register them. ERIC may have greater privacy so registered, 665 Crosscheck. In contrast to Crosscheck’s matching than system of name and date of protections that produces matches that election officials then have to verify, ERIC matches more data birth security nts, including the last four digits of social numbers, mailing address, and other data poi 666 linked through state motor vehicle agencies and the federal databases mentioned above. already Here the states that are currently participating in ERIC as of the date of writing of this report: are : States Participating in ERIC Table 5 * Delaware Alaska * Pennsylvania * Washington D.C. Missouri Alabama Illinois * Nevada * Rhode Island West Virginia * Arizona Louisiana * New Mexico Utah Wisconsin * Colorado * Maryland * Ohio * Virginia * 667 Minnesota Oregon Washington Connecticut 668 marked with an asterisk also participate in Crosscheck. *States 663 Election Administration, The American Voting Experience: Report and Presidential Commission on PCEA , 29 (Jan. 2014), Recommendations of the Presidential Commission on Election Administration https://law.stanford.edu/wp - content/uploads/sites/default/files/publication/466754/doc/slspublic/Amer%20Voting%20Exper - - 04 - 14 - 1.pdf (co - chaired by Robert F. Bauer and Benjamin L. Ginsberg) [ hereinafter final%20draft%2001 PCEA Report]. 664 . Id 665 Electronic Registration Information Center, Technology and Security Overview , ERIC (Apr. 3, 2018), . Private and sensitive http://www.ericstates.org/images/documents/ERIC_Tech_and_Security_Brief_v3.0.pdf information such as date of birth (“DOB”) and the last four digits of a Social Security number (“SSN”) are “anonymized” at the source — the state — n transmitted to the ERIC data center where the data are and the anonymized again upon receipt. 666 Reid Wilson, Here’s How to Clean Up Messy Voter Rolls , W ASH . P OST (Nov. 3, 2013) http://www.washingtonpost.com/blogs/govbeat/wp/2013/11/03/heres - - to - clean - up - messy - voter - rolls/ (quoting how David Becker, Pew’s director of election initiatives: “‘It’s impossible for [states], based on only a name and bir th see also date, to keep their lists up to date and identify when some has died, for example.’”); Shane Hamlin & Erika Presentation from the Pew Registration Summit , ERIC Haas, - 37 (July 2014 ), 30 http://www.ericstates.org/images/documents/ERIC_July_2013_VR_Conference_Notes.pdf (last accessed May 1, 2018) . 667 E LECTRONIC R EGISTRATION I NFORMATION C ENTER , We’re Growing! , ERIC, http://www.ericstates.org/ (last accessed June 4, 2018) (data are current as of January 17, 2018). 668 Figure 6, supra . See

121 Chapter 3: Recent Changes in Voting Laws and Procedures 115 of Noncitizen Voting Allegations in that noncitizens are voting in large numbers elections and skewing election results is T belief he 669 - concern about often voter fraud . This concern arose through oral and written testimony cited an 670 Commission’s national briefing. However at the the same briefing, when Alabama’s before o f State John Secretary Merrill was asked if he was aware of a “rash of noncitizen voting,” he 671 “No, I am not.” answered: The New s 21 study of all known allegations of voter fraud showed 669 Then - Trump stated on November 27, 2016 that three million noncitizens voted in the latest President Elect sidential Election. Donald J. Trump (@realDonaldTrump), Twitter (Nov. 27, 2016, 12:30 PM), Pre https://twitter.com/realDonaldTrump/status/802972944532209664?ref_s . Experts immediately rc=twsrc%5Etfw - noted that these allegations were patently false; however, they became the basis for the Pence Kobach Presidential Commission on Election Integrity, which was charged with reviewing allegations of improper and fraudulent voting, impro per voter registration, and voter suppression. Exec. Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017). Hans A. von Spakovsky and Christian Adams testified at the Commission’s briefing and were part of the Presidential Commission on Election Integrity, but did not testify about it; von Spakovsky, Written see also supra note 325; J. Christian Adams, President and General Counsel, Public Interest Legal Foundation, Testimony, hereinafter A Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018 [ dams, Written Testimony]. As various panelists noted, the Presidential Commission on Election Integrity was beleaguered with litigation challenging whether its mission was racially discriminatory and in violation of the VRA, whether it had the right to co llect voter data from the states, and whether it was in compliance with the Administrative Procedures Act and other federal rules, including federal transparency rules. See Briefing Transcript , supra note 234, at 220 - 22 (statement by Briefing Tra nscript , supra note 234, at 82 (statement by Ezra Rosenberg). When the Dale Ho), began asking for data, forty five states and the District of Columbia Presidential Commission on Election Integrity - stated they would decline to release any data or by only providing li mited information to the panel. Nineteen states - refused to comply due to privacy concerns and claims that the commission was politically motivated and twenty six Dartunorro Clark, - five Sta tes Refuse to Give See states stated that they would only hand over public data. Forty Voter Data to Trump Panel N EWS (July 6, 2017), https://www.nbcnews.com/politics/white - house/forty - four - , NBC - refuse - give - voter - data - trump - states - n779841 . Further, the Department of Homeland Security (DHS) stated panel that they would not compare the Presidential Commission’s data with federal immigration records, and they ial Commission’s data to compare with their federal immigration therefore refused to accept any of the President also records, after which the White House stated it would be destroying the Presidential Commission’s data; see . White House Says It Will Destroy Trump Voter Panel Data, Send No W ASH Records to DHS P OST Spencer S. Hsu, , (Jan. 10, 2017), - safety/white - house - says - it - will - destroy - trump - voter - https://www.washingtonpost.com/local/public panel - data - send - no - records - to - dhs/2018/01/10/e70704a8 - f616 - 11e7 - b34a - b85626af34ef_story.html?utm_term=.d1eb25f95c8d . On Jan. 3, 2018, President Trump disbanded the Presidential see also Michael Tackett & Michael Wines, Trump Disbands Commission on Voter Fraud , N.Y. Commission; IMES (Jan. 3, 2018) , ht tps://www.nytimes.com/2018/01/03/us/politics/trump - voter T fraud - commission.html . On Jan. - 9, 2018, it told a federal court that it would not be releasing any data nor any findings whatsoever. See Memorandum in Support of Defendant’s Motion to Reconsider, Dunlap v. Presidential Comm’n. on Election Integrity , No. 1:17 - CV - 023 61 - CKK, 1 - 2 (D. D.C., Jan. 9, 2018), https://www.politico.com/f/?id=00000160 - dde0 - da3c - a371 - ddfebfa60000 . (“[S]tate voter data will not be transferred to or accessed or utilized by, DHS or any other agency, except to the National Archives and Records Administration (‘NARA’), pursuant to federal law, if the records are not otherwise destroyed. Pending resolut ion of outstanding litigation involving the Commission, and pending - public Commission records consultation with NARA, the White House intends to destroy all state voter data. Non transferred to the DHS or another will continue to be maintained as Presidential Records, and they will not be agency, except to NARA, if required, in accordance with federal law.”). 670 Briefing Transcript , supra note 234, at 153 - 54 (statement by Cleta Mitchell ) ; see also Briefing Transcript , supra note 567, at 9. note 234, at 155 (statement by J ohn Merrill ) ; see also Park, Written Testimony, supra 671 Briefing Transcript , supra note 234, at 156 (statement by John Merrill).

122 An Assessment of Minority Voting Rights Access 116 of that 16 allegations regarding all types of voter fraud in Alabama between 2000 and 2012, the 672 to do with noncitizen registration and/or had voting. The Heritage Foundation reported one only same case as one of 16 cases of “Proven Voter Fraud” the identified in Alabama between 2000 it 673 and 2017. P I nterest L egal F oundation rep ort stated that 5,556 voters were removed from Virginia’s A ublic noncitizens, 2011 and May 2017 because they were and one third of those removed rolls between 674 illegally. One of the witnesses who testified before the Commission, voted J. Christian Adams, 675 in the report and its press release. Other groups have countered that PILF ’ s d allegations quote is and based on false methodology; these exaggerated groups have successfully litigated against are 676 voter purges that were advocated by PILF and its allies in Florida . Commission’s A t the related ACLU’s Dale Ho testified that while Florida was purging alleged noncitizens, the briefing, of U.S. citizens were wrongly designated as noncitizens and threatened with removal “thousands the rolls . . . An analysis conducted by the Miami Herald indicated that 87 percent of those from 677 by the state as noncitizens on the [voting] rolls were minorities. ” identified The study discussed above also identified few incidents of noncitizen voting in their News21 database of all voter fraud allegations from 2000 - 2012. Their study reviewing all public national fraud found that of 2,068 public allegations of voter between 2000 and 2012, there were databases allegations of noncitizen voting; of these, 16 56 were dismissed, not charged or acquitted; and 40 678 convicted, pleaded, subject to consent order, or had unknown results. were During the 12 years 679 there were 488,090,031 ballots cast in elections alone. studied, Based on allegations presidential alone, noncitizen voting represented 2. 7 percent of all allegations of voter fraud from 2000 to 2012, 680 and percent of all ballots cast. The Heritage Foundation database documented an 0.000011 672 Election Fraud N EWS 21, See , supra note 582 (noting that 75 percent of cases involved absentee voter fraud). 673 supra See Voter Fraud Cases , Heritage, note 470 (see information on Ala.). 674 Public Interest Legal Foundation, Report: 5500+ Noncitizens Discovered on Voter Rolls in Virginia , PILF (May - https://publicinterestlegal.org/blog/report 30, 2017), - noncitizens - discovered - voter - rolls - virginia/ . 5500 675 Id . 676 See, e.g ., Bellitto v. Snipes , No. 16 - CV - 61474 (S.D. Fla. 2018), https://publicinterestlegal.org/files/Broward - Trial - . Order.pdf 677 , supra note 234, at 171 (statement by Dale Ho ). See also Discussion of Arcia v. Detzner and Briefing Transcript (stipulated settlement of Section 2 claim in 2012 Florida purge of at notes 866 - 70 , infra 730 and Sources cited alleged noncitizens). 678 In August 2012, News21 released a Carnegie - Knight investigative report about voter fraud in the U.S, finding only 10 cases of alleged, in - person voter impersonation since 2000. N EWS 21, Election Fraud , supra note 582 (noting that t were 2,068 allegations of voter fraud between 2000 and 2012, and only 56 involved allegations of here ) . noncitizens casting an ineligible vote 679 There were 105,396,630 ballots c ast in the 2000 Presidential Election; 122,295,345 in 2004; 131,313,815 in 2008; an d 129,084,241 in 2012. CQ Press Voting and Elections Collection (accessed by Commission Staff) http://library. (last accessed Aug. 6, 2018). This totals 488,090,031 ballots cast in cqpress.com/elections/index.php presidential elections alone in the time period studied by News21. 680 Id . (Commission Staff calculations of percentages).

123 Chapter 3: Recent Changes in Voting Laws and Procedures 117 681 of noncitizen voting since 2000, 41 representing cases an even smaller number of ballots alleged cast by noncitizens in American elections. alleg edly Protections Again st Noncitizen Voting Current Legal voting are already strong legal deterrents against noncitizens in federal elections. These There 683 682 noncitizen registration federal and voting include are subject to criminal penalties, as that 684 685 noncitizen Most states also criminalize voting. deportation. The U.S. Constitution as well 686 persons to be 18 years of age or older and citizen s in order to vote in federal elections. requires requires t hat any person registering to vote NVRA must attest under penalty of perjury that The 687 person is a United States citizen, over 18, and otherwise eligible to vote. the During the NVRA 681 Mehrbani, Heritage Fraud Database: An Assessment , supra note 627, at 2. See 682 18 U.S.C. § 1015(f) (“Whoever knowingly makes any false statement or claim that he is a citizen of the United in any Federal, State, or local election (includin g an initiative, recall, or States in order to register to vote or to vote [s]hall be fined under this title or imprisoned not more than five years, or both”) (emphasis added). referendum) — 683 § 611 (enacted as part of 1996 immigration law reforms, making it a felony punishable by a fine and/or 18 U.S.C. “any election held solely or in part for the purpose of electing a one year in prison, for noncitizens to vote in candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the . House of Representatives, De legate from the District of Columbia, or Resident Commissioner”) 684 8 U.S.C. § 1182(a)(6)(C) See (falsely claiming U.S. citizenship for any purpose under Federal or State law 8 U.S.C. § 1227(a)(1)(A) (persons who are inadmissi ble cannot be legally admitted renders person inadmissible); ; and are subject to deportation) (a)(10)(D)(i) (any noncitizen “who has voted in violation of any 8 U.S.C. § 1182 Federal, State, or local constitutional provision, statute, ordinance, or regulation” is also inadmissible) .S.C. § ; 8 U while there are waivers for other offenses, there is no waiver for misrepresentation of U.S. 1182(a)(6)(C)(iii) ( noncitizen voting is also an affirmatively removable citizenship or for noncitizen voting) ; 8 U.S.C. § 1227(a)(6) ( ). (deportable) offense 685 In Texas, a noncitizen who voted was recently sentenced to eight years in prison. See Claire Z. Cardona , Grand , D ALLAS N EWS Prairie Woman Illegally Voted for the Man Responsible for Prosecuting Her (Feb. 10, 2017), http://www.dallasnews.com/news/tarrant county/2017/02/08grand - prairie - woman - found - - - illegal - voting . guilty 686 U.S. C ONST ., amends. XV § 1, XIX, XXVI § 1. 687 52 U.S.C. § 20505(a) (requiring that States use the f ederal registration f orm, which includes an affidavit of See Also, under the NVRA, every agency that registers voters through citizenship made under penalty of perjury). must “ ices applications, and/or through paper forms, applications for drivers’ licenses, social serv enable State election officials to assess the eligibility of the applicant,” and “shall include a statement that (i) states each eligibility requirement (including citizenship); (ii) contains an attestat ion that the applicant meets each such nd (iii) requires the signature of the applicant under penalty of perjury.” 52 U.S.C. § requirement; a y (c)(2)(C)(i) 20504 . See also 52 U.S.C. § 20508 (b)(2)(A) - (C) ( requiring attestation of citizenship under penalt - (iii) of perjury on mail voter registration forms) . T he NVRA also requires that any other state - designated voter registration agencies “shall” distribute the same mail voter registration form, and spells out that the form must specif y each eligibility requirement, including citizenship, and contains an attestation that the applicant meets such requirement, which the applicant signs under penalty of perjury. 52 U.S.C. § 2050 (a)(6)(A)(i)(I) - (III) . According 6 The requirement to the DOJ: “ s of the NVRA apply to 44 States and the District of Columbia. Six States (Idaho, Minnesota, New Hampshire, North Dakota, Wisconsin, and Wyoming are exempt from the NVRA because, on and - registration requiremen after August 1, 1994, they either had no voter - day voter registration at ts or had election polling places with respect to elections for federal office. Likewise, the territories are not covered by the NVRA (Puerto Rico, Guam, Virgin Islands, American Samoa). While the NVRA applies to elections for fed eral office, Stat es have extended its procedures to all elections.” U.S. Dep’t of Justice, The National Voter Registration Act of - 1993 https://www.justice.gov/crt/nation al - voter - registration , act - 1993 - nvra (last accessed Aug. 3, 2018).

124 An Assessment of Minority Voting Rights Access 118 Congress deliberated about — but ultimately rejected — language allowing stat es to require debates, 688 an evidence of the citizenship of documentary applicant for voter registration.” of “presentation determined that this was not necessary and could interfere with one of the main purposes of the It 689 to , expand voter registration in a nation with very low voter participation rates . Act e.g., time U.S. citizen moves to a new jurisdiction, in order to exercise the right to vote, the Any a must citizen to vote in that jurisdiction, and the citizen will be considered a “first - time register registra under HAVA. This means that thousands of local jurisdictions will require voter nt” 690 vote. any new residents who are eligible to T he NVRA and HAVA already registration for that registrants attest to their citizenship and provide some form require of identi fication, but new document proof of citizenship laws make the requirements stricter by ary a birth requiring 691 passport, or naturalization citizenship papers. certificate, or As discussed above, evidence of noncitizen voting is sparse. Studies and litigation records indicate 692 that are few documented incidents of noncitizen voting. This is not to say there are zero there noncitizen voting , but widespread data show that noncitizen voting occurs extremely incidents of 693 in U.S. elections. In 2016, in a sur vey rarely of election officials in 42 jurisdictions representing with high numbers of noncitizens, “ improper noncitizen votes accounted for 0.0001 percent places 688 See H.R. R EP . N O . 103 - 66, at 23 (1993). 689 Id . 690 According to the U.S. Census, in 2010, there were 3,143 counties and county - equivalents (organized boroughs, census areas, independent citi es) in the United States. See U.S. Census Bureau, 2010 Census Geographic Entity Tallies by State and Type , U.S. C ENSUS B UREAU https://www.census.gov/geo/maps - data/data/tallies/all_tallies.html (last accessed Aug. 2, 2018). Because residency is required to vote in local elections, counties and county equivalents typically process voter registration applications. 52 U.S. C. § 10502 (outlining residency See, e.g., requirements for voting). Each of the 50 states (except North Dakota, where voter registration is not required) and the District of Columbia also administer elections and may enact their own voter registration rules, as long as they , 570 U.S. 1, 13 do not conflict with federal law. - See, e.g., Arizona v. Inter Tribal Council of Arizona 15, 20 (2013) - emption; holding that NVRA pre - (discussing pre empts contravening state law). 691 - 96 , infra . See Discussion and Sources cited at notes 732 692 See, e.g ., Joseph Tanfini, No, There Is No Evidence That Thousands of Noncitizens Are Illegally Voting and , L.A. T IMES Swinging Elections (Oct. 25, 2016), http://www.latimes.com/politics/la - na - pol - noncitizen - voters - 20161025 snap - story.html (citing studies and evidence disproving cases alleging widespread noncitizen voting); see - - , also The Actual True and Provable Facts About Non Wendy Weiser & Douglas Keith citizen Voting , T IME (Feb. 13, 2017), http://time.com/4669899/illegal - citizens - voting - trump/ (noting that t he National Association of Secretaries of State and experts agree t hat Trump’s allegations are false; “Multiple nationwide studies have - see also The Brennan Center for Justice, Noncitizen uncovered only a handful of incidents of non citizens voting.”); , T HE B RENNAN Voting is Vanishingly Rare ENT . FOR J USTICE ( Jan. 25, 2017 ) , C http://www.brennancenter.org/analysis/analysis - noncitizen - voting - vanishingly - rare (detailing multiple studies and voter fraud prosecution records). 693 Noncitizens may vote in some local elections, if their ballots are separate and the local jurisdictions permits it regarding strictly local issues. See, e.g ., John Haltiwanger, Immigrants Are Getting the Right to Vote in Cities Across America , N EWSWEEK (Se pt. 13, 2017), http://www.newsweek.com/immigrants - are - getting - right - vote - cities - across - america - 664467 .

125 Chapter 3: Recent Changes in Voting Laws and Procedures 119 694 the votes in those jurisdictions .” This may be because of 2016 laws with severe penalties the of 695 the books. already on advocates have argued that because of the alleged problem of noncitizen voting, strict voter S ome purged, laws be enacted, voter rolls should be should and documentary proof of citizenship ID 696 required in order to register to vote. should Examining the relevant testimony before federal be 697 shows that these allegations may courts overstated. For example, the American Civil Rights be Union (ACRU) submitted an amicus (friend of the court) brief to the Supreme Court with 698 of noncitizen voting that were exaggerated. O ne the main proponents of the theory allegations of noncitizen voting is rampant, Kansas Secretary of State Kris that Kobach , estimated that 18,000 699 may be regi stered to vote in his state. noncitizens June 18, 2018, a federal court in his state On found that there was “no credible evidence that a substantial number of noncitizens registered to 700 vote.” A federal court of appeals had already found that during the time period at issue, 30 701 t o vote, about three per year. “ Of those ... , there is evidence that three noncitizens registered 702 cast votes under the mistaken belief that they were entitled actually to vote.” Kansas’ law — 694 Myrna Pérez, Noncitizen Voting: The Missing Millions, Brennan Christopher Famighetti, Douglas Keith & T B RENNAN , ENT . HE FOR J USTICE (May 15, 2017), Center for Justice C ication/noncitizen https://www.brennancenter.org/publ voting - missing - millions - 695 See Discussion and Sources cited at notes 682 - 85, (discussing federal criminal penalties, risk of deportation supra and NVRA’s and HAVA’s requirement of attestation of citizenship under penalty of perjury). 696 Br iefing Transcript , supra note 234, at 153 - 54 (statement by Cleta Mitchell ) ; see also Briefing Transcript , supra note 234, at 155 (statement by ). John Merrill 697 When the American Civil Rights Union (ACRU) submitted a brief to the Supreme Court backing the K ansas Secretary of State in a prominent case involving documentary proof of citizenship in Kansas, its allegations of noncitizen voting were not backed by facts. Brief of the American Civil Rights Union as Amicus Curiae in Support of Petitioners at 11 12, Kobach v. United States Election Assistance Com’n , 2015 WL 1848103, 135 S. Ct. 2891 - (2015) (No. 14 - 1164). ACRU submitted 13 registration forms from Texas in which noncitizens were registered, but none had attested that they were citizens. These noncitizens had either checked NO on the citizenship box, or checked both YES and NO, or left the citizenship box blank. There was no evidence that any of them had voted. On a national level, the ACRU could only point to one confirmed allegation of noncitizen voting. 698 Id. 699 Zachary Mueller, Fish v. Kobach Trial — Day One I NSTITUTE FOR R ESEARCH AND E DUCATION ON H UMAN , R (Mar. 6, 2018), https://www.irehr.org/2018/03/06/fish - v - kobach - IGHTS - day - one/ . Notably , these were the trial same number of voter registration applications that were suspended for failure to provide the strict forms of documentary proof of citizenship Kansas requires to register to vote that were discussed during the preliminary injunction phase of this case, Fish v. Kobach , 840 F.3d 710, 754 - 55 (10th Cir. 2016). But failure to provide a birth certificate or naturalization papers does not correspond to noncitizenship. Id . at 745. 700 document/fish Kan. 2018), https://www.aclu.org/legal - , 309 F. Supp. 3d 1048, 1101 (D. - v - Fish v. Kobach - kobach - fact - and - conclusions - law . findings 701 Fish v. Kobach , 189 F. Supp 3d 1107, 1137 - 38 (D. Kan. 201 6). 702 (emphasis added) . The court also Id. that: found The evidence shows that the DMV clerks currently ask applicants if they are United States citizens, and they check a box if the applicant responds affirmatively. This was the method Kansas used to ass ess citizenship eligibility prior to the effective date of the SAFE Act in 2013. Between January 1, 2006 (seven years before the documentary proof of citizenship law became effective), and Marc h 23, 2016, 860,604 people registered to vote in the State of K ansas . . .

126 An Assessment of Minority Voting Rights Access 120 restricting access to voter registration as a remedy for this relatively small problem — was broadly 703 permanently enjoined on June 18. held Secretary of State Kobach had already been in therefore 704 for disobeying a prior federal court order. contempt von Spakovsky was expert in this case, testif ying to broad allegations of noncitizens Hans an but he admitted during the trial that he knew of no federal elections in which the voting, outcome 705 decided by noncitizens. was The federal court ruled that: Court gives little weight to Mr. von Spakovsky’s opinion and report because The are premised on several misleading and unsupported examples of noncitizen they registration, mostly outside the State voter Kansas. His myriad misleading of statements, coupled with his publicly stated preordained opinions about this subject Spakovsky matter, the Court that Mr. von convinces testified as an advocate and 706 as an objective expert witness. not Associate Jesse Richm an also testified for Kobach, estimating that 1,000 - 18,000 Professor registered on the voting rolls ; but he admitted that his estimate was based on noncitizens were that are not peer - reviewed and have been challenged in a letter signed by surveys 200 political 707 Moreover: scientists. of survey, Richman and a graduate assistant flagged names on In list one the suspended voters in Kansas that sounded foreign. When American Civil Liberties Union attorney Dale Ho asked if the name “ Carlos Murguia ” would be flagged, very few noncitizens in Kansas successfully registered to This evidence supports the conclusion that vote under an attestation regime. Importantly, there is no evidence that under that regime, thousands of ancelled or held in suspense for failure to establish eligibility otherwise eligible applicants were c requirements. On this record, Plaintiffs make a strong showing that the documentary proof of citizenship law cannot be justified as the minimum amount of information necessary to assess zenship eligibility, where the rates of noncitizen voter fraud prior to the Act's passage are at best citi nominal. 703 Fish , 309 F. Supp. 3d at 1 119, https://www.aclu.org/legal - document/fish v - kobach - findings - fact - and - - conclusions law . - 704 , 294 F. Supp. 3d 1154, 1156 (D. Kan. 2018) (holding Kobach in contempt of the court’s order as Fish v. Kobach he continued to enforce the documentary proof of citizenshi p law). 705 See, e.g. , Brian Lowry, Kobach Turns to Controversial Scholar As Witness in Voting Rights Trial, K ANSAS C ITY S TAR (Mar. 9, 2018 ), http://www.kansascity.com/n ews/politics - government/article204422539.html (noting that “ von Spakovsky testified that even a small number of non - citizens on voter rolls ‘could make the difference in a race - examination acknow ledged that he could not name a that's decided by a small number of votes,’ but during cross - citizen votes.”). specific federal election that was decided by non 706 Fish , 309 F. Supp. 3d at 1082 , https://www.aclu.org/legal - document/fish - v - kobach - findings - fact - and - conclusions law . - 707 Associated Press, Expert Defends Esti mates of Noncitizens in Kansas , A SSOCIATED P RESS (Mar. 13, 2018) https://apnews.com/dcbcc68e68304db98200c568a582392d .

127 Chapter 3: Recent Changes in Voting Laws and Procedures 121 Richman Ho tol d him Murguia is a federal judge in the courthouse where said yes. 708 occurring. trial is the court found this methodology to be The troubling that it needed no further federal so 709 explanation. Current Voter Registration Issues v oter registration barriers enacted to counter the above allegations may have a disparate New register on of color. The uniquely U.S. requirement to voters before voting can itself be an impact to some eligible citizens. S tudies have shown that the very requirement to register to vote obstacle 710 and reduces impacts the poor. turnout In his written statement submitted t o the primarily Commis ion, t he Director of Elections for the State of Colorado, Judd Choate, stated that “ the s 711 to voting is not polling place restrictions, it is voter registration.” M oreover , greatest impediment ccording to the National Association of Latino Elected Officials (NALEO): a in ethnic disparities Racial civic participation and representation begin at and Current according to the 2012 registration. Population Survey (CPS) Nationwide, of Voting Registration report, just 58.7 % and adult Latino citizens were registered to vote, compared to 73.7 % of whites. 2012 CPS data also showed that 6.1 % of Latino - voters and 6.7 % of African American non - voters reported that non on were the reason why they had not voted in problems 2012, compared registrati 712 5.2 % of just whites . to states except North Dakota require re gistration in order to vote, but some states make All easier it 713 others. than While most states require voter registration by a deadline in advance of Election same states and the District of Columbia have Day, - day registration, where voters can register 15 708 Id . 709 309 F. Supp. 3d at 1093 . Fish , 710 Id . at 1054 n.4 (citing Steven J. Rosenstone & Raymond E. Wolfinger , The Effect of Registration Laws on Voter , 72 A M . P OL . S CI . R EV . 22 (Mar. 1978); see also Turnout American Voter Turnout in G. Bingham Powell, Jr., Comparative Perspective A M . P OL . S CI . R EV . , 80 see also Stephen Ansolabehere & David M. 17 (Mar. 1986); Konisky The Introduction of Voter Registration and Its Effect on Turnout , 14 P OL . , A NALYSIS 83 ( Winter 2006) ; see also James M. Avery & Mark Peffley , Voter Registration Requirements, Voter Turnout, and Welfare Eligibility Policy: Class Bias Matters TATE P OL . & P OL ’ Y Q. 47 S (Spring 2005) ). , 5 711 Jude Choate , Director of Elections, Colorado Department o f State, Written Testimony for the U.S. Comm’n on Civil Rights , Feb. 2, 2018 at 2 [ hereinafter Choate, Written Testimony ] . 712 Latino Voters At Risk: Assessing the Impact of Restrictive Voting Changes in NALEO Educational Fund, F , E Election 2016 AL NALEO UND 10 (2016), DUCATION https://d3n8a8pro7vhmx.cloudfront.net/naleo/pages/233/attachments/original/1462976324/Latino_Voters_at_Risk_ 7.pdf (emphasis added). 713 Nat’l. Conf. of State Legislators, Voter Registration , NCSL (Sept. 27, 2016) - and - campaigns/voter - registration.aspx . http://www.ncsl.org/research/elections

128 An Assessment of Minority Voting Rights Access 122 714 or in some cases, during early voting. Election Day Only a few of the states with this positive on 715 c overed for preclearance. were Hawaii has formerly also recently enacted same - day measure 716 be implemented in 2018. remaining But in the registration, majority of states across the nation, to must register voters who submit a valid voter registration form either 30 days in advance of states 717 T by any less stringent state deadline. or he Commission also notes that 11 states Election Day the District of Columbia have recently enacted Automatic Voter Registration (AVR) and laws, again showing that some states are enacting positive measures to expand access to the ballot. These are: Alaska, California, Colorado, District of Columbia, Illinois, Maryland, New Jersey, states 718 Rhode Island, Vermont, Washington , and West Virginia . Alaska and California are the Oregon, 719 formerly covered states with this measure that expands access to voter registration. only (For further information on AVR, see App endix C.) covered with positive measures in some states, during the time In by the Commission’s contrast and s ince the 2006 VRA Reauthorization study, the June 2013 Shelby County decision, current other types of changes to voter registration procedures hav e been adopted that generally create new to the ballot. These include : (1) requiring discriminatory forms of documentary proof barriers challenges in order to register to vote ; (2) to voter eligibility ; and (3) aggressive of citizenship of voter list maintenance or purges of voters from the rolls, eac h of which is discussed below. types Even they are generally governed by the NVRA, these types of voter registration issue are though the actionable VRA. under registration Shelby County , changes Prior voter to procedures were subject to preclearance under in Section 5 of the Voting Rights Act . In 1997, in Young v. Fordice , the Supreme Court held that changes vot ing that fell under the NVRA had to be precleared and reviewed to deter mine in 720 wo uld be discriminatory, before whether could be enacted. they Potential Section 2 issues they 714 - day registration, including on Election Day, are: CA, CO, CT, DC, IA, ID, IA, IL, ME, MN, States with same MT, NH, WI, WI, VT; while Maryland and North Carolina only offer SDR during Early Voting. Nat’l. Conf. of Same Day Voter Registration (SDR) , NCSL, at 4 (Oct. 12, 2017) State Legislators, - - - campaigns/same - day and registration.aspx . http://www.ncsl.org/research/elections 715 Id. and Cf. Map of Formerly Covered Jurisdictions, Chapter 2, Figure 2, supra note 245. 716 . Id 717 52 U.S.C. § 20507(a)(1)(D). 718 See, e.g ., Nat’l. Conf. of State Legislators, , NCSL Automatic Voter Registration - and - campaigns/automatic - voter - registratio http://www.ncsl.org/research/elections (last accessed Aug. 2, n.aspx 2018). 719 Map of Formerly Covered apter See 2, Figure 2 . Jurisdictions, Ch 720 Fordice at 281 - 82. The history of this case explains the application of the VRA to changes in voter , 520 U.S. 273 registration procedures. When Mississippi first implemented the NVRA after its enactment in 1993, it did not properly seek pre hat the state’s implementation of the NVRA’s new voter clearance, but the Supreme Court found t registration procedures were within the definition of voting changes that had to be submitted for preclearance under Section 5. The Court also noted that the NVRA makes clear that it doesn’t create a conflict with the VRA and Id. explicitly states that it does not limit the VRA’s application. Id . (citing NVRA provisions 42 U.S.C. § 1973gg - - 9(d)(2) - 9(d)(1)) (transferred to 52 U.S.C. § 20510 (d)(1) , § 1973gg (2)) (“ [T]he NVRA does not forbid applicatio n of the VRA’s requirements. To the contrary, it says “[n]othing in this subchapter [of the NVRA] authorizes or requires conduct that is prohibited by the VRA .’ And it adds that “neither the rights and remedies established by this section

129 Chapter 3: Recent Changes in Voting Laws and Procedures 123 also arise if changes to voter registration rules are racially discrimi natory. For example, in may stration a court found that Mississippi’s dual regi federal requiring separate registration for 1987, 721 local elections had a racially dis criminatory effect federal violated Section 2, due to the and and 722 severe socioeconomic disparities for black citizens of in Mississippi. The state was persistence forced also end another set of dual registration procedures it had created after implementing to new federal NVRA requirements to r egister voters at state agencies that receive federal funding. a who wanted to als o vote in state Mississippi would have h ad to fill out voters separate elections 723 form, state but this regime was never implemented because preclearance was denied under 724 5. in The DOJ found that m ore than half the people who had registered to vote Section Mississippi the new federal NVRA rules (30,000 p eople ) had not separately regi stered for under voters with a clear disproportionate impact on black , “preventing them, to a greater state elections, 725 than white citizens, from voting in state and local elections .” extent based on the Moreover, other provision of this subchapter [of the NVRA] shall supersede, restrict, or limit the application of the nor any VRA.”). 721 Among other legal challenges, a voter registration group challenged the state’s dual registration requirement and preva iled in its Section 2 claim regarding illegal discriminatory effects. Mississippi under Section 2 of the VRA, PUSH v. Allain , 674 F. Supp. 1260, 1268 (N.D. Miss. 1987). , State Chapter Operation 722 Id was a centu ry old, and therefore . This issue was originally addressed under Section 2 because the practice there was no change in voting procedures that would have had to be subject to preclearance under Section 5. Section 5 prohibits a State with a specified history of voting discrimination, such as Mississippi, from “enac t[ing] ( or s eek[ing] to administer any voting qualification or prerequisite to voting, or standard practice, or procedure with different from that in force or effect on November 1, 1964 respect to voting ,” unless and until the State obtains preclearance fro m the United States Attorney General (Attorney General) or the United States District Court for the District of Columbia. 52 U.S.C. § 10304 (emphasis added)). 723 Fordice 520 U.S. at 280. , 724 d the Court hel d that these types of Id. This was yet another change involving NVRA implementation, an . at 284 Id subsequent changes in implementation of the NVRA requirements were also subject to preclearance. ( reasoning that: “This Court has made clear that minor, as well as major, changes require preclearance. Allen v. State 393 U.S. 544, 566 - 569, 89 S.Ct. 817, 832 Bd. of Elections, 834, 22 L.Ed.2d 1 (1969) (discussing minor changes, - NAACP v. Hampton County Election Comm’n, 470 U.S. including a change from paper ballots to voting machines); - 177, 105 S.Ct. 1128, 1133 - 1135, 84 L.Ed.2d 124 (1985) 166, 175 Pe rkins, (election date relative to filing deadline); supra, at 387, 91 S. Ct. at 436 (l ocation of polling places). ); see also 28 C.F.R. § 51.12 (1996) (requiring preclearance of “[a]ny change affecting voting, even though it appears to be minor or indirect . . . ”). This is true comply with federal law, so long as those changes reflect even where, as here, the changes are made in an effort to Allen, supra, policy choices made by state or local officials. at 565, n. 29, 89 S.Ct., at 831, n. 29 (requi ring State to preclear changes made in an ef fort to comply with § 2 of the VRA, 42 U.S.C. § 1973 ); McDaniel v. Sanchez, 452 U.S. 130, 153, 101 S.Ct. 2224, 2238, 68 L.Ed.2d 724 (1981) clearance of voting changes submitted to (requiring pre ederal court because the VRA “requires that whenever a covered jurisdiction submits a proposal reflecting the a f no matter what constraints have limited th e choices policy choices of the elected representatives of the people — — requirement of the Voting Rights Act is applicable”); Lopez v. Monterey available to them the preclearance 519 U.S. 9, 22, 117 S.Ct. 340, 348, 136 L.Ed.2d 273 (1996) County, McDaniel and emph asizing the need (quoting to preclear changes reflect ing policy choices); Hampton County Election Comm’n, at 179 - 180, 105 S.Ct., at 1135 - 1136 (requiring preclearance of change in election date although change was made in an effort to comply with § 5 ) ). .” 725 U.S. Dep’t of Justice, Voting Determination Letter from Acting Assistant Attorney General Isabelle Katz Pinzler to Mississippi Special Assistant Attor ney General Sandra M. Shelson (Sept. 22, 1997) 22 https://www.justice.gov/crt/voting determination - letter - - . The DOJ found that: “Thus, the State’s federal - election - only implementation of the NVRA has a disproportionate impact on black citizens, preventing them, to a greater

130 An Assessment of Minority Voting Rights Access 124 record, the discriminatory impact of dual registration was “ predictable, ” and “the fact historical preclearance the has implemented these voting changes without State for more than two and that 726 years has led to the full realization of the discriminatory poten tial of these changes .” a In half the DOJ also objected to dual registration procedures in Berrien Ci ty, Georgia, which would 1980, required that register in both c ounty and c ity elections, if they wanted to vote in both have voters 727 and municipal election s. As county will be shown below, dual registration is at issue again in several states. section also discusses discriminatory voter challenges, which have also been held to be This 728 discriminatory Section 2 of the VRA, under and removal or purges of voters from actionable rolls, which are actionable under the Sections 2 the and 5. Changes in voter registration list maintenance procedures were subject to preclearance under Section 5, and in 1973, in Toney v. , the Fifth Circuit Court of Appeals affirmed that list maintenance procedures that disparately White 729 minority voters could be enjoined under Section 2. As discussed targeted herein, while these issues not gone to trial again recently, Section 2 claims regarding discriminatory purges have have 730 favorably s ettled in the time covered by this report. been to materiality provision of the VRA is also applicable some of the recent voter registration The discussed herein. It provides that no person shall be denied the right to vote “because restrictions error or omission on any record or paper relating to any application, registration, or other act an of voting, if such error or omission is to not material in determining whether such individual requisite 731 qualified under State law to vote in such election.” is The Comm ission now turns to examining the types of recent restrictions to voters getting and staying on the voter registration rolls and main thereby able to vote. being extent than white citizens, from voting in state and local elections. This has the overall impact of hampering the Id. at 3. Moreover, there was discriminatory intent in ability of black persons to participate in the political process.” story. the legislative hi Id. 726 Id . (emphasis added). 727 U.S. Dep’t of Justice, Voting Determination Letters for Georgia (last updated Aug. 7, 2015) https://www.justice.gov/crt/voting - determinati on - letters - georgia [ hereinafter DOJ, Georgia Voting Determination Letters ]. 728 ion 2 claims, “Congress expanded the language in See Allen , 393 U.S. at 567 (describing the broad scope of Sect rerequisite to voting, or standard, practice, or the final version of s 2 to include any ‘voting qualifications or p procedure ). ’” 729 (5th Cir. 1973) (citing cases); Cf. Ortiz v. Phila . Office of City Comm ’rs Voter Registration 476 F.2d 203, 209 Division , 28 F.3d 306, 312 - 13 (3rd Cir. 1994) ( asserting that a Section 2 violation was not established per se by discriminatory impact alone, in jurisdiction where there was insufficient evidence of historical discrimination or inability to elect candidates of choice). 730 See Stipulation of Dismissal as to Counts I, II , and parts of IV, Arcia v. Detzner , No. 1:12 - CV - 22282 (Sept. 12, 2012). 731 Fla. State Conference of N.A.A.C.P. v. Browning , 569 F . Supp. 2d 1237 , 1241 n.3 (N.D. Fl. 2007) (citing 42 U.S.C. § 1971(a)(2)(B) (transferred to 52 U.S.C. § 10101 (a)(2)(B) ).

131 Chapter 3: Recent Changes in Voting Laws and Procedures 125 Documentary Proof of Citizenship these new types of state voter registration laws, docu mentary proof of citizenship is limited Under U.S. certificates), birth certificates (including tribal passports, or naturalization or citizenship to unexpired These r may also be met by state - issued drivers ’ licenses or certificates. equirements photo IDs from the 31 states that require the same type of underlying documentary proof state of citizenship thr ough their implementation of the federal RE AL ID Act, as long as the state IDs also 732 voter’s current legal name and address. have the courts have found that the costs associated with replacing a Federal birth certificate can have a 733 impact on black and Latino voters. disparate For example, elderly African - American citizens born in the South are less likely to have birth certificates, as under Jim Crow laws, thei r mothers 734 were permitted to give birth in hospitals. A 1950 study concluded that 94.0 percent of white not registered nationwide, whereas only 81.5 percent of non - white births were births were 732 See, e.g., A RIZ . R EV . S TAT . A NN . § 16 - 152(A). In Arizona, the voter registration form must contain a “ statement that the applicant shall submit evidence of United States citizenship with the application and that the registrar shall . evidence of citizenship is attached.” A RIZ . R EV . S reject the application if no A NN . § 16 - 152(A )( 23). The TAT following docume nts satisfy Arizona’s documen tary proof of citizenship law: (1) The number of the applicant’s driver license or nonoperating identification license issued after October another state within 1, 1996 by the department of transportation or the equivalent governmental agency of the United States if the agency indicates on the applicant’s driver license or nonoperating identification . license that the person has provided satisfactory proof of United States citizenship (2) A legible photocopy of the applicant’ s birth certificate that verifies citizenship to the satisfaction of the county recorder. (3) A legible photocopy of pertinent pages of the applicant’s United States passport identifying the the county recorder of the applicant’s applicant and the applicant’s passport number or presentation to United States passport. A presentation to the county recorder of the applicant’s United States naturalization documents or the (4) f naturalization is number of the certificate of naturalization. If only the number of the certificate o provided, the applicant shall not be included in the registration rolls until the number of the certificate of naturalization is verified with the United States immigration and naturalization service by the county recorder. (5) ocuments or methods of proof that are established pursuant to the immigration reform and Other d control act of 1986. (6) The applicant’s bureau of Indian affairs card number, tribal treaty card numb er or tribal enrollment number. A RIZ . R EV . S TAT . A NN . § 16 - 166(F ) (emphasis added) ; see also U.S. Dep’t of Homeland Security, ( “REAL ID,” - id - enforcement - brief# https://www.dhs.gov/real last updated Jan. 25, 2018) (19 states and all 4 U.S. territories a re not yet fully compliant with REAL ID). 733 See, e.g ., Veasey , 71 F. Supp. 3d at 665 (citing testimony from witness Sammie Louise Bates, who stated at trial that she could not afford the $42 it would have cost her to obtain a birth certificate because she nee ded the money to meet her family’s basic living expenses). 734 See, e.g. One Wisconsin Inst ., Inc. v. Thomsen , 198 F. Supp. 3d 896, 915 (W.D. Wis. 2016). ,

132 An Assessment of Minority Voting Rights Access 126 735 of name changes, w omen may also have incr eased difficulty in showing registered. Because 736 current citizenship that matches of records . proof documentary of 2010, Puerto Rican birth certificates have been declared invalid and are A therefore not s 737 proof of citizenship in REAL ID states (or as states with voter ID laws). Because of accepted in a this, federal court in Wisconsin found that “ [t] he lack of a valid birth record correlated strikingly, 738 predictably, with minority status .” yet And in Pennsylvania, procuring replacement Puerto certificates for per sons born before 2010 was Rican already problematic as it was associated birth 739 These procedures and a processing fee. additional same issues arise in states requiring with documentary proof of citizenship to register t o vote, and after Hurricane Marí a, which devastat ed 740 the it is unlikely that the Puerto Rican government will be able to provide replacement island, - in a timely and cost effective manner. birth certificates 735 S. Shapiro, Development of Birth Registration and Birth Statistics in the United States , 4 P OPULATION S TUDIES : OURNAL OF D EMOGRAPHY 86, 98 - 99 (1950). “Registration completeness figures based on matched infant cards A J percent for the white race and 82.0 percent for the non - white.” Id . at 98 n.2 . and death records were 94.0 736 , McCrory , 182 F. Supp. 3d at 361 (internal citations omitted). T he trial court discussed the difficulties of See, e.g. - - old African American woman: Rosanell Eaton, a 93 year Because the name on her birth certificate (Rosanell Johnson) did not match the name on her social security card, federal law prohibited the DMV from issuing her a driver’s license. Ms. Eaton testified that the DMV told her . Presumably, she was actually told to get the name on her social security she needed to get her SSN changed card changed so it matched the name she sought to use at the DMV, but here, too, the record is not clear. In any event, Ms. Eaton says the DMV refused to take further action until s he made changes at the social security - and - office. It took her ten trips (and two tanks of gas) back forth between the DMV and the social security office before she got her license on January 26, 2015. Ms. Eaton is confident now that she will be able to vo te using her new license. Ms. Eaton’s testimony does not make clear why her ordeal was so involved, but it is troubling that any individual could be subjected to such a bureaucratic hassle. Id . 737 . , 198 F. Supp. 3d at 915 (“The evidence at trial demonstrated that Puerto Rico, Cook County, One Wisconsin Inst segregation have systematic deficiencies in their vital records systems. Illinois, and states with a history of de jure Voters born in those places were commonly unable to confirm their identities under the DMV's standards. And ny of the state's Latino residents were born in Puerto Rico.”); P.R. L AWS A NN . ti t. 24, § 1325 ; see also ma Go Puerto Rico’s New Birth Certificate Law (Law 191 of 2009 — As Amended) vernment of Puerto Rico, http://www2.pr.gov/prgovEN/Pages/BirthCertifcateInfo.aspx (last accessed Aug. 6, 2018). 738 One Wisconsin Inst. see also Wisconsin Dep’t of Motor Vehicles, Accep table , 198 F. Supp. 3d at 915; Documents For Proof of Citizenship or Legal Status in the United States, http://wisconsindot.gov/Pages/dmv/license - drvs/how - to - apply/citizen - leg - pres.as px (last accessed June 4, 2018) ( “Wisconsin will not accept Puerto Rican birth certificates issued before July 1, 2010, in line with Puerto .” ). Rico’s law as of October 30, 2010. More information available at pr.gov 739 See Expert Report of Dr. Matt Barreto, , No. 330 M.D. 2012, WL 3332376 (Pa. Applewhite v. Pennsylvania Commw. Ct. 2012), at 26 - 27, https://www.aclupa.org/files/2513/796 0/9091/Barreto.pdf . 740 See, e.g ., Danica Coto, Needs Go Unmet 6 Months After Maria Hit Puerto Rico , A SSOCIATED P RESS (Mar. 30, - 2018), - go - unmet - 6 - mont hs - after https://www.apnews.com/de367742d0c440de85e4b6cb107973d4/Needs Maria - hit - Puerto - Rico?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP (describing inability to provide for health, education, and welfare 6 months after “[t]he storm caused an estimated $100 billion in damage, killed dozens of people and damaged or destroyed nearly 400,000 homes, according to Puerto Rico’s government.”).

133 Chapter 3: Recent Changes in Voting Laws and Procedures 127 741 current cost for replacing a naturalization certificate is $555.00. The The current statutory 742 for procuring a citizenship certificate is $1,170.00, and for replacement, st atutory cost 743 Naturalization certificates are issued to persons $555.00. become who citizens through citizenship certificates may be issued to persons with “der ivative citizenship” naturalization, and an are born abroad to a U.S. parent. In 2016, estimated 8.8 percent of eligible voters were who 744 citizens, and their numbers are growing. About 32 percent of naturalized citizens naturalized are 745 32 percent are Asian , an d 9.8 percent are black. Latino, another Dual Arizona Registratio n Issues in and Kansas Possible citizenship states , documentary proof of in laws, documentary proof of citizenship Currently with be required for the federal voter registration forms (“Federal Form”). Therefore, citizens cannot ho to vote without documentary proof of citizenship register may be legally limited to voting in w federal elections, and may not be equally entitled to exercise their right to vote for state only 746 or their local s chool board, or in any other state or local election. representatives They also sometimes to vote on separate, federal - only ballots, whereas other citizens may vote complete have 747 dual ballots. This may implicate discriminatory registration procedures. As disc ussed or unified below, in 2014 and 2016, Arizona and Kansas litigated and lost their attempts to have the further put Assistance Commission federal their states’ documentary proof of citizenship Election 748 their the Federal Form, but they did requirements not remove the requirement from on state 749 rules, resulting in dual registration procedures. voter registration 741 U.S. Citizenship and Immigration Services, N - 565, Application for Replacement Naturalization/Citizenship Document , htt ps://www.uscis.gov/n - 565 (last updated June 4, 2018) . USCIS, 742 - 600, Application for Certificate of Citizenship , USCIS, U.S. Citizenship and Immigration Services, N 600 (last updated Apr. 11, 201 8) (noting that: “This fee applies even if you are filing as an - https://www.uscis.gov/n adopted child or as a child of a veteran or member of the U.S. armed forces.”). 743 USCIS, N - 565 , supra note 741. 744 Rock the (Naturalized) V ote II: The Size and Location of Manuel Pastor, Justin Scoggins, and Magaly N. López, ENTER FOR , 4, S. C AL . D ORNSIFE : the Recently Naturalized Voting Age Citizen Population C U. S TUDY OF I I NTEGRATION (Sept. 2016), MMIGRANT http://dornsife.usc.edu/assets/sites/731/docs/rtnv2016_report_final_v4.pdf (using Census data). 745 U.S. Census Bureau, 2010 - 14 American Community Survey , C ENSUS B UREAU , https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_5YR_S0501&prodType =table (last accessed Aug. 7, 2018). 746 ., Re: Voter Registration, Ariz. Op. Att’y Gen. No. I13 - 011 at *1 (Oct. 7, 2013) (stating that “registrants See, e.g who used the Federal Form and did not provide sufficient evidence of citizenship are not eligible to vote for state and local races”). 747 , No. 2013 Belenk y v. Kobach - CV - 1331, 2016 WL 8293871 (D. Kan. 2016) (granting the plaintiffs’ motion See for summary judgment), https://www.aclu.org/legal - document/belenky - v - kobach - summary - judgment . 748 Discussion and Cases cited at notes 775 and 778 - See infra . 81, 749 Belenky , 2016 WL 8293871, https://www.aclu.org/legal - document/belenky - v - kobach - sum mary - judgment (describing Kansas’ dual registration system); Ariz. Op. Att’y Gen. No. I13 - 011 at *1 (Oct. 7, 2013) (stating that “registrants who used the Federal Form and did not provide sufficient evidence of citizenship are not eligible to vote for stat e and local races”).

134 An Assessment of Minority Voting Rights Access 128 Arizona Arizona’s documentary proof of citizenship law, only limited types of documents were Under 750 while copies of passports and birth Moreover, could be submitted by mail, accepted. certificates papers had to be the original papers, and were required to be presented in person, or naturalization 751 be verified with the federal government. Arizona submitted its documentary proof they would citizenship for preclearanc e under Section 5, and in 2005, the Attorney General precleared of rules 752 Arizona was immediately them. subject litigation under Section 2, and a preliminary to 753 was issued , but that was overturned by the Supreme Court in October 2016 . injunction The 754 the claim was also ultimately unsuccessful on merits . Therefore, although Arizona Section 2 later blocked from including documentary proof of citizenship on the Federal Form through was 755 , separate it was allowed to keep the rules on the state form. litigation another reached a settlement agreement in recently case regarding the dual registration Arizona procedure that resulted from the above. In LULAC v. Reagan , plaintiffs alleged that the dual st th registration violated the 1 and 14 Amendment s , and on June 4, 2018, the parties filed a system 756 for the federal court to enter into a Consent Decree resolving the claims. Arizona joint motion its documentary proof of citizenship law would agreed no longer remain in force for the state’s that 757 2018 primary electi ons, and agreed to August treat State Forms the same as Federal upcoming Forms, so any voter who submits either form without documentary proof of citizenship will still be to vote so long as the Motor Ve hicles Department (MVD) has doc umentary proof of registered 750 Arizona’s documentary proof of citizenship law was enacted as part of a package of laws targeting immigrants, such as criminalizing immigration status under state law and requiring local officials and employers to enforce il immigration laws; the majority of these measures were overturned as unconstitutional due to federal federal civ Arizona v. United States , 567 U.S. 387, 416 (2012). The context is important to Latino citizens who preemption in may feel intimidated and fear voting wh en their right to vote is targeted in a state with an anti - immigrant climate. Ana Henderson, Citizenship Verification, Obstacle to Voter Registration and Participation , N EW P OL . See, e.g., Henderson, PACES http://www.reimaginerpe.org/19 - 1/henderson [ hereinafter 19(1) (2012), Citizenship S Verification, Obstacle to Voter Registration and Participation ]; see also Advancement Project, Segregating American Citizenship: Latino Voter Disenfranchisement in 2012 , A DVANCEMENT P ROJECT 4 (Sept. 24, 2012), https://b.3cdn.net/advancement/18ff5be68ab53f752b_0tm6yjgsj.pdf (discussing the impact of documentary proof of - status families and communities). The Commission discussed Arizona’s citizenship laws on Latino voters in mixed anti - immigrant measures in a 2012 briefing, and the transcript is available here : tp://www.usccr.gov/calendar/trnscrpt/Transcript_08 - 17 - 12.pdf . ht 751 Henderson, , supra note 750, at 1083. Citizenship Verification, Obstacle to Voter Registration and Participation 752 Purcell , 549 U.S. at 6. 753 Id. 754 , 677 F.3d at 407. Gonzalez 755 Arizona could not require documentary proof of citizenship on the Federal Form as such a requirement is precluded by the National Voter Registration Act. Inter Tribal Council , 570 U.S. at 20. 756 Joint Motion for Consent Decree at 4, League of Latin Am. Citizens Arizona v. Reagan , No. 2:17 - CV - 04102 (D. Ariz. June 4, 2018), http://www.campaignlegalcenter.org/sites/default/files/Joint%20Motion%20 for%20Entry%20of%20Consent%20De cree_0.pdf . 757 Id.

135 Chapter 3: Recent Changes in Voting Laws and Procedures 129 758 its Arizona m ade no concession that file. law was unconstitutional, but noted that on citizenship technology allows the state to provide necessary safeguards against registration fraud by current for checking MVD’s database, w hile making it easier cit izens to register to vote, automatically 759 that such a documentary proof of citizenship law was no longer necessary. The Commission notes that the settlement effectively still requires documentary proof of citizenship in order to be 760 d registere vote. to Arizona S AC heard The testimony about Commission’s the dual registration system and its complications at the SAC ’s briefing on voter access in March 2018. One county recorder testified that dual registration system is “very complicated and confusing” and she believes “it’s the able people, citizens in my county, from being preventing to participate in voting in state many 761 elections.” and local 758 Id . at 2. 759 Id . 760 See, e.g The US Eligible - to - Naturalize Population: Detailed Social and ., Robert Warren and Donald Kerwin, Economic Characteristics , 3 J. O N M IGRATION AND H UM . Security 306, 312 - 13 (2 015). Here is one Latino naturalized citizen’s story, as told to NALEO and recounted in an amicus brief before the Supreme Court: In 2004, when Arizona implemented a requirement that voters provide documentary proof of their U.S. citizenship at the time of ration, Jesus Gonzalez of Yuma, Arizona became a United States citizen. After his voter regist naturalization ceremony, he immediately completed a voter registration form and submitted the number of his new requireme Certificate of Naturalization to satisfy the state’s nt. Even though the law as originally devised listed this as one of the approved methods of proving citizenship at registration, Mr. Gonzalez’s application was of an applicant’s rejected because there was no mechanism by which Arizonan authorities could verify the validity Certificate of Naturalization number with federal officials (and no mechanism has yet been developed for this verification). When he received notice, Mr. Gonzalez completed a second new registration application, this time pro viding his Ar izona driver’s license number, another approved method for proving citizenship. However, his - application was rejected a second time. As a long time legal permanent resident, Mr. Gonzalez had obtained his driver’s license before 1996, before Ar racking residents’ citizenship status in DMV records; izona began t therefore, his license was not acceptable as proof of citizenship. It further came to light that in Arizona, residents with driver’s licenses or state IDs who were legal immigrants, but not yet U.S. cit izens, were identified in DMV records by an “F” marker, and any voter registrants who provided state ID numbers corresponding to records — marked “F” would have their applications rejected. Many or most such registrants were, however like Mr. Go nzalez — pe ople who had naturalized but not yet renewed or otherwise updated their state ID records since becoming U.S. citizens. In Arizona, there are approximately 210,000 legal permanent residents immediately eligible for naturalization, and a majority of them are Latinos of Mexican origin. Many will become vulnerable to the same barriers that Mr. Gonzalez encountered if and when they naturalize and seek to participate in Arizona elections. Brief for LatinoJustice PRLDEF , et al. , Amici Curiae in Support of Respondent s, Inter Tribal Council , 570 U.S. at 10 - 11. The above story shows that a Legal Permanent Resident who was legally entitled to receive a driver’s license and later naturalized would have to provide documentary proof of citizenship before he could vote. It also s hows that list maintenance to check for documentary proof of citizenship could result from the settlement. 761 Arizona State Advisory Committee to the U.S. Comm’n on Civil Rights, Briefing Transcript at 23.

136 An Assessment of Minority Voting Rights Access 130 Kansas during proof of citizenship also arose the Commission’s Kansas Testimony documentary critiquing 762 on voting rights in 2016 . heard The Committee S AC from Kansas citizens arguing that briefing voters fe lt disenfranchised due to “ (1) inconsistencies in implementation and training of the many st proof of citizenship law; (2) insuff icient voter education efforts; (3) the level ate’s documentary for citizens to obtain required documentation; and (4) a lack of provision for those burden of born 763 state to obtain free documentation. ” of The Committee ultimately determined that despite out fact that the IDs can be acquired from the state agency for free, in practice many citizens end ed the 764 for their documents, and they equated this payment to an unconstitutional poll tax. up paying Commi been also found that eligible voters have turned away because poll workers were The ttee that the identification that was given to them was acceptable. In addition, the Committee unaware a lack of vote r education surrounding the law and that Kansas’ proo f of citizenship and voter found 765 M were the “strictest in the nation .” any of the panelists suggested the state’s requirements ID proof of citizenship law may have been written “with improper, discriminatory documentary 766 intent.” the burden on eligibl e voters in Kansas, nationally recognized voting rights scholar Regarding 767 McDonald submitted an expert report and testified at a recent federal trial Michael that from January to December 2015, approximat ely 35,314 registrants were suspended for failure to 2013 mit proof of citizenship. After being sus pended, unless they produce d sub documentary 768 of citizenship , they could not vote in state or local elections . proof McDonald documentary 769 that ne arly all were eligible citizens, found representing than 14 percent of the 247,663 “more new registrants,” and that 2 2,814 registrants were later purged and were “ prevented from voting 770 to the documentary proof of citizenship due Moreover, there was a disparate requirement.” 771 on young voters, who were three times more lik ely to be put on the suspend e d list. impact Eligible who testified at the federal trial say they were disenfranchised by Kansas’ voters 762 Kansas State Advisory Committee briefing Appendix D for a s umma See . ry of 763 K ANSAS S TATE A DVISORY C OMMITTEE TO THE U.S. C OMM ’ N ON C IVIL R IGHTS , OTING R IGHTS AND THE V K S ECURE AND F AIR E LECTIONS A CT , 11 (Mar. 2017), http://www.usccr.gov/pubs/KS - ANSAS - Rights - Voting Report.pdf see also Fish ; at 1119 (permanently enjoining the law), https://www.aclu.org/legal - , 309 F. Supp. 3d at document/fish - v - kobach - findings - fact - and - conclusions - law . 764 . at 38. Id 765 at 39. Id. 766 . Id 767 Fish, 189 F. Supp 3d 1107 at 1145 n.155. 768 Fish , 189 F. Supp 3d 1107, at 2 - 3, Ex. 1, Expert Report of Dr. Michael P. McDonald, - https://www.aclukansas.org/sites/default/files/field_documents/fish_v._kobach_ [ he _expert_report_of_dr._michael_mcdonald.pdf McDonald Expert Report]. reinafter 769 Id. ; see also Ian Vandewalker, Analysis: The Effects of Documentary Proof of Citizenship , T HE B RENNAN C ENT . impact FOR (July 19, 2017) https://www.brennancenter.org/analysis/evidence - USTICE - documentary - proof - J citizenship - requirements (discussing McDonald study). 770 (emphasis added). McDonald Exper t Report, supra note 7 68 771 Id. at 3.

137 Chapter 3: Recent Changes in Voting Laws and Procedures 131 772 of citizenship law as they were unable to vote. proof On June 18, 2018, a federal documentary agreed and that their testimo ny was credible struck down Kansas’ restrictions on voter judge 773 registration. Alabama enacted proof of citizenship law labama’s documentary in 2011 and submitted for A was in 2012, and groups like the ACLU urged the DOJ not to preclear it preclearance because it would have a “disproportionate impact on racial m inorities, particularly African Americans and Latinos, 774 A fter the Shelby County decision, the submission was withdrawn, as Alabama was in Alabama.” 775 longer subject to preclearance. no During a briefing Access to Voting in Alabama held on on February 22, 2018 conducted by the Commission’s Alabama S AC , John Merril l confirmed that the state’s documentary proof of citizenship law is still on the books — but he testified that it is not 776 being He also testified that the federal E lection Assistance C ommission (EAC) said enforced. 777 could enforce it. Alabama that 772 Donna Bucci, a 59 - year old who works at the Kansas Department of Corrections, testified that she Plaintiff motor vehicle office sought to register to vote in 2014 when she was renewing her driver’s license. She left the believing that she had registered to vote, but later received a letter saying that she needed to show a birth certificate or passport. Donna has never left the county and does not have a U.S. passport. She also did not have the money t o spend on ordering a birth certificate from the state of Maryland, where she was born. See Amrit Chang, The Trial , M EDIUM , ACLU (Mar. 7, 2018), https://medium.com/aclu/the - trial - against - kobach - kicks - Against Kobach Kicks Off - what - off - you - should - know - c70685fcf636 . Also, 90 - year - old Army Air Corps veteran Marvin Brown heres ld that while he could vote in federal registered to vote by submitting a complete federal form. He was later to elections, he was prohibited from voting in state and local elections unless he showed additional documentary proof of citizenship. See Press Release, American Civil Liberties Union, ACLU Sues Kansas Over Dual Registr ation , ACLU (July 19, 2016), https://www.aclu.org/news/aclu - sues - kansas - over System dual - voter - registration - system . - Current lead plaintiff Steven Fish reported ly testified in federal court on March 8, 2018: “Fish attempted to register to vote in August 2014, at the DMV. Upon leaving the DMV, Fish believed he was registered to vote but was informed via mail a month later that he must provide documentary proof of citizenship in order to complete his registration. Not possessing a birth certificate or other documentation at the time, he was unable to complete his registration.” See Zachary Mueller, Fish v. Kobach Trial — Day 2 , IREHR Institute for Research and Education on day https://www.irehr.org/2018/03/07/fish - kobach - trial - v - two/ . Human Rights (Mar. 7, 2018) - 773 Fish , 309 F. Supp. 3d , https://www.aclu.org/legal - document/fish - v - - findings - fact - and - conclusions - law . kobach 774 Jon Sherman, Katie O’Connor, and Olivia Turner, Letter from Jon Sherman and Olivia Turner, Executive Director ACLU of Alabama, to Christian Herren, Chief of Voting Section , ACLU , 3 (May 18, 2013), http://www.interfaithmissionservice.org/wp - content/uploads/2012/02/Section - 5 - Comment - Letter - re - Submission - No. - - 537 - Alabama - Proof - of - Citizenship.pdf ). 2011 775 , 570 U.S. 529. Also, just after the Shelby County decision, Alabama enacted its voter ID law. See Shelby Cty. - 8 [ hereinafter Ifill, Sherrilyn Ifill, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018 at 3, 6 Written Testimony]. 776 entary proof of When asked by USCCR Alabama Advisory Chair Jenny Carroll whether Alabama’s docum citizenship law was bei ng enforced, Secretary Merrill stated that: “We ’ ve not enforced that law, even though in February of 2016, the Election Assistance Commission had indicated that we could ask that question.” Merrill, Alabama SAC, Brief ing, supra note 589 , at 18. 777 Id . Secretary Merrill added that: As a matter of fact, I got a call from a secretary in another state that told me before the ruling was actually ll do that. I c, you need to go ahead and start implementing this. And I said, I don ’ t think I ’ made publi

138 An Assessment of Minority Voting Rights Access 132 a 2014 case, Alabama and Ge orgia filed an amicus (friend of the court) brief in support of In documentary and ansas, seeking to have their states’ K proof of citizenship requirements Arizona 778 the Federal Form that would be used in their put The Tenth Circuit held that their onto states. “plainly in conflict with the Supreme Court’s was decision in Inter - Tribal Council of request 779 Inter Writing for the majority of the Court in Arizona. - Tribal ” Council , the late Justice Scalia took into account tha t the NVRA does not require documentary pr oof of citizenship on the Federal 780 instead only required attestation of citizenship under penalty of perjury. And in 2015, Form, but Supreme Court declined to take up the case that Alabama and the Georgia had supported, so the states were not authorized to include a documentary proof of citizenship requirement for their 781 Forms at that time . Federal But in 2016, Alabama joined Georgia and Kansas in again requesting that the language of the Federal be changed t o accommodate their states’ documentary pro of of citizenship Form According to the Associated Press , in February 2016 : requirements. Secretary of State John Merrill said in a statement he requested the Alabama change, which says “ an applicant may not language registered until the applicant be has provided satisfactory evidence of United States citizenship. ” The statement said Merrill “ very excited and most enthusiastic ” was about the change. “ The Office of the Secretary of State will begin working towards implementation now that we have received rmission from th e Election Assistance Commission [EAC] , as well as pe said, we ’ re three weeks from our election, which was the SEC primary, that we had passed legislation ’ t want to c ause any confusion for anybody. We ’ re going in order to get to that point. And I said, I don we ve been doing, which is what we have been doing, and we continue to do that to continue to do what ’ ’ s where we ’ re continuing to move at this time. Id . at 18 . to this point forward. And that 778 ., 772 F.3d 1183 (10th Cir. 2014), cert. denied 135 S. Ct. 2891 (2015) . Kobach v. U.S. Election Assistance Com’n Brief of Amici Curiae States of Georgia and Alabama in Support of Appellees and Affirmance of the District Court ’ s Decision, 2014 WL 3556145, at *1 ( C.A.10) (Appellate Brief). The stated interests of Alabama and Georgia on Ju ly 7, 2014 were as follows: The Georgia and Alabama legislatures, like the legislatures of Kansas, Arizona, and other states, have passed laws requiring documentary proof of cit izenship from those seeking to register to 28(c) O.C.G.A. §21 - 2 - 216(g); Ala . Code § 31 - 13 vote. See . The Georgia and Alabama laws are - materially identical to the Kansas and Arizona laws at issue in this case. Like all sovereign states, Georgia s requested and Alabama have an interest in enforcing their duly enacted laws. Georgia, for example, ha - that the Elections Assistance Commission (“Commission” or “EAC”) update the state specific instructions attached to the Federal Form required by the National Voter Registration Act (“NVRA”), 42 U.S.C. §1973gg et seq. , so that those instructions accurately describe Georgia law. The Commission denied Georgia ’ s request, after initially stating that it could not make a determination on the request rum of commissioners. because it lacked a quo Id. 779 Kobach at 118 8 . , 772 F.3d 780 5. , 570 U.S. at 4 - Inter Tribal Council 781 Kobach , 135 S. Ct. 2891 .

139 Chapter 3: Recent Changes in Voting Laws and Procedures 133 outreach to let the public know when this will campaigns go into conducting 782 statement the ” effect, said. League of Women Voters sued, and in September 2016, a federal court preliminari ly enjoined T he prohibited and the EAC from ch anging the Federal Form to put the states’ documentary proof of 783 to on it. requirements Next , EAC was ordered make a decision on this issue citizenship to proper federal procedures, but EAC Commissioners were split in their opinions and according 784 come to a decision; could therefore, the preliminary injunction stands and documentary not 785 Federal citizenship is currently not on the Form in these states . of proof staff verified that documentary proof of ci tizenship is currently not on the Alabama Commission state registration form; however, persons without a voter drivers’ license or state photo ID state 786 register to vote online and must use a paper form instead. cannot The documentary proof of citizenship is stil l on the books and applies to every voter registration in Alabama except those law 787 prior to September 1, 2011. Moreover, since the law applies to county registrars, who registered 788 could be enforced during voter registration verification procedures at it the c ounty level. 782 , Off icial: In Alabama, Georgia, Kansas, Voters Need Citizenship Proof , M ONTGOMERY Roxana Hegeman DVERTISER (Feb. 6, 2016), https://www.montgomeryadvertiser.com/story/news/2016/02/05/fed - official - those - A citizenship - - kansas - ne ed - georgia - proof - vote/79896934/ . alabama 783 League of Women Voters of United States v. Newby , 838 F.3d 1, 14 - 15 (D.C. Cir. 2016). 784 In its 2014 decision originally rejecting a similar petition from Arizona, Georgia and Kansas, the EAC considered ng the NVRA, Congress had rejected requiring documentary proof of citizenship, and that in 1994, the that in enacti Federal Election Commission also rejected this, finding that: the applicant The issue of U.S. citizenship is addressed within the oath required by the Act and signed by under penalty of perjury. To further emphasize this prerequisite to the applicant, the words “For U.S. Citizens Only” will appear in prominent type on the front cover of the national mail voter registration form. For these reasons, the final rules do not include th[e] additional requirement [that the Federal Form collect naturalization information]. 59 Fed. Reg. at 32316. E U.S. A SSISTANCE C OMM ’ N , Memorandum of Decision Concerning State Requests to Include Additional LECTION - of - Citizenshi p Instructions on the National Mail Voter Registration Form, Docket No. EAC 2013 - Proof 0004, 21 (Jan. 17, 2014), www.eac.gov/assets/1/28/20140117%20EAC%20Final%20Decision%20on%20Proof%20of%20Citizenship https:// - %20FINAL.pdf . %20Requests%20 785 See, e.g ., The Brennan Center for Justice, League of Women Voters v. Newb y , T HE B RENNAN C ENT . FOR J USTICE (Sept. 6, 2017), https://www.brennancenter.org/legal - work/league - women - voters - v - newby . 786 Alabama Secretary of State, Online Services, Electronic Voter Registration Application, AL SOS See (last accessed May 21, https://www.alabamainteractive.org/sos/voter_registration/voterRegistrationWelcome.action 2018). 787 A LA . C ODE § 31 - 13 - 28(c) (2012) ( “The c ounty board of registrars shall accept any completed application for registration, but an applicant shall not be registered until the applicant has provided satisfactory evidence of United States citizenship. Satisfactory evidence of United States citizens hip shall be provided in person at the time of filing the application for registration or by including, with a mailed registration application, a photocopy of one of the documents listed as evidence of United States citizenship in subsection (k) [requiring documentary proof of or an affidavit that the applicant does not possess any of the relevant documents].”). citizenship 788 A . C ODE § 31 - 13 - 28(c) - (j). LA

140 An Assessment of Minority Voting Rights Access 134 Georgia passed a law requiring documentary proof of citizenship to be verified for all new rgia Geo 789 2010. DOJ precleared after protracted litigation in the The law had been which registrants, 790 black and Latino voting rights groups in opposed state. Georgia’s documentary proof of by the requires state and county election officials to verify the eligibility of any new citizenship law in by comparing his or her information to information various databases ; in the case of registrant rsons who h ave not provided documentary proof of citizenship to the DMV (because they don’t pe have driver’s license or state photo ID, or because they procured their license before a 791 the state or cou nty may ask them to provide documentary proof of citi zenship . naturalization), unenforced, state says the law is currently the in a recent settlement agreement regarding A lthough discriminatory voter registration verification procedures, the parties agreed that there allegedly proof waiver of rights to challenge the docume ntary of citizenship statute or its no was 792 implementation. Tennessee documentary ID law, enacted in 2011, requires voter proof of citizenship to get the Tennessee’s 793 of IDs required to vote, including “free” voter ID issued by the state. types In 2011, T ennessee also a voter verification la w that essentially requires documentary proof of citizenship . The passed referenced that the statewide voter rolls be cross - with other state and federal databases law requires identify potential noncitizens registere d to vote. The limits and inaccuracies inherent in such to 794 cross the same as in other states discussed in depth below. data In Tennessee, when are references raise a question about a voter’s status, county election officials must send citizenship the flagged voter a notice requiring the voter to produce proof of citizenship within 30 days or be removed the voter rolls. Acceptable proof of citizenship includes a birth certificate, passport, from or other documentation accepted naturalization by the Immigration Control and Reform papers, 789 , 748 F. Supp. 2d 16 (D.D.C. 2010). Georgia v. Holder 790 See, e.g. , First Amended Complaint for Declara tory Judgement, Georgia v. Holder , 2010 WL 3481380 ¶ 23 (D.D.C. 2010). 791 Id . at ¶¶ 50 - 61. 792 Settlement Agreement, Georgia State Conference of the NAACP v. Kemp , No. 2:16 - CV - 219, at 2 (N.D. Ga. 2016), http://www.projectvote.org/wp content/uploads/Settlement - Agreement - NAACP - v. - Kemp - 2.9.17 - 1.pdf - (pending stipulated settlement filing with the court). 793 Discussion and Sources cited at notes 516 and 522, supra (and note that the law was amended to make it See even stricter in 2013); ., Tennessee Dep’t of Safety & Homeland Security , Voter Photo ID , TN . GOV see, e.g https://www.tn.gov/safety/driver - services/photoids.html (last accessed Aug. 8, 2018) (“ If you are a registered voter and do not have a government - u with a photo issued photo ID, the Department of Safety and Homeland Security will provide yo ID at no charge. Under the new voter ID law, in order to get a photo ID for voting purposes, voters must show the following x documentation to a Driver Service Center examiner: Proof of citizenship (such as a birth certificate); and o o Two proof s of Tennessee residency (such as a copy of a utility bill, vehicle registr ation/title, or bank statement )” ). 794 See 873 - 86 (discussing SAVE database), infra . Discussion and Sources cited at notes

141 Chapter 3: Recent Changes in Voting Laws and Procedures 135 of 1986. As previously shown, these documents are expensive and not all U.S. citizens have Act them creates a significant barrier to voter registration with a disparate impact on minority which , 795 “ [ u ] nlike the laws in Arizona, In Kansas and Georgia [which only apply to voters. addition, 796 the Tennessee law will check citizenship of new all registered voters.” registrants], Challenges of Voters on the Rolls to voter’s eligibility may be brought under various a state laws by either other voters Challenges election or at the polls or prior to Election Day; however, in all cases, it is election officials, who make the decision about whether officials remove a person from the rolls based on a to challenge. A 2012 Brennan Cent er for Justice s tudy on v oter c hallenge r s states: - four states allow private citizens to challenge a voter at the polls without Twenty any documentation to show that the voter is actually ineligible. This leaves offering lawful voters vulnerable to fr ivolous or discriminatory challenges. Illinois, for even example, permits any legal voter to contest another voter’s qualifications currently his polls but does not require the challenger to at offer any proof to substantiate the or her allegations. The challen ged voter, in turn, must provide two forms of identification (or a witness known to the election judges) to establish her qualifications she can vote. Challengers can exploit these unequal before 797 to intimidate or delay voters on Electio n Da y . burdens evidentiary 2012 national study also found that, “Of the 39 states that allow polling place challenges, only The states require poll challengers to provide some documentation to support their claim that the 15 voter is ineligible. Some states, like South Carolina and Virginia, even allow citizens challenged 798 poll challenges based on the mere suspicion to a voter might be unqualified.” As make of that 2012, while states like Montana and North required affirmative evidence of the voter’s Carolina alleged ineligibility for a challenge , 13 states merely required an affidavit from the challenger that he she believes his or her challenge is valid, without any evidence whatsoever except for the or 799 These 13 challenger’s states are: Arkansas, Colorado, Flo rida, Indiana, Iowa, Kentucky, word. 795 Id. 796 Henderson, Citizenship Verification, Obstacle to Voter R egistration and Partcipation supra note 75 0 ; see also , Tennessee Voter Identification Act, T ENN . C ODE A NN . § 2 - 7 - 112. 797 Voter Challengers , T HE B RENNAN C ENT . FOR J USTICE , 1 (2012) Nicolas Riley, https://www.brennancenter.org/sites/default/files/legacy/publications/Voter_Challengers.pdf (citing state challenge hereinafter Riley, Voter Ch allengers ]. laws) [ 798 . at 16 (emphasis in original) (citing state laws). Id 799 Id. at 36 n.134. Two states — Montana and North Carolina — require the poll challenger to produce actual affirmative evidence of the voter’s ineligibility. See M ONT . C ODE A NN . § 13 - 13 - 301(1 ) & M ONT . A DMIN . R. 44.3.2109(2) (requiring challenges to be rejected unless the challenger has proven that a voter is ineligible by a A N.C. G EN . S TAT . “preponderance of the evidence”); NN . § 163A - 918(b) (“No challenge shall be sustained unless the challen ge is substantiated by affirmative proof. In the absence of such proof, the presumption shall be that the voter is properly registered or affiliated.”).

142 An Assessment of Minority Voting Rights Access 136 800 Minnesota, New Hampshire, New Jersey, Nevada , and Virginia. Maryland, Moreover, Maine, North day the Shelby County decision, in HB 589, after Carolina changed its rules to permit the 801 challenges of voters who do not present photo Election ID. This change was not litigated Day of NC NAACP v. McCrory ’s claims against part provisions of HB 589, discussed in depth as other Chapter 2 above; however , there is current, in litigation regarding discriminatory ongoing 802 an d other aspects of North Carolina’s challenge laws. implementation the nationwide consent decree protecting voters from discriminatory use of voter Moreover, a 804 803 expired in December 2017. The consent decree, challenge with its prohibitions practices 805 ry voter against challenges and intimidating measures aimed at minority voters, was discriminato 806 in subsequently states. several enforced 800 Id . (“Thirteen other states require the challenger to produce an affidavit but do not require any add itional proof A See A RK from the poll challenger beyond his or her word that the challenge is valid. C ODE NN . § 7 - 5 - 312(h); . C OLO . R EV . S TAT . § 1 - 9 - 202; F LA . S TAT . A NN . § 101.111(1); I ND . C ODE A NN . § 3 - 11 - 8 - 21; I OWA C ODE A NN . § 49.79; K Y R EV . S TAT . A NN . §§ 117.245(2), 117.316(2); M E . R EV . S TAT . A NN . tit. 21 - A, § 673(1); M D . C ODE , E LEC . . - AW - 312; M INN . S TAT . A NN . § 204C.12(2); N.H. R L . S TAT . A NN . § 659:27 - a; N.J. S TAT . A NN . § 19:15 , § 10 18.2; EV N . R EV . S TAT . A NN . § 293.303(1); V A . C EV A NN . § 24.2 - 651.” ). ODE 801 H.R. 589, § 163 - 87, 2013 2014 Gen. Assemb. (N.C. 2013), - https://www.ncleg.net/Sessions/2013/Bills/House/PDF/H589v0.pdf (challenges allowed on day of primary or election). 802 Discussion of N. Carolina State Conference of the NAACP v. N. Carolina State Bd. of Elections , No. 1:16 - See - 1274, 2016 WL 6581284 (M.D.N.C. Nov. 4, 2016) notes 841 - 46. CV infra 803 ”) , No. 2:81 - CV - 03876 Democratic National Committee v. Republican National Committee (“DNC v. RNC (D.N.J. 2009) (requiring the expiration of the consent decree on Dec. 1, 2017), - /Democracy/DNC%20v%20RNC% 20 - %20Order.pdf at 3. https://www.brennancenter.org/page/ 804 The consent decree originated after a complaint was filed alleging that approximately 45,000 voters were wrongfully challenged in predominantly black and Latino precincts in New Jersey in 1982; it alleged violations of the U.S. Constitution. Complaint, DNC v. RNC, No. 2:81 - CV - 03876, ¶¶ 35 the VRA and 40 (D.N.J. 2009) (alleging - th th violations of the 14 and 15 Amendments, and Sections 2 and 11(b) of the VRA). 805 The resulting consent decree settled the constitutional and VRA claims and the prohibited discriminatory voter challenges. Among other provisions, the consent decree required that both major political parties ensure that state challenge laws would be implemented in a fair and nondiscriminatory manner, and that individual poll wa tchers (appointed by the parties) would not harass or discriminate against voters at the polls. Settlement Stipulation and Order of Dismissal, , No. 2:81 - CV - 03876 (D.N.J. 1987), https://www.brennancenter.org/page/ - DNC v. RNC ; Consent Order, DNC v. RNC , No. 2:81 /Democracy/dnc.v.rnc/1987%20consent%20decree.pdf CV - 03876 (D.N.J. - Nov. 1, 1982), https://www.brennancenter.org/page/ - /Democracy/dnc.v.rnc/1982%20consent%20decree.pdf . In 1987, after extensive allegations of voter caging and discriminatory challenges in several states, and “more than 50 depositions taken and thousands of documents examined,” the DNC and the RNC agreed to make their agreement nationwide, and the court th erefore entered a nationwide consent decree. Settlement Stipulation and Order of DNC v. RNC , No. 2:81 - CV Dismissal, 03876 (D.N.J. 1987), https://www.brenna ncenter.org/page/ - - /Democracy/dnc.v.rnc/1987%20consent%20decree.pdf . 806 In 2012, the U.S. Court of Appeals for the Third Circuit noted that: In Louisiana during the 1986 Congressional elections, the RNC allegedly created a voter challenge list by mailing let ters to African - American voters and, then, including individuals whose letters were returned as undeliverable on a list of voters to challenge. A number of voters on the challenge list brought a suit against the RNC in Louisiana state court. In response to a discovery request made in that suit, the RNC produced a memorandum in which its Midwest Political Director stated to its Southern Political

143 Chapter 3: Recent Changes in Voting Laws and Procedures 137 discussed review of state challenge laws is beyond the scope of this report. Yet as A nationwide is evidence that current c onditions there discriminatory challen ge provisions in below, include 807 state s across the nation. The evidence collected and analyzed several below that demonstrates 808 challenges may be used to intimidate voters of color. such 809 objected to discriminatory challenge procedures under Section The 5. Moreover, the DOJ were historical challenge laws show that they origins originally intended to suppress the political of 810 of people of color, the and that they were part of participation “first - generation” restrictions to - 80,000 folks from the rolls . . . . If it’s a close Director that “this program will eliminate at least 60,000 Democratic Nat. ra ce . . . which I’m assuming it is, this could keep the black vote down considerably.” , 673 F.3d 192, 197 (3d Cir. 2012). Comm. v. Republican Nat. Comm. 807 Discussion and Sources cited below, infra notes 821 - 28 (Georgia); 830 - 32 (New York - 43 (North See ); 835 - Carolina); and 847 850 (Ohio). 808 Id . 809 For example, the DOJ objected to changes in challenge and voter removal procedures in Alabama in 1981 and See U.S. Dep’t of Justice, Letter from Bradford Reynolds, Asst. Att’y Gen., Dept. of Ju stice Civil Rights 1984. Division, to Hon. Floyd R. Cook, Chairman Perry County Court Commission (Sept. 25, 1981), y/2014/05/30/AL - ) (DOJ denying proposed county https://www.justice.gov/sites/default/files/crt/legac 1450.pdf identification of voters); U.S. Dep’t of Justice, - Letter from Bradford Reynolds, Asst. Att’y see also purge and re (Oct. 26, 1981), e Gen., Dept. of Justice Civil Rights Division, to Hon. F.R. Albritton Jr., Probate Judg - 1480.pdf ) (DOJ denying proposed county https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/AL - purge and re rs). The DOJ intervened under the provisions of Section 5 on behalf of a identification of vote - Vietnamese fishing community in Bayou Le Batre, Alabama in 2004, where for the first time, an Asian American - American citizens had their ballots ch allenged, and “[n]early 50 of them were candidate ran for mayor. Many Asian See also DeWayne Wickham, Why forced to fill out paper ballots and have another registered voter vouch for them.” Renew the Voting Rights Act: Alabama Town Provides Answer , USA T ODAY (Feb. 22, 2006) http://usatoday30.usatoday.com/news/opinion/editorials/2006 - - 22 - forum - voting - act_x.htm (discussing Lawyer’s 02 hereinafter Wickham, Why Renew ]. Vouchers are prohibited under Committee for Civil Rights Under Law report) [ the Voting Rights Act. 52 U.S.C. § 10501 provides that: No citizen shall be denied, because of his failure to comply with any test or device , the right to vote i n any (a) Federal, State, or local election conducted in any State or political subdivision of a State. test or device ” means any requirement that a person as a prerequisite for (b) As used in this section, the term “ voting or registration for voting (1) demonstrate the ability to read, write , understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral ss. character, or (4) prove his qualifications by the voucher of registered voters or members of any other cla The voter challenges came from supporters of the white mayoral candidate, and they alleged that Asian - American voters were criminals, were not residents, and were not citizens. Wickham, Why Renew , supra . One challenger told the press that “we figured i f they couldn’t speak good English, they possibly weren’t American citizens.” Id. Although there were no changes to voting rights law that required preclearance under Section 5, the discriminatory abuse of existing law prompted the DOJ I d. The observers were able to prevent further challenges to send observers. and ensure that these citizens could exercise their right to vote inside the polls, despite the threat of racially discriminatory challenges. Id. 810 See Riley, Voter Challengers , supra note 797, at 7 (“These origins cast doubt on whether challenger laws we re always enacted to prevent election fraud. In some states, lawmakers first empowered private citizens to challenge o suppress voter turnout in black, Latino, voters at the polls only because they believed it would be an effective way t or working - class co mmunities. The legislative record in these states indicates that challenger laws were often enacted, amended, and used not for the purpose of preventing fraud but, rather, to disenfranchise vote rs of color. Even in states where challenger laws were not pas sed with an obviously discriminatory purpose, they were still often

144 An Assessment of Minority Voting Rights Access 138 811 to ballot that the VRA of 1965 was enacted the prevent going forward. to But due to the access lack of preclearance as well as the lack of federal observers, current problem is harder to detect this 812 post - Shelby County era. in the Commission also n otes that because challenges are made by private citizens, they are initiated The 813 persons not subject to the same training as poll workers. by Also, letters are commonly issued 814 are challenged and/or purged. when As of 2012, 16 states had laws that req uired voters voters to respond to the challenge letter before the challenge is vetted by election challenged and in s even of those states, challenged voters are required to provide an affirmation or officials, 815 a hearing regarding these unconfirmed challen ges prior to to or on Election Day. At times, come 816 letters have been threatening, implying that a person could be committing a felony. challenge Depending state or local law and the type of challenge, challenged voters typically have to on a hearing, or provide documentary proof of their eligibility appear in person at their local boards at they of office within a short period of time, if elections want to exercise their right to vote without 817 arrested. able If they do not have time or do not receive the notice, they are unlikely to be being enacted in an era when voting qualifications were closely tied to physical characteristics, like race and sex, which private c polls.”) . itizens could easily use to identify unqualified voters at the 811 - Shelby C ty. - 47 (discussing “first , e.g., generation” barriers or “tests and devices” regarding See , 570 U.S. at 546 that the VRA was passed to address). 812 Briefing Transcript , su pra note 234 , at 42 (statement by Peyton McCrary) (noting that that one “dramatic consequence” of the lack of federal observers inside the polls since is that DOJ is no longer able “to Shelby County d unlawfully in exercising their right to vote[.]” ) . observe ways in which voters might be unable or challenge 813 , Riley, Voter Challengers , supra note 797, at 1 (citing state challenge laws). See, e.g. 814 See Discussion of Arcia v. Detzner litigation, infra notes 869 - 81 . 815 ., Riley, Voter Challengers , supra note 797, at 16. See, e.g 816 Letter from Kathy Dent, Sarasota County Supervisor of Elections (Oct. 18, 2012) (on file), stamped with the See “fraud”, and stating that: word as received information from the Florida Division of The Sarasota County Supervisor of Elections h Elections regarding your citizenship status, bringing into question your eligibility as a registered voter. Per Florida law, only U.S. Citizens are allowed to register to vote. In addition, registering t o vote under fraudulent conditions or swe aring a false oath are both third degree felonies in Florida. (Citations to Florida law omitted.) 817 id. L etters sent in Florida in 2012 stated that: See, e.g., ctions is Inaccurate regarding your citizenship status If the information from the Florida Division of Ele or if your citizenship status has recently changed, please stop by our main office with any original documentation that demonstrates U.S. citizenship. Do not mail these documents. You may want to call us prior to visiting our main office. Also, you may request an administrative hearing with the Supervisor of Elections to prove U.S. citizenship. You must complete the attached Voter Eligibility Form and return it to the Supervisor of Elections within 15 days of receipt. Failure to submit this form within 15 (15) days will result in the removal of your name from the voter registration rolls and you will no longer be eligible to vote. A nonregistered voter who casts a vote in the State of Florida may b e sub ject to arrest, imprisonment, and/or other criminal sanctions. Id .

145 Chapter 3: Recent Changes in Voting Laws and Procedures 139 vote on Election Day. When they arrive at the polls, they are subjected to the challenge and may to unprepared. below. Recent examples of these types of practices in several states are summarized be Georgia Prior the Shelby County decision, there were no known objections under Section 5 regarding to 818 procedures in Georgia. challenge The Department of Justice brought a Section 2 VRA voter action against Georgia regarding discriminatory challenges in which Latino voter s enforcement required to attend a hearing and prove their citizenship , which was settled by c onsent were 819 820 in February 2006. ecree d the Commission’s briefing, Ezra Rosenberg that since the Shelby County decision, in At testified 2015: County, Georgia changed its process to initiate a series Hancock “challenge of proceedings” to voters, all but two of whom were African American that resulted regist removal of 53 voters from the in er . Later that year, the Lawyers’ the Committee for Civil Rights Under Law, representing the Georgia State Conference of NAACP and the Georgia Coalition for the Peoples’ Agenda and individual the conduct as violating the VRA this and the National Voter voters, challenged Act (NVRA), and obtained a preliminary injunction, which res ulted in Registration 821 ordering of the wrongful ly removed voters back on the register. the After litigation, plaintiffs and Hancock County entered into a consent decree subjecting the County years. to monitoring of its compliance for five judicial In the consent decre e, d efendants “ strenuously deny” that the challenge practices targeted African - American voters, but they do acknowledge conflict between the NVRA’s requirements that voters may not be removed from a s the notice and due process, and Georgia’s rolls tate laws allowing challenged voters to without 818 DOJ, Georgia Voting Determination Letters , supra note 727. 819 : “A court order to which all parties have agreed. It is often Wex Legal Dictionary defines a consent decree as ttlement betw See Wex Legal Dictionary, done after a se een the parties that is subject to approval by the court.” , C ORNELL L. S. Consent Decree (last accessed Aug. 3, 2018). https://www.law.cornell.edu/wex/consent_decree 820 United States v. Long Cty. , No. 2:06 - - 00040 (S.D. Ga. 2006) , CV https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/ long_cd.pdf (last accessed Aug. 3, 2018) . 821 Rosenberg, Written Testimony, supra note 651, at 3 (discussing Complaint, Georgia State Conference of NAACP v. Hancock Cty. Bd. of Elections & Registration , No. 5:15 - CV - 00414 (M.D. Ga. 2015) ( see ¶ 1, challengin g improper and racially biased challenges preceding the City of Sparta’s municipal election of Nov. 3, 2015 as https://lawyerscommittee.org/wp - violating the VRA, the Civil Rights Act of 1964, and the U.S. Constitution, content/uploads/2016/01/Hancock - - Complaint.pdf ) ) . Co

146 An Assessment of Minority Voting Rights Access 140 822 immediately. removed Specifically, the Hancock County Board of Elections (BOER) be 823 the of federal law recognized and agreed that: supremacy [new, to implement the BOER’s actions formally adopted] procedures Any taken conducting voter challenges and [for list maintenance activities] and guidelines comply with state and federal law, including but not limited to . . . the must Voting of 1965, the National Voter Registration Act of 1993, the Civil Rig hts Rights Act 824 1964, and the Constitutions of the United States and the State of Georgia. of Act Decree included numerous other provisions Consent ensure that challenges should be The to and nondiscriminatory that voters who have moved within their precinct or withi n the county, or 825 simply did not respond to a mailing, should not be removed from the rolls. who Section 5 procedures could have stopped Georgia’s recent challenge and voter removal preclearance that if the DOJ or a federal court found they had a retrogressive, discriminatory effect. procedures, the Section 2 claim was settled and the state Because “strenuously denied” that their practices targeted African - American voters, it is impossible to state whether the procedures were racially 826 who not. Still, all but two voters discriminatory were challenged in Hancock County were or 827 attorneys’ and the Consent Decree and subsequent federal court approval of black, fees indicate 828 that were needed to ensure compliance with federal voting rights law . Prior to the Shelby steps decision, if these challenge procedures were not precleared, the challenged voters would County been never received the challenge letters and would all have able to vote. Of course, if the have did have a legal reason to c hallenge a voter’s eligibility, the NVRA and jurisdiction VRA provide for list maintenance and removal of ineligible voters. However, federal law requires that it should 829 done without adequate civil not protections. rights be New York to the New York State At torney According in 2015, in Orange County, New York, thirty General, Chinese Americans, many of whom were college students, had their registration challenged and were from the voting rolls, and the state Attorney General entered into an agreement to removed An complaint of discriminatory treatment and harassment. resolve individual had challenged their yet and residency the these voters without any basis, citizenship under a state challenge law that of 822 Consent Decree, G eorgia State Conference of NAAC P v. Hancock C ty. , No. 5:15 - CV - 00414 ( M.D. Ga. 2017); Order on Joint Motion for Entry of Consent Order and Plaintiff's Motion for Attorneys Fees, G eorgia State ’ - ty. , No. 5:15 - CV P v. Hancock C 00414 , 2018 WL 1583160 ( granting joint motion for entry of Conference of NAAC approving attorneys’ fees). consent order and 823 . at *1. Id 824 - , , 2018 WL 1583160 at ¶¶ 16 Consent Decree 17 . Georgia State Conference of NAACP 825 Id. (passim.) 826 a t *1 . Id. 827 Order on Joint Motion, Georgia State Conference of NAACP , 2018 WL 1583160 at 2. 828 Consent Decree, Georgia State Conference of NAACP v. Hancock Cty. , 2018 WL 1583160S . 829 See Discussion and Sources cited at notes 729 - 31, , and notes 855, 862 and 870 - 71, infra . supra

147 Chapter 3: Recent Changes in Voting Laws and Procedures 141 830 reason be provided. a The County Board of Elections su bsequently removed these U.S. requires Sheriff’s voters the rolls after the Orange County from Office incorrectly stated the students citizen 831 citizens. Moreover, according were to the State Attorney General, not Board failed to provide the students with notice and opportunity for hearing, as the also New York election law. The Board placed undue burdens on a required by of the other number advising them to bring their passports to the polls on students, Election Day to demonstrate their eligibility to vote, even th ough the law does not 832 Board to require passports as proof of identity or eligibility. permit the Carolina North to the Shelby County decision, there were no Prior DOJ objections regarding challenge procedures 833 North Carolina. in North partner and principal Jay of Delancy, Carolina’s Voter Integrity Project , shared director during the North Carolina briefing public comment period that: In we . . . presented evidence of 147 people who voted in two or more states 2012, 2012 general elections. Besides a paltry three felony prosecutions, the only in the election officials gave us for this groundbreaking research was to bog down award on the published data. This way nobody could ever embarrass them again. occasion we challenged more than another five hundred Wake County voters On who were disqualified from jury duty after telling the Court they were not Wake County The only vote we got from election officials was to deny our citizens. had deny evidence challenges. This was after the DMV and confirmed the our 830 Press Rel ease, N.Y. State Att’y. General, A.G. Schneiderman Secures Agreement With Orange County Board Of Elections To Ensure Equal Access To The B allot Box For Minority And Student Voters (Oct. 29, 2015), https://ag.ny.gov/press - release/ag - schneiderman - secures - agreement - orange - county - board - elections - ensure - equal - access . 831 . Id 832 Id . Han Ye, one of the impacted students, stated that: - one year old college student. This was my first time voting in an election. I was shocked I am a twenty and confused when my voter registration was challenged, because I am an American citizen. Like some of the other students whose voter registrations were challenged, my family came to America to escape discrimination and persecution in China. Some of our family and friends were put in jail or killed because they practiced the Falun Dafa religion. I did not expect to see discrimination like this in America. The whole experience was really hurtful. I am relieved that the Office of the Attorney General is working on this and that the voter challenges are resolved. I do not want this to happen Id . again to anyone like me who just wants to vote. 833 See U.S. Dep’ t of Justice, Voting Determination Letters for North Carolina , https://www.justice.gov/crt/voting - - determination letters - north - carolina (last updated Aug. 7, 2015) .

148 An Assessment of Minority Voting Rights Access 142 uracy our cases. The courts reinvented new rules to prevent our further acc from 834 in area. research this public Al McSur el y commented the during the briefing, comment period that the allegations At by Delancy were false and that they had been challenged in a lawsuit alleging violations of made 835 2 of the VRA. Notwithstanding Delancy’s charge that North Carolina county officials Section reflect to such challenges, the lawsuit’s records ere that i n Beaufort County, one w nonresponsive were challenged 138 registered voters, of whom 59 active voters; this challenge resulted individual 63 voters being purged from the rolls, in including an elde rly man who had moved to a nursing 836 and a 100 - year - old woman who does not have a mailbox at her house. home Similarly, the Carolina, show that in Moore County, North an individual challenged about 400 lawsuit records voters, and in Cumberland Co unty, “one individual challenged the voter registration of registered individual voters after mailings by this private approximately were returned 4,000 837 undeliverable.” North Carolina law, any registered voter of a county may make challenges within Under days 25 838 a primary, general, or special election. of Moreover, under North Carolina law: “The presentation of a letter mailed by returnable first - class mail to the voter at the address listed on the voter card and returned because the person does not li ve at the address shall constitute registration 839 evidence that the person no longer resides in the precinct.” facie North Carolina challenge prima a provides that every voter who is challenged must attend hearing, or the voter will be removed law 840 the voting rolls. from Carolina the North In NAACP brought a Section 2 VRA suit in federal court regarding these 2016, Integrity procedures, after the Voter very Project and private individuals sent mail challenge 841 address. correspondence voters, asking them to verify their to The NAACP sued the State Board of Elections on behalf of voters who did not return the postcard verifying their address, who had been from the voting rolls after the se private parties had sought their removal, and election purged 842 they were legally officials to remove them . obliged felt 834 B riefing Transcript , supra note 234, at 267 - 68 (statement by Jay Delancy). 835 - Briefing Transcript supra note 234, , 19 (statement by Al McSurely). at 318 836 N. Carolina State Conference of the NAACP v. N. Carolina State Bd. of Elections , 106 U.S. Dist. LEXI S 153249, No. 1:16 - - 1274 (M.D.N.C. 2016) at 3 - 4. CV 837 . at 4 - 5. Id 838 N.C. GEN. STAT. § 163A - 911(a). 839 § 163A - 911(e). N.C. GEN. STAT. 840 When a challenge is made, the county board of election shall schedule a § 163A - 911(d) (“ N.C. GEN. STAT. preliminary hearing on the challenge, and shall take such testimony under oath and receive such other evidence proffered by the challenger as may be offered. The burden of proof shall be on the challenger, and if no testimony is presented, the board shall dismiss the challen ge. If the challenger presents evidence and if the board finds that probable cause exists that the person challenged is not qualified to vote, then the board shall schedule a hearing on the challenge.”). 841 N. Carolina State Conference of the NAACP , No. 1:16 - CV - 1274 at 1 - 3; see also N.C. G EN . S TAT . § 163A - 911. 842 N. Carolina State Conference of the NAACP , No. 1:16 - - 1274 at 1 - 3. CV

149 Chapter 3: Recent Changes in Voting Laws and Procedures 143 Just ys before the November 2016 presidential election, the North Carolina NAACP won a four da st the State Board of Elections injunction to stop their removals of voters based preliminary again 843 Press - described challenged procedures . Associated above reported that presiding Judge the on 844 commented that, “This sounds like something that was put together in 1901.” Loretta Biggs motion Carolina boards of election since argued for a county to dism iss the claims based on North of standing, which was denied in September 2017, and a hearing on the merits regarding lack th the whether challenge practices violated Section 2 of the VRA, the 14 Amendment, and the list 845 rules of the NVRA , is currently pending . maintenance the public comment period of the briefing in North Carolina, the Commission heard from During branch president Olinda Watkins, who spoke about the intimidation the black community NAACP felt from voter challenges over the has years, and spoke of the story of one plaintiff, 100 - year - old Grace Bail Hardison; Watkins said that “ I will share just voter suppression story out of the one 846 many .” Ohio In 2012, in Ohio, Teresa Sharp, an African - American homemaker who has voted for over 30 years, received letter stating, “ You are hereby notified that your right to vote has been challe nged by a a 847 children, under RC 3503.243505.19. ” Her husband, and elderly aunt, who all qualified elector at the same address, received similar letters from the Hamilton County Board of Elections — reside 848 were prompted by the Ohio Integrity Project , the an affiliate of True the Vote. True the letters Catherine Engelbrecht, reportedly “conceded Vote’s that the group ’ s software program founder, with flags a high number of registered voters. addresses When asked if the system was biased against people who live in multi - generational homes, she said, ‘That ’ s the way we segment data 849 just it is an all - volunteer group that has only limited time.’ ” because people analyzed by the Census Research Center show that relatively more data of color live PEW in multi - generational households: 843 Id . at 9 - 18 ( preliminary injunction was issued on November 4, 2016, based on the likelihood that the State Elections Boa rd practices violated the NVRA’s prohibitions against systemic removal of voters within 90 days of any federal election, as well as its requirements that before removing any voter, they must be provided with adequate notice and an opportunity to respond, a nd that they may not be permanently removed until two federal election cycles have passed.). 844 , Judge: North Carolina voter challenge process seems ‘insane,’ Martha Waggoner and Jonathan Drew SSOCIATED P A (Nov. 2, 2016), https://apnews.com/dcb7fbc3538547559c1c9a5cd6586b11 . RESS 845 N. Carolina State Conference of NAACP v. N. Carolina State Bd. of Elections , 283 F. Supp. 3d 393, 403 (M.D.N.C. 2017). 846 Briefing Transcript , supra note 234, at 29 4 - 95 (statement by Olinda Watkins). 847 Dan Harris and Melia Patria, Is True the Vote Intimidating Minority Voters From Going to the Polls? , ABC N EWS (Nov. 2, 2012), https://abcnews.go.com/Politics/true - vote - intimidating - minority - voters - polls/story?id=17618823 . 848 Id . 849 Id .

150 An Assessment of Minority Voting Rights Access 144 850 Multigenerational Households by Race, 2009 - 2016 7: Figure and Pew Research Center (analysis of the 2009 2016 American Community Surveys). Source: Purges of Voters From the Rolls 851 to allegations of ineligible voters being on the voting rolls, voter list maintenance Due has been the subject of hei ghtened debate in recent years. This section will examine removal procedures or “purges” voters from the rolls that have a negative of impact on minority voters in the current era. In Au gust 2016, News21 conducted an analysis of voter “lists of nearly 50 million registered voters from dozen states, and 7 million more who were removed over the last year,” and found no a 852 discriminatory impact on a national level. pattern However , of the na ture of purges in certain 850 D’Vera Cohn & Jeffrey S. Pas sel, A Record 64 Million American Lives in Multigenerational Households , P EW R ESEARCH ENTER (Apr. 5, 2018), http://www.pewresearch.org/fact - tank/2018/04/05/a - record - 64 - million - C eholds/ americans - in - multigenerational - hous live (last accessed May 25, 2018). - 851 List maintenance is the general practice of removing registered voters from the voter rolls for known, alleged, or suspected ineligibility. 52 U.S.C. § 20507. 852 America Scrubs Millions From the Roll s. Is It Fair?, Sean Holstege, EWS 21 (Aug. 20, 2016) N http://votingwars.news21.com/america - scrubs - millions from - the - voter - rolls - is - it - fair/ . -

151 Chapter 3: Recent Changes in Voting Laws and Procedures 145 853 below shows that discriminatory purges may occur on the local level. discussed The states examined voter purges in Florida, Georgia, recent North Carolina, Ohio, and Commission and threats of using inaccurate data a bout citizenship that Pennsylvania, targets voters disparately in Arkansas, Colorado, and Iowa. The Commission also color notes that Kansas and the 2 6 other of that are party to its “Crosscheck” system, which states described and examined in detail above , was 854 discr iminatory purging of eligible voters from the rolls. risk may and types of voter purges discussed herein negatively impact the ability of minority The cases to participate in the political process, implicating Section voters 2 and Section 5 issues, as well as 855 materiality pr ovision of the VRA . the Purging Based on Alleged Voter Ineligibility (Florida) From 2000 - 2012, Florida was repeatedly charged with allegations that it engaged in systemic purges voters of color. This is a subject that the Commission examined in the 2000 impacting 856 Irregularities in Florida During the 2000 Presidential Election , which after report Voting examinatio n of purges of voters in Florida found careful that both the method of the purge and its outcome directly and negatively impacted black Moreover, the Commission found credible voters. evidence that “the human consequences” of Florida’s 2000 voter purge program, which was based on data about alleged felony convictions, were severe and disparately impacted black inaccurate 857 . voters 853 . (noting that the “dat a did show that purges disproportionately affected minority or low - income voters in Id certain communities, and white voters in others.”). 854 See Discussion and Sources cited at notes 648 59, supra (including data regarding discriminatory impacts). - 855 Browning , 569 F. Supp. 2d at 1241 n.3 (citing 42 U.S.C. § 1971(a)(2)(B)) (transferred to 52 U.S.C. § 10101(a)(2)(B)). 856 U.S. C OMM ’ N ON C IVIL R IGHTS , ( 2001) V OTING I RREGULARITIES IN F LORIDA D URING THE 2000 P RESIDENTIAL L E C H . 5 T HE R EALITY OF : IST M AINTENANC E , http://www.usccr.gov/pubs/vote2000/report/ch5.htm (last LECTION accessed Aug. 7, 2018). 857 Id . In addition: Professor Darryl Paulson estimated that testified that the Hillsborough County supervisor of elections 15 percent of those purged were purged in error and they were disproportionately African American. According to Professor Paulson, another source estimated that 7,000 voters, mostly African Americans rom the list. and registered Democrats, were removed f According to news reports, even those who had received a full pardon for their offenses were listed on DBT’s exclusion list. Reverend Willie Dixon, a Tampa resident, received a full pardon for drug offenses in 1985, and has since become a y outh leader, a bible preacher, and a “pillar of the Tampa African American community who has voted in every presidential election.” But despite his 15 years of voting status, Pam Iorio, the supervisor of elections for Hillsborough County, sent Reverend Dix on a letter informing him that he had been removed from the rolls because of a prior conviction. Eventually, Reverend Dixon was able to verify his status as a registered voter.

152 An Assessment of Minority Voting Rights Access 146 Commission also found that most voters who were removed were in fact eligible, that The and Floridians denied their right to vote, were that “disenfranchisement of Florida “countless” 858 most harshly on the shoulders of African Americans.” voters In the next election fell presidential 2004, Florida conducted an extremely similar purge targeting persons with in cycle, felony 859 a reported discriminatory impact with on black voters. convictions 2007, Florida passed a new law requiring that In a voter registration applicant’s driver’s license or Social Security Number be verified with an exact match to the voter’s name, before the voter could of Implementation of this new law, c hallengers the law alleged , that its be registered. resulted in more than 11,000 citizens whose registration was kept implementation from the rolls 860 2008, with “a substantial differential impact on minority citizens.” in Complaint also alleged A that under the exact match system: A citizen registering as “ Bill ” might not “ match ” if his Social Security number is issued “ William. ” A woman ’ s married name might not match against a under she is listed under her maiden name. Haitian - American and other database where citizens who use compound names like “ Jean - Robert Martin ” or “ Gabriel Latino ” García may find themselves with part of their first or last name listed as Márquez 861 name and unable to be matched. middle a frustration they caused Media accounts also captured the impact of list maintenance activities and the for Florida voters. Wallace McDonald, in 1959, was convicted of a misdemeanor, vagrancy, for falling asleep on a bench in Tampa while he waited for a bus. In 2000, Mr. McDonald received a letter from Ms. Iorio informing him that as an ex - felon, his name had been removed from the rolls. Despite the efforts of his attorney to correct the problem, Mr. Wallace was not allowed to vote. Mr. McDonald stated: oblem . . . I knew I could not believe it, after voting all these years since the 50s, without a pr something was unfair about that. To be able to vote all your life then to have somebody reach in a bag and take some technicality that you can’t vote. Why now? Something’s wrong. Id . 858 U.S. C OMM ’ N ON C IVIL R IGHTS , ( 2001) V OTING I RREGULARITIES IN F LORIDA D URING THE 2000 P RESIDENTIAL E : C H . 9 F INDINGS AND RECOMMEN DATIONS , http://www.usccr.gov/pubs/vote2000/report/ch9.htm LECTION (last accessed Aug. 7, 2018). 859 Florida List for Purge of Voters Proves Flawed , Ford Fessedon, T IMES (July 10, 2004), N.Y. http://www.nytimes.com/2004/07/10/us/florida - list - for - purge - of - voters - proves - flawed.html . In 2004: Of nearly 48,000 Florida residents on the felon list, only 61 are Hispanic. By contrast, more than 22,000 are African American. About 8 percent of Florida voters describe themselves as Hispanic, and - as black. In a presidential election battleground state that decided the 2000 race by about 11 percent - giving George W. Bush a margin of only 537 votes, the effect could be significant: black voters are ublican[.] overwhelmingly Democratic, while Hispanics in Florida tend to vote Rep A spokeswoman for the Florida Department of Law Enforcement, Kristen Perezluha, said the felon database used F.B.I. criteria for judging race and so never listed Hispanic. Id . 860 The Brennan Center for Justice, Florida NAACP v. Browning , T HE B REN NAN C ENT . F OR J USTICE (Oct. 23, 2008), hereinafter https://www.brennancenter.org/legal work/florida - naacp - v - browning [ - Brennan Cent., Florida NAACP ]. 861 Id .

153 Chapter 3: Recent Changes in Voting Laws and Procedures 147 st th December a federal district court issued a preliminary injunction under the 1 In and 14 2007, U.S. Constitution, as well as HAVA, NVRA , of and the materiality provision of Amendments the to VRA, no person shall be denied the right under vote “because of an error or omission the which any on record or paper relating to any application . . . not material in determining whether such 862 qualified under State law to vote in such elec tion.” T he court granted the state’s individual is 863 dismiss the Section 2 claim, to and o ver 14,000 otherwise eligible citizens were put back motion the rolls prior to the presidential primary, while the Eleventh Circuit Court of Appeals then on 864 lower court’s preliminary injunction in April 2008. reversed The law was later amended , the 865 based on the more accessible new procedures, the parties dismissed the case. and of 2012, Florida attempted to purge thousands of voters color — the majorit y of whom were In — based on inaccurate allegations that they were not citizens. The state initially created a Latino voting 182,000 alleged noncitizens by comparing the rolls to drivers’ license databases, of list is an extremely faulty method as drivers ’ license databases do not reflect citizenship, then which 866 it back to approximately 2,600 . cut Litigation in the case of Mi Familia Vota v. Detzner showed that change in voting procedures should have been submitted for preclearance as a statewide this 867 Section formerly covered counties in Florida under pacting 5 . The court rejected a change im to dismiss, explaining that Florida’s use of the database to discover noncitizens was “done motion voter with its efforts to maintain in registration rolls;” how ever, the case was dismissed connection 868 later, after Shelby County suspended a preclearance. year were majority of voters on The Florida’s 2012 purge list great people of color. The data in a federal complaint alleging Section 2 violations (based on Florida voter r egistration data) showed that 8 7 percent voters of color: 61 percent were Hispanic (whereas 14 percent of all registered voters were vo were Hispanic); 16 percent in black (whereas 14 percent of all registered Florida ters were were 862 (transferred to , 569 F. Supp. 2d 1237 at 1241 n.3 Browning 52 U.S.C. § (citing 42 U.S.C. § 1971(a)(2)(B)) 10101 (a)(2)(B) ) . 863 See Fla. State Conference of N.A.A.C.P. v. Browning , 522 F.3d 1 153, 1159 (11th Cir. 2008). 864 Id. 865 860 , supra note Florida NAACP (discussing amendment and dismissal). Brennan Cent., 866 See Answer at 20, United States v. Florida , No. 4:12 CV - 00285 (N.D. Fla. July 3, 2012); Answer at 24, 43, Arcia - v. Detzner - CV - 22282 (S.D. Fla. July 12, 2012). Florida developed a list of more than 180,000 , No. 1:12 potential noncitizen voters by comparing data from its motor vehicle a gency with the state voter file. As acknowledged by the state, many individuals who presented legal immigration documents in the past ( e.g ., when first obtaining a driver’s license) may have since become citizens and are thus properly registered to vote. F lorida then went ahead and sent an initial 2,600 voters from its purge list to county Supervisors of Elections with instructions on how to investigate and remove them from the rolls with ed by in a short period of time. Evidence quickly showed that the methods us nty supervisors from both political parties refused to implement the purge. state officials were flawed and some cou 867 Mi Familia Vota Educ. Fund v. Detzner , 891 F. Supp. 2d 1326, 1332 - 34 (M.D. Fla. 2012), https://www.clearinghouse.net/chDocs/public/VR - FL - 0168 - 0008.pdf ; see also Allen, 393 U.S. at 565, 567 (1969) (recognizing that Congress intended to gi ve the VRA the “broadest possible scope” and that Section 5 reaches “subtle, as well as obvious” state laws that have the effect of or intent to disenfranchise minority voters); Presley v. Etowah Cty. Comm’n , 502 U.S. 491, 501 (1992) (reaffirming Allen and stating that “all changes in voting must be precleared” and that the “sphere” of Section 5 includes “all changes to rules governing voting”). 868 Detzner , 891 F. Supp. 2d at 1333.

154 An Assessment of Minority Voting Rights Access 148 16 percent were w hite (whereas 70 percent of registered voters were w hite); and 5 percent black); 869 (whereas only 2 percent of registered American voters were Asian). Asian Shortly after were complaint alleging violations of Section 2 of the VRA was filed , the state settled the Section 2 the 870 and stipulated to the settlement before federal court. a Florida also stopped this method claim November, purge before Election Day, but it went to try a different method prior to and of on 871 on to successfu lly litigate went claims under the NVRA. plaintiffs further alleged by the plaintiffs in their pleadings, As Karla Vanessa Arcia and Melande Antoine, U.S. citizens originally from Nicaragua and Haiti, were among those erroneously placed on Florida’s list, having al ready taken the oath of citizenship and completed all legal requirements to purge year citizens. Others like Bill Internicola, a 91 - - old World War II veteran born become naturalized Brooklyn, N.Y., and a number of Puerto Ricans living in in Florida, also found th emselves on the state’s flawed purge list. They received letters saying they had to prove their citizenship within 30 872 Antoine they could not vote. days Arcia and or became plaintiffs and despite the state’s next steps, continued to appeal to the Eleventh Circuit, which eventually ruled in their favor in the case of v. Detzner in 2014. Arcia the meantime, prior to November, Florida changed its method of purging, by beginning to run In list of alleged noncitizens through Department of Homeland Securi ty ’ s (DHS) Systematic the the 873 for Entitlements (SAVE) database. Verification filed an amended comp laint, Alien Plaintiffs ut even as the case b more complex because of standing issues, Arcia and Antoine were became 874 to prove that they were continually subject to harm. able This is in part because SAVE is not a 875 list of U.S. citizens. comprehensive It is not to include all naturalized citizens, and it updated does not include derivative citizens born to U.S. parents outside the country. In fact, there is no 876 list U.S. citizens. In July 2012, 13 states, led by Colorado, petitioned the DHS for access to of 869 ), Complaint, - CV - 22282, ¶ 26 at 10 (S.D. Fla. 2012 , No. 1:12 Arcia v. Detzner . http://moritzlaw.osu.edu/electionlaw/litigation/documents/VoterPurgeComplaint_000.pdf 870 See Stipulation of Dismissal as to Counts I, II and parts of IV, Arcia v. Detzner - CV - 22282 (Sept. 12, , No. 1:12 2012), (“Plaintiffs wi ll dismiss http://latinojustice.org/briefing_room/press_releases/Florida_Agreement_091212.pdf all of their claims in the Litigation other than the claim under section 8(c)(2)(A) of the NVRA”). 871 Arcia v. Fla. Sec’y of State , 772 F.3d 1335 (11th Cir. 2014). 872 Complaint, Detzner , No. 1:12 - CV - 22282 at ¶¶ 4 - 5, 39; see also Greg Allen, World War II Vet Caught Up In Florida’s Voter Purge Controversy , (May 31, 2012), NPR voter - - ii - vet - caught - up - in https://www.npr.org/sections/itsallpolitics/2012/05/31/154020289/world floridas - war - - purge controversy . - 873 Arcia , 772 F.3d at 1339. 874 Id . at 1341. 875 of Justice, to Hon. Ken U.S. Dep’t of Justice, Letter from Thomas E. Perez, Assist. Att’y Gen., U.S. Dep’t https://assets.documentcloud.org/documents/805150/us Detzner, Florida Secretary of State (June 11, 2012), dep - of - - justice - save - let ter - 1.pdf . 876 See John Suthers, Letter from John W. Suthers. Att’y Gen. for the State of Colorado, to Hon. Janet Napolitano, Secretary of U.S. Dep’t of Homeland Security, at 3 (July 5, 2012), https://www.sos.state.co.us/pubs/newsRoom/issueFiles/2012/20120705MemoDHS.pdf .

155 Chapter 3: Recent Changes in Voting Laws and Procedures 149 877 to possible noncitizens to purge from voter rolls. But by 2016, many states identify SAVE and while election officials in agreements, Florida, Colorad o, Georgia, North their dropped Virginia , and several Arizona counties still have agreements with DHS to use SAVE , Carolina , 878 are not necessarily active users. This may be because in Florida, the Eleventh Circuit found they that: Ms. Arcia and Ms. Antoine were naturalized U.S. citizens from Nicaragua Because probability Haiti respectively, there was a realistic that they would b e and due to unintentional mistakes in the Secretary’s data - matching misidentified [.] process . . based on the potential errors that could occur when the Secretary . to various confirm their immigration status in state and federal attempted 879 databases[.] c ourt of appeals also concluded that The had violated the NVRA’s prohibition against Florida 880 voter list maintenance conducted in the 90 days before any federal election. systemic It the NVRA prohibits purging in this window because voters would not have time that determined 881 correct errors, and “that is when the risk of disenfranchising eligible voters is the greatest.” to 882 would have also been subject to preclearance prior to Shelby County . This This was discussed by panelists at the February 2, 2018 briefing. John Park criticized the DOJ case its litigation allegedly stopped the state from purging alleged noncitizens from the voting because 883 referencing the Arcia case brought by But Advanc ement Project and Latino Justice rolls. on behalf of black and Latino voters in Florida, Dale PRLDEF Ho responded that the Florida purge 884 represents a cautionary tale about inaccurate and overzealous purging ,” “ and described actually naturalized the of these types of purges on disparate citizens, most of whom are people of impact 885 sent However, PILF recently color. letters to 248 jurisdictions across the United States alleging noncompliance the NVRA’s list maintenance requirements and threatening litigation; the with citizenship requested information about “any records indicating the use of letters or also 877 Scott Gessler, Letter from Scott Gessler, Colorado Secretary of State, to Janet Napolitano, Secretary of U.S. http://www.scrib d.com/doc/99815699/SOS - Sec - NapolitanoLtr - 7 - 9 - 12 - Dep’t of Homeland Security (July 9, 2012), . FINAL 878 U.S. Citizenship and Immigration Services, SAVE Agency Search Tool USCIS, See , https://www.uscis.gov/save/save - agency - search - tool?topic_id=&agency_zip_code=&benefit_category%5B%5D=17&items_per_page=50 , (listing current SAVE users for Voter Registration); see also Trump's Commission Vice Chair Kris Koba ch Says Amy Sherman, , OLITIFACT : F LORIDA (May 23, 2017), Immigration Data Not Bounced Against Aoter Rolls P /florida/statements/2017/may/23/kris - kobach/trumps - election - commission - http://www.politifact.com - kris - chair kobach says - / . - 879 Arcia, 772 F.3d at 1341 (emphasis added). 880 Id . at 1346. 881 . Id 882 ., Fordice , 520 U.S. 273. See, e.g 883 Briefing Transcript , supra note 234, at 203 (statement by John Park ). 884 - Briefing Transcript , supra note 234, at 213 315 (statement by Dale Ho). 885 Id. at 171.

156 An Assessment of Minority Voting Rights Access 150 status for list maintenance activities, including but not limited to the Systematic Alien immigration 886 for (SAVE) Program database.” Verification Entitlements for Minor Discrepancies (Georgia) rging Pu DOJ objected to several changes in voter registration rules in The Georgia during the time period 887 this report . In 2009, then - by Assistant Attorney General Loretta Lynch objected covered Acting Georgia’s voter verification system, to and notified the state that: We have considered the accuracy of the state’s verification process. Our analysis produce the state’s process does not accurate and reliable information, shows that that thousands of citizens who are in fact eligible and vote under Georgia law to have been flagged . . . Perhaps the telling statistic concerns the effect of the most verification process on native - born citizens. Of those persons erroneously identified as - citizens, 14.9 percent , more than 1 in 7, established eligibility with a birth non Another they were born in this country. 45.7 percent provided certificate, showing 886 See PILF, Sample NVRA Violation , supra note 633, at 2 . 887 OC Voting Rights in Georgia: 1982 - 2006 , 17 S. C AL . R EV . L. & S See . J UST . 367, 375 (2008), Robert A. Kengle, Table 1: Section 5 Objections by Type, 1982 2006. The various types of voting changes that were subject to — r continued (rather than being precleared) are set forth in the table below objections, or that were withdrawn o : Objections Withdrawn Continued 6 32 1 Method of Election 26 2 1 Redistricting 6 1 2 State Judicial 2 1 5 Annexation 1 4 0 Districting 0 0 4 Election Schedule 1 3 0 Candidate Qualification 3 0 0 Voter Registration 0 2 0 Consolidation 2 0 0 Place Polling 0 2 0 Referendum Procedures 1 0 1 Elected to Appointive 0 1 0 Deannexation 91 12 7 Total 887 U.S. Dep’t of Justice, Letter from Loretta King, Asst. Att’y Gen., U.S. Dep’t of Justice Civil Rights Division, to Hon. Thurbert E. Baker, Attorney General of Georgia, at 1 - 4 (May 29, 2009) , https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/l_090529.pdf (emphasis added).

157 Chapter 3: Recent Changes in Voting Laws and Procedures 151 that they were naturalized citizens, suggesting that the driver’s license proof is database current for recently naturalized c itizens. The impact of these errors not . minority voters . . . on Applicants [for voter registration] falls disproportionately are Hispanic, Asian or African American who are more likely than white statistically significant degrees, to be flagg ed for additional applicants, to 888 . scrutiny cases were recently brought in Two challenging county voter list maintenance procedures Georgia Section 2 of the VRA; these under cases also included claims under the NVRA. The first is the Hancock County challenger case discu ssed above, which resulted in systemic removal of voters, County of whom were African American. Hancock entered into a court - ordered virtually all decree that includes protections against discriminatory list maintenance procedures going consent 889 forward. second case was brought i n September 2016 against the Secretary of State’s implementation The of Georgia’s “exact match” process, a nd the alleged the process resulted in the complaint cancellation of tens of thousands of voter registration applications and disparately impacted black, 890 Latino and Asian - American voters. , The Georgia NAACP, Asian Americans Advancing Justice, Georgia Coalition for the Peoples’ Agenda’s allegations of violations of Section 2 of the and the th st the 1 and 14 VRA Amendment of t he U.S. Constitution were not settled until after the and 2016 891 election, on February 8, 2017. presidential process the allegations in plaintiff’s c omplaint, Georgia’s match According was implemented to applications the names on voter registration through against drivers’ license and social comparing 892 databases. and All of the letters security numbers of the applicant’s name, date of birth, driver’s license and last four digits of the Social Security number had to match the same letters number, 888 . Id 889 See Consent Decree, G eorgia State Conference of P , 2018 WL 1583160 . NAAC 890 Complaint for Injunctive and Declaratory Relief, Georgia State Conference of the NAACP v. Kemp , No. 2:16 - CV - 219, 149 - 65 (M.D. Ga. 2016), https://lawyerscommittee.org/wp - content/uploads/2016/09/2016 - 09 - 13 - GA - NAACP - - Complaint - FINAL.pdf . Kemp 891 Georgia State Conference of the NAACP v. Kemp , 2017 WL 2492361, No. 2:16 - CV - 219 Settlement Agreement, 16), http://www.projectvote.org/wp - (M.D. Ga. 20 - Agreement - NAACP - v. - Kemp - 2.9.17 - content/uploads/Settlement 1.pdf (like most settlement agreements, this one spec ifically did not include any admissions of liability). Id . at *10. 892 Complaint, Georgia State Conference of the NAACP , No. 2:16 - CV See 219 at ¶¶ 27 - 29 (“The Georgia voter - registration verification protocol was created in 2010 via administrative policy by S ecretary of State Kemp pursuant to Ga. Code Ann. § 21 - 2 - 216(g)(7). The matching protocol is not codified in any statute or regulation. The verification protocol relies upon an algorithm to compare information on a first time applicant’s voter registration - form to information in the DDS or SSA databases, once the information from the form is entered into ENET. If applicants provide their driver’s license number on th eir registration form, the algorithm makes the comparison to information in the DDS database. If applicants provide the last four digits of their social security number, the algorithm makes the comparison to information in the SSA HAVV database. The protocol requires that the information on an unregistered applicant’s voter registration form exactly match corresponding fields in the applicant’s record contained in the DDS or SSA databases.”) .

158 An Assessment of Minority Voting Rights Access 152 numbe presented in the state Department of Driver Services or federal Social Security and rs 893 databases. Election officials : Administration to registration application a incomplete ” pursuant voter Ga. Code Ann. § consider “ 2 - 220(d) if any information does not ma tch exactly with all of the corresponding 21 - fields or in the DDS SSA databases. Therefore, under this protocol, complete data submitted are with accurate identifying information by eligible voters applications the marked incomplete and the applicants a re not added to voter routinely 894 The result list. disenfranchisement. registration is the plaintiffs alleged that voters Moreover, given extremely unclear notice about what were information was needed to correct any discrepancies, and they had to respond within less than 40 895 896 they could not navigate that “Kafkaesque” If time - consuming process, their voter days. and application would be rejected and the only way they could vote would be by presenting registration citizenship proof of identification or additional before a “40 - day clock ” had documentary 897 conservative The c omplaint further alleged that “a expired. estimate indicate[d] that more than rejected registration applications ha[d] been suspended or 42,500 due to the verification voter 898 protocol. ” An expert s tudy submitted by plaintiffs found that black voters comprised 63.6 percent of cancelled applicants, they made up only 29.4 percent of the population, and that Latino voters although 7.9 percent of cancelled applicants, although they made up only 3.6 percent of the comprised of while white voters made up 13.6 percent the cancellations but constituted 47.2 population; 899 of the population . percent Moreover, applicants who failed the exact match tended to live in poorer communities and have lower high school gr aduation rates, which would make correction 900 discrepancies cancellations or resolution of the the more challenging. The complaint also of alleged that the history of discrimination in voting in Georgia, along with ongoing discrimination in form of socioeconomic disparities that interact with the procedures, result ed in significant the 901 in access racial to vo ter registration . disparities 893 Id. 894 . at ¶ 41 (emphasis added). Id 895 . at ¶¶ 45 - 58. Id 896 Id . at ¶ 65; see also id. at ¶¶ 65 - 80 (detailing individual voters of color experiences). 897 . at ¶¶ 45 - 58. Id 898 . at ¶ 7 (emphasis added). Id 899 Declaration of Christopher Brill, filed in Georgia State Conference of the NAACP , No. 2:16 CV - 219 (N.D. Ga. - 2016), ECF Doc. No. 3 - 19 at ¶ 7 (Sept. 14, 2016) (on file). 900 Declaration of Michael McDonald, file d in Georgia State Conference of the NAACP , No. 2:16 - CV - 219 (N.D. Ga. 2016), ECF Doc. No. 3 19 at ¶¶ 38 - 51 (Sept. 14, 2016). - 901 Complaint, Georgia State Conference of the NAACP , No. 2:16 - CV - 219 at ¶¶ 122 - 23 (“The rate at which [voter registration] applicants have been placed in cancelled or pending status between July 2013 and July 2016 due to failing the first or last name match varies significantly by race. This is true even when considering the presence o f special characters in applicants’ names (spaces, hyphens, and apostrophes). For example, White applicants whose names contain special characters both fail the name match and remain in cancelled or pending status at a rate of 1.7

159 Chapter 3: Recent Changes in Voting Laws and Procedures 153 902 court held a hearing on t he preliminary injunction, federal and all claims were settled district The 903 2017. February The parties agreed that voter registration applicants whose information fails in match will be placed in pending statu s, and to permitted to vote if they show acceptable 904 proof of citizenship. The Georgia settlement permits types of documentary identification or of citizenship a more expansive than in other states with stricter laws such as Kansas ; they proof re more than only birth, naturalization , or citizenship certificates, and voters may also provide include under penalty of perjury of two U.S. citizens who are not related to the applicant, signed affidavits 905 with an affidavit as to why the documents are not availabl e. Finally, the settlement along that all voter registration applicants that were cancelled on or after October 1, provides agreement due to the match process would be moved to pending status and sent notification letters 2013 906 their right to vote. regarding Th e settlement agreement also provided that Plaintiffs , which are voter groups, would be given the data regarding the cancelled, pending , and rejected registration 907 had wanted to register and participate in Georgia’s upcoming elections . voters who ly, Georgia has been purging voters for “inactivity , ” a practice discussed in further detail Additional 908 909 Under the Supreme Court’s ruling in Young v. Fordice , below. all of these would procedures 910 had to be precleared under 5. have Section percent. The correspondin g rate for similarly situated Black applicants is 3.9 percent. That rate is 4.4 percent for Latinos and 12.9 percent for Asian - Americans.”). 902 s U nder Law , Georgia State Conference of the NAACP, et al. v. Brian Kemp , Lawyers’ Committee for Civil Right NDER AWYE C OMMITTEE FOR C IVIL R IGHTS U ’ L AW , https://lawyerscommittee.org/project/voting - rights - L RS - state - conference - naacp - et - al project/litigation/georgia v - brian - kemp/ (last accessed Aug. 2, 2018). - 903 Settlement Agreement, , No. 2:16 - CV - 219 (pending stipulated Georgia State Conference of the NAACP settlement filing with the court). 904 Id . at ¶ 1.b (and See Exhibit 1 regarding lis t of acceptable forms of identification and proof of citizenship, which are broader than previous requirements). 905 Id . at Ex. 1. 906 . at ¶ 1.d - e. Id 907 . at ¶ 1.m. Id 908 A lawsuit alleges that Georgia’s practice of removal for inactivity violates the NVRA’s provisions against st Amendment of the U.S. Constitution. The federal district court dismissed the removal for inactivity as well as the 1 enth Circuit vacated the dismissal and remanded the case pending the outcome of the case, but on appeal, the Elev Husted v. A. Philip Randolph Inst. See Common Supreme Court’s decision regarding similar practices in Ohio in Cause v. Kemp , 714 F. App’x 990 (11th Cir. 2018), http://moritzlaw.osu.edu/electionlaw/litigation/documents/CommonCauseGeorgia - Opinion031218.pdf . On June 11, 2018, the Supreme Court ruled that Ohio’s removal practices did not violate the NVRA. Husted v. A. Philip Randolph Inst. Discussion and Sources cited at notes 915 - 28, infra. See , 138 S. Ct. 1833 (2018). 909 520 U.S. 273 (1997). 910 Prior iterations of the voter verification match procedures were subject to preclearance in 2010. See Chapter 5, at note 1393, infra , discussing Georgia v. Holder , 748 F. Supp. 2d. 16 (D.D.C. 2010) (dismissed, subsequent change reviewed administratively).

160 An Assessment of Minority Voting Rights Access 154 Voter Challenges by Private Parties (North Carolina) Purging Based on purges ’s Carolina issues with allegedly discriminatory were discussed in the North ongoing 911 , egarding voter challenges that led to removals of r voters from the rolls . section That previous 912 include s public comments the Commission heard regarding such practices. section also for ivity (Georgia, New Inact York, Ohio) Purging for inactivity may disparately impact minority voters in ways that could potentially violate Purges 913 VRA. the 1993 , the NVRA prohibited removing voters for inactivity . This prohibition was In enacted after such procedures were foun d to be unfair and in at least one case , racially 914 in violation of Section 2 of the VRA . “Critics further pointed discriminatory out that the and minority groups were poor affected by these purges both because they voted and disproportionately less frequently and because they had greater difficulty navigating reregistration once their 915 were purged.” The 1993 NVRA therefore registrations enacted a prohibition against purgi ng for 916 inactivity, requires notice and due pro cess procedures for any removal of a registered voter . and 11, 2018, the Supreme Court ruled that Ohio could purge voters for inactivity — but only On June 917 voters do not respond to a mail notice , and o if after two general election cycles ha ve passed. nly 918 decision was based on the NVRA, The and did address any possible claims regarding Section not 911 See Discussion and Sources cited in notes 83 - 46, supra . 912 . Id 913 § 20507(b)(2) (“ Any State program or activity to protect the integrity of the electoral process by 52 U.S.C. elections for Federal office shall not ensuring the maintenance of an accurate and current voter registration roll for vote in result in the removal of the name of any person from the official list of voters registered to election for Federal office by reason of the person’s failure to vote[.]”). an 914 , 476 F.2d 203, 205 - 06, 208 (5th Cir. 1973), vacated in p art on reh’g , 488 F.2d 310 (5th Cir. Toney v. White 1973). Courts have recognized that purging laws could potentially violate Section 2, but require not only that the plaintiffs show a disparate impact of the law, but also that the purging law is the main source or cause of the discriminatory effect. See Ortiz , 28 F.3d at 313 (explaining that plaintiffs failed to show that Pennsylvania’s “purge law [was] the dispositive force in depriving voters of equal access to the political process in violation of § 2”); lins , 791 F.2d 1255, 1261 (6th Cir. 1986) (explaining that the disparate impact of Tennessee’s felony Wesley v. Col conviction purge law on black voters was not a result of the purge law, and thus did not violate the VRA). 915 Brief for American History Professors as Ami Husted v. A. Philip Randolph ci Curiae in Support of Respondents, , No. 16 Inst. 980 at *13 (Sept. 22, 2017). Congress was also concerned about the disparate impact of purging and re - - registration requirements, finding that: “Such processes must be structure d to prevent abuse which has a disparate impact on minority communities. Unfortunately, there is a long history of such list cleaning mechanisms which have 18 (1993 been used to violate the basic rights of citizens.” R EP . N O . 103 - 6, at 17 - - 1994). S. 916 52 U. S.C. § 20507. The NVRA also mandated that: “any State program or activity designed to ensure the maintenance of accurate and current registration rolls, shall be uniform, nondiscriminatory, and in compliance with the provisions of the Voting Rights Act of 1965.” 52 U.S.C. § 20507(b)(1). 917 Husted , 138 S. Ct. at 1847 - 48 , https://www.supremecourt.gov/opinions/17pdf/16 - 980_f2q3.pdf . 918 The Court upheld Ohio’s procedure for removing voters from its rolls, holding that the state’s process follows NVRA’s requirements to give notice to voters and let two federal election cycles pass before removal, “to the letter.” Id. at 1842 . See also O HI O R EV . C ODE A N N . § 3503.21. The five - justice majority explained that the NVRA only prohibited using the failure to vote “as the sole criterion for removing a” registered voter and that Ohio only removes voters “if they have failed to vote and have failed t o respond to a notice.” Husted , 138 S. Ct. at 1843

161 Chapter 3: Recent Changes in Voting Laws and Procedures 155 919 the VRA. of The majority opinion goes so far as to point out that a discrimination claim was 2 920 This case was discussed by various rought. panelists at the Commission’s briefing who t b no concern that the DOJ revers ed its position in the raised matter after the presidential administration January 2017 . In 2017, the Sixth Circuit Court in of Appeals had held that the state’s use changed failure to vote as a trigger to confirmation of address proceedings that could lead of removal of to voters from the rolls was “perhaps the plainest possible example of a process that results in removal 921 voter from the rolls b y reason of his or her failure to vote.” The DOJ filed an amicus and of a 922 with Plaintiffs over the course of the litig ation , agreed until after the presidential election, when 923 took the opposite position. it Court’s decision in this case The may serv e as Supreme a catalyst for other states to enact similar 924 Ohio laws. Secretary of State John Husted praised the Supreme Court’s decision and hopes that 925 926 states now use Ohio’s law as a “model” moving forward. Georgia , Hawaii , Oklahoma , will 927 purge already have similar laws that voters for inactivity. and Tennessee Sotomayor cited the NAACP’s amicus brief in her dissent to show the disparate impact of Justice Ohio’s explaining that “ American - majority neighborhoods in downtown Cincinnati had purges, compared of t heir 10 voters removed due to inactivity, percent to only 4 percent of voters in a 928 majority white neighborhood. ” suburban, Some voting rights advocates argue that a Section 2 - (emphasis in original). The Court went on to say that dissenting Justices simply “have a policy disagreement” with the failure to send back the decision because the NVRA, the majority argues, stands for Congress’s “judgment” that the mail notice paired with nonvoting was sufficient evidence that a voter changed address and, thus, enough to remove a voter from the rolls. . at 1848. Id 919 Id. at 1865. 920 at 1848 (“The NVRA prohibits state programs that are discriminatory, see §20507(b)(1), but respondents did Id. not assert a claim under that provision”). 921 A. Philip Randolph Institute v. Husted , 838 F.3d 699, 712 (6th Cir. 2016). 922 - Appellant s and Urging Reversal, A. Philip Brief for the United States as Amicus Curiae in Support of Plaintiffs , https://www.justice.gov/crt/file/881821/download . Randolph Institute v. Husted 923 After the 2016 presidential election, the DOJ changed its position in this case through a brief filed in Aug. 2017, Brief for the United States as Amicus Curiae in Support of Petitioner - Defendant, signed by no career staff. Husted v. A. Philip Randolph Ins t. , https://www.justice.gov/sites/default/files/briefs/2017/08/07/16 - 980_husted_v_randolph_institute_ac_merits.pdf . In the meanti me, 17 former DOJ leaders including former Attorney General Eric Holder and career voting rights attorneys filed an amicus before the Supreme Court, arguing that the NVRA protects the right to vote and the right not to vote, and clearly prohibits removals for inactivity, noting that m 1994 until the Solicitor General’s brief in this case, the DOJ had repeatedly interpreted the NVRA to prohibit “fro - purge proc ess.” Brief a state from using a registrant’s failure to vote as the basis for initiating the Section 8(d) voter Husted v. A. Philip Randolph Inst. at 31. for Eric Holder et al. as Amici Curiae in Support of Respondents, 924 Supreme Court Gives Green Light to Ohio’s Voter Purges , H Sam Levine, P OST (June 11, 2018), UFFINGTON https://www.huffingtonpost.com/entry/ohio - voter - purge - law - upheld - by - supreme - court_us_5af5e4e1e4b032b10bfa8964 . 925 . Id 926 Georgia has actually enacted these procedur es. Discussion and Sources cited in note 908, supra . See 927 Brief for NAACP and the Ohio State Conference of the NAACP as Amici Curiae in Support of Respondents - Plaintiffs, v. A. Philip Randolph Inst. Husted 928 , 138 S. Ct. at 1864 (Sotom ayor, J., dissenting) (quoting b rief for NAACP). Husted

162 An Assessment of Minority Voting Rights Access 156 929 be brought to enjoin purges for inactivity. claim According to the Ezra Rosenberg, could that registration and participation rates remain lower voter among voters of color as considering to whites, removals based on inactivity are likely to further disparately impact compared 930 of color, particularly those with the lowest participation rates. communities Board 2014 and 2015, the New York City Elections purged more than 110,000 Brooklyn voters In 931 they since had not voted 2008. because Another 100,000 registered voters were removed from because they had allegedly changed their address ; their removals occurred with no public the rolls 932 This resulted in thousands coming to the polls during announcement. 2016 primaries and the vote. to being 117,000 voters were put back on the rolls after litigation by voting rights unable 933 934 already which the DOJ intervened, but they had groups lost their right to vote in 2016 . in Brooklyn is one of the four boroughs in New York City that used to be covered for preclearance prior the Shelby County decision, so it is possible that w ith preclearance, these purges could to 935 stopped prior to the election. Furthermore, a local news outlet conducted a surname have been 936 of the purge list and found that it disparately impacted Latinos and Asian analysis . Americans 929 Sonia Sotomayor’s Dissent in the Big Voter - Purge Case Points to How the Law Might Still Be Richard L. Hasen, , S LATE (June 11, 2018 ), https://slate.com/news - and - politics/2018/06/sonia - sotomayors - husted - dissent - Struck Down - points - way - forward - on - racist - voter the purge - laws.html . - 930 See Figure 11, Voter Registration by Race an d Ethnicity and Year, and Figure 15, Voter Turnout by Race/Ethnicity, 2000 - 2016, infra . Attorney Ezra Rosenberg submitted a statement commenting that: Under Ohio’s Supplemental Process, infrequent voters who receive a confirmation notice will be removed fr om the rolls unless they do something to halt the removal process. Similarly, prior to the litigation in the Georgia exact match matter, those whose applications were cancelled were sent letters asking them to take additional steps to insure their registra tion. Even modest administrative requirements have been shown to reduce “take up” or participation rates in a variety of public programs. When it enacted the NVRA, Congress implicitly recognized that administrative requirements could be a barrier to voter participation when it eliminated reregistration requirements. Ezra Rosenberg, Supplemental Written Statement for the U.S. Comm’n on Civil Rights, Marc. 19, 2018, at 9 - 10 ( see Rosenberg, Written Statement] (citing sources including the Congressional record) (on note 31) [ hereinafter file). 931 Common Cause of N.Y. v. New York Bd. of Elections , No. 1: - CV - 06122 at *7 Complaint in Intervention, 16 (E.D.N.Y. 2017), - 1 - 26_nyag_proposed_complaint_in_intervention.pdf ; https://ag.ny.gov/sites/default/files/2017 Consent Decree, , No. 1:16 - CV - 06122 (E.D.N.Y. 2017), Common Cause of N.Y. v. New York Bd. of Elections - - - Decree - Final https://lawyerscommittee.org/wp Draft - updated content/uploads/2017/10/Consent caption - sign - - block.pdf . 932 Id. at *8. 933 at *13. Id. 934 N Ca New York City Elections Board Admits to Purging Voters from the Rolls , See EW Y ORK P OST rl Campinile, (Oct. 25, 2017), https://nypost.com/2017/10/25/nyc - ele ctions - board - admits - to - purging - voters - from - rolls/ . 935 , 520 U.S. at 280. Fordice 936 Brigidet Bergin, John Keefe & Jenny Ye, , WNYC N EWS (June 21, Brooklyn Voter Purge Hit Hispanics Hardest 2016), https://www.wnyc.org/story/brooklyn - voter - purge - hit - hispanics - hardest/ . These types of surname analyses are typically accepted by federal courts as evidence that is statistically reliable to indicate ethnicity. See U.S. v. Berks Cty , 250 F. Supp. 2d 525, 529 (E.D. Penn. 2003).

163 Chapter 3: Recent Changes in Voting Laws and Procedures 157 Based on Felony Conv iction (Florida, Pennsylvania) Purging 2016, In he ACRU sued the City of Philadelphia, alleging that the City’s failure to purge persons t list from its voter rolls violated the convictions maintenance provisions of Section 8 with felony 937 NVRA. April On of 27, 2017, the Third Circuit Court of Appeals held that the NVRA the — does not require — states to make an effort to remove those with criminal convictions but permits 938 declared mentally incompetent. Furthermore, the those Circuit held that “contrary to and Third ACRU’s assertions, the text of Section the 8(a)(3) [of the NVRA] places no affirmative obligations on states (or voting commissions) to remove voters from the rolls. As its text makes clear, NVRA 939 not as a shield to protect the right to vote, as a sword to pierce it.” As discussed was intended Florida has also conducted voter purges based on alleged felony convictions, with a above, 940 impact. discriminatory uring na tional briefing , the Commission heard its testimony regarding the racially discriminatory D 941 of impact laws that restrict the voting rights of persons with felony convictions. This issue state also arose in briefings on voting rights held by the Commission’s SAC s in Florida and 942 Kentucky. Although a full rev iew of the impact of these disparities is beyond the scope of this 943 is notable that some conservative groups are it calling for aggressive purges of persons report, 944 felony convictions. April However, not all conservatives agree. On with 6, 2018, George F. Will is there wrote no good reason that persons with felony convictions should not be able to that 945 vote. three to voter ID laws and the In addition types of emerging restrictions on getting and above staying on the voting rolls, as will be discussed bel ow, cuts to early voting have also had a discriminatory on minority voters. impact 937 See Am. Civil Rights Union v. Philadelphia City Comm’rs , 872 F.3d 175 (3rd Cir. 2017). 938 See 52 U.S.C. §20507(a)(3)(b). 939 , 872 F. 3d at 182. Am. Civil Rights Union 940 Discussion and Sources cited at notes 856 - 59, See . supra 941 Briefing Transcript , supra note 234, at 164 (statement by Anita Earls); see also Briefing Transcript , supra note - 234, at 127 29 (statement by Sherrilyn Ifill). 942 Appendix D. See 943 This issue is addres sed in the Commission’s upcoming report on the collateral consequences of incarceration. See C OMM ’ N ON C IVIL U.S. IGHTS , FORTHCOMING C OLLATERAL C ONSEQUENCES : T HE C ROSSROADS OF P UNISHMENT , R R EDEMPTION , AND THE E FFECTS ON C OMMUNITIES (2018) [ forthcoming ]; se e also U.S. Comm’n on Civil Rights , Commission Briefing: Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities, Final Transcript, May 19, 2017, https://www.usccr.gov/calendar/trnscrpt/Commission - Business - - - - 05 - 19 Meeting 17.pdf . Transcript 944 See Public Interest Legal Foundation, 24 States Show Corrupted Voter Rolls, PILF (Sept. 25, 2016) (linking to notice let ters sent to 248 counties), https://publicinterestlegal.org/blog/248 - counties - registered - voters - live - adults/ . 945 There’s No Good Reason to Sto p Felons From Voting , W ASH George F. Will, P OST (April 6, 2018), . https://www.washingtonpost.com/opinions/theres - no - good - reason - to - stop - felons - from - - voting/2018/04/06/88484076 3905 - 11e8 - 8fd2 - 49fe3c675a89_story.html?noredirect=on&utm_term=.9825691b0de0 .

164 An Assessment of Minority Voting Rights Access 158 Cuts to Early Voting 946 Early has been a very popular method of voting. In 2016, 23,024,146 Americans used in - voting 947 early voting. 25.3 About 65.9 percent of early votes we re cast by white voters, about person 948 black voters, and about 1.5 percent by Latino voters. percent Currently, 37 states and the by 21 Columbia offer early voting, and of these, District states and the District of Columbia allow of 949 weekend early voting. Some of some these states effectively offer early voting through 950 permitting ballots with no excuse required, prior to Election Day. Figure 8 shows the absentee states: early voting options available in 35 of range 946 Early voting was a concept created in order to provide greater acce ss to the polls to voters who are unable to vote on Election Day. Prior to the advent of early voting in the United States, the polls were only open Tuesdays, for limited hours. During the Civil War era, absentee voting could only be done with an excuse, a nd it could not be done in person. Olivia B. Waxman, This is How Early Voting Became a Thing , T IME M AGAZINE (Oct. 25, 2016), http://time.com/4539862/early - - history - first - state s/ . voting 947 ROJECT 2016 November General Election Early Voting U.S. E LECTION P Dr. Michael McDonald, , , http://www.electproject.org/early_2016 (last accessed Aug. 2, 2018). 948 Id . 949 Nat’l. Conf. of State Legis lators, Absentee and Early Voting , NCSL (Aug. 17. 2017), http://www.ncsl.org/research/elections - and - campaigns/absentee - and - early - voting.aspx#earl y [ hereinafter NCSL, Absentee and Early Voting ]. 950 Id.

165 Chapter 3: Recent Changes in Voting Laws and Procedures 159 8 Absentee and Early Voting Figure : 951 State Conference of Legislatures National Source: recently (s ince 2010 ) , the following states have reduced early voting hours or days: But Florida, 953 952 Indiana, Nebraska, North Carolina, Ohio, Tennessee , and Wisconsin. Georgia, Only three of — these states — Florida, Georgia, and North Carolina eight were formerly covered under Section 5. Cuts to early voting can cause long lines with a disparate impact on voters of color. I n response to bipartisan this during the 2012 elections, on March 28, 2013, t he problem Presidential Commission 951 note 949. Absentee and Early Voting , NCSL, supra 952 Currently proposed Georgia Senate Bill 363 would amend the state code so that counties would only be able to o ffer early voting during weekdays and only one weekend day, rather than both Saturday and Sunday. See R.J. Rico, Georgia Democrats Outraged Over Push to Limit Weekend Voting A SSOCIATED P RESS (Mar. 22, 2018), , https://www.usnews.com/news/best - states/georgia/articles/2018 - 03 - 22/georgia - democrats - outraged - over - push - to - limit weekend - voting . - 953 New Voting Restr ictions in America , supra note 462. Brennan,

166 An Assessment of Minority Voting Rights Access 160 954 Administration (PCEA) was established by Executive Order . Election The PCEA held a on of series starting in Florida, and received exp ert testimony, based upon which it presented hearings, recommendations, with together an array of best practices in election “ unanimous 955 PCEA long lines, the found that: Regarding administration.” image of voters waiting for six or more hours to The vote on Election Day 2012, as two previous Presidential contests, spurred the call for reform that led to in the of this Commission. Research suggests that, although a l imited number of creation experienced long wait times, over five million voters in 2012 jurisdictions wait times exceeding one experienced and an additional five million waited hour between a half hour and an hour. In some jurisdictions, the problem has recurred r presidential elections, while in others, a particular confluence of factors fo several clear to unprecedented lines in 2012. It became to the [PCEA] Commission as led investigated this problem that there is no single cause for long lines and there is it 956 no solution. But the problem is solvable . single found a variety of factors contribute to long lines, and among these The factors: “of course, PCEA limited the opportunities to vote, the greater will the be the number of voters who will vote more 957 the constricted hours of a single Election Day.” Moreover, the PCEA recommended during that no should have to wait more than 30 minutes in order to exercise the fundamental right to voter 958 PCEA found that: “There is much that states The localities can do t o reduce wait times. vote. and obviously, increasing the number of voters who vote before Election Day can relieve Election Most 959 Other PCEA recommendations included formulas to Day determine the need for traffic.” steps places and polling place resources , providing language access, and taking adequate polling 960 voter registration, such as towards automatic voter registration. modernizing the Focusing civil rights implications, the following on section of the U.S. Civil Rights Commission’s report reviews the reduction of early voting in the states where this issue has been addressed the VRA following the 2006 Reauthorization and in the post - Shelby County era. under Florida, Indiana, North Carolina, Ohio , and Wisconsin. This These section also discusses data are: to eflect that that during the time it c urrently takes r litigate cases against cuts to early voting , voters experience long lines and other forms of decreased access to the ballot. Moreover, although or jurisdictions that cuts to early voting were justified to save costs, argued to protect against voter 954 See Presidential Commission on Election Administration , EAC (last U.S. Election Assistance Commission, visited June 5, 2018), https://www.eac.gov/election - of ficials/pcea/ . 955 CEA Report, supra note 663 . P 956 . at 13 (emphasis added). Id 957 Id . at 14. 958 Id . 959 Id . at 40, n.119 (citing “Ken Detzner, Florida Secretary of State, PCEA Hearing Testimony, Miami, FL, at 2 (June 28, 2013); Bill Cowles, Orange County Supervisor of Elections, PCEA Hearing Testimony, Miami, FL, at 16 (June 28, 2013); Robert M. Stein, Professor of Political Science, Rice University, PCEA Hearing Testimony, Philadelphia, PA, at 28 (Sept. 4, 2013).”). 960 PCEA Report, supra note 663, at 2 2 - 70. See

167 Chapter 3: Recent Changes in Voting Laws and Procedures 161 federal courts found these arguments did not justify measures that resulted in racial fraud, 961 prohibited Section 2. under discrimination Florida Florida, cuts to early voting have been challenged under both Sec tion 2 and In 5 of the Section the Shelby County decision, five counties Until Florida were covered under Section 5; VRA. in any statewide voting changes that impacted those counties were subject to therefore 962 preclearance. In 2011, a sweeping set of voting r eforms were signed into law, includ ing to mandatory early voting days and hours. The former Chair of the Florida significant cuts Party later said that suppression of the minority vote Republican the reason for the cuts to was 963 voting. early In 2012, a fed eral court enjoined provisions of the same law , which had other restricted community - based voter registration drives, due to likely violations of the NVRA and the 964 U.S. The cuts to early voting were submitted to the federal court of the Distr ict of Constitution. 965 preclearance under Section 5 of the VRA, and they were Columbia precleared. not E ven for 961 See, e.g., Discussion and Sources cited at notes 362 - 65 (North Carolina), supra and 993 - 94 (Ohio), infra. 962 A violation of subsection (a) is established if, based on the totality of circumstances, it is 52 U.S.C. § 10301(b) (“ shown that the politic al processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have the political process and to elect less opportunity than other members of the electorate to participate in . But Cf. Husted , 768 F.3d at 557 (“The district court did not improperly engage in a representatives of their choice.”) der the prior retrogression analysis in considering the opportunities available to African Americans to vote EIP un — and the Court has read — law as part of the “totality of circumstances” inquiry. To be sure, Congress intended and Section 2 not to have exactly the same scope. Procedurally, Section 5 requires that covered states Section 5 obtain preclearance from the Attorney General or the District Court for the District of Columbia before they change a voting “qualification, prerequisite, standard, practice, or procedure.” 42 U.S.C. § 197 3c . Section 2 applies to all states and includes no preclearance requirement. “[T]he purpose of § 5 has always been to insure that no voting - racial minorities with respect procedure changes would be made that would lead to a retrogression in the position of to their effective exercise of the electoral franchise.” 425 U.S. 130, 141, 96 S.Ct. 1357, 47 Beer v. United States, § 5 prevents nothing but backslidi ng,” whereas Section 2 L.Ed.2d 629 (1976) . In other words, “ is aimed at Bossier II, 528 U.S. at 334 - 35, 120 S.Ct. 866 . At the same time, combatting “discrimination more generally.” sidered in the Section 2 however, no case explicitly holds that prior laws or practices cannot be con “totality of circumstances” analysis.”). 963 Former Florida GOP Leaders Say Voter Suppression Was Reason They Pushed New Election Law , Dara Kam, ALM B EACH P OST P (Nov. 25, 2012), https://www.palmbeachpost.com/news/state -- regional - govt -- politics/former - florida - gop - leaders - say - vote r - suppression - was - reason - they - pushed - new - election - law/R9iQlcYqCBY3k1u4k5XdLP/ . 964 , 863 F. Supp. 2d 1155, 1158 (N.D. Fla. 2012) (A preliminary League of Women Voters of Fla. v. Browning injunction was granted against harsh and unconstitutional restrictions of community - based voter registration groups - and teachers, on May 31, 2012. “The statute and rule impose a harsh and impractical 48 hour deadline for an organization to deliver applications to a voter - registration office and effectively prohibit an organiz ation from mailing applications in. And the statute and rule impose burdensome record - keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional even to the extent they do not violate the NVRA.”). This was fol League of Women Voters lowed by a permanent injunction against these restrictions on Aug. 30, 2012. of Fla. v. Detzner , No. 4:11 - CV - 628 - RH/WCS, 2012 WL 12810507 (N.D. Fla. 2012). 965 Florida v. United States , 885 F. Supp. 2d 299 (D.D.C. 2012) (Florida failed to meet its burden of showing retrogression would not occur if it reduced early voting days from 12 to 8 while also reducing early voting hours from 96 to 48).

168 An Assessment of Minority Voting Rights Access 162 the federal court ruled that Florida could not reduce early voting days and hours as it had after envisioned, 67 county Supervisors of Ele ctions Florida’s had wide discretion, but after originally five covered counties agreed to restore some (but not all) of the early voting days that were the 966 DOJ agreed to end its challenge. the In 2013, the state legislature also partially restored cut, thereaft er, a case brought by voting; Corrine Brown alleging violations of early Congresswoman 2 and the U.S. and Florida constitutions seeking to Section early voting on behalf of black restore 967 968 Duval County voters was also dismissed. in meantime, in 201 2 , the state legislature’s reduction of the number of mandatory early voting In the from 14 to eight and elimination of in - person voting on the final Sunday before Election Day days 969 the was law. What remained was a patchwork of 67 counties’ discretion, with a significant still 970 on voters negative in Florida. impact scrambled the weekend before Up Election Day, advocates until to urge counties to add early 971 days and hours. The Florida voting Democrat ic Party also filed suit, resulting in a settlement for 972 extended voting hours in the largest counties. N ot all requests were granted, nor were all early hours restored in the largest counties, and voters waited up to 7 hours in many days and 973 A study of wait time data at precincts. precinct level covering 92 percen t of Florida’s the 3.7 million voters in 2012 found that precincts with higher concentrations of Hispanic voter s closed later Day, and that “in Miami - Dade County, on early voting polling stations with the Election 966 See, e.g., Warren Richie, Early Voting: Why Justice Dropped Its Challenge of Florida Plan , C H RISTIAN S CI . M ONITOR (Sept. 13, 2012), https://www.csmonitor.com/USA/Elections/2012/0913/Early - voting - Why - Justice - - its c hallenge - of - Florida - plan (The five covered counties were Collier, Hardee, Hendry, Hillsborough, and - dropped Notice of Administrative Preclearance, Brown v. Detzner , No. 3:12 - CV - 00852 (M.D. Fla. 2012), see also Monroe.); (preclearance http://moritzlaw.osu.edu/electionlaw/litigation/documents/NoticeofAdministrativePreclearance.pdf determination that cuts to mandatory early voting were not enacted with discriminatory purpose and were not retrogressive). 967 Complaint, Brown v. Detzner , 3:12 - CV - 00852 (M.D. Fla. 2013), . http://moritzlaw.osu.edu/electionlaw/litigation/documents/Complaint_003.pdf 968 Order of Dismissal, Brown v. Detzner , 3:12 - CV - 00852 (M.D. Fla. 2013), . http://moritzlaw.osu.edu/electionlaw/litigation/documents/DismissalOrder.pdf 969 Daniel A. Smith, When Florida Rolled Back Early Voting, Minorities Were Especially Affected, S CHOLARS S TRATEGY N ETWORK (Mar. 2014), http://www.scholarsstrategynetwork.org/brief/when - florida - rolled - back - early - voting - - were - especially - affected . minorities 970 Mic hael C. Herron and Daniel A. Smith, Race, Party, and the Consequences of Restricting Early Id.; see also , P OL . Voting in Florida in the 2012 General Election ESEARCH Q UARTERLY (2014) [ hereinafter Herron & Smith, R Race, Party, and the Consequences ]. 971 Amanda Terkel, Flo rida Early Voting Fiasco: Voters Wait For Hours At Polls As Rick Scott Refuses To Budge , voting_n_2073119.html H OST (Nov. 2012), https://www.huffingtonpost.com/2012/11/04/fl orida - early - P . UFFINGTON 972 See Nat’l. Commission on Voting Rights, Florida State Hearing, Univ. Miami (Mar. 31, 2014), http://votingrightstoday.org/LiteratureRetrieve. aspx?ID=125049 ; Florida Democratic Party v. Detzner , No. 1:12 - CV 24000 (S.D. Fla. 2016) (last accessed Aug. 1, 2018). - 973 Michael C. Herron and Daniel A. Smith, Precinct Closing Times in Florida during the 2012 General Election (Oct. 2014), http://www.dartmouth.edu/~herron/closingtimes.pdf .

169 Chapter 3: Recent Changes in Voting Laws and Procedures 163 concentrations of Hispanic and Black voters had disproportionately long wait times at greatest 974 on and close of polls each day, especially start the final Saturday of early voting.” the both Theodore Allen found that at least 201,000 voters did not cast a ballot in Florida in 2012 Professor the long lines, which, according to county election officials, were caused by the cuts to of because 975 by His analysis of voting data obtained voting. the Orlando Sentinel from county elections early showed that , “ nearly 2 million registered voters live in precincts that stayed open at supervisors least minutes past the scheduled 7 p.m. closing time. ... Of those, 561,000 voters live in 90 976 stayed open three extra hours or longer.” that Moreover, “according to Allen's analysis precincts 977 data, the lengthy lines lo wered actual turnout by roughly 2.3 percent per hour of delay.” the of addition, Professors Daniel Smith and Michael Herron found In that “[e]arly voting by minorities went down in 2012, and voters who had cast ballots on the final Sunday of early voting in 2008 978 up with especially low participation in the general election.” ended Data regarding the use 2012 of the longer early voting period in 2008 compared to data regarding the shortened early voting period 2012 showed that: in Black Floridians of the early voting option. Black people made up about x are heavy users percent percent in 2012, yet in 13 of Florida’s registered voter pool in 2008 and almost 14 of the early voters. both elections they made up about 22 percent ly voting dropped more sharply for minorities The percentage of all voters who used ear x voter s, the early voting share dropped than for white voters from 2008 to 2012. For black percent to 31.6 percent ; and for Hispanic voter s, the early voting share dropped from 35.7 . But for white percent to 15.3 per cent voter s, the early voting share went down from 19.9 979 percent to 17.6 percent . only slightly from 18.5 who For did vote, the impact of the cuts led to exceedingly long lines. For example, n ews those s emerged that a 102 - year - old Haitian - American voter, Desiline Victor, was told she had to report wait 6 hours , and ended up waiting a full three hours, to cast her ballot at her Miami polling place 980 during limited early voting hours remaining the weekend before Election Day. Her story an d the prompted who waited on the long many during early voting in 2012 in Florida others the lines 974 Congestion at the Polls: A Study of Florida Precincts in the 2012 Michael C. Herron and Daniel A. Smith, , A DVANCEMENT P ROJECT , Executive Summary (June 24, 2013), General Election Congestion at the http://b.3cdn.net/advancement/f5d1203189ce2aabfc_14m6vzttt.pdf hereinafter Herron & Smith, [ Polls ]. 975 Scott Powers & Davi d Damron, Analysis: 201,000 in Florida didn't vote because of long lines , O RLANDO S ENTINEL (Jan. 19, 2013), http://articles.orlandosentinel.com/2013 - 01 - 29/business/os - voter - lines - statewide - . - - sentinel 20130118_1_long analysis - state - ken - detzner lines - 976 Id. 977 Id . 978 Herron & Smith, Race, Party, and the Consequences , supra note 970. 979 . Id 980 UFFINGTON D , H Ryan J. Reilly, P OST (Feb. 13, esiline Victor Gets Standing Ovation at State of the Union Address 2013), https://www.huffingtonpost.com/2013/02/12/desil ine - victor - state - of - the - union_n_2674160.html (discussing subsequent creation of PCEA).

170 An Assessment of Minority Voting Rights Access 164 of the PCEA, discussed above, which found that cuts to early voting w ere a significant creation in factor wait times. increased Discussion of related Section 2 litigation in Chapter 2, supra . Carolina North See Ohio regarding Florida and North Carolina, the record Compared discriminatory impact of cuts to to voting is not as clear in Ohio. The early enacted early voting following long lines in urban state higher levels of minority voters in 2004, and the state settled related constitutional counties with in Protection and Due Process claims after protracted litigation the case of League of Women Equal 981 v. Brunner . waited Allegations included that voters Voters for many hours because of inadequate polling place resources in various counties, which also caused 10,000 voters in Columbus to be 982 vote. to In 2004: unable of were forced to wait from two to 12 hours to b ecause inadequate Voters vote voting machines. Voting machines of were not allocated proportionately allocation the voting population, causing more severe wait times in some counties than to in others. At least one polling place, voting was not completed until 4:00 a.m. on the wait [E] lection [D] ay. Long day times caused some voters to leave their following attend without voting in order to places school, work, or to family polling responsibilities or because a physical disability prevented them from standing in lin e. Poll workers received inadequate training, causing them to provide incorrect instructions leading to the discounting of votes. In some counties, poll workers and to the wrong polling place, forcing them to attempt to vote misdirected voters 983 es delaying them by up and to six hours. tim multiple no racial discrimination claim was brought, the Equal Protection claims indicated that Although lines were in Ohio’s the largest counties, with high levels of minority voters. After the long longest 2004, the Ohio legislature adopted a broad of in - person early voting regime that permitted lines voters to cast early ballots up to the Monday before Election Day . Federal courts later noted that 984 e voting was enacted “to remedy these problems [of long lines],” arly throu gh “no - fault early being the requirement that Ohio voting, voters had to provide an excuse for not eliminating able 985 vote on Election Day in order to vote early.” to Early voting has become very popular in Ohio. At the Commission’s Ohio SAC briefing on vo ting rights, Director of the Franklin County Board of the Elections ( where Columbus is located) 981 Order Enforcing Settlement Agreement, League of Women Voters v. Brunner , 3:05 - CV - 07309 (S.D. Ohio 2009), https://lawyerscommittee.org/wp - . content/uploads/2015/06/00421.pdf 982 League of Women Voters of Ohio v. Brunner , 548 F.3d 463, 468 (6th Cir. 2008) ; see also Settlement Agreement, League of Women Voters v. Brunner , 3:05 - CV - 07309, ¶ B (S.D. Ohio 2009). 983 Husted , 768 F.3d at 531 (6th Cir. 2014) (quoting League of Women Voters of Ohio , 548 F.3d at 477 - 78). 984 Husted , 768 F.3d at 531. 985 Id .

171 Chapter 3: Recent Changes in Voting Laws and Procedures 165 that in 2016, about 40 percent of all Franklin County citizens who voted in the 2016 testified 986 election so through early voting. presidential did ’s early voting days Ohio and hours were reduced through several amendments in 2011 , However, litigation ensued in a case brought by the Democratic Party . A preliminary injunction was and 987 i August 2012 , and p laintiffs’ motion for summary judgment was granted by the Sixth granted n 988 of Appeals i n June 2014. Court But later i n 2014, Ohio cut the last three days of early Circuit At that point, a claim involving racial discrimination was brought voting. Ohio NAACP v. in Husted allegi ng violations of the Constitution and Section 2 of the VRA. A federal district court , 989 issued a preliminary injunction i n September 2014, Ohio which the Sixth Circuit affirmed of 990 month . that The Sixth Circuit found no clear error in the district court’s findings, later same that : recognizing each [expert opinion] , the district After court credited [expert witness] assessing that, based on his statistical analysis, African Americans will Smith’s conclusion disproportionately and negatively affected by the reductions be in early voting . . . . The district court also accepted expert] Roscigno’s “undisputed” findings [another that disparities in employment and in residential, transportation, and childcare options African American and white voters signif icantly increased the cost between 991 a vote for African American voters. casting of experts voters also testified about research indicating that African - American Ohio use early voting in many states , and shortening the ear ly vote period negativel y disproportionately 992 turnout among African Americans. the Moreover, impacted Sixth Circuit affirmed that the state’s in preventing fraud or cutting costs did not justify discriminatory results of cuts to interests court . It concluded that the district early “properly identified that the specific concern voting regarding voter fraud — that the vote of Defendants an EIP [early in - person] voter would expressed be counted before his or her registration could be verified — was not logically linked to concerns 993 with and register ing on the same day.” Further, there was no evidence that county boards voting 994 were struggling of the costs of early voting. with election Circuit Regarding Section 2 claim, the Sixth the considered “statistical evidence that African Americans use EIP voting a t higher rates than others,” and “evidence in the record that African 986 Ohio State Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in Ohio Briefing Transcript, Mar. 9, 2018, at 4, https://facadatabase.gov/committee /meetingdocuments.aspx?flr=155584&cid=268 [ hereinafter Voting Rights Briefing Ohio SAC, ]. 987 Obama for Am. v. Husted , 888 F. Supp. 2d 897, 910 (S.D. Ohio) aff’d , 697 F.3d 423 (6th Cir. 2012). 988 Obama for Am. v. Husted , 2014 WL 2611316, No. 2:12 - CV - 636 (S. D. Ohio 2014). 989 , 43 F. Supp. 3d 808, 852 (S.D. Ohio 2014). Ohio State Conference of N.A.A.C.P. v. Husted 990 Ohio State Conference of N.A.A.C.P. v. Husted , 768 F.3d 524, 561 (6th Cir. 2014). 991 Id . at 533 (internal citations omitted). 992 . Id 993 Id . at 547 (em phasis added). 994 Id . at 549.

172 An Assessment of Minority Voting Rights Access 166 ‘tend to disproportionately make up the groups that benefit the most from same - day Americans 995 the and the homeless.” registration: Moreover, the court concluded that “the provision of poor rights one of EIP voting burdens the voting Sunday of African Americans by arbitrarily only Souls to the Polls voting initiatives; and that, because African limiting Americans are more likely of lower - socioeconomic status, they tend to work hourly jobs and can find it difficult to be find to 996 vote during normal business hours.” Considering to these factors and the totality of time the circumstances, court of appeals affirmed that p laintiffs were likely to succeed on the merits of 997 Section 2 vote denial claim, and affirmed the preliminary injunction. their However, the state too the Supreme Court that the injunction was issued close to Election Day, so it would argued to burdensome and confusing. On September 29, the Supreme Court stayed the injuncti on, and be 998 cuts to early voting were therefore allowed to proceed for the 2014 election cycle. 2014 the The issue of whether the cuts to early voting were racially discriminatory was never adjudicated on the me rits, as the case was settled in April 2015, wh en Ohio Secretary of State Husted agreed in settlement stipulated to the federal court to set uniform early voting days and hours that every a 999 and provide . In particular, the settlement restores early voting on Sundays it county must 1000 hour s the week evening Election Day. restores before Wisconsin a Wisconsin federal court found in One In Wisconsin Institute, Inc. v. Thomsen that the 2016, to early voting, including state’s eliminating weekend voting and providing for only one limits 1001 voting location per county, violated 2. early This was because: Section Wisconsin’s rules for in - person absentee voting all but guarantee that voters will have experiences with in - person absentee voting depending on where they different ballot, in large cities will have to crowd live: one location to cast a voters while into voters in smaller municipalities will breeze the process. And because most through of Wisconsin’s African American population lives in Milwaukee, the state’s largest 995 Id . at 551. 996 . Id 997 Id . at 560. 998 , 135 S. Ct. 42 (2014) (granting stay pending writ of certiorari). Husted v. Ohio State Conference of N.A.A.C.P. 999 - person For example, prior to any Presidential General Election, each county board was required to provide for in absentee (early) voting as follows: “Weeks One and Two of Voting (beginning with the day after the close of registration for the election exce pt any holiday established by state law) 8:00 a.m. to 5:00 p.m. on each weekday (Monday through Friday) Week Three of Voting 8:00 a.m. to 6:00 p.m. on each weekday (Monday through Friday) 8:00 a.m. to 4:00 p.m. on Saturday 1:00 p.m. to 5:00 p.m. on Sunday Week Four of Voting 8:00 a.m. to 7:00 p.m. on each weekday (Monday through Friday) 8:00 a.m. to 4:00 p.m. on the Saturday before election day 1:00 p.m. to 5:00 p.m. on the Sunday before election day Week of Election Day 8:00 a.m. to 2:00 p.m. on the Monday before election Ohio State Conference of The Nat. Ass’n For The Advancement of Colored day.” 10(a), Settlement Agreement, , No. 2:14 - CV - 00404 (S.D. Ohio 2015), People v. Husted http://moritzlaw.osu.edu/electionlaw/litigation/documents/NAACP111 - 2.pdf . 1000 Id . 1001 One Wisconsin Inst. , 198 F. Supp. 3d at 956.

173 Chapter 3: Recent Changes in Voting Laws and Procedures 167 the in - person absentee voting pro visions necessarily produce racially disparate city, Moreover, have demonstrated that minorities plaintiffs actually use the burdens. hours for in - person absentee voting that were available to them under the extended old laws. disparately court concludes that the in - per son absentee voting The provisions 1002 and Latinos. African Americans burden Other Accessibility Issues Polling Place and history is full American examples of people facing violence and risking death for basic access of to the fundamental right to vo te. When men and women marched across the Edmund Pettus Bridge 1003 in Selma, Alabama, access to the in polls was a key issue. While current conditions 1965 are less violent, the Commission heard testimony and information showing that access to the reviewed polls remains a key issue at the state and local level since the 2006 VRA Reauthorization and in 1004 the - Shelby County era. post e and information received by the Commission testimony is complemented by a data - based Th by the Leadership Conference on Civil and study Human Rights, as well as the Commission’s independent research of other available sources. This discusses states where such data were section available. The Commission notes that the widespread nature of this problem indicates that there 1005 other instances of polling place accessibility issues in other states. are likely 1002 . Id 1003 See e.g. , Shelby Cty. Protecting the Right to Vote, supra note 95 (“[M]any , 570 U.S. at 546, 549; Kousser, pe ople believe it was violence, not laws, that disfranchised African Americans, and that few Southern blacks continued to vote after the Compromise of 1877, which resulted in the withdrawal of U.S. troops and the collapse of the last Reconstruction Republica n state governments. But, in fact, large proportions of African Americans somehow managed to vote in the next election in two - thirds of the counties where the most horrific Reconstruction ually higher than it often is today, and many violence took place. Black turnout in the South in the 1880s was act African Americans continued to win elections for local and state offices and Congress through the 1890s. Disfranchisement was accomplis hed by law, not by force . . . Some scholars also have failed to notice tha t disfranchisement was an incremental process, taking place over many years and involving many types of actions. First, violence and intimidation, most intense during the 1860s and 1870s, killed or ran off many Republican leaders and gave Democrats control of election boards. Then Democratic election officials perpetrated the largest election frauds in U.S. history, which reduced the number of their political opponents but did not eliminate them. With majorities in state legislatures, Democrats passed chang es in statutes that included gerrymandering election districts, substituting at - large for district elections in majority - white areas to deny opponents any offices at all, making it much more difficult to register to vote, or mandating secret ballots to dis franchise the illiterate. Finally, by the 1890s and early 1900s, with the electorate and the number of partisan opposition officials reduced, with the ability to move on to state falsify election returns and with the option to use violence if needed, Democrats were able to constitutional disfranchisement with literacy tests and especially poll taxes.”). 1004 See Discussion and Sources cited in this section herein. 1005 See Discussion and Sources cited in this section herein .

174 An Assessment of Minority Voting Rights Access 168 Moving or Eliminating Polling Places a polling place or closing a polling place may not always be discriminatory, but sometimes Moving 1006 Prior to Shelby County , most changes in polling places (including changes in polling place it is. were approved by the DOJ, but some were found to be discriminator y and resources) therefore not 1007 Since 1965 and particularly after 1982, the rate of objections to polling place moves precleared. instances time. Yet there were always decreased of polling places being reduced, moved away over 1008 of color, and made less accessible. communities Some of t hese discriminatory voting from changes were stopped by preclearance. Along cuts to early voting, reducing polling place access can lead to long lines. After such with of to long lines in Ohio and cuts in 2008 and 2012, a Massach usetts Institute led Florida 1009 (MIT) study found that lines were significantly longer in some states than others. Technology Figure 9 reproduces a map of the results of MIT’s national study: 1006 note 234, at 258 Briefing Transcript , supr a ., - 59 (statement by Dale Ho). See, e.g 1007 See, e.g Voting Determination Letters for Texas (last updated Aug. 7, 2015), ., U.S. Dep’t of Justice, /voting - https://www.justice.gov/crt - letters - texas (showing 16 letters based on polling place changes, determination with 7 occurring after 1982); see also U.S. Dep’t of Justice, Voting Determination Letters for Mississippi , hereinafter https://www.justice.gov/crt/voting - letters - mississippi (last updated Aug. 7, 2015) [ determination DOJ, - Voting Determination Letters in MS ] (showing 9 letters based on polling place changes, with 4 occurring after 1982). 1008 Id. 1009 Charles Stewart III , Waiting to Vote in 2012 , 15 (2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2243630 (as prepared for the conference on “The Voting Wars: E lections and the Law from Registration to Inauguration,” University of Virginia Law School, Mar. 23, 2013, Charlottesville, Virginia).

175 Chapter 3: Recent Changes in Voting Laws and Procedures 169 9 Voting Wait Time, 2008 and 2012 Figure : 1010 acies State Democr of Health Source: shows that lines were longer in the formerly covered It jurisdictions. above, preclearance was conducted by discussed providing Census data about the As jurisdictions impact of reductions or racial in polling place locations, as well as DOJ interviewing changes 1011 community leaders about the impact of the change. minority This method took into account not factor only most recent local Census data , but also the s such as whether there was adequate public transportation, whether the proposed polling plac e location was in a Sheriff’s office, whether it 1012 area from a school, was church , or community center, or whether it was no longer in an moved 1013 for walking. safe Section 5 also effectively required public notice of changes in polling place 1014 T he Leadership Conference explains locations. that: 1010 , HSD Health of State Democracies, Voting Wait Times, 2008 and 2012 (last accessed June 11, 2018), https://healthofstatedemocracies.org/factors/waittime.html 1011 See Discussion of Section 5 preclearance procedures and Sources cited in notes 224 - 34, supra . 1012 PCEA Report, und that schools are ideal polling place locations, as they are note 663, at 33 (PCEA fo supra - based and familiar). community 1013 Discussion and Sources cited at notes 1046 - 58, infra . See, e.g., 1014 See The Leadership Conference Education Fund (LCEF), The Great Poll Closure , LCEF 1 (Nov. 2016), hereinafter http://civilrightsdocs.info/pdf/reports/2016/poll closure - report - web.pdf [ - Leadership Conference Education Fund, The Great Poll Closure ] (“Pre - Shelby [County], jurisdictions were required to give substantial

176 An Assessment of Minority Voting Rights Access 170 Shelby County ] , voters have to rely on [ news reports and anecdotes from local - Post who attend city advocates county commission meetings or legislative sessions and changes are contemplated to these poten tially discriminatory polling where identify location and precinct changes. In the vast majority of instances, closures have place 1015 unreported, and unchallenged. unnoticed, gone n its 2016 study of 381 counties in formerly covered jurisdictions, the Leadership Conference I 165 (43 percent ) of these formerly covered that counties had reduced the number of polling found 1016 since the Shelby County decision, leaving voters with fewer places to vote. places According in to Leadership Conference report, even with limitations the data available in Alabama, the , and Texas, in 2016, public records showed a high number of polling places closed Mississippi 1017 the Shelby County decision in some of the formerly covered states, as follows: since Alabama North (polling places closed) Carolina — 27 — 66 12 Arizona — 212 South — Carolina Louisiana — 103 Texas — 4 0 Mississippi — 44 notice to voters about any planned polling place closures. And they were required to consult with the minority community to ensure that any proposed voting change was not discriminatory .”). 1015 . Id 1016 Id . at 4. There is insufficient public information to determine or corroborate whether these closures were racially discriminatory. 1017 Id . at 5.

177 Chapter 3: Recent Changes in Voting Laws and Procedures 171 he records reviewed by the Leadership Conference also indicate that , in some instances, T public percent the polling places closed was substantial. For example, some counties in Arizona and of 1018 50 reduced number of polling places by more than their percent . While the rationale for Texas the number of polling places may be to redu money, at least in some instances, when cing save 1019 far, the rationale led to extremely long lines or other discriminatory impacts that taken too 1020 the loss of preclearance of these changes how may have led to discriminatory results. e illustrat following section The organized to illustrate regional trends impacting different groups of is minority voters. Arizona impact of Shelby County was felt in the closure of polling places in Arizona prior to state’s The the primary of March 2016. Arizona had preference been subject to preclearance since the presidential VRA reauthorization, which expanded Section 5 to more fully 1975 include “language minority” 1021 (Latino, Asian , and Native Americans). populations The Leadership Conference ’ s examination in records regarding closure of polling places of 2016 found that: public leading By and scale, Arizona is the sheer closer of polling places in t he numbers aftermath of Shelby [ County ] . Almost every Arizona county reduced polling places in of the 2016 election and most on a massive scale — leading to 212 fewer advance locations. Arizona counties are the leaders in our study for both numbers of voting places closed and percentage of polling places. Pima County is the nation’s polling closer of polling places by number with 62 fewer voting locations biggest in 2016 than 2012. Cochise County is the nation’s biggest closer by percentage with its 63 1022 ion. percent reduct the state’s largest county, Maricopa , the In of polling places was reduced from 200 to 60 number in 2016. During discussions on reducing the number of Maricopa County polling centers, County Supervisor Gallardo questioned whether 60 polling ce nters would be sufficient. The County Steve be Elections Director both responded that 60 would Recorder enough as the County was and 1018 . at 7, 11 - 12. Id 1019 See, e.g ., Discussion and Sources cited in notes 1022 - 27, infra izona). (regarding Ar 1020 See, e.g ., Kristina Torres, Cost Cutting Moves Spur Fears About Reducing Access to Georgia Voters , T HE - A TLANTA J OURNAL - C ONSTITUTION (Oct. 11, 2016), https://politics.myajc.com/news/state -- regional - govt -- georgia politics/cost - moves - spur - fears - about - reducing - access - cutting - voters/qu9llnbKd6dSl6yblbB68M/ ; see - Discussion and Sources c ited in notes 1045 - 49, infra (regarding Georgia). 1021 See Discussion of 1975 VRA Amendments and Sources cited therein at notes 162 - 67, supra ; see also Juan B Cartagena, N AT ’ L , 18 LACK L. J . 201, Latinos and Section 5 of the Voting Rights Act: Beyond Black and White 210 - 11 (2005); see also Voting Rights: Hearings on H.R. Doc. No. 6400 Before Subcomm. No. 5 of the H. Comm. on the Judiciary - 17 (1965) (statements of Latino community leaders regarding racial , 89th Cong., 1st Sess. 508 discrimination in voting impac ting Latinos in New York and Texas). 1022 Leadership Conference Education Fund, The Great Poll Closure , supra note 1014, at 7.

178 An Assessment of Minority Voting Rights Access 172 a new system that allowed voters to vote at any polling center, and as they expected implementing 1023 mail all voters to vot e via of rather than in - person. percent 95 instead, due to the polling place closures, a ccording to But n Arizona Republic survey , voters a 1024 they were forced to wait i n line that for hours during the 2016 primary. County reported estimated they saved over $1 million, but four officials places were overwhelmed with polling 1025 3,000 voters each . over The Arizona Republic mapped the closure of polling places in Maricopa data, the results to Census ed and found that : County, compar both rich and poor areas were hurt by a lack of polling sites this year, While a wide swath of predominantly minority and lower - income areas in west Phoenix and east Glendale, along with south Phoenix, particularly lacking in polling were sites compared with 2012. Poorer areas of east and west Mesa lacked polling sites 1026 as as did south Avondale and much of Goodyear. well, Brennan Center’s analysis of data provided by Maricopa County found that: Similarly, On average, vote centers across the county [of Mar 4 hours late. x icopa] closed more than 4 hours late. Vote centers in Phoenix closed, on average, more than x Latino voters faced disproportionately long wait times. Across heavily Latino census tracts, 4 the average wait time at the closest voting center was m ore than hours. Vote centers with longer wait times tended to have fewer resources, such as poll workers x 1027 and electronic poll books, per voter. was brought under Section 2, Litigation alleging disparate impact and discriminatory effects for 1028 of co lor during the 2016 primary , voters but that case was settled after polling places were re - 1023 Recording: Maricopa County Board of Supervisors Formal Meeting at 55:09 (Feb. 17, 2016), ; see also Rob O’Dell, Yvonne Wingett http://video2.siretech.net/SIRE/MaricopaCounty/Formal/2870/2870.mp4 Sanchez, and Caitlin McGlade, Lack of polling sites, not independents, caused Maricopa election chaos , A RIZ . R EPUBLIC (Mar. 23, 2016) https://www.azcentral.com/story/news/politics/elections/2016/03/23/maricopa - county - - primary election - chaos - arizona/82174876/ . presidential - 1024 Yvonne Wingett Sanchez, While Others Waited to Vote, 1 Maricopa County Site Had 21 Voters, (Mar. 25 . R RIZ , 2016), https://www.azcentral.com/story/news/politics/elections/2016/03/25/one - A EPUBLIC - county - polling maricopa site - had - 21 - voters/82269370/ [ hereinafter Sanchez, While Others Waited Hours to Vote ]. - The Arizona State Advisory Committee also held a hearing regarding voting rights in Arizona and received significant testimony regarding polling place closures. U.S. Comm’n on Civil Rights, Voting Rights in Arizona, Jul. https://www.usccr.gov/pubs/2018/07 - 25 - 2018, at 2, - Voting - Rights.pdf . This report was voted upon June 15, AZ 2018. Id . at 1. 1025 . Id 1026 l & Caitlin McGlade, Map: Areas Hit Hardest By Slim Polling Options , A RIZ . R EPUBLIC (July 7, Rob O’Del maricopa https://www.azcentral.com/story/news/politics/elections/2016/03/27/slim polling - options - - - 2016), county/82278474/ . 1027 Christopher Famighetti , Long Voting Lines: Explained , T HE B RENN AN C ENTER FOR J USTICE (Nov. 4, 2016), http://www.brennancenter.org/analysis/long voting - lines - explained#_ftn1 . - 1028 Complaint, Feldman v. Arizona , No. 2:16 - CV - 01065, (D . Ariz. Apr. 15, 2016), http://moritzlaw.osu.edu/electionlaw/litigation/documents/Complaint041516.pdf .

179 Chapter 3: Recent Changes in Voting Laws and Procedures 173 1029 in County prior to the 2016 general election. opened However, other counties that Maricopa in the number of polling places were significant not part of the settlement. These had reductions (63 percent reduction), where there are County high levels of Spanish - speaking Cochise include: 1030 in 2006, a DOJ consent decree regarding the language requirements of the VRA; voters and (22 percent reduction), which is 35 percent Latino; and Mohave County (46 percent ) County Pima 1031 County (25 percent ), both of which have large Native American populations. Navajo and polling place closures would have been subject to preclearance under Section 5, to determine These whether were inte ntionally discriminatory or retrogressively reduced access for minority they Moreover, data, the state would have had to provide racial impact and members of impacted voters. 1032 input, have had the opportunity to provide would enabling the DOJ to analyze minority groups likely impact of the polling place closures with much greater precision than the procedures the 1033 above. described Alabama may be heightened concerns about reductions in access to the polls in southern states like There according to the 2010 Census, 26.8 percent where of the population is black, and their Alabama, 1034 increased by 9.6 percent between 2000 and 2010 . numbers R egarding the region in general, the greatest of black residents in the U.S. live in the South. In 2010, 5 5 percent of b lack percentage 1035 from the U.S. lived in the South (an increase 5 3.6 percent in 2000). Moreover, the residents in Department of Transportation (DOT) and Alabama settled claims alleging that Alabama’s U.S. 31 Department of Motor Vehicle offices (which closure provid e access to the identification now of “Black vote) disparately occurred in the state’s needed Belt” region and disproportionately to 1036 and impacted voters in Alabama and violated the black Civil Rights Act. The DOT ’s Latino 1029 See Joint Notice of Settlement, Feldman v. Arizona , No. 2:16 - CV - 01065, at 2 (D. Ariz. Sept. 9, 2016), http://moritzlaw.osu.edu/electionlaw/litigation/documents/Feldman - 6.pdf (settling JointNoticeOfSettlement09091 claim “regarding polling location allocation in Maricopa County”). 1030 (D. Ariz. Jun. 16, , No. 4:06 - CV - 00304 United States v. Cochise Cty. Consent Decree, Order and Judgment, See U.S. Dep’t of Justice, Cases Raising Claims Und er the Language Minority Provisions of the VRA see also 2006); - raising - claims - under - langua ge - minority - provisions - (last updated Oct. 16, 2015), https://www.justice.gov/crt/cases - rights - act voting (“The complaint alleged that Cochise County violated Section 203 requirements by failing to provide an adequate number of bilingual poll workers trained to assist Spanish speaking voters on election day and - ng to publicize effectively election information in Spanish.”). by faili 1031 See Adam DeRose, Arizona Has Fewer Polling Places Than 2012 , C RONKITE N EWS (Nov. 7, 2016), than/article_1d70b6de https://www.gvnews.com/election/arizona - fewer - polling - places - has - a545 - 11e6 - 8d46 - - a7280220fbc3.html . 1032 Discussion and Sources cited in Chapter 2, notes 220 - 34, supra (discussing preclearance procedures See including public notice, data required with submission, and minority community input). 1033 Discussion and Sources cited at note 1023, supra (regardin g county board meeting discussion of proposal). Cf. 1034 , U.S. Census Bureau, , C ENSUS B UREAU The Black Population: 2010 8 (Sept. 2011), U.S. https://www.census.gov/prod/cen2010/briefs/c201 0br - 06.pdf (describing the Black or African American alone or in combination population) [ hereinafter U.S. Census Bureau, The Black Population ]. 1035 . at 7 (Figure 2) (describing the Black or African American alone or in combination population). Id 1036 T g ., Keith Lang, , See, e. HE H ILL (Dec. 9, 2015), Feds to Investigate Alabama DMV Closures http://thehill.com/policy/transportation /312055 - - closing - driver - license - offices - in - alabama - violates - civil - rights . feds

180 An Assessment of Minority Voting Rights Access 174 had found that “African - Americans in the Black Belt region are disproportionately investigation by . . [the state’s] driver’s licensing services, causing ‘a disparate and adverse . impact underserved 1037 basis of race, in violation of Title VI.’” the on Leadership Conference study of polling places indicated that 12 T the 18 (67 percent) of he of 1038 that provided data eliminated a total of 66 locations to vote . At counties Alabama the Alabama Secretary of State John briefing, testified that because of the Commission’s Merrill County decision “moving polling places, annexation, and even de - annexation of territory Shelby 1039 could now be enacted without review. by The Commission notes that due to municipalities” loss of preclearance, limited data are available to determine whether the recent closures of the place in state had a discriminatory effect on minority voters in Alabama and throughout polling the 1040 South . the Florida cribed early voting hours as des While in the above Cuts to Early Voting section of this reducing , of Florida concurrently reduced the number report polling places open during early voting 1041 Moreover, hours. data showed that the long lines Florida in 2012 were also concurrent with in fewer voting machines and poll workers, which disparately impacted black and Latino vo ters and 1042 caused to wait longer than white voters. The harshest disparate impact and longest wait them workers vote correlated with lack of sufficient poll in polling places with higher portions times to 1043 Latino voters. Additionally, in 2016, the Electi on Protection hotline of run by the Lawyers’ Civil Rights Committee Under law received “multiple” complaints by voters about “aggressive, for 1044 by individuals at polling intimidating in Florida . places behavior” Georgia is another formerly covered jur isdiction Georgia with ongoing problems regarding access to polling places. Ezra Rosenbe rg testified about the post - Shelby County move of a polling place to 1037 Id . 1038 Leadership Conference Education Fund, , supra note 1014, at 4. The Great Poll Closure 1039 [ hereinafter Merrill, John Merrill, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018 Written Testimony]. 1040 Cf . Discussion of Preclearance Procedures and Sources cited in Chapter 2, at notes 220 - 34, supra. 1041 Discussion and Sources cited at notes 962 - 80, supra . See 1042 16 (analyzing precinct closing times and Herron & Smith, , supra note 974, at 15 - See Congestion at the Polls Florida voter registration data by race in 5,194 Florida precincts representing 92 percent of the 3.7 million Floridians who voted, and finding racial disparities); see also Christopher Famighetti, A manda Melillo, & Myrna Pérez , E LECTION D AY L ONG L INES : R ESOURCE A LLOCATION 16, T HE B RENNAN C ENT . FOR J USTICE (2014), http://www.brenna ncenter.org/sites/default/files/publications/ElectionDayLongLines ResourceAllocation.pdf (citing - - hereinafter Famighetti et al., Election Day Long Lines ]. survey based studies on voter wait times) [ 1043 Famighetti et al., Election Day Long Lines , supra 1042. note 1044 William Wan, , W ASH Voting Issues in Florida: Intimidation Reported at Polling Places P OST (Nov. 8, 2016), . https://www.washingtonpost.com/politics/2016/live - updates/general - election/real - time - updates - on - the - 2016 - - election voting - and - race - results/voting - issues - in - florida - intimidation - reported - at - polling - places/?utm_term=.4d955dee4e63 .

181 Chapter 3: Recent Changes in Voting Laws and Procedures 175 1045 Sheriff office in Macon - Bibb County. a Using the Sheriff ’s office as a polling place can be ’s local especially considering th e history of violence by law enforcement at the polls , intimidating 1046 Jim Crow during Moreover, in modern times, “the president of the Macon - Bibb the era. . . . said it sent ‘the wrong message’ among residents chapter had raised concerns NAACP who 1047 law enforcement in local recent years.” about order to defeat the measure to move the polling place to the Sheriff ’s office , t he c ounty NAACP In 1048 from 20 percent of registered, active voters in the county. collected Gwen signatures president of of the Macon - Bibb County chapter the NAACP, commented that, Westbrooks, 1049 from at some of the same issues the 1960s in 2016.” looking “We’re Indiana April 2018, an Indiana federal district court held that Marion County’s reduction of the number In therefore voting sites was likely to vi olate Section 2 of the VRA , and it early issued a of requiring the county to reestablish injunction two additional satellite early voting preliminary 1050 for the N ovember 2018 general election. offices The federal court took into account that the 1051 county introduced experimental satellite office s for early voting in 2008, and there were had 1052 or staffing issues . o H owever, the board administrative voted not to re - open the satellite n in 2016, leaving Ma rion County , one of Indiana’s largest counties, with only one location offices 1053 the for voting . The court also took into account that the only place for early voting was early 1054 County building, which resulted in long commutes and - long wait times , City forcing some to 1055 participate in early voting. The not c ourt concluded that the action “ impose[d] only a limited 1045 note 651, at 4 (noting that “While we were fortunate to have partners on Rosenberg, Written Testimony, supra ffective Section 5 would have placed the the ground that alerted us to the problems that could be stopped, an e burden on these jurisdictions to have provided notice of these changes in their voting practices and policies before they took effect.”). 1046 , U.S. C OMM ’ N ON IVIL R IGHTS V OTING 1961 , supra note 62, at 67 (d escribing how black voters who See, e.g. C — a not - went to register to vote in Louisiana in July 1960 “were referred to the sheriff - subtle form of too intimidation” and, in another instance, a sheriff warned a black resident, who had planned a meeting with the discuss voter registration, not to “say anything about voting.”). NAACP to 1047 T - Cutting Move Spurs Fears About Reducing Access to Georgia Voters Kristina Torres, Cost HE A TLANTA , OURNAL J C ONSTITUTION (Oct. 11, 2016), https://politics.myajc.com/news/state -- regional - govt -- politics/cost - cutting - - moves - spur - fears - about - reducing - access - georgia - voters/qu9lln bKd6dSl6yblbB68M/ . 1048 Macon - Bibb Polling Location OK’d After Sheriff’s Precinct Nixed , T HE T ELEGRAPH (May 16, Stanley Dunlap, http://www.macon.com/news/local/article77920442.html 2016), . 1049 Id . 1050 Common Cause Indiana v. Marion Cty. Election Bd. , 311 F. Supp. 3d 949, 977 (S.D. Ind. 2018). However, the court denied the plaintiff’s motion, in part, electing not to enjoin the defendants to establish the satellite offices for the May 2018 Primar y Election. Id . 1051 Id. - 56. at 955 1052 Id. 1053 Id. at 958 - 59. 1054 old mother had wanted to cast an EIP vote as well but she ‘did not want to go downtown as Id. (One “77 - year - she has trouble walking and normally uses a cane or walker.’”). 1055 Id .

182 An Assessment of Minority Voting Rights Access 176 1056 it had a disparate impact on those “who lack financial means or flexible yet burden,” 1057 The court also took note of the disproportionate imp act of the cuts to early schedules.” negative in lack voters , citing the greater decline b African - American absentee voters compared on voting white voters to in the 2012 and 2016 elections that occurred after the cuts following the 2008 1058 elections. Louisiana on a history of discrimination in voting, Louisiana had been covered under Section 5 since Based 1059 Shelby The Leadership Conference found that since the County decision, 61 percent of 1965. 1060 parishes have closed a total of 103 polling places . Louisiana At the Com mission’s Louisiana SAC on voting rights, Jhacova Williams, Ph.D. Candidate in the Economics Department briefing Louisiana State University , presented her research finding that “a negative and statistically at and with the percent [of] black [residents] the number of polling places significant association that census tracts that have higher percentages of black residents have fewer polling indicating polling . . for a 10 percentage point increase in black residents there are 1.2 percent fewer . places 1061 found a census tract.” s within She also “a positive and statistically significant relationship place 1062 income and the number of polling places,” between and that “[i]t is also the case that the 1063 proportion black residents and income per capita are negatively correlated.” of Mississippi may be heightened concerns about reductions in access to the polls in states like Mississippi, There 1064 the highest percentage of black residents of any state. has Widespread, flagrant , and which discrimination against black voters in Mississippi led rampant the enactment of the 1965 to 1065 Prior to Shelby County , Mississippi had been covered since 1965, and even though there VRA. the been successful post - Shelby County litigation in has state , a pattern of objections from 2006 not to 2013 showed that it continued to be one of the states with the highest level of VRA violations 1066 in years. Also prior to Shelby County , the DOJ had sent observers to monitor elections recent 1056 Id. at 969 (quo ting Crawford , 553 U.S. at 202). 1057 Id. 1058 Id. 1059 See, e.g ., U.S. Dep’t of Justice, Voting Determination Letters for Louisiana , https://www.justice.gov/crt/voting - on - letters - louisiana (last updated Aug. 7, 2015) (including 10 objections since 2000). determinati 1060 Leadership Conference Education Fund, The Great Poll Closure , supra note 1014, at 8. 1061 Louisiana State Advisory Committee to the U.S. Comm’n on Civil Rights, Public Meeting: Civil Rights and Barriers to Voting in Louisiana 16 (Dec. 6, 2017). 1062 Id. 1063 . Id 1064 U.S. Census Bureau, The Black Population , supra note 1034, at 8. 1065 notes 40 See Sources cited in Discussion and - 43; see also Robert History of Minority Voter Suppression, supra McDuff, The Voting Rights Act and Mississippi: 1965 - 2006 , 17 U. OF S. C AL . R EV . OF L. AND S OC . J UST . 475 (2008), . https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/issue_17/05_Mississippi_Macro.pdf 1066 See, e.g ., DOJ, Voting Determination Letters in MS, supra note 1007; Figure 23, DOJ Objectio n Letters by State (2006 - 2013).

183 Chapter 3: Recent Changes in Voting Laws and Procedures 177 1067 on a regular basis. Mississippi Observers were sent to Mississippi when DOJ believed there in a was to protect against potential discrimination in voting, based on pre - election need of backdrop, there have been significant closures Against polling places in the investigations. this state. its 2016 study, the Leadership Conference located public records from 59 of Mississippi’s 82 In found that 20 of those 59 counties (34 percent ) had reduced the number of polling counties, and 1068 preclearance the Shelby County decision. since The impact of the loss of of changes in places is illustrated places the following: polling by 20 12, the majority - White In Lauderdale County Election Commission established precincts that were backed by a $65,000 voter impact study, and precleared as non - atory the Justice Department. The next year, a hard fought mayoral discrimin by resulted in the 62 percent Black city of Meridian in the election of the city’s race Black mayor, Percy Bland, even though a noose was hung outside of his first business the campa ign. Less than one month later, the Shelby [ County ] during the the Voting Rights Act and set decision a chain of events that allowed gutted off election commission to eliminate six of the county’s 48 polling places without preclearance. In 2015, the election comm ission proposed a plan to move several of Meridian’s municipal polling places out of Black churches, including Mt. Olive election an iconic church with a legacy of voting rights activism. Despite the fact Baptist, Olive’s pastor and Mayor Bland bo th opposed the plan — which also broke that Mt. a major Black precinct — the county implemented the moves without a study of up 1069 on its voters. impact case has not been litigated, and the Commission does not have relevant data Although this discriminatory imp acts, it raises several issues regarding showing the negative impacts of loss of preclearance. First, “ whether political campaigns have been characterized by overt or subtle racial appeals ,” like the noose hung outside the black candidate’s business in this instance , are taken into 1070 account Section 2 cases. Second, in places with high levels of racially polarized voting such in to redistricting that is no longer subject as preclearance may dilute minority voting Mississippi, 1071 able leading rights voters of color no longer being to elect candidates of their choice. , This to may happen when minority precincts are split, as was done in 2015 in Meridian, Mississippi. All when of intersects with the issue of moving polling places this district lin es are redrawn . W hether 1067 See Discussion and Sources cited at note 1493, infra ; Appendix G: Federal Observers by Year, State and County and Appendix H: DOJ Election Monitors by Year, State, and County. 1068 The Great Poll Closure , supra Leadership Conference Education Fund, note 1014, at 9 (footnotes omitted). 1069 Id . at 9. 1070 Gingles , 478 U.S. at 37. 1071 Id . at 56; see also Bruce E. Cain & Emily R. Zhang, Blurred Lines: Conjoined Polarization and Voting Rights , O HIO S T . L. J. 867 (2016), passim [herei nafter Cain & Zhang, Blurred Lines ]. 77

184 An Assessment of Minority Voting Rights Access 178 not a VRA violation would be found in this particular case, it illustrates the myriad of issues or would been taken into account under the have former preclearance regime. that Carolina North records reviewed by the Leadershi p Conference reportedly show that of the 40 formerly Public counties North in Carolina, in the post - Shelby County era, 12 counties had closed a total covered 1072 Cleveland polling places by 2016. 27 For example, County went from having 26 polling of in 2012, to 21 in 2016. In the city of Shelby County , North Carolina (40 places black), five percent 1073 places were merged into two. polling Further research would be needed to determine whether effect; place closures had a racially discriminatory such researc h would seek to these polling if the fact that half of the county’s polling places that closed were in the part of the determine 1074 has a higher black county population was retrogressive. This is the type of information that that 1075 submitted and reviewed under was the former Section 5 preclearance procedures. routinely Pennsylvania in Section 2 VRA litigation in Allegations Pennsylvania illustrat e concerns about problems with access to the polls on Historically Black Colleges and Universities (HBCUs). According to a Section complaint, in 2008, students at Lincoln University, an HBCU in Chester , Pennsylvania 2 to have a polling place on campus, to avoid long lines at the much smaller space located petitioned 1076 The allegations also include that the campus. denied the request and students were off county to wait 6 to 8 hours to vote on Election Day , while in the meantime, poll watchers inside forced 1077 challenged student voters. This allegedly led to the district having the lowest turnout polls the 1078 any election district in the county. of After civil rights groups sued under Section 2, the county 1079 and opened a polling place on Lincoln University campus. settled Alaska ointed American R ights Fund ( NARF ) has p out one particularly egregious example in The Native Alaska, wh ere a polling place was moved away from a village, and thereafter, Native Alaskan 1080 could only access their polling place by plane . At the Commission’s briefing, NARF’s voters 1072 , supra note 1014, at 10. The Great Poll Closure Leadership Conference Education Fund, 1073 Id . 1074 See Chapter 2, discussing preclearance procedures, at notes 220 - 34, supra. 1075 Id. (discussing preclearance procedures including public notice, data required with submission, and minority community input). 1076 Complaint, English v. Chester Cty. - CV - 00244 (E.D. Pa. Jan. 20, 2010), , No. 2:10 https://www.aclupa.org/download_file/view_inline/591/214/ . 1077 Id . at ¶¶ 11, 34, 44, 66, 72. 1078 . at ¶ 83. Id 1079 - English v. Chester Cty. , No. 2:10 CV Settlement Agreement, 00244 (E.D. Pa. July 2010), - https://www.aclupa.org/download_file/view_inline/639/214/ . 1080 Natalie Landreth, Why Should Some Native Americans Have to Drive 163 Miles to Vote? , T HE G UARDIAN , (June rights 10, 2015), - americans - voting - https://www.theguardian.com/commentisfree/2015/jun/10/native (“[I]magine if you had to take a plane flight to the nearest polling place because you cannot get to it by ro ad, which was the

185 Chapter 3: Recent Changes in Voting Laws and Procedures 179 attorney Landreth testified that issues of this type have continued i n the post - Shelby Natalie senior 1081 in Alaska and in other states with high Native populations. era County May 2015, after consulting with tribal leaders across In nation, the DOJ fou nd that Native the 1082 to travel farther distances compared to white voters in a number of states. had Americans This the DOJ to propose post - led County legislation requiring jurisdictions “whose finding Shelby includes part or all of an Indian reservat ion, an Alaska Native village, or other tribal lands territory at least one polling place in a venue selected by the tribal government,” and requiring an locate to 1083 of resources at those polling sites. number Tester (D - MT), Heitkamp (D - ND), equal Senators (D - NM) , and Franken (D - MN) introduced a version of the DOJ draft bill as the Native Udall require Rights Act of 2015, which would establishment of polling places on Voting American at the request of tribes, including during early voting, and direct state election officials reservations 1084 mail absentee ballots to all registered voters if requested by the tribe . to The bill, however, has 1085 not received a hearing in Congress. yet Montana Montana case of Wandering Medicine v. McCullogh i llustrates the discriminator y effect of The 1086 polling places in Native American communities. The DOJ filed a Statement of Interest closing case, arguing in that plaintiffs were likely to succeed, as Section 2 of the VRA prohibits this 1087 to voter registration sites. In its br ief, unequal t he DOJ cited a number of cases showing access that unequal access to voter registration and voting sites violated the rights of black and Native for several Native communities in 2008, when the state of Alaska attempted a “district realignment” to case eliminate polling places in their villages. And that’s just half the trip”). 1081 , supra note 234, at 98 - 100 (sta ). Briefing Transcript tement by Natalie Landreth 1082 U.S. Dep’t of Justice, Tribal Justice and Safety, DOJ Proposes Legislation to Improve Access to Voting for American Indians and Alaskan Natives (last updated May 15, 2015), https://www.justice.gov/tribal/department - - proposes - legislation - improve - access - voting justice american - indians - and - alaska (last accessed Aug. 9, 2019) - [ DOJ, DOJ Proposes Legislation to Improve Access to Voting for American Indians and Alaskan hereinafter ]; see also U.S. Dep’t of Justice, Tribal Justice and Safety, Draft Legislation: Tribal Equal Access to Voting Natives , https://www.justice.gov/file/440986/download Act of 2015 hereinafter DOJ, Tribal (last accessed Aug. 9, 2019) [ Justice and Safety, Draft Legislation ]. 1083 DOJ, DOJ Proposes Legislation to Improve Access to Voting for American Indians and Alaskan Na tives , supra note 1082; see DOJ, Tribal Justice and Safety, Draft Legislation , supra note 1082. 1084 Discussion of S.1912 (2015), in Appendix B: Congressional Responses to the Shelby County Decision. See 1085 Id. 1086 35 , No. CV - 12 - 1 - BLG - DWM, 2014 WL 12588302 (D. Mont. 2014). Mark Wandering Med. v. McCulloch 1087 Statement of Interest of the United States, Mark Wandering Med. v. McCulloch , No. 1:12 - CV - 135 - RFC (D. - Mont. Oct. 23, 2012), document/si - wandering - medicine - v - mcculloch - 2012 . The https://www.justice.gov/crt/case DOJ later filed an amicus brief in support of the plaintiff - appellants when the plaintiffs appealed the district court’s denial of a preliminary injunction, again arguing that the plaintiffs were likely to succeed on a Section 2 claim and that the district court erred in interpreting the necessary elements of such a claim. Brief for the United States as Amici Curiae Supporting Plaintiff - Appellant, Mark Wanderi ng Med. v. McCulloch , 544 Fed. App’x 699 (9th Cir. 2013) (No. 12 - 35926), 2013 WL 1452760.

186 An Assessment of Minority Voting Rights Access 180 1088 Moreover, an expert study showed that Native Americans were forced to American voters. 189 travel furth er than white voters in Big Horn County, 322 percent further in Blaine percent 1089 Rosebud percent further in Rosebud County. and In 267 County, the round trip to the County, seat is 120 miles , which is a two - hour drive county that takes even longer for those getting rides 1090 public transportation, making it much more difficult for impacted communities to vote . or using DOJ also stated that in 2012, the locations for the sites for in - person late registration and early The in voting Horn, Blaine , and Rosebud counties discriminated against Native American voters Big 1091 violation of Section 2 of the VRA . in Montana law permits late registration and early voting at 1092 satellite seat, but also permits counties to create locations for these purposes. As the the county are geographically large and sparsely populated, the location of satellite late registration counties none voting locations is critical — and and were located on Native American Reservations. In early state and county election officials June agreed to settle the c ase by establishing 2014, satellite 1093 on reservations twice a week Election Day. offices through North Dakota In 2010, a federal district court in North Dakota issued a preliminary injunction enjoining closure 1094 of places on the Spirit Lake Tribe’s reservation in North Dakota . This case explained polling historic discrimination that leads to ongoing disparities may curre ntly impact access to the how The court federal found that: polls. historic pattern of discrimination suffered by members of the Spirit Lake Tribe The well - documented. The North Dakota Supreme Court found evidence of Benson is County's against t he Spirit Lake Tribe in 1897. In 2000, following a discrimination County the method of electing members of the Benson dispute Commission, over approved a consent this decree, which stated: Court Citizens Native within Benson County have American suffered from a history o f official racial discrimination in voting and other areas, such as education, employment, housing. Native American citizens in Benson County continue to and reflected effects of this past discrimination, in their markedly lower bear the stat us compared to the white population. socioeconomic These factors hinder Native Americans' present - day ability to participate effectively in the political process. 1088 Id . at 5 (citing Operation Push v. Allain , 674 F. Supp. 1245 (N.D. Miss. 1987), aff’d sub nom. , Operation Push v. Mabus , 932 F.2d 400 (5th Cir. 1991), and unequal a see Spirit Lake Tribe , 2010 WL ccess to voting sites, Brown v. Dean See also Jacksonville Coalition for Voter Protection v. 4226614; , 555 F. Supp. 502 (D.R.I. 1982)). , 351 F. Supp. 2d. 1326 (M.D. Fla. 2004) (unequal access to early voting sites); , 279 F. Supp. 60 Hood Brown v. Post (W.D. La. 1968) (unequal access to absentee voting opportunities). 1089 Cain & Zhang, Blurred Lines , supra note 1071, at 872 74. - 1090 T Editorial, , G REAT F Make Voting Easy for Native Americans on Reservations RIB . (Oct. 24, 201 5), ALLS https://www.greatfallstribune.com/story/opinion/2015/10/24/voting - easier - native - americans/74340666/ . 1091 Statement of Interest of the United States, Mark Wandering Med. , supra See note 1087. 1092 Id. at 4. 1093 Settlement Agreement, Mark Wandering Med. , No. 1:12 - CV - 00135 (D. Mont. 2014); secretary https://www. - medicine - v - montana - aclumontana.org/en/cases/wandering - state . 1094 Spirit Lake Tribe v. Benson Cty. , 2010 WL 4226614 (D.N.D. 2010).

187 Chapter 3: Recent Changes in Voting Laws and Procedures 181 pervasive discrimination is alleged by the Tribe to be a significant factor This to entre nched problems of poverty, alcoholism, illiteracy, and contributing the homelessness. T provided evidence that the closure he of the voting places on the Tribe has will have a disparate impact on members of the Spirit Lake Tribe reservation a significant percentage of the population will be unable to get to the voting because in to Minnewauken to vote. According a survey conducted by Immogene places 46 percent of those polled said they would be unable to find Belgrade, to Minnewauken and transportation thus would be unable to vote in person on Election Day. A number of factors contribute to this problem: (1) road closures due construction and flooding around Devils Lake; (2) the lack of reliable vehicles; to the of sufficient buses to transport voters to Minnewauken ; (4) a lack of (3) lack funds to pay for transportation; and (5) sufficient sheer distance between the the 1095 remote areas of the reservation and Minnewauken . more re this evidence, the federal Based granted a preliminary injunction upon - opening two of the court 1096 polling osed cl places. Oregon Native American leaders in Oregon and Washington State, both of which have converted entirely 1097 to - by - mail, also voiced concerns about lack of access to polling places . In these states, vote 1098 off no more polling places, but there may be ballot drop - boxes. At the Commission’s there are Landreth Natalie that: briefing, testified 2015, NARF was able to create the Native American Voting Rights Coalition. It In direct response was to Shelby County . We decided we should gather into one room a voting and organization that litigates every rights cases in Indian Country person [types . There were more than 100 . of allegations of voting problems], ranging . from polling places where the county sheriffs are known to stand in the door of th e polling armed, weapon visible, to a general sense that there were fewer place, 1099 on reservations than there polling used to be. places Native In American Voting Rights Coalition forum a record submitted to the Commission, Carina Miller from the Confederat ed Tribes of Warm Springs in Oregon spoke in her native language, the commenting voting by mail exacerbates language barriers as that ballots are mailed in English - 1095 Id . at *3 (internal citations omitted). 1096 Id . at *6. 1097 See, e.g., Transcript of Proceedings, Pacific Northwest Hearing, Native American Voting Rights Coalition in Portland, Oregon (Jan. 24, 2018) [ hereinafter Portland Transcript ] at 121 (Washington), 174 (Oregon). 1098 Id . at 154. 1099 Natalie A. Landreth, Written Testimony for the U.S. Commission on Civil Rights, Feb. 2, 2018 at 4 [ hereinafter Landreth, Written Testimony].

188 An Assessment of Minority Voting Rights Access 182 1100 of other tribes in Oregon said they have to drive up to 45 to 50 miles, or ab out only. Members 1101 minutes, to vote. Another community leader added that a significant Native American 45 1102 p in Oregon are not mailed ballots, making voting “virtually impossible.” homeless ersons State Washington Rights a January 2018 Native American Coal ition’s Pacific Northwest briefing, During Voting members and tribal leaders discussed problems with the community - by - mail system in their vote 1103 In Washington State, relevant problems raised by community members included: communities. G ress ; for instance, in one development with 400 rental x etting ballots to the correct add 1104 percent move every month ; of the tenants units, 40 1105 n inability to update address es x A online due to less access to Internet 1106 he cost of a new driver’s license, $89, and a renewal license, $54, is a barrier as well T x ; P roblems with receiving and dropping off mail - in ballots in rural and isolated x 1107 state, federal , and county offices only open during limited, staggered communities; 1108 hours; 1109 istorical trauma leading to apathy or distrust of the federal go vernment ; x and H T o receive a mail ballot, a voter’s address must to be certified as “physically deliverable,” x 1110 leaving out many voters. community Other stated that due to the Washington Secretary of State’s guidelines, t he leaders O kanogan County Auditor d id not fulfill a tribe’s request for drop - off box at a tribal government 1111 center Councilwom an Norma Sanchez commented that: . from live 20, 30, 40, 50 miles away the post office, and we don't Tribal members rural [post office] boxes . . . . They go to have the post office to get their mail and to mail their letters, so many of them are going to drive that distance just to mail not a ballot and it’s also going to cost them also to put a stamp on it, and many of our 1112 tribal cannot afford gas sometimes to even make it to the post office. members 1100 Miller Testimony, Portland Transcript , supra note 1097, at 173 - 74. See 1101 . at 160 and 206. Id 1102 Id . at 210. 1103 See, e.g., id . at 121. 1104 . at 21 - 22 and 51. Id 1105 . at 51. Id 1106 Id . at 124. 1107 Id . at 77. 1108 Id . 1109 Id . at 95 - 97. 1110 Id . at 122. 1111 Id . at 123. 1112 Id. at 140.

189 Chapter 3: Recent Changes in Voting Laws and Procedures 183 Sheldon of the Board of Directors of the Tulalip Tribe said that her tribe used to have a Theresa place, under the new rules they can only vote but absentee (by mail). The tribe has been polling for a d rop - off box on the reservation for over ten years, but this repeated request has been asking 1113 and voters now have to drive to a Starbuck’s in the nearest town to vote. refused Language Access Issues limited U.S. is home to millions of citizens with he - English p roficiency who can only vote with T understanding if voting and voter registration materials and oral limited assistance are not provided in languages in which they are fluent. Asian Americans Advancing Justice, a national affiliation five Asian American and Pacific Islan der civil rights organizations, submitted written testimony of that: documenting approximately 291 million people in the United Of States over the age of five, 60 people, or just over 20 % , speak a language other million English at home. than Among those other languages, the top two categories are Spanish and Asian 37 million and 11.8 million languages, people, respectively. This means, at nationally, out of every 4 Asian about Americans speak a language other than 3 English at home and a third of the population is Limited English proficient (LEP), 1114 that has some difficulty with the English language. is, th rich language diversity among Americans , federal law — including the language access Given e Order the VRA, as well as Executive 13166, requiring language assistance in provisions of funded services under Title VI of the Civil Rights Act, which prohibits national origin federally 1115 discrimination quite clear that language support is federally required for voters who need it . — is are 4(f )(4) , and 203 Sections the VRA’s “language minority” or “language access” 4(e), 1116 provisions. They require that voters who are limited - English proficient (LEP) be provided access to voting in their native languages. The term “language minorities” or “language minority group” defined as persons who are American Indian, Asian American, Alaska Natives , or of is 1117 heritage Persons of African or Caribbean Spanish are not included in the statutory heritage. so definition “language minority groups” under the VRA, of languages such as Haitian Creole are not covered under Section 203. Additionally , scholars have argued that Arab Americans should 1113 . at 163 - 64. Id 1114 Asian Americans Advancing Justice, Written Testimony for the U.S. Comm’n on the Civil Rights, Mar. 19, [ hereinaft er 2018, at 3 see also Bernard L. Fraga & Julie Asian Americans Advancing Justice, Written Testimony]; Lee Merseth, , 1 J. Examining the Causal Impact of the Voting Rights Act Language Minority Provisions R ACE , OF E THNICITY AND P OL ., 31, 32 (2016) [ hereinafter Fraga & Merseth, Examining the Causal Impact ] (“roughly one in four Asian Americans who are eligible to vote are LEP and reside in a county or municipality required to provide election materials in the citizen’s native language”). 1115 Limited English Proficiency, Executive Order 13166 (last updated Mar. 28, 2018), https://www.lep.gov/13166/eo13166.html . 1116 DOJ Response to USCCR Interrogatory No. 25, at 6; Copies of the Commission’s Interrogatories and Document Requests may be found in Appendix J. 1117 52 USC § 10310(c)(3) .

190 An Assessment of Minority Voting Rights Access 184 1118 languages covered under Section 203. their Alt hough these communit ies ’ language rights have 1119 have been protected by other VRA provisions, be and because Section 203 is a strict can 1120 requiring language access in jurisdictions where the threshold liability is met , the provision these languages in the VRA statutory definition leaves a of gap in language access omission 1121 for these voters. protection he Commission received testimony and T conducted research showing that enforcing the VRA’s language access provisions is crucial to providing equal access to the right to vote ; yet the DOJ including reduced its level of enforcement of the rules that election materials, has drastically 1122 voter registration forms, as well as ballots assistance, be provided bilingually. oral and rious experts told the Commission, there are As millions of LEP voters whose numbers are va growing, but due to widespread noncompliance with the language access provisions of the VRA, 1123 their rights are at risk. The Commission also reviewed arguments agai nst language voting that it encourages balkanization, increases fraud, and wastes government access, including 1124 The type of voter fraud alleged resources. noncitizen voter fraud, but the Commission’s is 1118 Not Enough of a Minority?: Arab Americans an d the Language See, e.g ., Brenda Fathy Abdelall, Note, R U. M ICH . , 38 J.L. EFORM 911, 913 (2005). Assistance Provisions (Section 203) of the Voting Rights Act 1119 Theoretically, the language access rights of voters who are not in groups that are covered under Section 203 may mited circumstances, under Sections 2 or 208 of the VRA. be protected in more li ., Consent Order, United See, e.g speaking Haitian - , No. 02 - CV States v. Miami 21698 (S.D. Fla. 2002) (DOJ litigated to protect Creole - Dade Cty. - - American voters in Miami - Dade County who were prevented from receiving assistance), https://justice.gov/crt84 ; Consent Order, United States v. Salem Cty. , No. 1:08 - CV - 03276 (D.N.J. 2008) (language access - related violations of Section 2, showing that Section 2 applies t o and can be used to protect language access rights); Consent Order United States v. City of Hamtramck , No. 00 CV - 73541 (E.D. Mich. 2000) (discriminatory treatment at and Decree, - nship; consent order included the polls included asking only Arab Americans for documentary proof of citize requirements to appoint Arabic and Bengali speaking election inspectors), - https://www.justice.gov/sites/default/files/crt/legac y/2010/12/15/hamtramck_cd.pdf ; First Amended Consent Order , No. 00 - CV - and Decree, and Second Amended Consent Order, United States v. City of Hamtramck 73541 (E.D. pectors through Jan. Mich. 2003 and 2004) (extending requirements for federal observers and bilingual election ins 31, 2006), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/hamtramck_cd03.pdf and https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/hamtramck_cd04.pdf . 1120 52 U.S.C. § 10503(b)(2)(A). 1121 cited cases show that in order to have these protections app ly, either Section 2 or Section 208 claims The above - must be proven, while the broad protections of Section 203 are unavailable unless Congress were to expand the statute to apply to other citizens who are LEP whose predominant language is not Spanish, Asian, or Nat ive American. See, e.g. , First Amended Consent Order and Decree, and Second Amended Consent Order, United States v. City of Hamtramck - CV - 73541 (E.D. Mich. 2003 and 2004) (extending requirements for federal observers , No. 00 and bilingual election inspector s through Jan. 31, 2006), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/hamtramck_cd03.pdf and https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/hamtramck_cd04.pdf . 1122 See Chapter 5, Documentation of DOJ’s Language Access Enforcement an d Sources cited therein at notes 1437 - infra 1459, . 1123 Id . 1124 See, e.g. , Roger Clegg, Should the Feds Require U.S. Ballots to be Printed in Foreign Languages? , C ENTER FOR E QUAL O PPORTUNITY , (May 24, 2017), http://www.ceousa.org/voting/voting - news/voting - issues/1108 - should - the - be feds require - u - s - ballots - to - - - printed - i n - foreign - languages .

191 Chapter 3: Recent Changes in Voting Laws and Procedures 185 of that issue shows that there are sufficient legal protections against noncitizen voting and review 1125 incidences exceedingly rare. that Regarding cost, James Tucker , Of Counsel with Wilson are , and of the Native American Voting Rights Coalition member found that the actual cost of Elser ballots is less than expected, and the bilingual cost of bilingual poll workers is negligible, they are members of the community and every jurisdiction already has to hire that considering poll 1126 of Regarding balkanizat ion, Jos é Enrique Idler the American Enterprise Institute workers. that although the VRA requires multilingual ballots for LEP argues “ [ t ] he notion, however, voters, that the nation is going down a slippery slope and will soon become a multilingual republic is 1127 Moreover, dominant language is, and will be for a very long time, English.” xaggerated. The e received credible testimony citing reports Commission that when language access the showing 1128 are enforced, participation of LEP voters increases , rights and participation certainly civic indicates a form integration into American democracy. turn the VRA’s language access provisions is discussed in Each below. of for Section the VRA provides specific rights 4(e) U.S. citizens educated in “American - flag of schools” in languages other than English, meaning Puerto Ricans educated in public schools on the Under Section 4(e) jurisdictions may not “condition” Puerto Ricans’ voting rights on Island. 1129 1130 English. to Puerto Ricans are U.S. citizens by birthright. speak W ith hundreds of ability María, having recently fled Puerto Rico after Hurricane states and counties on the thousands should not be remiss in their duties to mainland provide bilingual ballots, poll workers , and election materials, including voter registration form s and instructions, to Puerto Ricans protected under 1131 . Section The recent diaspora only adds to 4(e) unmet needs. On the Island, the official current government language is Spanish, public education is conducted in Spanish, and over 78 percent of 1132 adults e limited - English proficient. The diaspora’s needs span many states, but the need is ar in Florida, where over 200,000 most evacuees have arrived since Mar í a of Puerto urgent Rico and 1125 Chapter 3, Voter Fraud and Other Arguments, at notes 669 - 709 supra , and sources cited therein. See 1126 Tucker, Enfranchising Language Minority Citizens , supra note 152. 1127 Jose Enrique Idler, En Ingles, Por Favor , N AT ’ L R EV . (Mar. 8, 20 06), http://www.aei.org/publication/en - ingles - por - . favor/ 1128 supra note 1114, at 15 (examples of turnout increasing Asian Americans Advancing Justice, Written Testimony, - see also Melissa J. Marschall & Amanda Rutherford, Voting Rights for Whom? Examining the by 40 50 percent); , 60 A Effects of the Voting Rights Act on Latino Political Incorporation J. P OL . S CI ., 590 (July 2016) MERICAN (finding increasing Latino representation on school board s correlating with 203 compliance) [ hereinafter Marschall & Rutherford, Voting Rights for Whom? ]; see also Fraga & Merseth, Examining the Causal Impact , supra note 1114 (“analysis attributes a significant increase in Latino voter registration and Asian Ame rican turnout to coverage under [Section 203 of] the VRA”). 1129 52 U.S.C. §10303(e)(1). 1130 , 350 F. Supp. 606, 609 (N.D. Ill. 1972) (citing the provisions of Puerto Rican Org. for Political Action v. Kusper the Immigration & Nationality Act amended by the Jon es Act of 1917, which retroactively clarified that Puerto Ricans are U.S. citizens by birthright). 1131 See e.g., Briefing Transcript , supra note 234, at 267 (statement by Juliana Cabrales). 1132 See U.S. Generated by Commission staff, using American FactFinder. Census Bureau, American Community Survey 2011 - 2015 selected Population Tables: Age, by Language Spoken at Home, by Ability to Speak English for U.S. C ENSUS B UREAU , https://fact finder.census.gov . the Population 5 Years and Over,

192 An Assessment of Minority Voting Rights Access 186 a dozen counties with high levels of Puerto Ricans — such as Brevard, D uvall , and Pasco over which each already home to over 20,000 were Puerto Ricans — still conduct their counties, 1133 in English only or mainly in English . elections either was added to the VRA in 1975, based upon Con gressional findings that: Section 203 against citizens of language discrimination minorities is pervasive and [V]oting in scope. Such minority citizens are from environments in national which the dominant language is other than English. In addition they have been denied equal opportunities by State and local governments, re sulting in severe educational continuing illiteracy in the English language. The Congress further disabilities and that, where State and local officials conduct elections finds only in English, language minority citizens are excluded from participating in the electora l . . process The Congress declares that, in order to enforce the guarantees of the . fourteenth and fifteenth amendments to the United States Constitution, it is necessary eliminate such discrimination by prohibiting English - only elections, to 1134 presc ribing other remedial devices. by and 203 applies when a two - threshold is met showing that: (1) the inherent need of Section pronged is evidenced by more than voters percent or 10,000 citizens of voting age in the language 5 minority group being LEP, or in India n Reservations where a whole or part of the population meets 1135 5 percent threshold; and (2) “the illiteracy rate the of the citizens in the language minority as a 1136 group higher than the national illiteracy rate.” The legal definition of LEP is those persons is “ unable to speak or understand English adequately who enough to participate in the electoral are 1133 See 2011 - 2016 ACS Census Table B03001. For example, Duval County Letter from Demos and LatinoJustice PRLDEF to Mike Hogan, Duval County Supervisor of Elections at 2 (Apr. 3, 2018), http://www.demos.org/sites/default/files/imce/Letter%20to%20Florida%204E%20Counties Duval.pdf . The Letter in - part states: For example, your website, which provides extensive voter information, including a linked to the voter registration form, is in English - only. And while Google Translate is offered for limited voter information, the translation offered by this service is in adequate to ensure voters can obtain the information they need and does not satisfy Duval County’s legal obligations. Critically, the county’s voter guide, sample ballots, and candidate information are not available in Spanish at all. - See also https://www.duvalelections.com/Voter - Information/Register y, Register to Vote, to - Vote - Duval Count Update - Address - Name - Party#register (last access ed June 12, 2018); see also Florida Voter Registration Form, https://www.duvalelections.com/Portals/Duval/Documents/Voter%20Registration%20For m/webappform.pdf (showing that the Registration form is only available online in English and that those who desire a form in Spanish have to call the Election Supervisor in their county). 1134 52 U.S.C. § 10303(f)(1). 1135 Section 203 applies in jurisdictions i n which more than 5 percent of citizens of voting age are members of a single language minority group and are LEP; in which over 10,000 citizens of voting age meet the same criteria; and in Indian Reservations in which a whole or part of the population mee ts the 5 percent threshold. 52 U.S.C. § 10503(b)(2)(A)(i). 1136 52 U.S.C. § 10503(b)(2)(A)(ii).

193 Chapter 3: Recent Changes in Voting Laws and Procedures 187 1137 of The U.S. Census Bureau makes d eterminations . which juris dictions are covered by process ” 1138 203 every 5 years . 2016 In December Section , the Census Bureau found that 263 jurisdictions 1139 the country met the threshold for coverage under Section 203 of the VRA. across The Census found “ 68,800,641 eligible voting - age citizens in the covered jurisdictions, or 31.3 % of the total 1140 U.S citizen voting - age population . ” . Moreover, 16,621,136 Latino, 4,760,782 Asian, and age 357,409 Indian and Alaska Native voting - American citizens live in the covered 1141 These jurisdictions. jurisdictions are found on the following map: 1137 52 U.S.C. § 10503(b)(3)(B). 1138 See, e.g ., Vol. 81, No. 233 Fed. Reg. 87532. 1139 Press Release, U.S. Census Bureau , Census Bureau Releases 2016 Determinations for Section 203 of the Voting Rights Act (Dec. 5, 2016), https://www.census.gov/newsroom/press - releases/2016/cb16 - 205.html . 1140 Id. 1141 Id .

194 An Assessment of Minority Voting Rights Access 188 1142 Section 203 Determinations, : Effective December 2016 10 Figure jurisdictions must provide “registration or voting notices, forms, instructions, assistance, or These 1143 process, or information relating to the electoral materials including ballots” — and oral other 1144 1145 the covered languages. assistance The covered language communities are as follows : in Alaskan Althabascan American Indian (Navajo) American Indian (Pueblo) Aleut American Indian (All other American Indian (Ute) American Indian Tribes) Asian Indian American Indian (Apache) Bangledeshi Cambodian American Indian (Choctaw) 1142 U.S. Census Bureau, United States Sec tion 203 Determinations Coverage eff. December 2016, Reference Map, 16/8c section203map2016.pdf maps/20 https://www2.census.gov/programs - surveys/decennial/rdo/reference - - ]. [ hereinafter U.S. Census Bureau, Section 203 Determinations Coverage 1143 52 U.S.C. § 10503(b)(3)(A). 1144 52 U.S.C. § 10503(c) (oral assistance required in addition to written translation). Oral assistance is also required as the primary means of language access when “the language of the applicable minority group is oral or unwritten on in the case of Alaskan natives and Americans Indians, if the predominant language is historically unwritten.” 52 U.S.C. §10503(c). 1145 note 1142. supra , Section 203 Determinations Coverage ureau, U.S. Census B

195 Chapter 3: Recent Changes in Voting Laws and Procedures 189 Inupiat Chinese (including Taiwanese) Korean Filipino Spanish Vietnamese ik ’ Yup by Minority Language Group Table 6 Number and Percent of Covered Jurisdictions : 1146 (December 2016) Language minority group Number of Covered Jurisdictions Percent 45 14.1% Asian Languages/API 17.9% 57 Native Languages 217 68.0% Spanish 319 100% Total 2012 post - election survey, 63 n percent of a Asian - American voter s said language assistance I 1147 be helpful for them. Moreover, when language assistance rights are enforced, would turnout 1148 - American voters has been documented to increase fairly sig nificantly, among and the Asian the elect Asian - American candidates to represent community has also been documented ability to increase when LEP voters are provided with to required language assistance so that they federally 1149 fully understand the ballot and voting can However , compliance with the language procedures. access requirements of the VRA has been lacking. Advancing submitted a statement to the Commission d iscussing the rapid growth of the Justice 1150 - population in recent years, with “a parallel Asian increase among Asian - American American 2 voters, voters in 2000 to over 5 from million in 2012,” and “an average increase of million 1151 voters per presidential election cycle from 2000 to 2016.” Advancing Justice then 747,500 documented failure across the country to provide language access as required by the widespread 1152 a provisions of the V RA, with language sizeable impac t . minority 1146 Calculated by Commission staff based on U.S. Census Bureau Section 203 Determinations. Id . 1147 supra note 1114, at 2. Asian Americans Advancing Justice, Written Testimony, 1148 . at 15 (examples of turnout increasing by 40 - 50 percent). Id 1149 . at 16. Id 1150 Id. at 2. 1151 . Id 1152 Id . at 9 - 10. See also Marschall & Rutherford, Voting Rights for Whom? , supra note 1128, at 594 - 95 (explaining that 80 percent of surveyed, covered jurisdictions’ election practices fell short of full compliance with language assistance requirements, the effect of which is evidenced by the fact that Latino turnout significantly increases after DOJ enforcement actions are brought in some of those previously nonconforming jurisdictions) ; see also Fraga &

196 An Assessment of Minority Voting Rights Access 190 1153 the organization’s poll monitoring in over 900 precincts serving Asian Americans 2012, In that : found of the availability of translated materials, did not properly Poll workers were often unaware x third of all polling sites monitored having low one display the translated materials (with - visibility or no display of materials), and exhibited an unwillingness to display translated when requested. materials x Polling sites did not provide adequate notice of assistance available, including inadequate translated directional signs outside to guide voters to polling sites and poor or no display of “we speak” or “we can assist you” signs indicating l anguage assistance available at the location. x In almost all the jurisdictions monitored, there was a lack of bilingual poll workers. Almost half of the polling sites that did have bilingual poll workers failed to provide identification of bilingual poll w orkers and those bilingual poll workers failed to proactively approach voters needing language assistance. Poll workers lacked knowledge about language assistance requirements and other voting x 1154 . laws, such as whether voters must present photo identification Commission received a similar post - briefing The statement from the National Association of Elected and Appointed Officials (NALEO) Latino Educational Fund . NALEO’s North Carolina Director, Juliana Cabrales , also provided oral public comments at the bri e fing. On the basis of learned from their election protection what hotl ine field ing reports from poll observers NALEO in with peer organizations at the polls and North Carolina , Cabrales is “most acutely partnerships concerned that election officials do not have a good understanding of their obligation to provide 1155 language protections in polling places.” Without appropriate training, poll workers assistance 1156 to not provide or even allow LEP voters receive translation. In addition , NALEO simply do that : states are more than Nationwide, million adult U.S. citizens who are not yet fully there 11 fluent in English and may need language assistance with registering to vote and casting ballots. In North Carolina, more than 65,000 eligible voters are Spanish - speakers may not be able to vote who using English - language materials, and an additional 60,000 speak some other language but are not yet fully fluent in English. Examining the Causal Impact supra note 1114, at 34 (demonstrating that compliance with VRA language Merseth, , assistance requirements is lower than reported by the Government Accountability Office). 1153 Many jurisdictions cite the difficu lt undertaking of complying with language access requirements for a wide range of different languages given a lack of resources. For example, the Alaska State Advisory Committee received testimony regarding the difficulty of providing sufficient resources and trained poll workers to comply with language access requirements due to the range of languages and various dialects for certain languages. James Tucker, Testimony, Hearing before Alaska State Advisory Committee to the U.S. Comm’n on Civil Rights, Mar. 1, 2018, Transcript at 69, 71, https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155497&cid=234) . 1154 Asian Americans Advancing Justice, Written Testimony , supra note 1114, at 9 - 10. 1155 NALEO, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018, at 2. 1156 Id . at 2.

197 Chapter 3: Recent Changes in Voting Laws and Procedures 191 light of demographic and social changes, including the trend of Puerto Ricans In to moving mainla nd, these numbers will increase. Thus, it is critical that the is administering elections engaged aware of VRA provisions everyone in received with voting. We have language reports of incidents concerning assistance indicate that some North Carolina elect ion that administrators may not fully have taken appropriate action to implement their obligations under understand or to 4(e) and 208 of the VRA to ensure that Americans are able cast Sections 1157 regardless of their ability ballots to speak English. informed tion 203 requires bilingual Sec assistance , and election materials for Spanish - speakers in ballots, 217 of the 263 (82.5 percent ) jurisdictions that were determined to fall under its coverage formula 2016. But historically and in recent years, ther e has been widespread noncompliance in December 1158 under - compliance. At the Commission’s Texas SAC briefing on voting rights , MALDEF’s and that stated that in 2016, MALDEF found Ernest many counties in Texas failed to provide Herrera 1159 the in Spanish. As shown election above, under Sect ion 203 of the VRA, information state of 1160 is required to provide bilingual election materials and assistance. Texas Prior to Shelby County , Section 4(f)(4) and Section 5 of the VRA clearly required preclearance of any in the provisi on of language access in the formerly covered jurisdictions. After the changes County decision, the DOJ stated that it believed that it could no longer require preclearance Shelby jurisdictions. any changes in language materials in these In testimony before the Commission’s of SAC , AALDEF’s Jerry Vattamala stated that the Texas loss of preclearance impacted language access because formerly covered jurisdictions no longer have to submit language assistance plans , changes or to them for DOJ review to determine any if the changes would be retrogressi ve . He added that the post - Shelby County loss of federal observers i mpacts language access compliance 1161 as well. testified a the Commission’s national briefing, Vattamala t that the Shelby County decision And negatively impacted language access for Asian - American voters . Prior to Shelby County , the has enabled AALDEF to enforce the rights of rules LEP voters in New York City, which preclearance 1162 a formerly covered jurisdiction. is He added important c ontext about current conditions, as follows: 1157 Id - 2. . at 1 1158 ., Matthew Higgins, Note, Language Accommodations and Section 203 of the Voting Rights Act , 67 See, e.g TANFORD S R EV . 917 (April 2015), http://www.stanfordlawreview.org/wp - L. content/uploads/sites/3/2015/04/67_Stan_L_Rev_917_Higgins.pdf (“Section 203’s provisions, however, are often critically misunderstood and only partially implemented.”). 1159 Texas State Advisory Committee to the U.S. Comm’n on Civil Rights Transcript, Voting Rights in Texas, Mar. 3, 2018, at 64, https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155615&cid=276 [ h ereinafter Texas SAC, Voting Rights Transcript ]. 1160 See Figure 10, Section 203 Determinations, Dec. 2016, supra . 1161 Texas SAC, Voting Rights Transcript, supra note 1159, at 7 - 8. 1162 Vattamala, Written Testimony, supra note 454, at 5 - 6 (“Section 203 of the Vo ting Rights Act, requires some jurisdictions, including New York City, to provide translated ballots and voting materials as well as oral language

198 An Assessment of Minority Voting Rights Access 192 sentiment towards Asian Americans is not a passing adversity but a Racist reality, in recent years by reactionary post - 9/11 prejudice and a fueled continuing imes immigrants. Numerous hate cr against have been directed backlash growing Asian Americans either because of their minority group status or because against are perceived as unwanted immigrants. they perpetuate of and racism like these discrimination the misperception that Incidents American citizens are foreigners, and have the real Asian effect of denying Asian right to fully participate in the electoral process. These barriers will Americans the increase as the Asian only American population continues to grow. Asian Americans have become the fastest growi ng minority group in the United States. the total population in the United States rose 10 percent between 2000 and While the Asian American population increased 43 percent during that same time 2010, span. fastest population growth occurred in the Sout h, where the Asian The American population increased by 69 percent. With the coverage formula struck and no states, 5 coverage for these current Asian Americans are susceptible to Section other both in voting and discrimination, arenas. When groups o f extensive minorities move into or outpace general population growth in an area, reactions to 1163 the of outsiders can result in racial tension. influx had Commission been covered under Section 5 since 1975. The heard testimony regarding Alaska violation s constricting Native Americans’ voting rights in Alaska over a period of repeated VRA particularly regarding language access, and notwithstanding repeated litigation over the years, but already litigated and resolved in court then with persisting state non compliance points same those resolutions. NAR F’ s Natalie Landreth testified before the Commission that she following 5, Alaska was properly covered under Section that due primari ly to language access believes 1164 and lack of accessible polling places for indige nous communities. violations Alaska was one 1165 NARF last states to have a literacy test, as its literacy test was only abolished in 1972. of the the conclusion of the DC Court of with Appeals that “states like Alaska” were “swept disagrees 1166 to the VRA coverage form ula based on “little or no evidence of current problems.” in” NARF — the assistance for voters with limited English proficiency. Three counties of New York City New York, Kings, and Bronx — were also covered by Section 5. When jurisdictions were covered under both Section 5 and Section 203, the combined provisions formed a powerful tool to ensure that language minorities had full access to political participation. In 1994, AALDEF as ked the Justice Department to deny preclearance of New York City's Chinese Language Assistance Program, which failed to include candidate names in Chinese on the voting machine ballots. As a result, New York City was forced to provide fully translated bili ngual ballots, affecting 55,000 Chinese - American voters.”). 1163 Vattamala, Written Testimony, supra note 454, at 7 (footnotes omitted). 1164 Testimony , supra Landreth, Written note 1099, at 2 - 4. 1165 Id . at 1. 1166 Id . (quoting Shelby Cty. , 679 F.3d at 881, rev’d , 570 U.S. 529).

199 Chapter 3: Recent Changes in Voting Laws and Procedures 193 1167 to case after case of current and ongoing language access violations in Alaska. instead points victories in expensive and time - consuming litigation in the state of Alaska, the Despit NARF’s e 1168 203 has refused to comply with Section of and NARF has had to sue repeatedly. state Alaska its briefing on voting rights in March 2018, t he Commission’s Arizona SAC also received At 1169 on language access for Native American voters. A county recorder testified in testimony of cost - efficient measures like ballot - by - mail elections but said that “strict requirements” support 1170 were for counties with Native American populations. In particular, she pointed out that needed could langua ges are not traditionally written, and American not be handled with a some Native 1171 sent to an interpreter. written Instead, there needed to be a physical polling place “so ballot 1172 voters that need the language assistance can those and get the [oral] assistance they n eed.” come Accessibility Issues for Voters with Disabilities be discussed below, widespread problems with inaccessibility for voters with disabilities As will evident are from the testimony and underlying data received by the Commission . Section 208 of the VR A , which provides for rights to assistance, has not been well - utilized to protect the rights of voter who “requires assistance to vote by reason of blindness, disability, or inability to every 1173 write.” or read the Commission’s national briefing, Mi Bishop , Policy Director of the National During chelle Rights Network (NDRN) , testified that many of America’s polling places are not Disability people with disabilities: a ccording to one study, o nly 40 percent of nearly 200 polling accessible to 1174 examined h ad no barriers for voters disabilities. places Bishop also testified that “closure with of polling places bears a significant impact on voter access for people with disabilities following 1175 the County decision.” Current Population Survey data from the 2016 election support Shelby stating with a sizable percentage of survey respondents this that lack of disability access testimony, 1176 voting. prevented Bishop also testified that 35.4 their million persons with disabilities were 1167 Id . at 1 - 2 1168 . at 3 - 4. Id 1169 at Arizona State Advisory Committee to the U.S. Comm’n on Civil Rights, Briefing, Mar. 9, 2018, Transcript 28. - 27 1170 Id. 1171 Id. 1172 Id. 1173 52 U.S.C. § 10508. 1174 Briefing Transcript supra note 234, at 141 (statem ent by Michelle Bishop, Disability Advocacy Speacialist for , Voting Rights, National Disability Rights Network (NDRN)) (citing Government Accountability Office, Voters with Disabilities: Observations on Polling Place Accessibility and Related Federal Guidan ce (Dec. 2017), https://www.gao.gov/products/GAO - - 4 ). 18 1175 supra note 392, at 3. Barber, Written Testimony, 1176 U.S. Census Bureau , Voting and Registration in the Election of November 2016: Reasons for Not Voting, by Selected Characteristics , U.S. C ENSUS B UREAU (last updated Apr. 25, 2018), egistration/p20 https://www.census.gov/data/tables/time series/demo/voting - and - r - - 580.html (showing that 11.7 percent of surveyed people who did not vote cited an illness or disability as a reason for not voting).

200 An Assessment of Minority Voting Rights Access 194 to vote in 2016, and that persons with disabilities were disproportionately lower income eligible 1177 had access to voter ID, transportation, and funds. and less d the Commission’s SAC briefings on voting rights underscore gathered these Information at report Cal . SAC issued a voting rights The in 2017 , specifically not ing that oncerns c ifornia 1178 voters unnecessary obstacles” to voting in that state. The report quotes a “disabled face rights who told the SAC that “parking advocate and pathway sit uations frequently deter disability voter with disabilities from access, i.e. long the walks after parking, obstructions, and inadequate 1179 The Illinois SAC likewise noted particular on voters with disabilities: a fter lighting.” impacts a group conducted voting a ccess surveys, they found that voters with disabilities “were asked local to wait up to 30 minutes while judges or other volunteers attempted to get the accessible machines to ,” other times, “voters with disabilities were told and come back and vote at a nother working 1180 because a technician had to be called in to repair or set up the accessible voting system.” time rights its recent voting Similarly, briefing , the Ohio SAC received testimony regarding during people with disabilities that can impe de access misperceptions to voting. S ome of the biggest of a during the Ohio briefing are that identified person with a disability cannot vote misconceptions because the person has a guardian, that a person cannot understand how to vote because the person 1181 cannot co mmunicate, and that a person who is blind cannot complete a ballot . The verbally also received testimony that t here is a limited amount of data regarding voters with Committee negatively impacts the capacity of , poll workers who may require more disabilities which 1182 with understand how to work with people disabilities. L ack of adequate information to transportation , and the discriminatory impact of absentee accessible ballots on people with paper disabilities are two more issues that voters with disabilities i n Ohio face. Kerstin Sjoberg - Witt, , Executive of Advocacy and the Assistant the Director at Disability Rights Ohio , Director d for advocate alternative s to designating the power of attorney for voting , especially due to the di sproportionate number of people with disabilities who are low income and live in poverty , which makes harder for them to pay for a photo ID, afford public transportation to get to the polls, or it 1183 in a loss of housing that could then result result in s wift voter purging. may She noted that the voter hotline that Disability Rights Ohio runs has been “pretty successful ,” receiving 60 calls in 1184 the election alone. last 1177 Barber, Written Testimony, supra note 392, at 2; see also Lisa Schur & Douglas Kruse, Projecting the Number of Eligible Voters with Disabilities in the November 2016 Elections , Rutgers Univ., (Sept. 8, 2016), https://smlr.rutgers.edu/sites/default/files/documents/faculty_staff_docs/Kruse%20and%20Schur_Disability%20elec 8 - 16.pdf torate%20projections%202016_9 - . 1178 Cal. Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Integrity in Calif ornia: Issues and st - Century 5 (June 2017), http://www.usccr.gov/pubs/07 - 24 - Voting - Integrity - in Concerns in the 21 CA.pdf . 1179 . at 38. Id 1180 S. Comm’n on Civil Rights, Civil Rights and Voting in Illinois 42 Illinois State Advisory Committee to the U. http://www.usccr.gov/pubs/2018/IL (Feb. 2018), Voting - Rights.pdf . - 1181 Ohio SAC, Voting Rights Briefing , supra note 986, at 1 5 - 16 (statement by Kerstin Sjoberg - Witt). 1182 Id. 1183 Id. at 18. 1184 Id.

201 Chapter 3: Recent Changes in Voting Laws and Procedures 195 New Hampshire SAC received testimony that some polling locations s till have physical The 1185 access, and that some poll workers are not receptive to people with disabilities. The rriers ba to reported that i n 2013 , none of the New Hampshire polling locations had set up an accessible SAC system and therefore i n municipal elections that year 100 percent of disabled voters were voting , 1186 to vote privately independently. and unable protected place access for persons di sabilities is by the Americans with Disabilities Polling with 1187 (ADA), HAVA, NVRA, and the Voting Accessibility for the Elderly and Han dicapped Act ; Act however, while those statutory protections are important and the above testimony indicates that may be under - enforced, this report is limited to evaluation of VRA issues. they tion the Commission’s national briefing, Bishop testified that Sec 208 of the Voting Rights Act, At allows voters to be assisted by a person of their choice, should be which used to ensure accessibility 1188 persons with disabilities. for Section 208 provides that: ndness, who requires assistance to vote by reason of bli Any disability, or voter inability read or write may be given assistance to by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the 1189 voter’s union. the briefing, Bishop supplemented he r testimony with further information about how Following 208 would operate in regard to accessibility issues she testified about. She explained that: Section are blind, have another type who of disability, experience difficulty with Voters or experience di fficulty with reading and writing should, first and English, foremost, provided with the proper tools and accommodations to be able to vote be by privacy and independence, as guaranteed the Help America Vote with complete 1190 (HAVA). Act The ability to provide an elec tronic interface and audio ballots to voters with disabilities has drastically increased the number of voters with disabilities who are able to vote. Providing ballots and supplementary materials to voters are accessibly designed and use plain languag e, as described by that also enhance progress made toward providing a www.plainlanguage.gov, would and independent ballot for all eligible private Americans. Yet as we work actively toward realizing full promise of HAVA and ensuring the a private and independe nt ballot for all eligible voters, people with disabilities rely on protections of Voting Rights Act Section 208 to the participate in the electoral 1185 Woolpert, N.H. 2014 Transcript, at 37. 1186 New Hampshire SAC, Voting Rights Report, supra note 5. 1187 - 12213 (ADA); 52 U.S.C. §§ 20910 - 21145 (HAVA); 52 U.S.C. §§ 20501 - 42 U.S.C. §§ 12101 11 (NVRA); 205 52 U.S.C. §§ 20101 - 20107 (Voting Accessibility for the Elderly and Handicapped Act). 1188 Briefing Transcript, supra note 234, at 184 (statement by Michelle Bishop, Disability Advocacy Specialist for Voting Rights, National Disability Rights Networ k (NDRN)). 1189 52 U.S.C. § 10508 (emphasis added). 1190 52 U.S.C. § 21081(a)(3)(A) et seq .

202 An Assessment of Minority Voting Rights Access 196 Section process. is and will always be a vital piece of our democracy, by 208 bring a pe rson of their to choosing (excluding the voter's employer voters allowing union representative) to assist him or her in casting a ballot. or This right is critical who are taking a leap of faith by trusting another to cast their ballot as for voters and should not h ave to put that faith in strangers. Further, it eases the strain intended election workers and prevents issues with long lines by reducing the number of on instances which two election workers, of differing parties, must stop their other in Section to provide direct assistance to a voter. 208 protections are a key duties in boosting voter confidence while ensuring that Election Day runs component 1191 smoothly. guidance added that the DOJ should provide additional Bishop clarifying how Section 208 should 1192 should not be interpreted by the states. and She argues that states should be prevented from 1193 additional language that restricts who can use Section 208 assist ance . passing The review of Section 208 litigation indicates that DOJ appears to have limited its Commission’s 1194 Section 208 to language access cases; however, the statutory language quoted enforcement of 1195 clearly shows that Section 208 applies to persons with disabilities. above private five known cases, Also, parties enforced Section 208 to protect the rights of voters with in 208 disabilities. is a chart of all known Section Below cases since 1985 , which includes the five known Section 208 cases that were brought on behalf of persons with dis abilities. None of these cases brought by ere DOJ. w 7 : Analysis of Cases Filed Under Section 208 of the VRA Since 1985 : Table Language Claim made on behalf of persons Access Year Filed with disabilities? Filed By claim? Case Name Organization for Chinese - Greater Houston OCA Yes No 2017 Americans Texas v. United States v. No DOJ 2009 Yes Fort Bend County, TX United States v. Salem County and the Borough of Penns Grove, 2008 DOJ No Yes NJ, et al Willie Ray, Jamillah No 2008 Johnson and others Yes Ray v. Texas 1191 Michelle Bishop, Supplemental Written Testimony for the U.S. Comm’n on Civil Rights, Mar. 19, 2018 at 1. 1192 Id . at 2. 1193 Id . 1194 See Table 7, and Discussion and Sources cited at notes 1464 - 65, infra. 1195 52 U.S.C. § 10508.

203 Chapter 3: Recent Changes in Voting Laws and Procedures 197 Claim made on Language behalf of persons Access Year Case Name Filed By with disabilities? Filed claim? United States v. Yes DOJ No 2007 Kane County, IL United States v. 2006 DOJ No Yes Hale County, TX United States v. 1196 DOJ 2006 Yes No Brazos County United States v. Yes 2006 DOJ No City of Springfield, MA United States v. DOJ No Yes 2006 Philadelphia, PA City of Michelle Markiewicz No No 2004 Qualkinbush (mayor) Qualkinbus v. Skuhisz American Association of People American Association of with Disabilities 2003 People with Disabilities No v. Hood Yes United States v. 2003 DOJ Yes No Berks County United States v. Yes 2002 DOJ No Osceola County United States v. DOJ No Yes 2002 - Dade County Miami United States v. DOJ 2002 No Yes Orange County United States v. 1999 DOJ No Yes Passaic County Buddy Holton (losing No No 1999 mayoral candidate) Holton v. Hollingsworth King Nelson, Karla Hudson, Charles Austin, 1996 No Yes Nelson v. Miller Walter R. Saumier, 1196 U.S. Dep’t of Justice, , Cases Raising Claims Under the Minority Provisions of the Voting Rights Act voting - - claims - under - language - minority - https://www.justice.gov/crt/cases - raising - rights - act#brazos (last provisions updated Oct. 16, 2015). Although the DOJ summary of the case states that, “The United States also alleged that Brazos County violated Section 208 by failing to ensure that voters who were disabled, blind, or illiterate were allowed to use their chosen assistors,” the complaint does not make that entirely clear; furthermore, the conse nt decree limits the 208 remedies to Spanish - speaking voters, by only requiring that: 3. Defendants shall ensure that Spanish - speaking voters are permitted assistance from persons of the of those employers or officers or agents of the voters’ choice, other than the voters’ employers or agents voters’ unions, and that such assistance shall include assistance in the voting booth, including reading or interpreting the ballot and instructing voters on how to select the voters’ preferred candidates. 4. Defendants shall ensure that in cases where a poll official is a Spanish - speaking voter’s assistor of choice, all poll officials shall make certain that the voter can receive such assistance from a trained - anish fluently. Consent Decree, Brazos Cty. , No. 4:06 bilingual poll official who can speak Sp CV - 02165, https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/brazos_cd.pdf .

204 An Assessment of Minority Voting Rights Access 198 Claim made on Language Access behalf of persons Year Filed By Case Name with disabilities? claim? Filed Charlotte Czarnecki, Kyle Austin Judge of Elections Patricia DiPietrae & disabled electors Bernard Bukowski, Mary Boice, Marina Domit & Maryanne DiPietrae v. 1995 No Hildenberger Yes City of Philadelphia Disabled in Action of Jacobs v. Philadelphia County No 1995 Pennsylvania Yes Board of Elections Cruz Lionel and Rebecca (Tigua Indian Tribe Cruz v. No No 1993 members) Ysleta Del Sur Tribal Council Thirteen Ballots Cast in 1985 General Election in Burlington No 1985 N/A Unclear County Source : Internal Legal Research (based search) on DOJ website and Westlaw

205 Chapter 4: Examining the Data 199 : CHAPTER 4 EXAMINING THE DATA turnout examines and analyzes relevant voter registration, , and trends in litigation his chapter T to enforce Section 2 of the V oting R ights A ct brought (VRA) , in terms of whether these data points . The first part of this chapter discrimination examines and analyzes voter registration and measure in recent presidential elections (2000 - turnout , and the second part examines VRA litigation 2016) 1197 with a focus on successful Section 2 VRA cases from 2006 to present. trends, As discussed discrimination he data show ongoing indicia of below, in various categories. t and Turnout Voter Registration Statistics 1198 all states except North Dakota, voters must In register before they can vote. This two - step first process arguably helps ensure eligibility, but it can also lead to significant barriers to the ballot, 1199 and registration rules vary widely from state to state. Eligible voters often cite voter voter 1200 registration problems as one of the reasons they registration not turn out to vote. did or than a 2016 st udy by Nonprofit VOTE, more According 25 percent of eligible voters are not to 1201 to vote. Figure 11 illustrates the trend of voter registration rates by race and registered ethnicity from to 2016. 2000 1197 The term “ successful” is defined in note 1306, infra. 1198 DMV.org, Voter Registration in North Dakota , DMV. ORG , https://www.dmv.org/nd - north - dakota/voter - registration.php 2018) (“ North Dakota bears the unique distinction that it does not require (last accessed June 6, . You may simply bring acceptable proof of ID and residency to the polls in voters to register prior to Election Day order to vote (see below). Each precinct is responsible for governing its own election process, and the Secretary of hare their precinct’s voter list.”); see also Discussion State has a “central voter file” in which all county auditors s and Sources cited in notes 710 31 supra (overview of voter registration rules and issues). - 1199 See notes 710 - 18 supra (discussing voter registration procedures ranging from same - day registration in som e states to much stricter rules in other states, their impact on voters of color, and at note 712, according to NALEO “[r]acial and ethnic disparities in civic participation begin at registration.”). 1200 Table 8 (analyzing data from the Current Populatio n Survey that asked potential voters why did not turn out See to vote in the recent presidential election). 1201 Nonprofit VOTE & U.S. Elections Project, America Goes to the Polls 2016: a Report on Voter Turnout in the 2016 Election , NONPROFIT VOTE & U.S. ELECTIONS PROJECT (2016), 19 http://www.nonprofitvote.org/documents/2017/03/america - goes - polls - 2016.pdf [ hereinafter Nonprofit VOTE & U.S. Elections Project, America Goes to the Polls 2016 ].

206 An Assessment of Minority Voting Rights Access 200 : Voter Registration by Race and Ethnicity and Year Figure 11 using created by Commission s taff Source: Current Population Survey data Figure Figure 12 : Which of the following was the MAIN reason you did not register to vote? Source: Figure created by Commission staff using Current Population Survey data

207 Chapter 4: Examining the Data 201 12 illustrates the (self - reported) main reasons potential voters did not vote. The Figure 1202 analyzed Current Population Survey data also to examine whether the reasons Commission voters stated that they did not register to vote in the 2016 potential electio n differed by their self - reported racial group. Table 8 illustrates that across all groups, disinterest in the election or politics primary reason why potential voters did not the register to vote, but the percentage reporting was this reason was slightly higher for potential white voters. Potential racial minority voters also reported higher percentage of ineligibility compared to potential white voters. In addition, 4 a of Latino potential voters and 10 percent percent Asian - American or Pacific Islande r potential of voters reported language concerns as the main reason for not registering to vote, while this reason was 1 percent or less only for other groups. 1202 U.S. Bureau of Labor Statistics & U.S. Census Bureau, History of the Current Population Survey , C ENSUS B UREAU (2006), - 66.pdf [ hereinafter Census Bureau, History of the CPS ]. https://www.census.gov/prod/2006pubs/tp

208 An Assessment of Minority Voting Rights Access 202 Which of the following was the MAIN reason you did not register : to vote? Table 8 Not interested Did not know in the election where My vote or not would not or how Not Difficulty Permanent Did not meet Did not meet registration to residency illness or with involved in make a eligible Other English requirements deadlines disability Race politics Total register difference Reason to vote 18% 3% 12% 100% 6% 5% 47% 2% 1% 6% White 17% 12% 5% 39% 100% 1% 7% 2% 3% 14% Black 4% 100% 13% 5% 4% 4% 39% 5% 13% 13% Latino 100% 26% 9% 18% 4% 2% 4% 3% 0% 34% Native American Asian American/ 14% 100% 11% 3% 12% 4% 5% 2% 10% 38% Pacific Islander 5% 38% – 6% 6% 3% 12% 100% 28% 3% Multiracial Figure staff created by Commission Source: using Current Population Survey data

209 Chapter 4: Examining the Data 203 Perspectives on Voter Turnout as a Measure of Discrimination are multiple views as to whether voter turnout is an appropriate measure of discrimination, There how and turnout data should be evaluated by courts in VRA litigation. In the Shelby County voter at the preclearance formula, the Supreme looking Court stated that disparities in in decision, 1203 African - American and w hite voters have been nearly turnout As discussed between eliminated. Supreme Court’s decision did not compare the turnout rates of other races. There is also below, the circuit split among the cou rt s of appeals as to whether decreasing voter turnout is needed to prove a violation of Section 2 of the VRA in the post - Shelby County era . The Sixth Circuit a suggested has that evidence of turnout disparities along racial lines is necessary to prove a Sect ion 2 violation in 1204 cases . denial Similarly, the Seventh Circuit held that the failure to show evidence that a vote 1205 levels law r esult ed in a reduction of voter turnout was fatal to the plaintiffs’ case . ID But voter Fourth Circuit held that discrimina tion against black voters occurred the though black turnout even increased in 2014 , stating that, “No law implicated here — neither the Fourteenth Amendment nor 1206 voter [of the VRA] — requires such § onerous showing [o f a decrease in 2 turnout].” More an specifically the Fourth Circuit reasoned , in North Carolina : that [A]lthough aggregate African American turnout increased by 1.8 % in 2014, many African votes went uncounted . . . which would have been counted absent American voting change]. And thou sands of African Americans were disenfranchised [the they the registered during what would have been same - day registration because but because of [the voting change] could not then vote. Furthermore, the period court failed to acknowledge that a 1.8 % i ncrease in district actually voting represents a significant decrease in the rate of change. For example, in the prior 1207 - period, African American midterm voting had four by 12.2 % . increased year dditionally i n A the Fifth Circuit’s evaluation of Texas’ , strict voter ID law, the State had argued that reduced turnout is needed to show a Section 2 violation. Specifically, Texas argued literacy tests be struck down under Section 2, “only if plaintiffs could show a resulting ‘denial of would 1208 i.e., a ‘vo ter turnout disparity. ’” equal But i n response, the Fifth Circuit stated opportunity,’ 1209 decline to cripple the Voting Rights Act “We by using the State’s proposed analysis.” that: It reasoned that “[a]n election law may keep some voters from going to the polls, but in the sa me That election, by different voters might increase for some other reason. turnout does not mean the 1203 See Shelby Cty. , 570 U.S. at 548 (including the chart of black/white turnout gaps reproduced in the Court’s opinion). 1204 See Ohio Democratic Party v. Husted , 834 F.3d 620, 639 (6th Cir. 2016) (rejecting a challenge to early voting - reduction, where the cutbacks went into effect and African American participation was at least equal to that of white voters). 1205 See Frank , 768 F.3d at 747. 1206 McCrory , 831 F.3d at 232. 1207 Id. (emphasis in original) (in ternal citations omitted). 1208 Veasey , 830 F.3d at 260. 1209 Id. at 261.

210 An Assessment of Minority Voting Rights Access 204 1210 away were any less disenfranchised;” kept and so the Fifth Circuit concluded that “while voters 1211 uired decreased turnout is relevant, it is not req to prove a Section 2 claim.” of evidence uring the Commission’s briefing, voting rights experts testified that turnout alone is D not 1212 an appropriate measure of whether there is ongoing discrimination in voting. necessarily For the Ifill, President and Director - Counsel of example, NAACP Legal Defense and Sherrilyn , Educational told the Commission that t he legal Fund test of whether a voting system is discriminatory should not be turnout, but rather whether voters of color do not have equal access 1213 to tical participation. This is also shown by the statutory language of Section 2 of the VRA, poli not only denial of the which right to vote, or being unable to vote, but prohibits also abridgment 1214 equal access to the ballot. of Director - Counsel also stated : The 1210 at 260. Id. 1211 at 261. Id. 1212 note 234, at 134 Briefing Transcript supra - 136 (statement by Sherrilyn Ifill). E.g., , 1213 Id. 1214 See gement of right to vote on account of race or color 52 U.S.C. § 10301(a) (Section 2 is titled “Denial or abrid through voting qualifications or prerequisites” and subsection (a) provides that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States on account of race or color or [membership in a language minority group]”); § 10301(b) (“A violation of see also subsectio n (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protec ted by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to public office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population See also Gingles , 478 U.S. at .”). 36 - 37: “The Senate Judiciary Committee majority Report accompanying the bill that amended § 2, elaborates on the circumstances that might be probative of a § 2 violation, noting the following ‘typical factors:’ ent of any history of official discrimination in the state or political subdivision that touched 1. the ext the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; 2. the extent to which voting in th e elections of the state or political subdivision is racially polarized; 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti - single shot provisions, or other voting practic es or procedures that may enhance the opportunity for discrimination against the minority group; 4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. the extent to which members o f the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; 6. whether political campaigns have been characterized by overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to public office in the jurisdiction. Additional factors that in some cases have had probative value as part of plaintiffs’ e vidence to establish a violation are:

211 Chapter 4: Examining the Data 205 [T]he not about a number on the sheet , as to whether turnout went up or harm is down. I f a law is turnout created, particularly for the purpose... if a whether went of passes a law for the purpose and suppressing the votes of a legislature meets group or if a law is passed knowing that it’s going to have the affect it’s particular simply to or as Ms. Landreth described, have, not knowing because you going taken the time to figure out the fact that this polling place is not connected haven’t 1215 another polli ng place by land. That’s a problem of democratic governance to . The Director - Counsel added that turnout is not the only measure of whether there is discrimination voting, as voters of color work hard to overcome structural impediments to voting such as, in poll taxes or recently, waiting longer in line on Election Day. Other panelists agreed historically, 1216 with this assessment. Rosenberg strongly emphasized that, “using voter turnout is a very, very weak metric . . . . [W] e know that in Texas for example 600, 000 Texans, predominantly black and , Hispanic not have the required ID. It was two to voters three times more difficult for them to did 1217 get the ID.” In contrast, others argue d that increasing turnout affirmatively shows decreasing discrimination. Cleta tchell of Foley & Lardner LLP stated that there is “no evidence” that changes to state Mi in the Shelby County decision have resulted since denying anyone the right to election laws 1218 The panelist further argued that statements claiming that the Shelby County decision had vote. 1219 effect on minority voter turnout are “weak at best an and likely non - existent , ” cit ing data from the Heritage Foundation and arguing that African - American voter turnout increased in North 1220 Carolina voting law changes in 2013. Acc ording after to these data, the percentage of voting age population of African - American voters in North Carolina who voted in the 2014 election was 41.1 , up from 38.5 percent in 2010. Based on th ese data, this panelist posits that the Shelby percent 1221 ion had “nothing to do” with County turnout in 2014 and 2016. voter Similarly, von decis whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group. whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.” (quoting S. R EP . N O Id. 97 - 417, at 28 - 29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206 - 07). The above “typical” . factors specify what Congress considered evidence that is not dispositive, but legally significant in establishing a Section 2 violation, and they do not include turnout. 1215 , supra note 234, at 135 (sta tement by Sherrilyn Ifill). Briefing Transcript 1216 Id . at 132 - 33 (statement by Ezra Rosenberg); Briefing Transcript , supra note 234, at 131 32 (statement by - Natalie Landreth); , supra note 234, at 209 - 10 (statement by Dale Ho). Briefing Transcript 1217 Id . at 138 (statement by E zra Rosenberg). 1218 Mitchell, Written Testimony, supra note 574. 1219 . Id 1220 . (citing Hans A. von Spakovsky, Election Reform in North Carolina and the Myth of Voter Suppression , T HE Id H ERITAGE F OUNDATION (July 2015), https://www.heritage.org/election - integrity/report/election - reform - north - ) carolina and - the - myth - voter - suppression - . 1221 Mitchell, Written Testimony, supra note 574, at 3.

212 An Assessment of Minority Voting Rights Access 206 also agreed that increases in black turnout suggest that preclearance is no longer needed Spakovsky 1222 in suggests that racial discrimination turnout voting is rare. higher because the above in mind, the Commission reviewed voter turnout data from With 2000 to 2016. These that while black turnout has generally increased show this time period, it dipped in data during 1223 and moreover, the 2016, prior occur r ed in spite of ongoing discrimination in voting. increases For example, in Florida in 2012, black voters waited longer than others, but their turnout was still 1224 and In fact, as black turnout was increasing relatively expected to be high in 2012, early high. 1225 2012. cut, causin g congestion at the polls in voting Among those who were able to wait was 1226 many hours to vote, strong their stories reflected a for commitment to exercise the right to 1227 vote. Furthermore , black voter turnout in Florida could have been even higher without the l ong 1228 some were not able to wait many hours to vote. similar Barber testified to lines, facts in as 1222 Briefing Transcript , supra note 234, at 63 - 64 (statement by Hans A.von Spakovsky ) (“If they were going to renew [preclearance], [Congress] had to base it on current conditions, and the reason they didn’t base it on current conditions in 2006 was because, a s the Census itself has reported, registration and turnout in the covered states was on parity with, and in some places black turnout actually exceeded that of white turnout.”). In addition, von is rare as evidenced by the downward trend in the Spakovsky also suggested that racial discrimination in voting supra, number of VRA enforcement actions that the Justice Department has pursued over the last eight years. See Chapter 5 for further discussion on the Department’s VRA enforcement. 1223 See infra , Figure 15, which demonstrates that African - American voter turnout went from about 66 percent in 2012 Presidential Election to just under 60 percent in 2016 Presidential Election. 1224 Congestion at the Polls , supra note 974, at 9, 53. Herron & Smith, 1225 Id. at 3; see al so Herron and Smith, Florida’s 2012 General Election under HB 1355: Early Voting, Provisional Ballots, and Absentee Ballots , at 1, http://electionsmith.files.wordpress .com/2013/01/lwv - pr - herron - smith.pdf . 1226 Congestion at the Polls , supra note 974, at 16 (Seven counties (Miami - Dade, Orange, Lee, Herron & Smith, idnight); Volusia, Pasco, St. Lucie, and Collier) reported having at least one precinct that did not close until after m Terkel, supra note 971 see also Lauren see also (reporting that many voters waited for up upwards of 6 hours); M - D Early Voters: I Waited “Over Six” Hours to Vote , CBS M IAMI (Nov. 3, 2012), Pastrana, miami - - of - early - voting - opens - in - http://miami.cbslocal.com/2012/11/03/last - dade/ (in Miami - Dade on the final day Saturday of early voting, lines were 4 - 6 hours, according to the Supervisor of Elections website, and voters interviewed at the Coral Reef Library polling place said “it was exhausting,” that voters had brought chairs, water, and umbrellas to shield them from the sun on a hot day, while a woman with an oxygen tank waited 4 hours, and another who had voted in 2008 said he wasn’t planning to vote due to the lines being 5.5 hours long during early voting, which is “supposed to be early”). 1227 sidential Commission on Election See, e.g ., Advancement Project, Public Comment Submitted to the Pre DVANCEMENT A ROJECT 10 (2013), Administration for its public meeting in Miami, Florida, P vl.pdf http://b.3cdn.net/advancement/c6b7b9897418a7c930_o2m6iv5 (last accessed June 7, 2018) (“Despite the long lines, Florida citizens showed up for early voting in record numbers. We saw it in the determination of voters like t North Miami Library after Desiline Victor. Victor, who at 102, due to fatigue, had to leave her polling place a waiting in line for three hours, only to insist on returning later with members of our staff to cast her ballot. When she emerged from the polling place wearing her “I voted” sticker after casting her ballot, hoping this is not the last time she will do so, the crowds still waiting to vote erupted in applause. We saw when Florida poll workers closed their doors on an unexpectedly massive crowd of early voters, only to be met with chants of “We want to vote! We want to vote!” We s aw it in black church leaders who, in response to Florida’s elimination of the last Sunday of early voting, set a new date for their community’s popular “Souls to the Polls” voter mobilization campaign — and made history with a larger - - ever early voting turnout.”). than 1228 See, e.g. , Scott Powers & David Damron, Analysis: 201,000 in Florida didn’t vote because of long lines , O - S ENTINEL (Jan. 29, 2013), http://articles.orlandosentinel.com/2013 - 01 - 29/business/os - voter - lines RLANDO

213 Chapter 4: Examining the Data 207 Carolina, where community organizing and a strong sense of civic duty, based on history, North significant to fact that black turnout did not the ly decrease, despite the community contributed 1229 that “surgically ” targeted the ways that African Americans facing vote in his state . measures r acial disparities in voter turnout may be, sum, in the totality of circumstances, evidence or In 1230 of discrimination, but increasing indicia minority turnout does not necessarily mean that racial discrimination in voting has disappeared. Recent Voter Turnout and Registration Patterns section details the demographics of the American electorate in the most recent presidential This Using the Census Bureau’s Voting and Registration Supplement of the Current election. Survey (CPS) , this section also illustrates how political participation has varie d for Population different of the voting eligible population across members several pres idential elections. The C PS is performed every two years and involves approximately 60,000 households, which are selected 1231 with purpose of being representative of the U.S. population. The Census interviews the of are U.S. citizens and over 18 years age , on matters regarding voting and individuals who Using descriptive and summary Census statistics, registration. section highlights demographic this characteristics and trends in the composition of the American electorate over the past several 1232 elections. presidential Voter Turnout The voter turnout rate, measured as persons who voted as a percent of those registered, was 1233 approximately percent in the 2016 Presidential Election . This figure decreased only 61.38 over slightly the previous presidential election, but was from 2 percentage points lower than the 2004 and 2008 Presidential Elections (see Figu re 13 ). detzner - - lines - sentinelanalysis - state - ken statewide 20130118_1_long (discussing the research of Ohio State - University Professor Theodore Allen, whose estimate was “based on the Sentinel’s analysis of voter patterns and precinct - closing times in Florida's 25 largest counties”). 1229 Briefing Transcript , supra note 234, at 49 (statement by Bishop Dr. William Barber II) . 1230 See, e.g ., Gingles , 47 8 U.S. at 87. 1231 Census Bureau, History of the CPS , supra note 1202. 1232 Id . 1233 Commission staff calculated this figure and the subsequent data referenced in this section using Current Population Survey data. For further information on the dataset, see note 12 66, infra.

214 An Assessment of Minority Voting Rights Access 208 13 Voter Turnout by Presidential Election, 2000 - 2016 Figure : Current Figure by Commission staff using created Population Survey data Source: 14 shows U.S. states ranked by the rate of voter turnout Figure in the most recent election in According to th ese data , four order. states — Colorado, Maine, New Hampshire, and descending — and Washington, D.C. had the highest voter Wisconsin turnout rates in the 2016 Presidential Election. States that have relatively high voter registration and turnout rates often have several 1234 as: competitive elections with large amounts of money spent on such commonalities, 1235 1236 higher incomes among the electorate, and campaigning, populations with high levels of 1237 educational M any of these states have attainment. policies that have simplified the registration and voting process. In fact, many of the highest - ranking states for registration and turnout — Colorado, Maine, Minn esota, New Hampshire, and Wisconsin — offered same - day voter Iowa, allow ing citizens to register to vote and to address a registration issue on Election Day registration, 1238 the early voting period. In addition, in during states that have same - day voter registrat ion, or 1239 turnout was 7 percentage points higher than in states without this registration option. voter 1234 America Goes to the Polls 2016 , supra note 1201, at 7. Nonprofit VOTE & U.S. Elections Project, 1235 Andrew Prokop, 40 Charts That Explain Money in Politics , V OX (Jul. 30, 2014), https://www.vox.com/2014/7/30/5949581/money in - politics - charts - - . explain 1236 Sean Mcelwee, The Income Gap at the Polls: The Rich Aren’t Just Megadonors. They’re Also Dominating the Voting Booth , P OLITICO (Jan. 7, 2015), https://www.politico.com/magazine/story/2015/01/income - gap - at - the - polls - 113997 . 1237 States With The Highest (And Lowest) Voter Turnout , UFFINGTON Huffington Post, P OST (Oct. 28, 2016), H https://www.huffingtonpost.com/entry/states - with - the - highest - and - lowest - voter - turnout_us_5813a3c5e4b096 . e87069653a 1238 Nonprofit VOTE & U.S. Elections Project, America Goes to the Polls 2016, supra note 1201, at 6. 1239 Id .

215 Chapter 4: Examining the Data 209 Secretary of State Mark Ritchie said same - day voter registration is a “critical factor” Minnesota 1240 the most effective policy in increasing voter turnout. In addition, Colorado, Oregon, and and 1241 are “All Vote Mail” states State and ha d higher than average voter turnout rates Washington by 1242 recent presidential the election. in to the data in Figure According 14 , the following states had the five lowest voter t urnout rates: Hawaii, New Mexico, Tennessee, Texas, and West Virginia. Several of these states had voter 1243 that were three to four weeks before registration Election Day. Arkansas, Hawaii, deadlines vo Tennessee, West Virginia have had the lowest Texas, ter turnout rates in the last three and 1244 elections. Hawaii has presidential ranked last in voter turnout in the last five presidential elections, may be related to the distance of the state from the mainland, along with the which the state recei ves little attention realities from presidential candidates , and has only three that 1245 Party. that usually go to the Democratic votes electoral Also, California, New York, and Texas represent 25 percent of the eligible U.S. voting population, but all had lower than averag e voter 1246 turnout rates. 1240 Allison Terry, Voter Turnout: The 6 States That Rank Highest, and Why , C HRISTIAN S CI . M ONITOR (Nov. 6, - https://www.csmonitor.com/USA/Elections/2012/1106/Voter turnout - the - 6 - states - that - rank - highest - and - 2012), why/Minnesota . 1241 OTE & U.S. Elections Project, America Goes to the Polls 2016, supra note 1201, at 9 ( in “All Vote Nonprofit V by Mail” states every registered voter receives a ballot in the mail before the election and may return the ballot via U.S. postal mail or a local drop box). discussion in Chapter 3 regarding difficulties that particular Native But see American communities experience in “All Vote By Mail” states such as Washington and Oregon. 1242 Id. 1243 Id. at 7 (noting that Hawaii, West Virginia, Texas, and Tennessee all “cut off the ability to register or update a registration three to four weeks before Election Day”). 1244 Id. at 10. 1245 Id. 1246 Id.

216 An Assessment of Minority Voting Rights Access 210 : Voter Turnout Figure the 14 2016 Presidential Election by State in DC 74% ME 73% WI 70% CO 69% NH 69% MN 69% VA 68% MS 68% NC 68% NE 67% MA 67% OR 66% WA 66% MT 66% MD 66% WY 65% MO 65% MI 64% ND 64% CT 64% IL 64% OH 64% IA 63% UT 63% PA 63% VT 62% DE 62% ID 62% SC 62% LA 62% NJ 62% USA 61% AK 61% KS 61% RI 61% NV 61% AZ 60% GA 60% FL 59% SD 59% AR 59% IN 58% CA 58% AL 57% NY 57% KY 57% OK 57% TX 55% NM 55% TN 54% WV 51% HI 47% Figure Source: created data Survey Population Current using staff Commission by

217 Chapter 4: Examining the Data 211 15 illustrates trend s in voter turnout rate by race and ethnic ity from 2000 to 2016. Figure Figure shows that white, black , and multiracial voter turnout ranked the highest amongst racial groups 15 2000. White voter turnout outperformed other racial and ethnic groups across three of the since presidential elections under study , but in 2012 black voter turnout was four percent while 66.64 1247 voter turnout was 64.14 percent . white At the same time , voter turnout rates for Asian/Pacific and Native American registrants were almost all under 50 percent across Islander, all five Latino, 1248 study. under elections sidential pre 15 : Voter Turnout by Race/Ethnicity, 2000 - Figure 2016 Source: Figure created by Commission staff using Current Population Survey data A ccording to the Census data in Figure 1 5 , black voter turnout drastically decreased between 2012 and it decreased by over 7 percentage points, which is the lowest turnout rate for black 2016; 1249 the 2000 Presidential Election. During the since same period, there was a significant citizens in Native American and multiracial voter t urnout rates. The estimated voter turnout rate decrease registrants decreased by 0.4 percentage points between Latino 2012 and 2016 , while the voter for 1250 rate for Asian/Pacific Islander s increased by almost 2 percent age points (see Figure 15 ). turnout 1247 Jens Manuel Krogstad Commission staff calculated these figures using Current Population Survey data. See also Black Voter Turnout Fell in 2016, Even as a Record Number of Americans Cast Ballots , P EW & Mark Hugo Lopez, ESEARCH C R (May 12, 2017), http://www.pewresearch.org/fact - tank/2017/05/12/black - voter - turnout - fell - in - ENTER 2016 - even - as - a - record - number - of - americans - cast - ballots/ . 1248 However, Native American voter turnout in 2012 was estimated at 50.53 percent. 1249 ssion staff calculated this figure using Current Population Survey data. See also William H. Frey, Census Commi , Shows Pervasive Decline in 2016 Minority Voter Turnout B ROOKINGS I NSTITUTION (May 18, 2017), https://www.brookings.edu/blog/the - avenue/2017/05/18/census - shows - pervasive - decline - in - 2016 - minority - voter - ]. turnout/ [ hereinafter Frey, Census Shows Pervasive Decline 1250 Commissi on staff calculated these figures using 2016 Current Population Survey data.

218 An Assessment of Minority Voting Rights Access 212 Lati Despite and Asian/Pacific Islander citizens being the fastest growing groups of eligible no compared for overall these groups is still low when turnout to black and white voter turnout voters, 1251 rates 15 ). In fact, according to a 2015 study published by the Joint Center for (see Figure Economic Studies, for over 35 years , and Latino and Asian/Pacific Islander voter turnout Political consistently been 10 to 15 percentage points lower than black voter turnout , and 15 to 20 has 1252 lower than white voter turnout. The authors of th e 2015 study attribute the points percentage in voter turnout among these groups as being related to a lack of effective language gap , at the ballot box , and tepid discrimination mobilization on the part of political accommodations 1253 and can didates. parties Also, Latino and Asian/Pacific Islander voters as a group are younger 1254 black and white voters, and generally voter turnout increases with age. than Figure demonstrates that from 2000 to 2016, while w hite voter turnout increased by over 1 16 1255 ent overall, minority voter turnout decreased overall by more than 3 percentage points. perc a 2017 Brookings study, in 2016, According turnout declined while white turnout r ose to in black six states (Florida, Michigan, North Carolina, Ohio, Pennsylvania, and Wisconsin) ; the authors refer to this as an increase in “white - black turnout differential ” in the 2016 Presidential 1256 Election. In addition, the study shows that while in 2012, overall black voter turnout surpassed 1257 turnout , in 2016, overall min ority turnout voter declined in 33 states. white 1251 Khalilah Brown - Dean, Zoltan Hajnal, Christina Rivers, & Ismail White, 50 Years of the Voting Rights Act: The State of Race in Politics OINT C ENTER FOR P OLITICAL AND E CONOMIC S S TUDIES J 13 (2015), , http://jointcenter.org/sites/default/files/VRA%20report%2C%208.5.15%20%28540%20pm%29%28updated%29.pd f (last accessed July 30, 2018). 1252 Id. at 13 - 14. 1253 at 14. Id. 1254 Id. 1255 Commission staff calculated these figures using 2016 Current Population Survey data. 1256 Frey, Census Shows Pervasive Decline , supra note 1249. 1257 Id.

219 Chapter 4: Examining the Data 213 : Voter Turnout Rate by Presidential Election, White (non Figure Latino) 16 - and Minority Voters 80.0 70.0 60.0 50.0 40.0 30.0 20.0 10.0 0.0 Nov.2004 Nov.2016 Nov.2008 Nov.2012 Nov.2000 White (non-Hispanic) Voters All Minority Voters Population Current data using staff Commission by created Figure Source: Survey Why Registered Voters Reasons Do Not Vote between last five presidential elections, C 7 to to urrent P opulation S urvey data, in the According out to vote (see Table 9 ). The Census Bureau asked 10 percent of registered voters did n ot turn why they chose not to vote, and over 25 registered voters who did not vote in the election 2016 candidates o r campaign issues (see percent like available did they that said respondents of not 1258 did not participate because they were not 17 ). Over 15 percent of Figure registered voters the a difference; and approximately 15 percent of interested or felt that ir vote would not make 10 over of registered voters said they did not Lastly, busy. too were they said respondents percent (see Figure 17) . or vote due to a personal or familial illness disability Tab le 9 : Registered Voters Who Did Not Vote by Presidential Election 2016 2000 2012 2004 2008 30% 30% 29% 29% 28% Not Registered 10% 9% 9% 7% 8% Registered, Non - Voters 61% 62% 64% 64% 59% Voted 100% 100% Total 100% 100% 100% created Survey data by Commission staff Table Source: using Current Population 1258 Commission staff calculated these figures using 2016 Current Population Survey data.

220 An Assessment of Minority Voting Rights Access 214 17 Which of the following was the MAIN reason you Figure : 1259 not vote registered)? (if did Figure created by staff using Current Population Survey data Source: Commission s ince the 2000 Presidential Election, the percentage Moreover, of registered voters who said they did not vote because they disliked the candidates or campaign issues ha d been generally the decreasing figure was only 13 percent during this 2008 and 2012 Presidential Elect ions and — considerably less during the 2000 and 2004 Presidential Elections — but it increased again in 1260 2016 During previous elections, registered voters who did not participate highlighted apathy . 1261 particip conflicts and as the top reasons for not scheduling ating. Disaggregation of Racial in Turnout Disparities In addition to noting the complexities previously discussed in examining turnout by registered black , Commission staff have examined relevant voters Census data and found large disparities for other m inority groups. T he nation has undergone changing demographics with rapid expansion 1259 Another analysis of the Current Population Survey data conducted by the Pew Research Center found very similar results, but some of the percentages are slightly differe nt, which is due to rounding and different statistical weighs. See Lopez and Flores, Dislike of Candidates, supra note 561 . 1260 Id. 1261 Id.

221 Chapter 4: Examining the Data 215 numbers of Latino and Asian - American/Pacific Islander citizens, but wide disparities in turnout in 1262 persisted and are likely to persist for these groups. have are onl y 13 states where overall minority registration rates (including all voters of color) are There than white registration rates. These are: Georgia, Illinois, higher Kentucky, Mississippi, Indiana, 1263 New York, North Carolina, Ohio, South Carolina, Tennessee, Texas , and Wisconsin. Missouri, the previously covered six of these 13 states. Moreover , Section d ata also show a gap between 5 1264 of Latino and Asian - American/Pacific Islander voters as compared to white voters . turnout The largest racial di sparities in t urnout between Latino and Asian - American/Pacific Islander s are found in Plains States and along the Pacific Rim and the Mountain West: Colorado, Hawaii, Idaho, the 1265 Utah , and Wyoming in particular. Iowa, Unfortunately, Native American turnout data Kansas, data included was in this set of localized Census not , so the Commission cannot analyze or report on the comparative rate of advantage or disadvantage for Native American voters. Data on Native American are only available on a national level. turnout 1262 Rob Griffin, Ruy Teixeira, and John Halpin, Voter Trends in 2016: A Final Examination , C ENTER FOR See, e.g., A ME RICAN P ROGRESS (Nov. 1, 2017) . https://www.americanprogress.org/issues/democracy/reports/2017/11/01/441926/voter trends - in - 2016/ . - 1263 Bullock, Gaddie, and Wert, Rise, supra note 55, at 177. 1264 Id. at 178. 1265 Id. at 180.

222 An Assessment of Minority Voting Rights Access 216 all h chart shows turnout data from 2000 - 2016 for following major racial groups . T e Voting by Race/Ethnicity and Year Table 10: Year: 2000 2004 2008 2012 Race/Ethnicity 2016 White 61.82% 67.2% 66.11% 65.3% 64.14% 66.64% 56.89% 60.35% Black 65.20% 59.57% 47.16% 45.10% Latino 47.57% 49.88% 47.96% Native American 46.72% 48.68% 50.53% 43.59% 48.79% 43.25% Asian American/ 48.81% 47.07% 47.2% 44.63% Pacific Islander 1266 Supplement Population Current the of Registration Survey and Voting Bureau’s Source: Census The voters American Native and , Latino Islander, American/Pacific - Asian that show data above currently experiencing are the turnout rates among , level national a n O gaps. low turnout wide voters black eligible of turnout percent 50 than less the as low as are groups citizen minority these the of time the at 5 Section in formula preclearance initial the for basis the formed that 1964 the following in enacting the Presidential Election. As a reminder , Congress took into account VRA 1965 VRA pr eclearance formula: the 1965 applied Section 5 preclearance rules any in (1) State or in any political subdivision of a State which General Attorney the or test any , 1964 1, November on maintained determines device, and with respect 1266 The data were compiled by Commission staff from the U.S. Census Bureau Voting and Registration - election surveys of the Voting Eligible Population (who are citizens of voting age). Commission Supplement’s post staff note that voting estimates from the Curr ent Population Survey and other sample surveys have historically differed from those based on administrative data, such as the official results reported by each state and disseminated collectively by the Clerk of U.S. House of Representatives and the Feder al Election Commission. In general, voting rates from the sample surveys such as the Current Population Survey are higher than official results (such that the low turnout rates reported here may be over - estimates). Potential explanations for this differenc e include item nonresponse, vote misreporting, problems with memory or knowledge of others’ voting behavior, and methodological issues related to question wording and survey administration. Despite these issues, the Census Bureau’s November (post survey) supplement to the Current Population Survey remains the most election - comprehensive data source available for examining the social and demographic composition of the electorate in bpopulations. See U.S. Census Bureau, federal elections, particularly when examining broad historical trends for su Voting in America: A Look at the 2016 Presidential Election , 2017, https://www.census.gov/newsroom/blogs/random - samp lings/2017/05/voting_in_america.html [ hereinafter Census ]. Bureau, Voting in America

223 Chapter 4: Examining the Data 217 which (2) the Di rector of the Census determines that less than 50 per centum of to persons on of voting age residing therein were registered November 1, 1964 , or the in less than 50 per centum of such persons voted the presidential election of that 1267 1964 . November This ula was updated in subsequent VRA reauthorizations, based on turnout data from the form 1268 and 1972 presidential elections. 1968 and metrics, the above data show that Asian - American/Pacific Islander, Latino , Using Native these rates were under 50 percent of eligible American voters, on a national level. According to turnout past VRA formulas, these turnout rates are consistent with what Congress has considered to 1269 indicate in voting. Also , data from 19 80 to the present show that these turnout discrimination 1270 be persistent. The following graph is reproduced gaps from the U.S. Census. may Voting Reported Figure Rates by Race, 1980 - 2016 18: Registration Population Voting and Current Supplemental: 1980 - 2016 Source: Wh ile turnout is not the only indicator of ongoing discrimination in voting, considering the minority changing of the nation, ongoing gaps in demographics turnout may be one of various factors or indicators to evaluate current conditions. 1267 52 U.S.C. § 10304(a). 1268 Discussion and Sources cited in Chapter 1, note 151, supra. Id. See also 1269 See, e.g. , Katzenbach , 383 U.S. at 330, 339, abrogated by Shelby Cty. , 570 U.S. 529. 1270 Census Bureau, Voting in America, supra note 1266.

224 An Assessment of Minority Voting Rights Access 218 oting R A ct Litigation Trends Pre - and Post - Shelby County V ights examining Before litigation trends show current conditions of discrimination in voting, whether more question the whether the litigation trends show key or less VRA litigation in formerly and of jurisd ictions, some premises underlying such an covered should be examined. Although evaluation County decision indicates that current conditions should be the basis of any future the Shelby 1271 any and that there should not be discrimination among the states, formula, the preclearance did not factually examine the premise that Court formerly covered jurisdictions were not the location of more incidents of voting rights violations. Historian and voting rights expert J. Morgan decision criticized this part of the Shelby C ounty as follows : “Neither the Chief Justice Kousser has any scholars or civil rights proponents or opponents have systematically examined the nor 1272 the evidence entire pattern of proven voting rights violations over time and space.” on Trends in Incidents of Discrimination 2015, Kousser published a study of over In incidents of discrimination in voting in the United 4,100 States from 19 5 7 to 2014, using a consistent methodology across all states, and found that nearly 1273 83 of voting rights violations oc curred in formerly covered jurisdictions. His study calls percent preclearance whether the Supreme Court’s reasoning that was no longer justified in into question covered jurisdictions as compared to other states is supported by any data, even in formerly the 1274 recent period of 1982 to 2006. rel Kousser’s 4,1 73 incidents came from a atively broader dataset 1275 just the VRA cases that the Commission examines below. than The Commission also notes that litigation alone is not a complete measure of the problem of 1276 in voting. discrimi For example, in the pre - Shelby County era, in the process of reviewing nation submissions of voting changes, DOJ requests for further information that led to the prevention or modification of a discriminatory voting change (which are part of Ko usser’s dataset), may be 1271 , 570 U.S. at 557. See Shelby Cty. 1272 Kousser, Facts of Voting Rights , supra note 249. 1273 . at 17. Id 1274 Id . 1275 Id . at 3. The methodology for collection of Kousser’s data set is as follows: Drawn largely from lists of cases and other actions compiled by civil rights organizations, individual attorneys, and the DOJ, the database has been supplemented by ferreting out details and following case citations from published cases, from PACER, and from newspaper articles. The events include any successful or unsuccessful case, published or not, decided or settled; Section 5 objections and “more information requests” by the DO J; and election law changes that manifestly took place as a result of the threat or reality of legal challenges . . . it is far larger than any of the single sources that were presented to Congress during the process of renewing the VRA in 2006 and that we re scrutinized in the district and appeals court opinions in Shelby County . For example, Prof. Ellen Katz’s database of Section 2 cases, discussed extensively during the 2006 congressional Briefings and included in my database with Katz’s kind permission, contains 324 cases. The total number of cases and other events in which the minority side was successful contained in my database is currently 4173. Id. 1276 See, e.g. , Levitt, Written Testimony, supra note 304, at 2.

225 Chapter 4: Examining the Data 219 1277 that discrimination was prevented, or that preclearance was effective. indicia D urin g valuable 2006 Reauthorization , Congress received empirical studies VRA about DOJ’s requests for the 1278 and their substantial effect on covered jurisdictions’ more behavior. Another information a meaningful nonlitigation event is the removal of of a barrier to access for minority example defined as “election law changes that manifestly took place as a result of voters, threat or reality the 1279 legal challenges.” of Kousser argues that these types of incidents, as well as successful statutory relevant U.S. and state constitutional and protections, are also indicia of litigation under 1280 in voting. discrimination h is database of incidents of Kousser discrimination in all 48 contiguous states, and showed mapped voting of higher levels of discrimination in correlation in the formerly covered jurisdictions. His a map reproduced below codes all places with no incidents of discriminati on in blue, then illustrates higher of incidents in the following three - dimensional figure with color coding , a ccording levels not legend below. There were also ongoing incidents in Alaska, which unfortunately, could to the 1281 in the map below. B be ut Commission staff reviewed Kousser’s dataset and included among that during this time period, confirmed the VRA violations, none were independently reported in Hawaii, while three Section 5 cases (in 1995, 200 3 , and 2009) and one case of VRA 1282 language viola tions (in 2014) occurred in Alaska . access 1277 See H. R. R EP . N O . 109 - 478, at 40 - (2006) (in addition to 700 DOJ objections under Section 5, over 800 41.4 proposed voting changes were withdrawn or amended after the DOJ requested more information from the submitting jurisdiction). 1278 See Voting Rights Act: Evidence of Continued Need, Hearing B efore the Subcomm. on the Constitution of the H. , 109th Cong. 11 (2006), transcript available at Comm. on the Judiciary ry/hju26411.000/hju26411_0f.htm (noting the submission of http://commdocs.house.gov/committees/judicia materials like Luis Ricardo Fraga & Maria Lizet Ocampo, The Deterrent Effect of Section 5 of the Voting Rights Act: The Role of More Information Requests , updated version available at https://www.law.berkeley.edu/files/ch_3_fraga_ocampo_3 - 9 - 07.pdf ); Kousser, Facts of Voting Rights , supra note 249, at 3, 20. 1279 , supra note 249, at 3. Kousser, Facts of Voting Rights 1280 Id . a t 6 (for example, Kousser includes enforcement actions brought under the California Voting Rights Act, which is state legislation prohibiting discrimination in voting, with different standards for vote dilution cases than the VRA). 1281 Id xplains that: “Alaska is so large that including it in anything like its proportional size . at n.10. Kousser e - reduces the detail of the lower 48 states far too much for clarity.” 1282 The Section 5 cases were: Native Vill. of Barrow v. City of Barrow , 2BA - 95 - 117 (D. Alaska 19 95); Luper v. Municipality of Anchorage Nick v. Bethel, Alaska , 2010 WL 4225563 (D. , 268 F. Supp. 2d 1110 (D. Alaska 2003); Alaska 2010); and the VRA language access case was Toyukak v. Treadwell , 3 - 13 - CV - 00137 - SLG (D. Alaska 2014) (ongoing violations of S see Chapter 3, Language ections 203 and 208). For more information about language access, Access Issues, notes 1114 - 72. supra

226 An Assessment of Minority Voting Rights Access 220 1283 by Voting Rights igure 19: County, 1957 - 2014 F Events to the map of jurisdictions that were covered for preclearance prior to the Shelby County Compared of s ee Ch apter 2, Figure 2 ), the pattern ( much higher levels of voting rights incidents in decision 1284 formerly covered jurisdictions is apparent. the Moreover, Figure 20 illustrates, the data showed that even as in the more recent period of 1982 to 1285 voting rights incidents were still concentrated in formerly cove red jurisdictions. 2005, 1283 Kousser, , supra note 249, at 6. Facts of Voting Rights 1284 Id . 1285 Id. at 8.

227 Chapter 4: Examining the Data 221 South 20: Voting Rights Incidents Still Concentrated in the Figure 1286 1982 - 2005 Southwest, and Trends in Section 2 and Section 5 Voting Rights Act Enforcement Actions Commission now turns to analysis of the more The limited dataset of VRA enforcement actions s 2 and 5, starting with a key Section point from Kousser’s research documenting that trends under 1287 Section 2 litigation correlate with Supreme Court decisions interpreting the law. in This is as showing that using only l itigation successes a metric does not demonstrate the factor another of current conditions. For example, Supreme Court precedents that narrowed the entirety 1288 1289 1290 statutory protections of Section 2 in of 1980, 1993, and 1995 the resulted interpretation 1291 a negative quan titative impact in the number of Section 2 cases won. in Similarly, 2 cases became easier to win after the 1982 VRA amendments clarifying that Section is not required to prove a Section 2 violation, particularly after the subsequent Supreme intent standards ision in Thornburg v. Gingles clarifying the dec for showing a Section 2 violation Court 1292 on a totality of circumstances and factors that do not include intent. based After the 1982 VRA amendment s Section 2 provided that: , qualification or prerequisite to voting (a) No or standard, practice, or procedure voting hall be imposed or applied by any State or political subdivision s in a manner which results 1286 Id . at 8. 1287 Id . at 18 - 20. 1288 . at 11 (citing Mobile , 446 U.S. 55). Id 1289 Id . (citing Shaw , 509 U.S. 630). 1290 Id . (citing Miller v. Johnson , 515 U.S. 900 (1995)). 1291 See infra Figure 21. 1292 Facts of Voting Rights , supra note 249, at 18 - 20 (citing Gingles , 478 U.S. 30). Kousser,

228 An Assessment of Minority Voting Rights Access 222 in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) [the language minority provisions] of this title , as provided in subsection (b). (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or are not equally open to participation by members of a class of political subdivision citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to political subdivision is one circumstance which may be office in the State or Provided , That nothing in this section establishes a right to have members of a considered: 1293 protected class elected in numbers equal to their proportion in the population. 1294 successful reproduced below shows that the level of graph The Section 2 cases tend s to ebb an d flow depending on how the Supreme Court interprets the statute. Figure Successful Section 2 Cases in Covered 21: and Non - Covered 1295 Jurisdictions, 1957 - 2014 1293 52 U.S.C. § 10301. 1294 Professor Kousser and the Commission use the same definition of successful throughout this report, which is based on the VRA Reauthorization’s metric and is also set forth in the Written Testimony of Dale Ho, at his note 42, borrowing from Professor Ellen Katz’s definition of a “successful” Section 2 case, which was cited by Congress during the 2006 Reauthorization. See further Discussion and Sources cited at note 1306 - 7, infra. By using the same metric, which Commission staff have independently repeated i n this chapter of the report, trends will be shown. 1295 Facts of Voting Rights , supra note 249, at 17. Kousser,

229 Chapter 4: Examining the Data 223 above compilation of successful Section 2 cases also shows that the great majority were The in reviewed formerly covered jurisdictions. In the years Kousser for the above graph, five brought 1296 six (82.7 percent ) successful Section 2 cases were won in formerly covered jurisdictions. of out discussed in Chapter 1, the VRA (including Section 5) w as reauthorized a number of times. As The recent reauthorization was in 2006. Kousser’s compilation of Section 2 cases most Section shows that although there were fewer 2 cases before the 2006 summarized above , they evidenced ongoing discrimin ation in voting and they were highly reauthorization 1297 in formerly covered jurisdictions. concentrated Ongoing discrimination in voting was also stopped objections under Section 5 that evidenced discriminatory voting changes, requests for by more information that resulted in the originally proposed change being altered in order to pass 1298 preclearance, litigation under Section 5 that stopped discriminatory voting changes. Trends and below successful Section 5 enforcement actions are summarized in the graph reproduced in . these 1299 Section 5 Figure and Cases, 1957 - 2014 Objections 22: preceding This successful Section 5 enforcement graph the 2006 VRA Reauthorization. The shows data also indicate that Section 5 enforcement was influenced by the Supreme Court’s decisions in 1300 1969, expanding its interpretation, and by subsequent Court decisions that limited its Supreme 1301 1302 in 1976 lower and 1993. scope The data also show that although there was a rate of 1296 . Id 1297 See supra note 1286, Figure 20. 1298 Kousser, Facts of Voting Rights , note 249, at 17. supra 1299 Id. 1300 . at 11 - 12 (citing Id , 393 U.S. 544). Allen 1301 Id . at 12 (citing Beer , 425 U.S. 130). 1302 Id . at 11 (citing Shaw , 509 U.S. 630).

230 An Assessment of Minority Voting Rights Access 224 ht objections continued into recent years, and there was a slig time, uptick just prior over objections 1303 Shelby County the to decision. Shelby County , the ground for Section 2 cases shifted dramatically as Section 5 was no longer A fter As in Chapter 2 of this report, jurisdictions discussed no longer had to provide notice operational. voting changes, nor racial impact data, and voting changes that were previously frozen by the of 1304 process preclearance could be put into effect in elections immediately. Section 2 is one of the remaining provisions of the VRA that the Shelby County decision did not rule upon, with the Court : on “ Our decision in no way affects the permanent, nationwide ban stating racial discrimination in 1305 in § 2.” voting found Successful Section 2 Litigation Between the 2006 Voting Rights Act Reauthorization and Shelby Count y Decision Commission’s research shows that as The to the prior period, there were relatively fewer compared successful Section 2 cases since the 2006 VRA Reauthorization and prior to the Shelby County decision. methodology identifying these cases is b ased on a Westlaw legal database search, The used definition of successful is also consistent with that in the 2006 VRA Reauthorization, and the follows: as coded as a successful plaintiff outcome include both Suits lawsuits where a those court determined, or the parties stipulated, that Section 2 was violated, and a category of lawsuits where the published opinion indirectly documented only plaintiff success, including decisions where a court granted a preliminary injunction, a remedy or settlement , or decided whether to grant considered 1306 attorneys a prior unpublished determination of a Section 2 violation. ’ fees after 1303 Id. at 11 - 12. 1304 Chapter 2, The Impact of Shelby County on Federal VRA Enforcement, at notes 301 - 310, See . supra 1305 Shelby Cty., 570 U.S. at 557. 1306 See Ho , Written Tes timony, supra note 42: I borrow Professor Ellen Katz’s definition of a “successful” Section 2 case. See Ellen Katz, Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act , 39 U. Mich. J. L. Reform 643, 653 - 54 n.35 (2006) (“Suits coded as a successful plaintiff Since 1982 outcome include both those lawsuits where a court determined, or the parties stipulated, that Section 2 was violated, and a category of lawsuits where the only published opinion indirectly document ed plaintiff success,” including decisions where a court “granted a preliminary injunction, considered a remedy or settlement, or decided whether to grant attorneys' fees after a prior unpublished determination of a Section 2 violation.”). ’s study was cited by Congress during the 2006 Voting Rights Act reauthorization and Professor Katz in Justice Ginsberg’s dissent in Shelby County . See Shelby County , 133 S.Ct. at 2642 (Ginsberg, J., dissenting) (citing To Examine the Impact and Effectiveness of the Voti ng Rights Act: Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary , 109th Cong., 1st Sess.,

231 Chapter 4: Examining the Data 225 Commission also used this definition in identifying the successful Section 2 cases identified The 1307 and this same definition is used consistently throughout this report. Analysis of the fact below, in this report should also take into account that during the time after the 2006 VRA patterns and prior to the Shelby County decision, Section 5 was also in Reauthorization operation. Therefore, in addition to the above successful Section 2 cases showing VRA violations, there were of objections along with successful litigation under Section 5. (See Figure 22.) a number panelists testified and provided data showing Moreover, that Section 2 l itigation is more numerous 1308 5 and time - consuming than Section expensive, procedures. During the 2006 VRA difficult, Reauthorization, Congress also found Section 2 litigation to be more difficult, expensive, and time - 1309 tatutory Section 5 procedures. consuming The VRA’s s language also shows that Section than is proactive and the burden of proof is on the jurisdiction, and in contrast, Section 2 requires 5 1310 affirmative lawsuit by either the DOJ or individual voters. an mounting to the statutory language and the elem ents that must be proven in federal court to establish a Due 1311 2 violation, Section the cases below indicate ongoing discrimination in voting in the period just prior Shelby County . to 1124 (2005)). The categorization of settled cases as “successful” may result in some over - pp. 964 - inclusivity. The Commissio n agrees with Ho in this caveat, while noting that by using the same metric over time, which Commission staff has independently repeated in this chapter of the report, trends will be shown. 1307 he did not rely only on the Westlaw legal Kousser used the same definition of “successful” VRA cases, but Facts of Voting Rights supra database, and therefore he has identified more cases than documented below. Kousser, , e number of note 249, at 3. Commission staff chose the Westlaw method in order to be consistent in comparing th successful cases over time (as unreported cases are more difficult to find in the type of consistent manner that Kousser used over many years of research, through asking persons in the field to send him unreported decisions). Commission staff a lso consistently identified the decision date as the date of a case, as this information is more reliably available than the date the lawsuit was filed. 1308 Briefing Transcript , supra note 234, at 211 (statement by Dale Ho) ( “ Successful Section 2 litigation has been a ray of light in states like Texas and North Carolina but these cases put in stark relief which has been lost with the demise in the preclearance system. Litigation has been costly and has taken years, and in the meantime, despite liminary injunctions, in these cases, several of which were actually granted, multiple elections were motions for pre held in these states under rules that courts ultimately determined were intentionally discriminatory and thus unconstitutional. So simply put, since the S helby County decision we have a record of constitutional violations necessitating a congressional remedy.”); see also NAACP LDF, The Cost (in Time, Money, and Burden) of Section 2 Voting Rights Act Litigation http://www.naacpldf.org/files/case_issue/Section%202%20costs%2010.25.17.pdf , (discussing data regarding time and costs). 1309 Voting Rights Act: Evidence of Continued Need: Hearing Before the H. Subcomm. on the Constitution of the H. Comm. on the Judiciary , 109th Cong. 97 (2006). An illegal scheme might be in place for several election cycles before a § 2 plaintiff can gather sufficient evidence to challenge it. — History, Voting Rights Act: Section 5 of the Act Sc ope, and Purpose: Hearing before the Subcomm. on the Constitution of the H. Comm. on the Judiciary , 109th Cong. 92 (2006). Litigation also includes a “heavy financial burden on minority voters.” Id. at 84. 1310 S.C. § 10301 (Section 2). Compare 52 U.S.C. § 10304 (Section 5) with 52 U. 1311 52 U.S.C. § 10301.

232 An Assessment of Minority Voting Rights Access 226 - Prior to Successful Section 2 Cases Decided Post Table 11: 2006 Reauthorization and (July 27, 2006 - June 25, 2013) Shelby County Type Community of claim impacted Section 2 Case Citation (year) State 475 F. 2d 1220 (M.D. Supp. United States v. Osceola FL Dilution Latino Fla. 2006) C ty. , Fl a. 461 F.3d 1011 (8 th Cir. 2006) SD Dilution Native American Bone Shirt v. Hazeltine Supp. 2d 584 (N.D. 580 F. United States v. City of OH Dilution African American Ohio 2008) Euclid 471 F. Supp. 2d 706 (N.D. Jamison v. Tupelo, MS Dilution African American Miss. 2007) Mississippi th Cir. 561 F.3d 420 (5 Denial MS 2009) (episodic) White voters States v. Brown United 2010 WL 4226614, No. 095 (D.N.D. 2:10 - CV - 2010) (preliminary Denial (access Spirit Lake Tribe v. Native American ND to polls) injunction) Benson C ty. 709 F. Supp. 2d 1176 (D. ty, , Large v. Fremont C Wyo. 2010) WY Dilution Native American Wyoming Supp. 2d 411 704 F. of Port . U.S. v. Vill (S.D.N.Y. 2010) NY Dilution Latino Chester 2012 WL 3135545, No. 1425 (N.D. 3:10 - CV - - D Fabela v. City of TX Tex. 2012) Dilution Latino Farmers Branch Section 2 Litigation After the Decision Successful Shelby County next set of data research is found in The 12 below, and illustrates some of the key facts about Table Section 2 litigation during the 5 years since the Shelby County decision of June 25, 2013, as 1312 compared the 5 years prior. Commission staff analyzed these two 5 - year time periods, in with 1313 quantitatively compare the data within equal order periods. time The research included to the details date of each successful Section 2 decision about in the post - Shelby County era, the state where the Section 2 violation occurred, the date the case was filed, whether a preliminary halt injunction other interim remedy was issued to or implementation during elections , the type of Section 2 cla im , and the community impacted. These details also provide a snapshot of the 1312 Shelby Cty., 570 U.S. 529. 1313 The data are generated from a Westlaw legal research database search for successful Section 2 cases, and the analysis of these cases by Commission staff. The definition of succ essful remains consistent with that used in the 2006 VRA Reauthorization, which was also used by Kousser in his data summarized above. See supra notes 1306 - 1307 for definition of “Successful” Cases and Discussion of Methodologies.

233 Chapter 4: Examining the Data 227 and any limits to the effectiveness of Section 2 in preventing racial discrimination of functionality in the post - Shelby County voting Staff research found that: in era. 1314 T Shelby County - three successful Section 2 cases have been decided since the x wenty 1315 decision. In comparison, there were only years successful Section 2 cases in the five o five 1316 decision. Shelby County preceding the In the five years since the Shelby County decision (as compared to the five years o before the decision), the number of successful Section 2 cases has more than quadrupled. reliminary injunctions or other interim remedies were only issued in 9 of the 23 successful x P - Shelby County Section 2 cases filed, or fewer than 39.1 percent post (9/23) of the successful cases. Preliminary injunctions were sought by voting rights advocates in various cases, but in most cases, they were denied or overturned. o Two of the preliminary injunctions were stayed by t he Supreme Court, based on nine the reasoning that minority voters and their advocates asked for changes too close to Election Day. As discussed above, this is a relatively new precedent that has emerged 1317 since preclearance has been removed. 1314 This analysis considers the litigation regarding voter ID in Texas to be two separate cases, because it has whereas the — involved two separate voter ID laws (SB 14 and the amended SB 5) with two separate decision points the amended SB 5 are currently not successful. There claims regarding SB 14 were successful, the claims regarding , 888 F. Supp. 2d at 144 - are four main decisions regarding voter ID in Texas: (1) , vacated Texas 45 (D.D.C. 2012) , Texas , 570 U.S. 928 (remanded on June 27, 2013, based on Shelby County , after which SB 14 was and remanded immediately put back into effect); (2) , 71 F. Supp. 3d 627 (SB 14 was preliminarily enjoined on basis of Veasey likelihood of success on the merits for intentional discrimination and with regard to S ection 2’s prohibition of see Veasey , 769 F.3d 890, 135 S. Ct. 9 (denying motion to discriminatory effects), but this was stayed upon appeal ( Veasey , 830 F.3d 216 (finding SB 14 intentionally racially discriminatory, remanding to district vacate stay); (3) court on equal protection claim and on remedies); in the interim, Texas amended SB 14 and introduced SB 5, which provided for new exceptions to the strict voter ID bill, including a “reasonable impediment procedure,” as well as table identifications. SB 5 was also found to be intentionally discriminatory in (4) Veasey , expanding the list of accep 248 F. Supp. 3d 833 (holding that SB 5 must be invalidated as tainted fruit of intentional discrimination), but after vant decision and remanded the remedies issue, on remand, on April 27, the Fifth Circuit (en banc) affirmed the rele 2018, a three - judge panel of the Fifth Circuit concurred to strike down the en banc ruling of the full Fifth Circuit, based on the theory that Texas’ appeal was not moot and that SB 5 s hould be independently evaluated. Veasey , 888 F.3d 792, 2018 WL 1995517 (5th Cir. 2018). In this latest ruling, in the 2 - 1 decision, of the three judges, one ruled ed” by prior that the lower court’s opinion was based on inequitable remedies because SB 5 was not “taint at 801 - 02, the second agreed with overturning the permanent id. discrimination and that the state’s appeal was moot, at 804 - 05, and the third id. injunction because it was moot as the legislature should be allowed to solve problems, judge that Id . at 823. it was still “tainted.” 1315 See Table 12, infra. 1316 These are: Large, 709 F. Supp. 2d 1176 (at - large elections diluting voting rights of Native American); Vill. of Port Chester Brown , 561 F.3d 420 (vote , 704 F. Supp. 2d 411 (method of election diluted Latino voting rights); denial case on behalf of white voters, based on episodic practices); Fabela v. City of Farmers Branch, 2012 WL 3135545, No. 3:10 - CV - 1425 - D (N.D. Tex. 2012); and Spirit Lake Tribe , 2010 WL 4226614 (preliminary injunction against closing polling places on Spirit Lake Tribe Reservation). 1317 See supra notes 347 - 51.

234 An Assessment of Minority Voting Rights Access 228 Moreover, the great majority of elections that occurred in the interim were conducted o with voting measures that were later found to be racially discriminatory. jurisdictions , all of these o In contrast, for those cases that occurred in formerly covered cases involving voting changes would have been frozen during the preclearance — process unless and until the jurisdiction could prove that any changes they sought to implement, such as a new redistricting plan or voter ID law, were not retrogressive to 1318 minority voters. of x - Shelby County Section 2 cases occurred in formerly Twelve the 23 successful post covered jurisdictions. In the years just prior to o (2006 - 2013), only 9 of 50 states (18 percent ) Shelby County were previously subject to preclearance under Section 5. In the success five years prior to Shelby County o ful Section 2 cases brought in the percent ) successful cases were (when Section 5 was in place) two out of five (40 brought in formerly covered jurisdictions. In comparison, in the five years after Shelby County , 12 out o f 23 (52.2 percent ) o Th occurred in formerly covered jurisdictions. data show that the rate of ese concentration in formerly covered jurisdictions is increasing. O - Shelby County cases was brought on behalf of Asian nly one of the post x Sixteen Americans/Pacific Island 11 included ers. included claims on behalf of black voters, Americans , and three were brought on behalf of Native claims on behalf of Latino Americans. 1319 A 2 of the 23 cases below. judicial preclearance remedy was only granted in Judicial x 1320 precleara nce was not granted even in some cases involving intentional discrimination. of the 23 successful cases (60.9 percent ) involved or included vote dilution x Fourteen percent ) involved or included vote denial or abridgement. claims, and nine (39.1 e fiv o years prior to Shelby County , three of the five of successful Section 2 cases In the (60.0 percent ) involved vote dilution, and two out of the five (40.0 percent ) involved vote denial. The following chart summarizes the successful cases Commission staff identified and researched, with information about whether or not they occurred in jurisdictions that were covered additional whether prior to the Shelby County decision, by o r not a preliminary injunction to preclearance halt implementation during the course of the litigation was granted, the type of Section 2 claim , 1321 and community impacted. the 1318 52 U.S.C. § 10304. See 1319 See City of Evergreen , 2014 WL 12607819; Patino , 230 F. Supp. 3d 667. 1320 e, e.g ., McCrory, Se 831 F.3d 204. 1321 The data are generated from Westlaw legal research database search for successful Section 2 cases, and the analysis of these cases by Commission staff. The definition of successful remains consistent with other datasets i n this report. See supra note 1306, for definition of “successful” cases, and notes 1306, 1321 - 22 for discussion of Commission staff research methodologies.

235 Chapter 4: Examining the Data 229 1322 Successful Post Section 2 Cases (per Westlaw) - Table 12: Shelby County Preliminary Injunction Formerly (PI)? Type of Section 2 claim & 1323 cover ed? Case community impacted (as per WL) No enial of black voters’ and d Dilution but case filed before — 1. Consent Order, Allen YES (AL) rights: City redistricting plan and , and under Shelby County v. City of Evergreen, Ala. Section 5 election changes 2014 WL , changed system of voter eligibility 0107 No. 13 - 12607819, challenged under Sections 2 and 5; were enjoined unless and parties agreed to judicial pr eclearance (S.D. Ala., Jan. 1, 2014) until precleared. . and federal observers under Section 3 . — Luna v. Kern Cty , Dilution of Latino voting power NO (Kern plaintiff’s motion for 2. No . partial summary judgement 291 F. Supp. 3d 1088 Cty. CA) through county redistricting plan. 1324 (E.D. Cal. 2018) denied. . 3. Ga. NAACP v. Dilution of black voters’ rights: on remand, covering , Yes YES (GA) special election, August 10, 118 F. , . Fayette Cty - At large county and school board 3d 1338 (N.D. Supp. . October 13, 2015 2015 - districts . Ga., Aug. 3, 2015) . - t A No 4. the court allows elected Wright v. Sumter Cty. Dilution of black voting power: — YES (GA) County Sumter Board large districts of officials the opportunity to Bd. of Elections & African d of Education dilute Registration , 301 F. - . remedy the districting plan Supp. 3d 1297 (M.D. . American voting strength Ga. 2018) . Terrebonne Parish Dilution of black voters’ rights: . 5 . No YES (LA) , Jindal La. NAACP v. . - At large elections for judges 3d 395 274 F. Supp. (M.D. La. Aug. 17, . 2017) . Mich. APRI v. 6 Denial of black voters’ rights: . granted July 21, 2016 , Yes YES (MI) Johnson , 833 F.3d 656 - ticket voting . Elimination of straight (6th Cir. Aug. 17, 2016) . . Dilution of black voters’ rights: Missouri NAACP v. . No 7 No (MO) Florrisant - Ferguson Method of school board election . Supp. 3d S.D. , 201 F. 1006 (E.D. Mo., Aug. . 22, 2016) 10/7/16 . , Denial of Native American voting Sanchez v. Cegavske 8 No (NV) Yes, granted in part 3d 961 (D. Supp. as to additional in - person rights: PI issued regarding polling 214 F. places (PI denied regarding voter early voting and Election Nev., Oct. 7, 2016) . Day polling places in two registration sites) . counties. 1322 - Shelby County ” time period means that the The definition of a successful Section 2 case falling within the “post published decision falls within this time period (event noted on Westlaw after June 25, 2013). This is the same - Shelby County time period (the five years prior to Shelby County ), so that definition as used in the equivalent pre comparisons are between equal criteria. 1323 For a map of formerly covered states and subdivisions, see Chapter 2, Figure 2. Also note that statewide changes impacting the formerly covered townships and counties had to be precleared. 1324 291 F. Supp. 3d 1088, 1097 (referr ing to the decision at litigation Doc. No. 97).

236 An Assessment of Minority Voting Rights Access 230 Preliminary Injunction Type of Section 2 claim & Formerly (PI)? 1323 ed? cover Case (as per WL) community impacted 9 Dilution of voting rights of blacks, Favors v. Cuomo , . N o . YES (NY) /Pacific Islanders , Asian Americans 2012 WL 928216 *9 and Latinos: NY Congressional (E.D.N.Y., Mar. 12, 3d 2012), 39 F. redistricting plan was precleared but Supp. then litigated under Section 2, after 276 (E.D.N.Y., Aug. 14, which the state adopted a new plan to . 2014) come into compliance . . Molina v. Cty . of No Dilution of black and Latino voting . 6/14/13 — 5/6/13 Yes, 10 , 2013 WL Orange, NY (Orange Cty rights: County redistricting case, . - - 3009716, No. 13 CIV Special Master’s plan adopted in time NY) 3018 (S.D.N.Y., June 14, for Nov. 2013 county elections . 2013) . . Pope v. Cty . 1 of Dilution of black and Latino voters’ No, PI denied, 2011 WL No (Albany 1 , 94 F. 3651114; Supp. Albany, NY NY) rights: C ounty redistricting case . 3d 302 (N.D.N.Y., Mar. aff’d . 687 F.3d 565 (2nd. Cir. . 2012) . 24, 2015) Denial of black voters’ rights: 2 NC NAACP v. 1 hoto P . by Yes, partially, but stayed YES (NC) 1325 McCrory , 831 F.3d 204 day a PI was - Supreme Court ID law and cuts to same — issued only for one week registration, early voting, ( 4 th Cir., July 29, 2016) . and , precinct voting - of (and only same day out - - registration and out - of - registration . pre precinct voting (and not for voter ID or cuts to early voting, registration)), - pre October 1, 2014 October 8, - . 2014 Yes, . Brakebill v. Jaeger , granted August 1, 2016, 3 1 No (ND) Denial of Native American and 2016 WL 7118548, 2 nd PI regarding amended others’ voting rights: PI issued 008 (D.N.D 1:16 safe, affidavit - regarding fail - voter ID law granted April 6, CV - ., provisions of voter ID law; a fter . Aug. 1, 2016) 2018, 2018 WL 1612190. second PI was issued . amendments, a 4 . Ohio NAACP v. 1 uts C Denial of black voting rights: No (OH) Yes, but stayed by Supreme to Husted , 768 F.3d 524 Court, 135 S. Ct. 42 (2014), early . person voting - in so PI was only from 9/4/14 (6th Cir., Sept. 24, - . 2014) . 9/29/14 5 . Bear v. Cty . of No ng Denial of Native American voti PI was requested, then No (Jackson — 1 Jackson, SD , 2017 WL parties resolved PI issues in to establish satellite ailure F rights: SD) Cty . 52575, No. 5:14 CV - settlement conference, 2015 - - office for voter registration and in 05059 (D.S.D., Jan. 4, person absentee voting on Indian WL 1969760. . 2017) Reservation . 6 Dilution of Latino voting rights: Benavidez v. Irving . 1 No . YES (TX) S district system with no , 2014 WL S.D., TX chool effective Latino citizen district while 4055366, No. 3:13 - CV - 0087 (N.D. Tex., Aug. district as a whole had rapid ly 15, 2014) growing Latino majority . . 1325 A preliminary injunction was granted by the Fourth Circuit in League of Women Voters of N. Carolina , 769 F.3d 224, but stayed by the Supreme Court, North Carolina , 135 S. Ct. 6.

237 Chapter 4: Examining the Data 231 Preliminary Injunction Formerly Type of Section 2 claim & (PI)? 1323 cover ed? Case community impacted (as per WL) Patino v. City of N - ost P Dilution of Latino voting rights: . o 17 . YES (TX) , 230 F. conversion of City’s Shelby County Pasadena, TX Supp. 3d 667 (S.D. Tex., districts to add two at - large districts; judicial preclearance under Section 3 Jan. 6, 2017) . was granted through 2021 and could . possibly be extended . 1 Perez v. Abbott (I) , 8 Dilution of black and Latino voting No, PI denied 2015 WL YES (TX) 864 253 F. legislature passed tate S rights: 3d Supp. 6829596, No. 11 - CA - 360 (W.D. Tex., May 2, Congressional redistricting scheme . (W.D. Tex., Nov. 6, 2015) by packing and (TX intentionally diluted 2017) cracking . Congressional) . Perez v. Abbott (II) , 19. g Dilution of black and Latino votin Shelby - pre Yes, but it was YES (TX) redistricting plans 2017 WL 3495922 (TX County — An interim map rights: arious V adopted by state legislature were not islative State Leg was adopted for the 2012 . Supp. 3d precleared, but bills were signed by election, 274 F . ) districts Shelby the Gov. the day after the . 624, n.42 County decision . . Veasey v. Abbott , 20 Denial of black and Latino voters’ parties agreed to interim , s Ye YES (TX) 830 F.3d 216 (5 remedy for the 2016 election, th Cir., rights: S trict photo voter ID law . (TX voter July 20, 2016) . Supp. 3d 684, 687 . 265 F 1326 ID law SB 14) . 1 Montes v. City of 2 Dilution of Latino voting rights: City . No (WA) No, but Plaintiffs’ proposed Yakima, WA , 2015 WL remedial plan ordered as part redistricting plan prevented Latinos 12 of injunction issued Feb. 17, - CV - 3108 11120966, from meaningful participation . 2015. 2015 WL 11120966 at (E.D. Wash., June 19, . *1. 2015) 2 2 . One Wisconsin Ins t. Denial of black and Latino voting . No No (WI) rights: C person - , 198 F. v. Thomsen to early voting (in uts 3d 896 (W.D. Supp. absentee) . Wis., July 29, 2016) . 23. Common Cause Limited Denial of black voting rights: Plaintiffs' court granted , Yes No (IN) motion for a prelimin ary early voting locations had a disparate Indiana v. Marion Cty. , 2018 WL injunction as it relates to Election Bd. impact on black voters. 1940300, at *1 (S.D. November 2018 general election. . Ind. Apr. 25, 2018) 1326 In contrast, the ongoing l itigation regarding the amended Texas voter ID law, SB 5, is currently not successful See Discussion and Sources cited supra , notes 434 - 59. (as of June 25, 2018).

238 An Assessment of Minority Voting Rights Access 232 other factors are important: (1) these are not all the cases illustrating discrimination in voting Two cases the - Shelby County era, as there are Section 2 post not reported on Westlaw, nor does this in 1327 and other federal cases involving racial discrimin ation in voting; include and (2) state as the Kousser research discussed above, “enforcement is neither driven nor responsibly illustrated by 1328 Therefore, the number of filed cases, alone.” by it is important to note that the measured raw Section successful cases are likely to be an undercount of the actual number of incidents of 2 discrimination in voting. In addition , the underlying factors influencing the need, desire, and ability and win Section 2 claims may be very different from era to era. For example, pri or to to Shelby file in , Section 2 cases were complementary County or in addition to the protections of Section 5. But the post - Shelby County era , communities facing in voting in the formerly covered discrimination jurisdictions can no longer rely on Section 5 , an d so they are forced to rely more extensively on Section and any other tools at their disposal. Fin ally, in the current era, because Section 2 claims 2 rights so complex, long - term , and expensive, some voting advocates are instead turning to state are 1329 or are using other federal statutes to stop potentially discriminatory voting measures. cour t other hand , at the Commission’s briefing, some panelists felt that the increase in post - the On County voting rights advocacy does not reflect the current sta te of discrimination , with Shelby 1330 Cleta Mitchell referring to it as “the grievance industry . ” panelist Panelist Christian Adams 1331 testified recent Section 2 litigation was based on partisan motives. M ost post - Shelby that 1327 Example of successes in recent Section 2 federal court cases not reported on Westlaw inclu de: Consent Order, , 2018 WL 1583160 (challenges of black voters); Settlement Agreement, Georgia State Conference of NAACP , No. 11 CV - 1849 (M.D. Ga. 2018), http://www.projectvote.org/wp - Georgia State Conference of NAACP v. Kemp - - Agreement - NAACP - v. - Kemp - 2.9.17 content/uploads/Settlement 1.pdf (exact match process under which minority - voters were see also Ho, Written Testimony, supra eight times more likely to be rejected); note 446 at Appendix B, Other Section 2 Cases Since Shelby County (In addition, ACLU’s Dale Ho listed 12 recent Section 2 cases in which defendants’ motions to dismiss, for prel iminary judgment or stays, were denied, or in which plaintiffs won a case that had included a Section 2 claim on other grounds.). 1328 Written Testimony , supra note 304, at 2 (“Any given case may be big or small, warranted or Levitt, iling or meticulously prepared and each of those possibilities may have a very different unwarranted, rushed to f — Factual research is vital for public policy, and quantitative analysis is a vital component of accurate factual value. d remember the inherent limitations of the quantitative analysis in research, but it is important to acknowledge an ; see also Discussion and Sources cited at question when attempting to discern broader meaning from the data.”) notes 1276 1304, supra. - 1329 Ho, Written Testimony , supra note 446, at 13 (“F]oc using only on Section 2 litigation understates the amount of discrimination in the formerly covered jurisdictions (and elsewhere), because it omits voting rights violations adjudicated under different legal theories, many of which have been found in the fo rmerly covered jurisdictions.” Ho goes on to document successful cases against racial gerrymandering in Alabama, North Carolina, and Virginia, interference with language assistance in Texas, and the notorious voter purge program stopped by the NVRA litigat ion in ) (the Commission notes that a Section 2 claim was settled in Arcia ). Arcia v. Detzner 1330 Briefing Transcript , supra note 234, at 147 - 48 (statement by Cleta Mitchell, characterizing voting rights litigation as “the grievance industry”). 1331 Briefing Tra nscript , supra note 234, at 84 - 86 (statement by Christian Adams).

239 Chapter 4: Examining the Data 233 1332 rights litigation has been conducted by nonpartisan voting rights groups . voting County Adams stated that: However, state election laws have been challenged under the Voting Rights Act [R]easonable a representing concerted effort by lawyers partisan interest s. Right now, for in existence there is a challenge to the very of recall elections in Nevada example, the Voting Rights Act . . . The Public Interest Legal Foundation is a using - intervenor on the side of Nevada defending the state recall elections defendant 1333 partisan use of Section 2 of the Voting Rights Act. against this e issue is complicated because discrimination in voting may often take place for partisan gain. Th Professor pointed out that “often the discrimination [in voting] may not be based on actions Levitt nevertheless instead based on perceived partisan [gain], is using individuals ’ race or ethnicity but 1334 a proxy for achieving [it].” The Supreme Court held that if the totality of as circumstances show so, partisanship as a proxy for racial di scrimination may also violate the prohibition against using 1335 minority Section 2. in For example, if a group is on the cusp of being discriminatory results to exercise political power, and “the State able away their political power because they were took about to exercise it,” targeting their potential political power through racially discriminatory 1336 is thods illegal. me clearly The Commission also received testimony from other experts who stated that voting rights advocates to protect against racial discrimination in voting for nonpartisan reasons , and sought 1337 showing that both cited U.S. poli tical parties were guilty of data discrimination in voting. major 1332 See Figure 26: Successful Private Section 2 Litigation Compared to DOJ Section 2 Cases Filed and Litigated Shelby County Decision. Since the 1333 Adams, Written Testimony, supra note 669, at 3 - 4 (referring to Luna v. Cegavske , No. 2:17 - CV - 02666 (D. Nev. 2017)). The complaint in Luna was brought by Attorney Marc Elias, who has represented the Democratic Party in dividual black and Latino other voting rights cases. This Section 2 VRA complaint was brought on behalf of in voters who were allegedly less able or not able to vote due to the date of the recall election. It also alleges more than at ¶¶ 9 disparate impact. 13. Id. - 1334 Briefing Transcript , note 234, at 60 (statement by Justin Levitt). supra 1335 League of United Latin Am. Citizens , 548 U.S. at 440 (“Even if we accept the District Court’s finding that the State’s action was taken primarily for political, not racial, reasons . . . the redrawing of the district lines was District 23.”). damaging to the Latinos in 1336 Id. at 403; McCrory , 831 F.3d at 238: [T]he array of electoral “reforms” the General Assembly pursued in SL 2013 - 381 were not tailored to achieve ays, the challenged its purported justifications, a number of which were in all events insubstantial. In many w provisions in SL 2013 - 381 constitute solutions in search of a problem. The only clear factor linking these various “reforms” is their impact on African American voters. The record thus makes obvious that the “problem” the majority in th e General Assembly sought to remedy was emerging support for the minority party. Identifying and restricting the ways African Americans vote was an easy and effective way to do so. We therefore must conclude that race constituted a but - for cause of SL 2013 - 381, in violation of the Constitution and statutory prohibitions against intentional discrimination [in the VRA]. 1337 See notes 371 - 72, 377, 395, 615 - 17, and Table 12. supra

240 An Assessment of Minority Voting Rights Access 234 Summary of Current Conditions above research demonstrates that in the five years since the Shelby County decision, the The of Section 2 cases has quadrupled . There is successful also a higher rate of vote denial number and a concentration of successful Section 2 litigation in the formerly covered jurisdictions. cases, 1338 discussed, the above cases do not reflect the entirety of current conditions. As ongoing, Section cases also do not capture the repetitive nature of discrimination in voting The 2 some states. In states like in Alaska, Florida, North Carolina , and Texas, the se are not the only cases are at issue. Research in Chapters 2 and 3 of this report show the repeated and challenging ongoing discrimination in voting in these and other states, along with some emerging nature of patterns of voter registration and election administration practices that have national suppressive a impact on minority voters such as cuts to early voting, voter purging, er voter ID and strict 1339 requirements, and lack of accessibility. registration Moreo ver, as Natalie Landreth of NARF testified during the Commission ’s briefing, since the 1340 Shelby decision, “gains can be ephemeral.” Dale Ho of the ACLU , Sherrilyn Iffil of County well as Vanita Gupta and Justin Levitt, both s former DOJ leaders, also testified that in the LDF, a era, after significant successes in Section 2 cases, new iterations of the current original form of 1341 in votin g are emerging in their wake. discrimination For example, Landreth testified that in Arizona, state legislators are passing restrictions Native Americans that had previously impacting been abandoned under preclearance procedures , after the DOJ had requested further info rmation 1342 regarding the measures would be discriminatory. Similarly, North Carolina, which at whether have of the the Shelby County decision did not time many recent Section 2 cases, has experienced a comprehensive voter suppression bill that has discrimina ted against minority voters in a series 1338 supra notes 1327 and 1329, discussing other post - Shelby County ., voting rights cases. See, e.g 1339 See Appendix E: Charts of Voting Rights Issues by State, Comparing Formerly Covered With Noncovered Jurisdictions. 1340 supra note 1099, at 5. Landreth, Written Testimony, 1341 Briefing Transcript , supra note 234, at 218 (statement by Dale Ho) (“Successful Section 2 litigation has been a ray of light in states like Texas and North Carolina but these cases but in stark relief which has been lost with the demise in the preclearance system. Litigation has bee n costly and has taken years, and in the meantime, despite motions for preliminary injunctions, in these cases, several of which were actually granted, multiple elections were held in these states under rules that courts ultimately determined were intentio nally discriminatory and thus unconstitutional. So simply put, since the Shelby County decision we have a record of constitutional violations necessitating a congressional remedy.”); supra note 234, at 24 - 25 (statement by Vanita Gupta) Briefing Transcript (“One is that the loss of preclearance means that the Justice Department must now use Section 2 to affirmatively sue jurisdictions that engage in discriminatory election practices. Litigation is slow. It is enormously time - intensive. It ties up very precio us resources. It can take years for a case to make its way through the courts, as exemplified by both North Carolina and Texas litigations and all while elections are happening and harm is being done to the public as a result of discriminatory laws being i n place. Preclearance of course was designed to stop discrimination before the discriminatory rules went into effect. And now the harm is ongoing and the statewide litigation challenges that the Justice Department has been engaged in North Carolina and Tex as ate up a really significant amount of the Justice Department attorney resources and time.”). 1342 Landreth, Written Testimony, supra note 1099, at 5.

241 Chapter 4: Examining the Data 235 1343 The litigation to stop it took more than several years, was complemented by of elections. on - - ground advocacy and organizing — and the comprehensive voter suppression bill extensive the 1344 only not form of discrim ination in voting in the the state. Both North Carolinians and was experienced the real and constant threat of racially discriminatory redistricting and other Texans of discriminatory vote dilution, while also experiencing abridgment and more minor but stil l forms problems challenges of eliminating polling places and discriminatory voter and concerning 1345 purges. sum, both the Kousser data and the pre In and post - Shelby County data about successful Section - VRA violations generated and reviewed by the Commission 2 illustrate higher incidents of discrimination in voting in the formerly covered jurisdictions in recent years . The pattern by the Section 2 cases reviewed above also shows that current conditions include illustrated voting in states like Ohio, Pennsylvania , and Wisconsin, which were not formerly discrimination in Notably, these Section 2 cases show that the types of discrimination in voting in the post - covered. Shelby era include higher levels of vote denial and abridgement issues, and a re - emergence County 1346 - generation” types of discrimination in voting. This of mirrors the extensive evidence of “first 1347 the new registering to vote and staying on barriers rolls as documented in Chapter 3. In to addition, the overwhelming majority of the 33 written public comments the Commission received 1348 expressed about new restrictions on voter access in the post - Shelby County era. concern conditions also very clearly include complex l itigation lasting for many years, with Current preclearance, in procuring preliminary injunctions or judicial even in cases where difficulties discrimination is found. Preliminary injunctions were only issued in 39 percent of intentional 2 successful cases . This rate means that many elections were held with racially Section to in place, in sharp contrast discriminatory pre - Shelby County conditions, during which rules changes voting procedures could not be implemented in until they were shown to be nondiscriminatory . In this regard, the umbrella of protection has been taken down , and voters are being in jurisdictions that have attempted (and temporarily succeeded) to discriminate in drenched procedures. their election addition to the above quantitative data, at t he Commission’s briefing, various voting In rights experts, many of whom are experienced VRA litigators, testified that the protections of Section 2 are insufficient, and that they therefore believe that the preclearance provisions of Section 5 should be ored through new legislation covering jurisdictions with ongoing discrimination in rest 1343 supra notes 316 - 17 (discussion of voter suppression in NC in earlier chapter); Cf. supra See , Table 11. 1344 See supra notes 374 - 76, 384 - 403 (various methods of discrimination; repeated patterns of minority vote dilution and denial in North Carolina). 1345 and supra notes 449 - 54, and Table 12 (patterns of high levels of ongoing discrimination and new types of See id. discriminatory methods inTexas). 1346 See Table 12. supra 1347 See supra Chapter 3, Current Voter Registration Issues, at notes 711 - 945, supra . (discussing documentary proof of citizenship, challenges and purges of voters on the rolls). 1348 See Briefing Transc ript , supra note 234, at 253 - 310 (comments orally provided to the Commission from members of the public in Raleigh, NC).

242 An Assessment of Minority Voting Rights Access 236 1349 also testified that the states with the worst current conditions of discrimination in Some voting. are in sharp contrast to other states that are adopting positive m easures such as automatic voting 1350 registration, with the goal of making voting voter and more accessible. However, AVR easier 1351 been enacted in two of the formerly covered jurisdictions, Alaska and California , has only and 1352 mmission s ’ record s are mixed. The Co state also notes that nonprofit voting rights groups those formed a National Commission on Voting Rights, which documented an over - concentration of 1353 recent voting measures in the formerly covered jurisdictions. LDF’s Sherrilyn Ifill restrictive 1349 Briefing Transcript , supra note 234, at 126 - 27 (statement by Sherrilyn Ifill) (“The Shelby County decision was wrong. We knew it was wrong on the day but if you thought maybe it wasn’t wrong, what we have seen in the years since the Shelby County decision has borne out that it was i n fact wrong. We established that we can't keep up with the kinds of voting changes. We've established that the litigation takes too long. We’ve finally established that hundreds of thousands, perhaps millions of people, are being barred from participating in electing individuals who Briefing Transcript at 126 - 27 control their lives and who control their communities.”); Rosenberg Testimony, (stating that “The loss of protections afforded by the preclearance provisions of Section 5 had a certain nuance aspec t, and that is a lack of notice now that we have that, discriminatory practices are about to go into effect. We can only fight that which we know about and too often there are discriminatory practices that take root and bear fruit d. We've seen many forms in which these sorts of practices take. They range from the before they can be stoppe consolidation of polling places, which make it more difficult for minorities to vote, to the curtailment of early voting, which makes it more difficult for hourly wage wor kers to vote, to the purging of minority voters from voting lists under the pretext of list maintenance.”). 1350 Briefing Transcript, supra note 234, at 216 (“[automatic voter registration] would take care of the lion's share of voter registration problems th at we have in the United States and it would help to increase the number of people who are registered to vote. Colorado has the highest rate of voter registration in its eligible population in the country — almost 90 percent; 89.4 percent. One of the reasons why is because we do [automatic voter registration].”); Pitts Testimony, , at 151 - 52 (“My recommendation is that the Justice Department establish what I call Briefing Transcript Department, undoubtedly, has an a Local Redistricting Taskforce for the 2020 redistricting cycle. The Justice archive of just about every local redistricting plan that adopted during the 2010 cycle. The Department can and should systematically monitor and request redistricting plans adopted by local jurisdictions after the 2020 Cens us. And the Justice Department can and should compare what the old and new plans do to minority voting strength. And let me all emphasized that this should all be done in a highly visible and systematic manner. I think there would be two principle benefits to such a “Local Redistricting Taskforce.” First, local governments who know that the Department has its eye on local redistricting would be much less likely to engage in vote dilution because they know effect; knowledge of the act of observation will impact behavior. they are being monitored. It's a bit of the observer — deterring the adoption of discriminatory changes Indeed, it's what Section 5 did to accomplish over the years before they even got off the ground. Second, the Local Redistricting Task Force will be able to, when necessary and appropriate, use litigation to ensure that vote dilution does not occur on the local level and that important gains made by Section 5 are maintained going forward.”). 1351 See Appendix C (listing AVR states and dates of en actment). 1352 , cases summarized in Table 12, supra . See, e.g. 1353 National Commission on Voting Rights, “Protecting Minority Voters: Our Work is Not Done” (2014) See http://voting rightstoday.org/ncvr/resources/discriminationreport (last accessed June 5, 2018). After a series of filed briefings, the nonpartisan, nonprofit National Commission on Voting Rights investigated types of voting restrictions impacting minority voters in a 20 14 report. The report found that voting discrimination geographically concentrated in Florida, Georgia, Louisiana, Mississippi, South Dakota, and Texas, all of which are formerly covered jurisdictions. The report concluded that: x About 90 percent of voting changes proposed between 1995 and 2014 that were stopped by Section 5 involved a discriminatory effect with “respect to African - American voters.” Id . at 13.

243 Chapter 4: Examining the Data 237 1354 “We need structural solutions to structural problems in our country.” that, She posits testified the of the VRA created preclearance because they framers recognized that racism was a long - that impediment in society that was likely to continue standing to exist well into the future. In a report references as demonstrating the need she restore preclearance, her organization examined that to formerly covered jurisdictions and assembled a compendium of voting changes that LDF the 1355 negatively impacting minori ty voters in those states. believes are other hand, panelist and Alabama Secretary of State John Merrill expressed his frustration On the the preclearance process. He testified that it crea ted a “two party process” in which states had with 1356 get the approval of the federal government before they could make any new changes. to He also noted that this process was “long and complicated” and may unnecessarily burden cities, 1357 and states. the In M errill’s opinion, the Shelby County decision gave Alabama counties, sovereignty administer its own elections, free of the restrictive arm of the federal government. to , sovereignty is guaranteed to states in the C onstitution according to Merrill, and was correctly This 1358 to the states and should not have been taken away in the first place. given Similarly, p anelist 1359 argued that prior voting legislation was a “flagrant abuse” of federal power, and Mitchell Cleta “there is no evidence that changes to state el ection laws or procedures enacted since 2013 that 1360 in denying any person the right to vote.” resulted She also testified that in the Shelby County decision, Supreme Court struck down a “bizarre, haphazard and outdated triggering scheme the 1361 oversight .” for federal x About two - thirds of the cases involving discrimination in voting against African Americans have oc curred in the Id . at 75. previously covered districts, which is primarily concentrated in Mississippi, Louisiana, and Georgia. Evidence has shown that “increasingly stringent” voter identification requirements disproportionally affect African x ility to vote as compared to white voters, across the country. . at 76. Americans’ ab Id 1354 note 234, at 100 (statement by Sherrilyn Ifill). Briefing Transcript, supra 1355 Some common changes that the report identifies as disparately impacting minority voters include photo ID requirements, voucher requirements, racially motivated redistricting, voter purges, polling place closings, cutting early voting, and changing the timing of elections. NAACP LDF , Democracy Diminished: State and Local See - Alabama v. Holder ounty, Threats to Voting Post (2018) Shelby C http://www.naacpldf.org/files/case_issue/Democracy_Diminished_State_And_Local _Voting_Changes_post_Shelby _V_Holder_4_18_2018.pdf (last accessed June 7, 2018), at 7 - 19. 1356 Merrill, Written Testimony, supra note 1039. 1357 . Id 1358 Id . 1359 Mitchell, Written Testimony, supra note 574, at 2, 4. 1360 Id . at 2. 1361 Id. at 5.

244 An Assessment of Minority Voting Rights Access 238 left [ page intentionally This blank ]

245 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 239 HAPTER 5: C PARTMENT OF EVALUATION OF THE DE 2006 VRA JUSTICE’S ENFORCEMEN T EFFORTS SINCE THE THE 2013 REAUTHORIZATION AND SHELBY COUNTY DECISION evaluates DOJ VRA enforcement efforts during the time period from the 2006 VRA This chapter o July 27, 2006, which was effective n to the present, while also Reauthorization immediately, the period before and demarking the 5 years after the June 25, 2013 Shelby County decision. in bases the evaluation on information from DOJ responses to the Commission’s The Commission 1362 document requests , testimony received and at the Commission’s national voting i nterrogatories 1363 briefing and at SAC briefings, and rights independent Commi ssion staff research . other examine various DOJ enforcement actions and below tools it had available to The data the protections of the VRA during the time period studied. Primarily, the DOJ is enforce 1364 1365 federal law to bring lawsuits empowered in fed eral under in the performance of its court, 1366 to enforce the VRA. duty Its VRA enforcement tools include affirmative litigation, through the lawsuit bringing federal court to enforce any of a VRA provisions, which may lead to a court in opinion or a judge - ordere d c onsent d ecree settling the claims. DOJ’s VRA enforcement actions may lead to an out - of - court settlement or “letter agreement” or “memorandum agreement.” also may also file Statements of Interest and a micus (friend of the court) briefs with feder al The DOJ in cases where it believes it has an interest in doing so. courts to the Shelby County decision, Also, the DOJ was charged under Section 5 with prior formerly review of voting changes in administrative covered jurisdictions, to preclearance hether they determine be retrogressive or not. Under w Section 5, DOJ had the power to use would key tools such as requests for more information from jurisdictions, and it could object to and block 1367 changes the DOJ found would be retrogressive to minority voters. The DOJ was also that 1368 litigating cases involving charged bailouts from the preclearance provisions of the VRA, with 1369 it defended constitutional challenges to the VRA. and 1362 DOJ Response to USCCR Interrogatory No. 21; Copies of the Commission’s Interrogatories and Document Requests may be found in Appendix J. The Commission regrets the unjustifiably limited information DOJ provided in response to these Interrogatories and Doc ument Requests but the Commission draws conclusions from available information nonetheless, consistent with Congress’ charge to the Commission. 1363 https://www.usccr.gov/calendar/trnscrpt/Voting - - Briefing - The Commission record can be found here: Rights - 02 - 22 - Transcript ; for summaries of and links to relevant SAC briefings, see Appendix D. 18.pdf 1364 52 U.S.C. § 10308(d). 1365 52 U.S.C. § 10308(e). 1366 52 U.S.C. § 10101(c); see also U.S. Dep’t of Justice, Civil Rights Division, Voting Section, Statutes Enforced by the Voting Section . 1367 Figure 2, Map of Formerly Covered Jurisdictions; see also 52 U.S.C. § 10304. See 1368 52 U.S.C. § 10303(a)(3). 1369 See Hanov er Cty. v. Holder, No. 1:13 - CV - 00625 (D.D.C.), filed 05/02/2013; Linda Cty. Fire Protection Dist. v. Yuba Water Dist. v. Holder, Holder, - CV - 00485 (D.D.C.), filed 04/ 10/2013; No. 1:13 No. 1:13 - CV - 00407 (D.D.C.),

246 An Assessment of Minority Voting Rights Access 240 nother A VRA enforcement tool of the DOJ is election monitoring. The VRA includes major provisions observers allowing the Attorney General to send federal to monitor elections s tatutory practice the this has been complemented by the polls, of sending DOJ staff to monitor inside and outside the polls. Quantitative data regarding each of the above tools in the pre - and post - elections (see County are set forth in detail below eras Table 13 for a summary). Shelby this time, the DOJ also enforced voting rights under the Americans with Disabilities Act, During 1370 HAVA, the NVRA , and the Uniformed the and Overseas Citizen Absentee Voting Act . This work is critically important, however, the scope of the current evaluation and report is limited to 1371 review of the DOJ’s enforcement of the VRA. Commission’s the addition to the data herein, the qualitati ve legal context is also important to consider. As In in prior chapters, the Supreme Court’s ruling in Shelby discussed ushered in significant County changes in the legal ability of the DOJ to enforce protections for minority voters under the VRA. Prior to Sh elby County , jurisdictions that were for preclearance had to submit any changes covered in voting to the DOJ or a federal court, to prove that they would not be retrogressive. In 1969, the Supreme held that coverage of Section 5 was to be given broad interpretation, such that Court change affecting voting, even though it appears to be minor or indirect, returns any a prior practice or procedure, ostensibly expands voting rights, or is designed to to Linda Cty. Water District v. Holder, No. 1:13 - CV - 00363 (D.D.C.), filed 03/2112013; Yuba Cty. filed 03/29/2013; No. 1:13 City of Falls Church v. Holder, CV - 00352 (D.D.C.), filed 03/ 19/2013; Water Agency v. Holder, No. 1:13 - - - 00201 (D.D.C.), filed 02/15/2013; No. 1:13 - CV - 00054 (D.D.C.), filed 01/14/2013; CV City of Wheatland v. Holder, v. Holder, 01854 (D.D.C.), filed 11115/2012; - CV - Browns Valley Irrigation Dist. v. Holder, No. 1:12 - N.H. No. 1:12 01597 (D.D.C.), filed 09/26/2012; Craig Cty. v. Holder, No. 1:12 - CV - 0 1179 (D.D.C.), filed 07/18/2012; CV - No. 1:12 - CV - 01166 (D.D.C.), filed 07/17/2012; Wythe Cty. v. Holder, No. 1:12 Carroll Cty. v. Holder, CV - 00719 - (D.D.C.), filed 05/03/2012; No. 1:12 - CV - 00718 (D.D.C.), filed 05/03/2012; Merced Cty. v. Grayson Cty. v. Holder, 00255 (D.D.C.), No. 1:12 CV - 00354 (D.D.C. ), filed 03/06/2012; City of Pinson v. Holder, Holder, - CV - - No. 1:12 filed 02115/2012; No. 1:12 - CV Prince William Cty. v. Holder, 00014 (D.D.C.), filed 01/06/2012; King George Cty. - v. Holder, No. 1:11 - CV - 02164 (D.D.C.), filed 12/07/2011; Culpepper Ct y. v. Holder, No. l:11 - CV - 0 1477 (D.D.C.), filed 08/16/2011; James City Cty. v. Holder, - CV - 01425 (D.D.C.), filed 08/05/2011; City of Williamsburg No. 1:11 3 No. 1:11 - 1415 (D.D.C.), filed 08/04/2011; Rappahannock Cty. v. Holder, No. 1:11 - CV - 0112 CV v. Holder, - Alta Irrigation Dist. v. Holder, No. l:l l - CV - 00758 (D.D.C.), filed 04/20/2011; City of (D.D.C.), filed 06/17/2011; No. 1:11 - CV - 00749 (D.D.C.), filed 04/ 19/20 11; Bedford Cty. v. Holder, No. 1:11 - CV - Manassas Park v. Holder, 01 1; 00499 City of Bedford v. Holder, No. 1:1l - CV - 00473 (D.D.C.), filed 03/04/2011; (D.D.C.), filed 03/08/2 7 00461 (D.D.C.), filed 03/02/2011; v. Holder, No. l:l l - CV - Jefferson Cty. Drainage Dist. No. City of Sandy Springs No. No. 1:10 CV v. Holder, 01502 (D.D.C.), filed 09/07/2010; City of Kings Mountain v. Holder, - 1:10 - CV - 01153 - (D.D.C.), filed 07/08/2010; Page Cty. v. Mukasey, No. 1:08 - CV - 01113 (D.D.C.), filed 06/27/2008; Washington Cty. v. Mukasey, No. 1:08 CV - 01112 (D.D.C.), filed 06/27/2008; Amherst Cty. v. Mukasey, No. 1:08 - CV - 0 0780 - Middlesex Cty. v. Gonzales, - CV - 01485 (D.D.C.), filed 05/06/2008; (D.D.C.), filed 08/17/2007; Essex Cty. No. 1:07 No. 1:06 - CV v. Gonzales, 01631 (D.D.C.), filed 09/21/2006; Northwest Austin Mun. Util. Dist. No. One v. - No. 1:06 Gonzales, CV - 01384 (D.D.C .), filed 08/04/2006. - 1370 For some examples of recent enforcement of this kind, see, e.g. , Common Cause of N.Y. , No. 1:16 - CV - 06122 - - NGG United States v. Harris Cty., No. 4:16 RML (NVRA); CV - 02331 (S.D. Tex. 2016) (ADA); United States v. - State of Ill., No. 1:15 - CV - 02997 (N.D. Ill. 2015) (UOCAVA); Fort Bend Cty. , No. 4:09 - CV - 1058 (HAVA). 1371 See Discussion and Sources cited in the Executive Summary at notes 2 - 4, supra.

247 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 241 the elements that caused objection by the Attorney General to a prior remove 1372 change, is subject to the Section 5 requirement. review submitted voting meant that the DOJ could ensure that any changes had to be submitted for This 1373 preclearance, changes the were blocked from implementation during the preclearance review 1374 (of 60 days), process and if they were retrogressive, DOJ could object to them and they would 1375 permanently blocked. be At times this was done a federal court, but in the great through majority of instances, the DOJ was able to enforce Section 5 th rough administrative procedures 1376 alone. As discussed in Chapter 2, after the Shelby County decision, there were additional as regard to DOJ impacts enforcement tools in the formerly covered jurisdictions with follows: 1. Voting changes go into effect immediat ely, without being frozen as they were under Section 5 (unless litigation successfully secures a preliminary injunction under the remaining provisions of the VRA, the Constitution, or another federal law); DOJ no longer sends federal observers to formerly covered jurisdictions (unless they are 2. separately ordered by a court after successful litigation under one of the remaining provisions of the VRA); 1372 U.S. Dep’t of Justice, Section 5 of the Voting Rights Act , https://www.justice.gov/crt/what - must - be - submitted - under - - 5 (last accessed June 19, 2018) (citing Allen , 393 U.S. at 565). section 1373 According to federal regulation 28 C.F.R. § 51.13, Example of Changes: C hanges affecting voting include, but are not limited to, the following examples: (a) Any change in qualifications or eligibility for voting. (b) Any change concerning registration, balloting, and the r or assistance in registration or voting. (c) counting of votes and any change concerning publicity fo Any change with respect to the use of a language other than English in any aspect of the electoral process. (d) Any change in the boundaries of voting precincts or in the location of polling places. (e) ange in the constituency of an official or the boundaries of a voting unit (e.g., through Any ch redistricting, annexation, deannexation, incorporation, dissolution, merger, reapportionment, changing - - istrict elections from at to at large elections). (f) large elections from district elections, or changing to d Any change in the method of determining the outcome of an election (e.g., by requiring a majority vote for election or the use of a designated post or place system). (g) Any change affecting the eligibility o f persons to become or remain candidates, to obtain a position on the ballot in primary or general elections, or to become or remain holders of elective offices. (h) Any change in the eligibility and qualification procedures for independent candidates. (i) Any change in the term of an elective office or an elected official, or any change in the offices that are elective (e.g., by shortening or extending the term of an office; changing from election to appointment; transferring authority from an elected to a n appointed official that, in law or in fact, eliminates the elected official’s office; or staggering the terms of offices). (j) Any change affecting the necessity of or methods for offering issues and propositions e affecting the right or ability of persons to participate in for approval by referendum. (k) Any chang preelection activities, such as political campaigns. (l) Any change that transfers or alters the authority oting of any official or governmental entity regarding who may enact or seek to implement a v qualification, prerequisite to voting, or standard, practice, or procedure with respect to voting. [52 FR 490, Jan. 6, 1987, as amended by Order 3262 - 2011, 76 FR 21244, Apr. 15, 2011]. 1374 28 C.F.R. § 51.9. 1375 52 U.S.C. § 10304(a). 1376 See Discussion and Sources cited at notes 1383 - 1400, infra .

248 An Assessment of Minority Voting Rights Access 242 DOJ no longer believes that previously covered jurisdictions have to provide language 3. (f)(4); access under Section 4 DOJ no longer has the right to receive notice of changes in voting procedures (so it 4. 1377 cannot share this information with voters); Section 5’s rule against retrogression, or determining the impact of voting changes on 5. minority voters as compared to a prior benchmark, is no longer in operation; Formerly covered jurisdictions no longer have to provide the DOJ or the public 6. information or notice about the racial impact of their voting changes; and 7. DOJ is no longer required to regularly reach out to memb ers of impacted 1378 communities. Commission analyzed the DOJ’s various VRA enforcement tools t hrough the lens of data The level of use during the time covered by this report. Below are two their charts regarding summarizing the data, which compar es the covered and non - formerly covered formerly jurisdictions in the pre - and post - Shelby County eras. 1377 This means that voting rights groups have had to set up their own monitoring programs to try to keep track of ., Democracy North Carolina, n Board changes in voting procedures at the state and local level. Electio See, e.g https://democracync.org/take - action/board - of Monitoring elections - monitoring/ (last accessed June 6, 2018); Go , - Election Board Monitoring (2017), Vote Georgia, - issues/election - board - https://www.govotega.org/current monitoring (last accessed June 6, 2018); Common Cause Georgia , Help Wanted: Sign Up to Monitor Local Board of / - , Elections for Voter Suppression civic - engagement/2017/9/10/help https://159georgiatogether.org/159 wanted - sign - - up - to - monitor - local - board - of - elections - for - voter - suppression (last accessed June 6, 2018) ; Jennifer L. Patin, Voting Rights Communicatio n Pipelines in Georgia after Shelby County v. Holder , June 21, 2016, , June 6, 2018). See also Lopez, Written Testimony https://lawyerscommittee.org/georgiavra2016/ (last accessed supra (Lopez states that “ Since 2013, Democracy North Carolina has: Established a program monitoring note 309 the activities of county - l evel boards of elections (CBOEs), which determine critical ballot access policies; Established a poll monitoring program to document the impact of changes to state voting rules in H589 on voters and the voting experience; Engaged in substantial public educ ation efforts to inform the general public about changes in state and local voting rules, including those relating to H589 and related litigation; and Participated as plaintiffs in litigation to remedy voting rights violations ” ). 1378 See, e.g., 28 C.F.R. §§ 51.33 - 51.50 ([DOJ] Processing of [Section 5] Submissions, covering notice, release of information to public, consideration, obtaining information from submitting authority, supplemental information and related submissions, judicial review, and record of de cisions.).

249 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 243 Post - 2006 VRA Reauthorization Pre - and Table 13: DOJ VRA Enforcement Actions in the Shelby County s , in Formerly Covered and Non - formerly Cover ed Jurisdictions Post - Era - Pre - Post Shelby Shelby Enforcement Tool Use in Formerly County Covered Jurisdictions County 30 0 Objections under Section 5 Requests for More Information under 0 144 Section 5 1 DOJ Section 2 Cases Filed 3 0 DOJ Language Access cases by 8 1 Right to Assistance cases by DOJ 0 9 Statement of Interests and Amici 9 52 0 Observers 37 30 Monitors (Successful Section 2 cases by private 1379 4 12 parties (NOT DOJ actions) - Post - Pre Shelby Shelby Enforcement Tool Use in NOT County County Formerly Covered Jurisdictions 6 DOJ Section 2 Cases Filed 1 1 Language Access cases by DOJ 12 4 0 Right to Assistance cases by DOJ 3 7 Statement of Interests and Amici Observers 0 21 65 Monitors 99 (Successful Section 2 cases by private 1380 5 11 parties (NOT DOJ actions) and Answers to Interrogatories Source: Commission Staff Research DOJ This data and the methodology used to produce them are described in further detail below. Data regarding enforcement actions under VRA Section 5, under Section 2’s nationwide ban on DOJ right VRA’s language minority provisions, the the to assistance under Section 208, discrimination, Statements of Interest and Amicus briefs, and DOJ observers and monitors ar e each evaluated in summary turn . The chapter ends with a below of relevant testimony about DOJ’s VRA enforcement efforts, and a very brief summary of the data from the entirety of this report. 1379 These are not DOJ actions but are included for comparative reference of trends. 1380 These are not DOJ actions but are included for comparative reference of trends.

250 An Assessment of Minority Voting Rights Access 244 ictions) - 2013) DOJ Section 5 Preclearance Efforts (in formerly covered jurisd (2006 ended DOJ preclearance process immediately after the Shelby County decision. After the Shelby its on DOJ issued a Fact Sheet the Justice Department’s Enforcement Efforts County decision, Shelby County Decision Following stating that, , areas covered by the Section 4(b) [preclearance] formula, the department In the be able to block discriminatory changes to election rules and practices used to they took effect . . . One of the impacts of Shelby County is that now, before those discrimin changes can go into and remain in effect while the department atory 1381 pursues litigation. discussed above, p rior to Shelby County , Section 5, any voting changes in any covered As under had to be pre - cleared and approved by the federal governme nt before jurisdiction they could be 1382 The Commission notes that the vast majority of voting changes — indeed, 99 implemented. 1383 administrative submitted to the DOJ for its percent review. — Of the small fraction that were were instead submitted to a federal court, the DOJ was named as defendant and charged with 1384 litigating matter. During the time period in question, the DOJ’s Office of Inspector General the 1385 submissions the D OJ received between 4,000 - 7,000 per year. that The activity was reported intense during t he period of redistricting required after each decennial census, which especially district Shelby County always led to numerous changes in lines that had to be to prior 1386 precleared. DOJ Objections Under Section 5 to - 2013, DOJ issued 30 total objection letter s 2006 voting changes, and they were sent to From 1387 but not all, of the states covered. most, The following chart illustrates the relevant data. In particular, shows that reportedly, since the 2006 Reauthorization, no objections were issued in it 1388 California, Florida, Alaska, Hampshire, New York, or Virginia. New Arizona, 1381 2, notes 301 supra note 12; see also DOJ Fact Sheet, - 07, supra Discussion and Sources cited in Chapter (regarding the Fact Sheet). 1382 See Chapter 2, The Impact of Shelby County on Federal VRA Enforcement and Sources cited at notes 301 - 10, supra . 1383 ., U.S. Dep’t of Justice, Office of Inspector General, A Review of the Operations of the Voting Section of See, e.g (2013) 13, https://oig.justice.gov/reports/2013/s1303.pdf .; the Civil Rights Division 52 U.S.C. § 10304(a) see also (last accessed Aug. 6, 2018). 1384 52 U.S.C. § 10304 (authorizes suits in D.C. district court as alternative to preclearance); Michael E. Solimine, Rethinking District of Columbia Venue in Voting Rights Preclearance Actions , 103 G EO . L.J. O NLINE 29, 30 - 2 (2014) (background on history of statute and use of lawsuits in D.C. district court as alternative to preclearance). 1385 supra note 1383, at 81. U.S. Dep’t of Justice, Office of Inspector General, 1386 See, e.g. , U.S. Dep’t of Justice, Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act (Feb. 9, 2011) 7470, https://www.justice.gov/sites/default/files/crt/legacy/2011/02/17/sec5guidance2011.pdf (“Following release of the 2010 Census d ata, the DOJ expects to receive several thousand submissions of redistricting plans for review pursuant to Section 5 of the Voting Rights Act.”). 1387 DOJ Response to USCCR Interrogatory No. 22. 1388 Cf . Figure 2, Map of Formerly Covered Jurisdictions.

251 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 245 - DOJ Objection Letters by Figure (2006 23: 2013) State 10 9 8 7 6 5 4 3 2 1 0 NC MS MI LA GA AL TX SD SC 1389 Interrogatories USCCR to Responses DOJ of Analysis : Source Requests for Further Information the information provided in the DOJ sent 144 “letters to jurisdictions inf orming them that also and make a initial submission was insufficient for determination the Attorney General to 1391 1390 information.” requesting These letters concerned 601 different voting changes. additional heard process, the how about testimony preclearance the briefing, national the During Commission to amend proposed and particularly the se letters asking for more information forced jurisdictions 1392 have that would voting been discriminatory. changes Declar atory Judgements (Non - Objections) not object to the voting change s that were During the period studied, i n 25 cases, the DOJ did ordered a Declaratory Judgment submitted to a federal court , and the federal court therefore 1389 DOJ Re sponse to USCCR Interrogatory No. 21. 1390 DOJ Response to USCCR Interrogatory No. 22. 1391 . Id 1392 - Briefing Transcript 07 (statement by Natalie Landreth) (regarding Alaska). 106 note 234, at supra ,

252 An Assessment of Minority Voting Rights Access 246 1393 the DOJ consented to the voting change. that These Declaratory Judgments include showing 1394 by objections that were later invalidated Shelby County . DOJ prior Litigation Under Section 5 are various types of litigation that the There DOJ participated in under Section 5. According to DOJ’s re sponses to the Commission’s Interrogatories, since the 2006 Reauthorization, the DOJ 1393 The DOJ provided the following cases in which a Declaratory Judgment was issued: (1) Georgia v. Holder , 748 F. Supp. 2d. 16 (D.D.C. 2010) (dismissed, subsequent change reviewed administratively) (voter registration verification); (2) , No. 1:10 - CV - 01970 (D.D.C. 2011) (dismissed, no objections to the changes after administrative Georgia v. Holder review) (documentary proof of citizenship); (3) Louisiana v. Holder , No. 1:11 - CV - 00770 (D.D.C. 2011) (dismissed, no objection to the change after administrative review) (Congressional redistricting); Virginia v. Holder , No. 1:11 CV - 00885 (D.D.C. June 20, 2011) (dismissed, no objection to the changes after (4) - ve review of administrative review) (state legislative redistricting); (dismissed, remaining claims after administrati subsequent change in early voting); , No. 1:11 - CV - 1454 (D.D.C. 2011) (dismissed, no objection to the change after (5) South Carolina v. United States administrative review) (Congressional redistricting); , No. 1:11 - CV South Carolina v. United States 01566 (D.D.C. 2011) (dismissed, no objection to the change after (6) - administrative review) (Congressional and legislative redistricting); North Carolina v. United States , No. 1:11 - CV (7) 01592 (D.D.C. 2011) (dismissed, no objection to the chang e after - administrative review) (Congressional and legislative redistricting); Alabama v. Holder - CV - 01628 (D.D.C. 2011) (dismissed, no objection to the changes after administrative (8) , No. 1:11 review) (Congressional and Board of Education redistricting); Georgia v. Holder , No 1:11 - CV - (9) 01788 (D.D.C. 2011) (dismissed, subsequent change reviewed administratively) (Congressional and legislative redistricting); McConnell v. United States , No. 1:11 - (10) - 01794 (D.D.C. 2011) (dismissed, no objection to the change after CV administrative review) (Senate redistricting); (11) Williamson Cty. v. United States , No. 1:11 - CV - 01836 (D.D.C. 2011) (dismissed, no objection to the change after administrative review) (redistricting); Michigan v. United States - CV - 01938 (D.D.C. 2012) (granted) (Congressional and legislative (12) , No. 1:11 redistricting); Virginia v. Holder , No. 1:12 - CV - (13) 00148 (D.D.C. 2012) (dismissed, no objection to the change after administrative review) (Congressional redistricting); Florida v. Uni ted States , No. 1:12 (14) CV - 0380 (D.D.C. 2012) (dismissed, no objection to the change after - administrative review) (Congressional and legislative redistricting); (15) New York v. United States , No. 1:12 - CV - 0413 (D.D.C. 2012) (dismissed, no objection to the cha nge after administrative review) (state senate redistricting); New York v. United States , No. 1:12 - (16) - 01232 (D.D.C. 2012) (dismissed, no objection to the change after CV administrative review) (state assembly redistricting); and (17) Alabama v. Holder , N o. 1:12 - CV - 01232 (D.D.C. 2012) (dismissed, no objection to the change after administrative review) (state legislative redistricting). DOJ Response to USCCR Interrogatory No. 21. 1394 Data generated from DOJ Response to USCCR Interrogatory No. 22.

253 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 247 litigated three Section 5 cases about whether certain voting changes had to be affirmatively 1395 submitted. type of Section 5 litigatio n is Another brought by jurisdicti ons which sought preclearance that a federal court , as the statute enabled them to choose to submit through court through rather than 1396 DOJ. the These cases involved jurisdictions seeking a Declaratory Judgment to determine in voting procedures w ere (or were not) whether retrogressive or were (or were not) changes 1397 was discriminatory intent. The United States with named as defendant and the DOJ enacted litigated these cases . From the time of the 2006 VRA Reauthorization to the present, i n 13 such cases, litig ated important issues such as cuts to early voting and access to voter registration DOJ voter registration verification procedures in Georgia; South Carolina ’s in and Texas’ Florida; 1398 specially ID laws; and redistricting photo the 2010 redistricting cycle ( e voter in Texas). during 1395 - (1) , No. 2:08 These are: CV - 01982 (N.D. Ala. 2008); (2) United States v. Waller United States v. City of Calera Cty. , No. 4:08 - CV - 03022 (S.D. Tex. 2008); and (3) United States v. North Harris Montgomery Sch. Dist. , No. 4:06 - CV - USCCR Interrogatory No. 21. 02488 (S.D. Tex. 2006). DOJ Response to 1396 52 U.S.C. § 10304(a) (“State or subdivision may institute an action in the United States District Court for the cedure District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or pro neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, section 10303(f)(2) of this title , and unless and until the court enters or in contravention of the guarantees set forth in such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or proced ure[.]”). 1397 Id. 1398 See, e.g ., (1) Beaumont Indep. Sch. Dist. Perry v. Perez , 565 U.S. 388 , 944 F. Supp. 2d 23 (redistricting); (2) (2012) (redistricting); (3) , 888 F. Supp. 2d 113 (voter ID); (4) Texas v. United States , 887 F. Supp. 2d 133 Texas vacated and (D.D.C. 2012) (granted as to board of education; denied as to the other three plans) (redistricting), , Texas , 570 U.S. 928 (2013) (redistricting); (5) Galveston Cty. v. United States , No. 1:11 remanded CV - 01837 - (D.D.C. 201 2) (dismissed, subsequent change reviewed administratively) (redistricting of commissioner’s court); (6) Nueces Cty. v. United States , No. 1:11 - CV - 01784 (D.D.C. 2012) (dismissed, as to justice of the peace and constable plans after no objection to changes after administrative review) (dismissed, as to commissioner’s court after no Texas v. United States , 831 F. Supp. 2d objection to subsequent change in administrative review) (redistricting); (7) , 898 F. 244 (D.D.C. 2011) (redistricting); (8) South Carolina Supp. 2d 30 (denied in part; granted in part) (voter ID); (9) Florida , 885 F. Supp. 2d 299 (granted as to cross county moves) (dismissed without prejudice after retrogression finding on early voting claim) (dismissed, no objection to subsequent change in third party registration rules after Ariz ona v. Holder , 839 F. Supp. 2d 36 (D.D.C. 2012) (dismissed, challenge to being administrative review); (10) subject to preclearance); and (11) Georgia , 748 F. Supp. 2d 16 (voter registration verification). Also, a 2009 Government Accountability Office (GAO) report covered federal civ il rights enforcement from 2001 to 2007 and listed five cases in which the Department was a defendant in a motion for a Declaratory Judgment by a jurisdiction seeking preclearance under Section 5. GAO 10 - 75, Report to Congressional Requestors , 2009, 144 - 45 , - https://www.gao.gov/assets/300/297337.pdf . All five of the cases involved redistricting plans. Id. And in another four cases during that time period, plaintiffs brought suit to challenge the Depar tment’s preclearance determinations under Section 5. Id . at 142 - 45.

254 An Assessment of Minority Voting Rights Access 248 at least four constitutional challenges were filed against the United States’ authority Additionally, 1399 Section 5. enforce In nine other constitutional challenges also arose in the context of to cases, 1400 5 matters that the Section Department defend ed . other when jurisdictions sought to bail Finally, of the preclearance requirements of the VRA by out showing that they had not discriminated in voting for 10 years, the DOJ was charged with in investigating and then filing either a proposed agreement their federal court or application 1401 against the petition. litigating bailout All of these above cases occurred prior to the Shelby County decision. Types of Voting Changes Submitted o not provide yearly data regarding the types f voting changes submitted since the 2006 DOJ did Reauthorization. Instead, they provided VRA regarding types of changes submitted since data 1965, by decade. Therefore, only information from - 2013 is summarized below. 2010 1399 Alaska v. Holder, No. 1:12 - CV - 01376 (D.D.C.), filed 08/21/2012; Arizona v. Holder, No. 1:11 - CV - 01559 (D.D.C.), filed 08/30/2011; Shelby Cty. v. Holder, No. 10 - 0651 (D.D.C.), filed 04/27/2010; LaRoque v. Holder, C.A. No. 10 0561 (D.D.C.), filed 04/07/2010. C.A. - 1400 Beaumont Indep. Sch. Dist. v. United States, No. 1:13 - CV - 00401 (D.D.C.), filed 03/27/13; Alabama v. Holder, No. 1:12 CV - 01232 (D.D.C.), filed 07/26/12; Florida v. United States, - - CV - 00380 (D.D.C.), filed 03/ No. 1:12 12/12; Texas v. Holder, No. 1:12 - CV - 00128 (D.D.C.), filed 01 /24/ 12; Georgia v. Holder, No. 1:11 - CV - 01788 (D.D.C.), filed 10/06/11; No 1:11 - CV - 1428 (D.D.C.), filed 08/01/11; Georgia v. Holder , Florida v. United States, No. 1:10 - CV - 01970 (D.D.C.), filed 11/15/10; Georgia v. Holder, No. 1:10 - CV - 01062 (D.D.C.), filed 06/22/10. One of these cases proceeded through full argument and decision by the Supreme Court. Northwest Austin Municipal Util. Dist. No. One v. Gonzales, N o. 1:06 - CV - 01384 (D.D.C.), filed 08/04/2006. 1401 52 U.S.C. § 10303(a)(1).

255 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 249 Types of Voting Changes Figure Submi tted 24: to DO J for Preclearance, 2010 - 2013 18,000 15,000 12,000 9,000 6,000 3,000 0 1402 Responses to USCCR Interrogatories : of DOJ Source Analysis wide of types of voting changes submitted from variety the formerly covered The data show a that the Supreme Court held that coverage of Section 5 “was to be jurisdictions, reflecting the fact that any change in voting procedures had to be submitted for given broad interpretation,” such 1403 changes that there have been over 3,000 show submitted due preclearance. overall Also, data 1404 10 - y ear cycle since the 1965 VRA was enacted. to The Commission also redistricting in every changes are defined as anything falling outside the categories listed notes that “Miscellaneous” Code the of Examples of Changes published in the list of Federal Regulations in above . Based on 2011, these other types of voting changes could include: changes in 1987 and updated in 1402 DOJ Response to USCCR Interrogatory No. 22 (Section 5 Changes by Type and Year). 1403 U.S. Dep’t of Justice, Section 5 of the Voting Rights Act, supra note 1372, citing Allen , 393 U.S. at 565, Voting Changes U.S. Dep’t of Justice, see also , 137 S. Ct. 1843 (2017); abrogation recognized by Ziglar v.Abbasi , must - https://www.justice.gov/crt/what be - Enacted or Administered by Any State Official Require Section 5 Review - - Examples of Voting Changes, 28 C.F.R. § 51.13. submitted 5 see also section - under - (last accessed June 11, 2018); 1404 Voting Changes Enacted or Administered by Any State Official Require Section 5 Review , U.S. Dep’t of Justice, - must - section - 5 (There were 3,846 redistricting changes https://www.justice.gov/crt/what - - be under - submitted 09.). - 99, and 3,141 from 2000 rom 1990 89, 3,456 f - submitted from 1965 -

256 An Assessment of Minority Voting Rights Access 250 or eligibility for voting; changes in term of office; changes in rules for ballot issues, qualifications 1405 of propositions; or transfers or alterations of authority election officials. or , measures Section 5 DOJ VRA Lawsuits and Litigation - Based Enforcement Actions - Non litigation is so central to the role of the DOJ in enforcing our nation’s Because prohibiting laws iscrimination in voting, it is an important element of analyzing relevant f ederal civil d rights under the Commission’s statutory mandate, efforts 42 U.S.C. § 1975a(c)(1). As enforcement above, litigation can be a component of Section 5 enforcement , but Section 5 discussed also included mandatory administrative review, and in practice, preclearance involved much more action than litigation . In contrast, the other provisions of the VRA (which are administrative 1406 2 Chapter 1), in such as Section ’s na tionwide prohibition against discrimination summarized voting, do not have mandatory administrative review components and so in must be enforced by 1407 litigation. affirmative section compiles and analyzes the data regarding DOJ litigation under the VR A , Accordingly, this time of the 2006 Reauthorization, and since from the June 25, 2013 Shelby County decision. the The data below show that DOJ has brought fewer actions to enforce the non - preclearance provisions the VRA over time ( s ee Figure 25) , and that private parti es have been bringing a of prohibition of actions to enforce the national against racial discrimination in voting higher number in Section 2 ( s ee Figure 26 ). The data also show a sharp found decline in the number of language access cases filed by DOJ (see Fig ure 27 ), as well as a recent failure to file any cases to enforce Section 208 of the VRA, which provides for voters’ rights to assistance, including for voters with disabilities limited - English proficiency (see Figure 28 ). and Section 2 Cases 1408 the 20 06 VRA Reauthorization (July 27, 2006), the DOJ filed 11 Since 2 cases . These are : Section 1. United States v. City of Philadelphia, No. 06 - 4592 (E.D. Pa. 2006) (failure to provide Spanish - language access impacting Latino voters); 2. United States v. Village of Port Chester , No. 06 - C IV - 15173 (S.D.N.Y. 2006) (dilution of Latino voting rights); (D.S.C. v. Georgetown County School District , No. 2:08 - CV - 00889 - DCN 3. United States 2008) (dilution of black voting rights); 1405 See 28 C.F.R. § 51.13. 1406 See Chapter 1, Summary of Major VRA Provisions, and Sources cited at notes 101 - 37, supra . 1407 at notes 138 - 48 (The Relationship Between Sections 2 and 5); see, e.g., Id. 52 U.S.C. § 10301 (Sec tion 2). 1408 The Commission notes that DOJ litigation of Section 2 cases initiated prior to the 2006 Reauthorization also occurred during this time period. See Long Cty. , 2:06 - CV - 00040 (complaint filed and settled prior to - Reauthorization); City of Euclid , No. 1:06 - CV United States v. 01652 - KMO (N.D. Ohio 2006) (complaint filed prior to Reauthorization and settled after).

257 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 251 United States v. School Board of Osceola County 6 :08 - CV - 582 - ORL - 18DAB (M.D. 4. , No. (dilution of Latino voting rights); Fla. 2008) , No. 1:08 United States v. Salem County and the Borough of Penns Grove - 03276 CV - 5. (D.N.J. 2008) (denial of Latino voting rights) ; rd of Education , No. 1:08 - CV - 6. United States v. Euclid City School Board District Boa 02932 (N.D. Ohio 2008) (dilution of black voting rights) ; , No. 9:09 - CV 7. 80507 (S.D. Fla. 2009) (dilution of United States v. Town of Lake Park - black voting rights); United States v. Texas , No. 2:13 - CV - 8. 00263 (S.D. Tex. 2013) (intervention regarding Texas’ strict voter ID law) (denial of black and Latino voting rights); 00360 (W.D. Tex. 2013) (intervention regarding United States v. Texas 11 - CV - : , No. 5 9. d U.S. House of Representatives); statewide redistricting plans for the State House an United States v. North Carolina , No. 1:13 - CV - 00861 (M.D.N.C. 2013) (denial of black 10. ; and voting rights ) black United States v. Eastpointe - CV 10079 (E.D. Mich. 2017) (dilution of , No. 2:17 11. - 1409 voting rights). of Seven these 11 cases were brought prior to Shelby County , and four were initiated in the five years since the June 25, 2013 Shelby County decision. S everal of the DOJ’s post - Shelby County who Section cases were first brought by private groups 2 sued jurisdictions , af ter which the DOJ 1410 . Of the seven post - 2006 VRA Reauthorization intervened cases brought prior to the Shelby 1411 County only one was brought in a formerly covered jurisdiction (South Carolina) . Of decision, brought after the the Shelby County decision, th ree were brought in four formerly covered 1412 (and two were brought in Texas alone). jurisdictions And as discussed in Chapter 4, o f the successful private Section 2 cases won since Shelby County , 1413 out of 23 occurred in the formerly covere d jurisdictions . 1 2 1409 DOJ Response of USCCR Interrogatory No. 18; Internal Legal Research. 1410 In addition to the DOJ’s intervention in the Texas redistricting c ase brought by private parties, the case brought United States v. North Carolina by the DOJ in was joined with the original case filed by impacted individuals and community groups in McCrory , 831 F.3d 204. See, e.g ., United States’ Motion to Consolidate Ca ses, N. Carolina State Conference of NAACP v. McCrory , No. 1:13 - CV - 658 (M.D.N.C. 2013), http://moritzlaw.osu.edu/electionlaw/litigation/documents/US - tionToConsolidate_000.pdf . Also, United States. Mo , No. 2:13 00263 (S.D. Tex. 2013) was joined with the original case filed by impacted individuals and CV - v. Texas - Veasey community groups in See Unopposed Motion to Consolidate, Veasey v. Abbott and United , 830 F.3d 216. States v. Texas , 2:13 - CV - 00193 (S.D. Tex. 2013), http://moritzlaw.osu.edu/electionlaw/litigation/documents/VeaseyUnopMot2Consolidate.pdf . 1411 See Chapter 2, Figure 2: Map of Section 5 Formerly Covered Jurisdictions, DOJ Section 5. 1412 See Chapter 4, Table 12. (The pattern illustrated by private litigation shows a meaningful concentration of Section 2 enforcement in the formerly covered jurisdicti ons.) 1413 Id .

258 An Assessment of Minority Voting Rights Access 252 the quantitative analysis of DOJ’s VRA enforcement efforts , the following chart Returning to how DOJ’s Section 2 cases initiated since the 2006 Reauthorization shows were spread out over the dates in question. Since DOJ Section 2 Figure Cases Filed 25: t he 2006 VRA Reauthorization — 2018 4.5 4 3.5 3 2.5 2 1.5 1 0.5 0 1414 : USCCR Interrogatories (by date of case filings) of DOJ Responses to Source Analysis an overall decline in Section 2 cases filed unevenness by the DOJ The above data show some and the a clearer decline in the five years since decision, Shelby County prior County Shelby the to with decision. Section 2 litigation in the post - Shelby County era, the Commission For further analysis of DOJ set and chart. To compare DOJ’s enforcement work with that of private continues to the next data about number of successful Section 2 cases the brought groups, the Commission examined data post - Shelby County era to date. This methodology and the nature of the by private groups in the private voting rights la wyers on behalf of minority voters were Section 2 cases brought by 1414 DOJ Response to USCCR Interrogatory No. 18; U.S. Dep’t of Justice, Cases Raising Claims Under Section 2 of (see complaints and date of filing), https://www.justice.gov/crt/cases raising - claims - under - the Voting Rights Act - - 0#long - - rights . voting - 2 - section act

259 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 253 1415 Chapter 4. in Mo reover, the Commission compares the number of successful Section discussed cases filed brought by private groups, compared to only those by the DOJ. This methodology 2 mainly because of th e relatively low number of DOJ cases filed, and also because was chosen of several of the litigation DOJ cases is still ongoing. Specifically, the DOJ participated in the 1416 litigation of NC NAACP v. McCrory, successful regarding North Carolina’s omnibus n voting that were struck down by restrictions the Fourth Circuit, but the other i three post - Shelby 1417 DOJ Section 2 cases all still ongoing. County are Even using this quantitative methodology that results in conservative estimates of DOJ Section 2 litigation compare d with private Section 2 litigation , t he difference in the number of successful as by private groups cases comparison to cases filed and litigated by the brought DOJ is significant. in This disparity is illustrated by the following bar graph: Figure 26: Suc cessful Private Section 2 Litigation Compared to DOJ Section 2 Cases Filed Litigated Since the Shelby County Decision and 9 8 7 6 5 4 3 2 1 0 2013 post- 2015 2014 2016 2018 (to date) 2017 Shelby DOJ Section 2 cases (filed) Successful Private Section 2 cases (decided) 1418 & Internal Source Analysis Research Legal : 1415 See supra . As discussed in Chapter 4, while this method Discussion and Sources cited in Chapter 4, Table 12, accounts for all DOJ Section 2 cases, the method leaves out some Section 2 decisions that are not reported on supra 46 at Westlaw, so the private Section 2 cases could be an undercount. Ho, Written Testimony, note 4 Appendix B, Other Section 2 Cases Since Shelby County (in addition, ACLU’s Dale Ho listed 12 recent Section 2 cases in which defendants’ motions to dismiss, for preliminary judgment or stays, were denied, or in which plaintiffs won a case that had in cluded a Section 2 claim on other grounds). 1416 McCrory , 831 F.3d 204. 1417 - DOJ Response to USCCR Interrogatory No. 18, at 6; Internal Legal Research; United States v. Texas , No. 2:13 - States v. Eastpointe , No. 2:17 - - United , No. 5:11 United States v. Texas 00263; - CV 00360 (W.D. Tex. 2013); CV CV - 10079 (E.D. Mich. 2017). 1418 identified and DOJ cases (to date): The following chart summarizes the tally of cases compiled from Westlaw -

260 An Assessment of Minority Voting Rights Access 254 the DOJ has statutory authority to affirmatively enforce the provisions of the VRA on its Notably, 1419 and not dependent on receiving a complaint from an individual plaintiff. is The VRA also own, 1420 authorizes federal appropriations for the Department’s VRA enforcement work. specifically this statutory ecause , the DOJ’s path is of mor e direct and less cumbersome than the B authority of proof that impacted individuals level community groups must meet to demonstrate legal and 1421 to enforce the VRA. standing The DOJ also has substantial investigatory resources, including 1422 experts on staff , who support Section 2 investigations. - However, of all the post social science Section 2 cases examined, the Shelby DOJ has brought only a small fraction — four County out of 23 (17.4 percent , including only Westlaw reported, successful Section 2 cases). - At the national briefing, the Commission heard testimony from voting rights experts, including litigators, acknowledged the positive impact of the DOJ’s work in bringing Section 2 litigation who 1423 County Carolina and Texas in the post - Shelby era. North Testimony include d a recognition in 1424 DOJ dedicated its resource and expertise to these precedential cases. that The Commission through i n the U.S. common law system, law is established that the Constitution, by notes led) DOJ Section 2 cases (fi Successful Private Section 2 cases (on Westlaw) (decided) DATE 3 1 2013 post - Shelby County 0 4 2014 0 2 2015 0 8 2016 1 5 2017 0 1 2018 (to date) 1419 52 U.S.C. § 10308(d) (The Voting Rights Act authorizes the Attorney General to file a civil action on behalf of the United States of America seeking injunctive, preventive, and permanent relief for violations of Section 2 of the Act). 1420 52 U.S.C. § 10312 (“ There are hereby authorized to be appropriated such sums as are necessary to carry out the 103 to provisions of chapters of this title.”). 107 1421 See OCA - Greater Houston v. Texas , 867 F.3d 604, 610 (5th Cir. 2017) (holding that a nonprofit organization whose sole purpose is to protect voter rights must still demonstrate an injury in fact to have sta nding in an article III court); Arcia v. Fla. Sec’y of State , 772 F.3d 1335, 1340 (11th Cir. 2014) (noting that to have standing in a voting rights action an individual must demonstrate an injury in fact is identifiable, concrete, and actual or imminent); Perry ., 678 F. Supp. 2d 348 (4th Cir. 2009) (holding that an individual did not have - Bey v. City of Norfolk, Va standing where she failed to allege that she was a member of a minority group and that her right to vote was ); abridged based on her race or color , 883 F.2d 617 (8th Cir. 1989) (holding that an individual Roberts v. Wamser must demonstrate that her voting rights have been denied or impaired to have standing under the Voting Rights Act). 1422 U.S. Dep’t of Justice, Voting Section of the Civil Rights Division , 9, A Review of the Operations of the https://oig.justice.gov/reports/2013/s1303.pdf see also McCrary, Written Testimony, (last accessed June 13, 2018); supra note 445 , at 3 - 4 (DOJ un dertakes quantitative analysis in Section 2 cases; but note that staff analysis is necessarily complemented by expert witnesses for complex litigation). 1423 Briefing Transcript, supra note 234, at 219 - 20 (statement by Dale Ho); s ee also Briefing Transcript, supra note 234, at 220 (statement by Ezra Rosenberg). 1424 Briefing Transcript , supra note 234, at 24 (statement by Vanita Gupta).

261 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 255 such as the VRA, and also by judges setting leg al precedents through their decisions, legislation followed are to be binding and generally must be in their jurisdictions in the which considered 1425 future. the Commission’s briefing, however, experts also testified that the DOJ should be doing more At 1426 ongoing discrimination in voting. fight For example, remarking on the post - Shelby County to 1427 cases, Dale Ho noted that “ of these 21 successful Section Section 2 cases nationwide since 2 (or , the ACLU has been counsel in 5 Shelby nearly one - quarter) of them. The United States County Department of Justice, with its considerable resources, has been counsel in 4 of the 21 successful 1425 Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist See, e.g., , 52 V AND . L. R EV . 647, 661 - Court 62 (1999) (explaining the doctrine of stare decisis, which is law made through judicial decisions); Hon. John M. Walker, Jr., Senior Circuit Judge, U.S. Court of Appeals for the Second see also Stanford Law School China Guiding Cases Project , Circuit, “The Role of Precedent in the United States,” A prior case must meet two requiremen Commentary No. 15 , 2016, 1 (“ ts to be considered binding precedent. First, as compared with the present matter before the judge, the prior case must address the same legal questions as applied to similar facts. The higher the degree of factual similarity, the more weight the judge giv es the prior case when deciding the present matter. The degree of similarity of a prior case is therefore often a point of contention between parties to a litigation. Litigants compare and contrast prior cases with their own in briefs submitted to the cour t. The judge reviews and weighs these arguments but also may conduct his own research into, and analysis of, prior cases. The second requirement for a case to be considered binding precedent is that it must have been decided court within the hierarchy to which the court considering the case belongs. The by the same court or a superior American federal court system has three tiers: the district courts, the courts of appeals (divided into “circuits” with distinct geographic boundaries), and the U.S. Supreme C - tiered court system and, if ourt. Each state also has a multi certain jurisdictional requirements are met, the U.S. Supreme Court may review the decisions of the highest court in each state. Each district court thus follows precedents handed down by the Su preme Court and by the court of appeals in the circuit encompassing the district court. Each court of appeals follows its own precedents and precedents handed down by the Supreme Court, but it need not adhere to decisions of courts of appeals in other uits. A court may consider decisions by other, non - circ superior courts to be persuasive precedent, however, and follow them if they are well - reasoned and if there is no binding precedent that conflicts.”). See also Briefing Transcript , supra note 234 , at 101 - 0 2 (statement by Natalie Landreth) (stating that DOJ not bringing its own litigation but instead focusing on amicus briefs and Statements of Interest, “[t]hough important, it doesn’t compare to the impact of them [DOJ] bringing their own case.”). 1426 Transcript , supra note 234, at 220 - 21 (statement by Dale Ho) (“Now, in the meantime, DOJ has Briefing engaged in some commendable work to enforce Section 2, but it could have been doing and could be doing more in oting rights project, which I direct, but it has brought fewer that regard. Its voting section dwarfs the ACLU's v Section 2 cases since Shelby County than we have. And unfortunately there are signs that DOJ may be turning away from its historic mission of promoting voter access. Now, in addition, to abando ning its positions in Voting Rights - litigation out of Texas and Ohio, last year DOJ requesting information on list maintenance practices from 44 states, a sweeping inquiry that the former head of the DOJ's civil rights who testified, Vanita Gupta, describe d as virtually unprecedented.”). 1427 Among other cases, Commission staff identified another case that was decided on February 23, 2018, after Ho’s Testimony Written Luna , 291 F. Supp. 3d 1088. and accompanying research was submitted on February 2, 2018. Staf f also deleted one case in which research showed the Section 2 claim was not successful. Jackson v. Bd. of Trustees of Wolf Point, Mont. , 2014 WL 1794551, No. CV - 13 - 65 - GF - BMM - RKS, , at *1, *3 (D. Mont. Apr. 21, 2014), report and recommendation adopted as m odified sub nom ., Jackson v. Bd. of Trustees of Wolf Point, Mont., Sch. Dist . No. 45 - 45A , 2014 WL 1791229, No. CV - 13 - 65 - GF - BMM - RKS (D. Mont. May 6, 2014); Cf . Ho, Written Statement, supra note 446, at 12.

262 An Assessment of Minority Voting Rights Access 256 1428 .” Section Ho and others stated that due to the complexity of these cases and the 2 cases 1429 federal government should be needed, more. doing In contrast, Hans von resources the Section believes the Department’s low number of recent that 2 cases mean that current Spakovsky 1430 not evidence ongoing discrimination in voting. conditions He also expressed concern about do 1431 of cases brou ght during the Obama number Administration, low while concluding: “But, in the I would say that the Voting Rights Act remains a powerful statute whose remedies are summary 1432 than sufficient to stop those more rare instances of voting discrimination when they occur.” Sev panelists also expressed deep concern that in their view, the DOJ had reversed it s position eral 1433 Texas voter ID Section 2 litigation. In Congressional testimony, the DOJ expressed in the view , and stated that the change was due to Texas’ enacting an amended voter ID law with another voters exceptions with reasonable impediments to being able to secure current, state - issued for 1434 in The legal photo factual issues surrounding the DOJ’s position ID. this case over time and 1435 discussed in 2. are Chapter Language Access Cases and Enforcement Efforts in the Pre - and Post - Shelby County Era the 2006 VRA Reauthorization, the DOJ filed a number of cases to enforce Sections 4(e), Since 203 of the VRA (collectively the and “language minority” or “language access” , 4(f)(4) 1436 The data show a decreasing level of enforcement of the language access provisions). provisions of the VRA (see Figure 2 7 , after the following explanation of language access). Under the VRA, he term “language minorities” t or “language minority grou p” means persons who are American 1437 Asian American, Alaska Natives , of Spanish heritage. Indian, or As discussed in previous chapters, Se ction 203 applies when a certain threshold showing the 1438 inherent of voters with limited - English proficiency (LEP) h as been met, and that voters need 1428 Ho, Written Testimony , supra note 446, at 12 (cit ations omitted). See Discussion and Sources cited in Chapter 4, - 41, Voting Rights Act Litigation Trends at notes 1340 supra. 1429 See Discussion and Sources cited in Chapter 4, Successful Section 2 Litigation After the Shelby County d Summary of Current Conditions, at notes 1340 - 42, supra . Decision, at note 1329, an 1430 supra note 325 , at 2 - 3. von Spakovsky, Written Testimony, 1431 Briefing Transcript, supra note 234, at 29 - 30 (statement by Hans A. von Spakovsky ) . 1432 Id. at 28. 1433 , supra note 234, at 114 (statement by Nina Perales); see also Briefing Transcript , supra note Briefing Transcript 234, at 27 (statement by Vanita Gupta). 1434 John Gore, Acting Assistant Att’y Gen. Civil Rights Division, 2020 Census Project Report: Hearing Before the H. Comm. on Oversi ght and Government Reform , 115th Cong. C - S PAN video (May 18, 2018 at 1:27 - , 1:28), https://www.c - span.org/video/?445756 - 1/j ustice - department - official - progress - report - 2020 - census&start=4984 . 1435 See - 39, supra . Discussion and Sources cited in Chapter 2, Texs, at notes 433 1436 DOJ Response to USCCR Interrogatory No. 25. 1437 52 U.S.C. § 10310(c)(3). 1438 Section 203 applies in jurisdictio ns in which more than 5 percent of citizens of voting age are members of a single language minority group and are LEP; in which over 10,000 citizens of voting age meet the same criteria; and

263 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 257 1439 minority experience higher than average illiteracy rates. from The definition of that language is do not ‘‘speak or understand English persons adequately enough to participate in the LEP who 1440 according to C ensus data. jurisdictions Determinations of which electoral meet the process,” 1441 the covered by Section 203 are made by are Census every five years. and Figure 10 threshold the Language Access Issues section of Chapter 3 shows a Census Bureau map of the 263 in 1442 c overed after the most jurisdictions determinations, of December 2016. recent In its responses to the Commission’s Interrogatories, DOJ reported that: the [December 2016] determinations [under Section 203], the Following outr undertook an extensive program of each to covered jurisdictions. Department Department sent letters to all of the covered jurisdictions, in cluding tailored The letters jurisdictions covered for the first time and jurisdictions covered for new for languages. The letters or advised them of their Section 203 additional guidelines and best practices provided for developing a successful responsibilities, language program, and a contact for additional assistance. In the weeks and months following determinations, the Department has continued outreach to election the and members of minority language communities, focusing particularly on officials with new Section 203 obligations. The Department has also monitored jurisdictions in the field in a number of covered jurisdictions since the 2016 elections 1443 ations. determin in Chapter 3, in addition to Section 203, Section 4(e) of the VRA protects the As rights discussed 1444 Puerto Ricans educated in Spanish, of whether or they reside in a jurisdiction covered under not the threshold formula of Section 203. Despite the need of Puerto Ricans in jurisdictions that conduct in English - only, particularly after Hurricane María displaced hundreds of elections 1445 the mainland in September 2017, thousands DOJ has not brought a case to under Section 4(e) 1446 2012. since meets the 5 percent threshold. 52 U.S.C. § in Indian Reservations in which a whole or part of the population 10503(b)(2)(A)(i). 1439 52 U.S.C. § 10503(b)(2)(A)(ii). 1440 52 U.S.C. § 10503(b)(2)(A)(i). 1441 ., Voting Rights Act Amend ments of 2006, Determinations Under Section 203, 81, Fed. Reg. 87532. See, e.g 1442 Figure 10; see also U.S. Census Bureau, United States Section 203 Determinations Coverage eff. December See , 2016, https://www.census.gov/geographies/refer ence - 2016 - 203 - determinations.html . maps/2016/dec/rdo/section 1443 DOJ Response to USCCR Interrogatory No. 28 at 19. 1444 See Discussion and Sources cited in Chapter 3, supra notes 1129 - 31 (discussing 52 U.S.C. § 10303(a)(4)(e)); see 12 also Arroyo v. Tucker, - 67 (E.D. Pa. 1974); Torres v. Sachs , 381 F. Supp. 309, 311 - . 764, 766 372 F. Supp (S.D.N.Y. 1974); Berks Cty ., 277 F. Supp. 2d at 579 (decision also included findings of violations of Sections 2 and 208 of the VRA). 1445 See Discussion and Sources cited in Chapter 3 supra notes 1132 - 33. 1446 See List of DOJ Language Cases supra note 1447.

264 An Assessment of Minority Voting Rights Access 258 DOJ pursued 21 language access enforcement efforts in the time period covered by this The 1447 as illustrated in the graph below, only one was filed in the post - Shelby County era. but report, the 21 language enforcement efforts, 1 8 were Of enforce the rights of Spanish - s peaking voters to , while one in California was on behalf of Chinese - and Korean - speaking voters, another in alone was on California behalf of Chinese - and Spanish - speaking voters, and an out - of - court settlement 1448 entered into in South Dakota on behalf of La kota - speaking voters. was covered of the 21 language access cases were brought in jurisdictions that were formerly Eight out 1449 5, prior to the under County decision. Shelby Section court majority of these The cases were resolved by great - ordered c onsent d ecree s, under which the DOJ may send observers and monitor bilingual election procedures for several years after the 1447 These are: United States v. Napa Cty., see 1. Memorandum of Agreement (N.D. Cal. 2016) (Spanish), - - memorandum - agreement ; document/napa https://www.justice.gov/crt/case - county , No. 7:12 - CV - 03071 (S.D.N.Y. 2012) (Spanish); 2. United States v. Orange Cty. United States v. Colfax Cty. 3. - CV - 00084 (D. Neb. 2012) (Spanish); , No. 8:12 Cty. , No. 1:11 - CV - 02122 (N.D. Ohio 2011) (Spanish); 4. United States v. Lorain United States v. Alameda Cty. , No. 3:11 - CV - 03262 (N.D. Cal. 2011) (Spanish and Chinese); 5. United States v. Cuyahoga Cty. , No. 1:10 - CV 6. 01949 (N.D. Ohio 2011) (Spanish); - 7. United States v. Shannon Cty., S. Dak ota , see Memorandum of Agreement (D.S.D. 2010) (Lakota Language); (a formerl https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/shannon_moa.pdf y covered jurisdiction, Jurisdictions Previously Covered Under Section 5, covered - previously - - https://www.justice.gov/crt/jurisdictions see 5 ); - section United States v. Riverside Cty. , No. 2:10 - CV - 8. 01059 (C.D. Cal. 2010) (Spanish); 9. United States v. Fort Bend Cty. , No. 4:09 - CV - 1058 (S.D. Tex. 2009) (Spanish) (Texas was a formerly covered state, - see - previously - covered Jurisdictions Previously Covered Under Section 5, https://www.justice.gov/crt/jurisdictions section - 5 ); 10. United States and Commw. of Mass., Regarding City of Worcester , see Memorandum of Understanding ( Sept. 22, 2008) (Spanish), https://www.justice.gov/crt/memorandum understanding ; - United States v. Salem Cty. and the Bor. of Penns Grove - CV - 03276 (D.N.J. 2008) (Spanish); 11. , No. 1:08 d States v. Kane Cty. , No. 1:07 - CV - 045105 (N.D. Ill. 2007) (Spanish); 12. Unite United States v. City of Earth , No. 5:07 - CV - 00144 (N.D. Tex. 2007) (Spanish) (in formerly covered state); 13. 14. , No. 5:07 - CV - 00145 (N.D. Tex. 2007) (Spanish) ( in formerly covered state); United States v. Littlefield ISD CV , No. 5:07 - 15. - 00146 (N.D. Tex. 2007) (Spanish) (in formerly covered state); United States v. Post ISD 16. United States v. Seagraves ISD , No. 5:07 - CV - 00147 (N.D. Tex. 2007) (Spanish) (in formerly covered state); 17. United States v. Smye r ISD , No. 5:07 - CV - 00148 (N.D. Tex. 2007) (Spanish) (in formerly covered state); 18. , No. 3:07 - CV - 00377 (S.D. Tex. 2007) (Spanish) (in formerly covered state); United States v. Galveston Cty. 19. United States v. City of Walnut , No. 2:07 - CV - 02437 (C.D. Cal. 2007) (Chinese and Korean); 20. United States v. City of Philadelphia , No. 2:06 - CV - 45920 - 45924592 (E.D. Pa. 2006) (Spanish); and 21. United States v. City of Springfield, No. 3:06 - CV - 30123 (D. Mass. 2006) (Spanish). Source: DOJ Response to Interrogatory No. 25); Interna l Legal Research. 1448 Id. 1449 Id.

265 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 259 1450 of is signed, to ensure compliance. But 3 of the 21 were resolved by Consent out - Decree - court 1451 agreements. DOJ Language Cases Figure ght 27: Sin ce the 2006 VRA Reauthorization Brou 9 8 7 6 5 4 3 2 1 0 1452 : USCCR Interrogatories of DOJ Response to Source Analysis well received during the national briefing, as the as the In light of the Commission testimony of the rights of LEP violations ongoing Commission’s showing research internal independent, 1453 filing of only one language case since the Shelby County to language access, voters DOJ’s 1454 an ongoing need for language access protections. The data in Figure decision is in contrast to 1450 laims under Language Minority Provisions of the Voting Rights Act , U.S. Dep’t of Justice, Cases Raising C rights provisions - voting - raising - act#cochise (last https://www.justice.gov/crt/cases - claims - under - language - minority - - accessed June 13, 2018). 1451 These are: (1) United States v. Napa Cty., Memorandum of Agreement (N.D. Cal. 2016) (Spanish) (Section , Memorandum of Agreement (D.S.D. 2010) (Lakota Language) United States v. Shannon Cty., S. Dakota 203); (2) (Section 203); and (3) ates and Commw. of Mass., Regarding City of Worcester United St , Memorandum of Understanding (Sept. 22, 2008) (Spanish) (Section 4(e)). 1452 DOJ Response to USCCR Interrogatory No. 25 supplemented by internal research. 1453 See - 72. - 28, 1132 33, 1147 Discussion and Sources cited in Chapter 3, s upra - notes 1114 1454 As discussed in Chapter 3: Of approximately 291 million people in the United States over the age of five, 60 million people, or just over 20 percent, speak a language other than English at home. Among those other languages, the top two categories are Spanish and Asian languages, at 37 million and 11.8 million people, respectively. This means, nationally, about 3 out of every 4 Asian Americans speak a language other than English at home and a third of the population is Limited English proficient (LEP), that is, has some difficulty wit h the English language. Voting can be intimidating and complex, even for native English speakers. It becomes that much more difficult for citizens whose first language is not English. Voting materials are written for a twelfth grade level of comprehension,

266 An Assessment of Minority Voting Rights Access 260 clearly show that the DOJ was much more active in this area in previous years. As various 27 told Commission, there are millions of LEP voters, the their numbers are growing, and due experts widespread noncompliance with the language access provisions of the VRA, their voting rights to 1455 at risk. are the language Commission received credible testimony citing reports showing that when Moreover, 1456 voters are enforced, participation of LEP increases, and civic participation access rights indicates a form of integration into American demo cracy. After certainly the DOJ’s enforcement action in Napa County, California which resulted in a n out - of - court agreement with the DOJ to o into compliance with Section 203 of the VRA, the county Registrar of Voters stated that: c me of the reasons for Napa Coun ty’s excellent, 82.28 percent turnout [in 2016] was the “One 1457 Spanish language voters.” participation In 2007, NARF brought litigation in Alaska of language access regarding under Sections 5, 203 , and widespread 208 of the VRA. violations Natalie Landreth testi that: fied [ I ’ d ] like to point out that at no time did the Department of Justice intervene or assist all. In fact, in Indian country the DOJ has not brought a case on behalf of at in almost 20 years. The last one was South Dakota in 2000 and Native Americans that Wayne County in 1999. Their involvement has been limited before filing to 1458 briefs amicus or statements of interest. Though important, it doesn’t compare to 1459 impact of them bringing their own case. the Section 208 Cases — The Right to Assistance Sect ion 208 of the VRA provides for a right to assistance , which applies to LEP voters and voters 1460 with The statutory language clearly protects the rights of these voters to bring disabilities. their choice into persons voting booth to assist them, incl uding of family members or the which is much greater than that required for purposes of naturalization, making voting more challenging for voters with language barriers. , supra Asian Americans Advancing Justice, Written Testimony note 1114, at 3 (citations omitted). 1455 Id. 1456 Id. at 1 5 (examples of registration increasing by 40 - 50 percent; turnout among Vietnamese eligible voters see also Marschall & Rutherford, Voting Rights for Whom? , supra note 1128, at doubled in Harris County, Texas); see also Fraga & Merseth, Examining the C ausal Impact 590; supra note 1114 , at 31 (“analysis attributes a , significant increase in Latino voter registration and Asian - American turnout to coverage under [Section 203 of] the VRA”). 1457 Press Release, John Tuteur, News Release: NAPA County Released From DOJ Oversight (Dec. 7, 2016), https://www.countyofnapa.org/DocumentCenter/View/847 . 1458 ter, will petition Frequently, a person or group who is not a party to an action, but has a strong interest in the mat brief the court for permission to submit a briefs in the action with the intent of influencing the court's decision. Such are called “amicus briefs.” See, e.g., Amicus Curiae, Wex Legal Dictionary, https://www.law.cornell.edu/wex/amicus_curiae . 1459 Briefing Transcript , supra note 234, at 96 (statement by Natalie Landreth). 1460 52 U.S.C. § 10508.

267 on of DOJ’s Enforcement Efforts Since 2006 Chapter 5: Evaluati 261 1461 as the assistor is not their employer or long union agent. as Added to the VRA as volunteers, of the 1982 amendments, Section 208 provides for the right to vote with meaningful part access 1462 without literacy issues or other barriers that voters may have. It provides and understanding, reason “Any voter who requires assistance to vote by of blindness, disability, or inability to that: or write may be given assistance by a person of the voter’s choice, other than the voter’s read 1463 agent of that employer or officer or a gent of the voter’s union.” This text applies or employer LEP voters, other voters with difficulty reading or writing English, as well as voters with to impairments. or disabilities the reauthorization of July 27, 2006, DOJ has brought five cases to enforce Sec tion 208 of Since 1464 VRA, all before the Shelby County decision. the As discussed earlier in this report, all known Section enforcement actions undertaken by the DOJ were language access cases. In contrast, 208 groups have used Section 208 to enforce the rights to assistance for only voters with private 1465 Also, o nly one disabilities. of DOJ’s Section 208 cases was brought in a formerly covered 1466 (in Fort Bend County, Texas, in 2009). jurisdiction The relatively small and declining number of DOJ enforcement actions un der Section 208 (all of which brought for LEP voters) is illustrated by the following graph. were 1461 See, e.g ., DOJ Cases cited in note 1464, inf ra . 1462 , Proceedings and Debates of the 97th Congress, Voting Rights Act Amendments of 1982 (S.1992), 128 See, e.g. - 6561 (daily ed. June 9, 1982) at 344 - 45 (remarks of Sen. Stevens (R - Cong. Rec. S. 6497 WV)). 1463 52 U.S.C. § 10508. 1464 These are: 1. United States v . Fort Bend Cty. , No. 4:09 - CV - 01058 (S.D. Tex. 2009) (in a formerly covered state, see DOJ Section 5, supra note 226.); , No. 1:08 - CV - 03276 (D.N.J. 2008); 2. United States v. Salem Cty. and the Bor. of Penns Grove 3. United States v. Kane Cty. , No. 1:07 - CV - 0451 ( N.D. Ill. 2007); 4. United States v. City of Philadelphia , No. 2:06 - CV - 4592 (E.D. Pa. 2006); and 30123 (D. Mass. 2006). 5. , No. 3:06 - CV - United States v. City of Springfield Source: DOJ Response to USCCR Interrogatory No. 29, at 6; Internal Legal Research. 1465 See Discussion and Sources cited in Chapter 3, Accessibility Issues for Voters with Disabilities. 1466 See Sources cited at note 1468, supra .

268 An Assessment of Minority Voting Rights Access 262 Cases : DOJ Section 208 Right to Figure 28 Brought Sinc e the Assistance 2006 VRA Reauthorization 3 2 1 0 1467 : to USCCR Interrogatories Responses Source DOJ right that there have been no DOJ actions to enforce the VRA to Commission The notes also County decision . Shelby the since assistance briefing, the Commission heard testimony from AALDEF’s Jerry Vattamala During the national 1468 to protect the right to assistance for LEP voters to assistors. need This testimony was about the of received from NALEO, detailing examples testimony North Carolina election written by echoed we re unaware of the VRA’s right to assistance and interfered with LEP voters’ rights officials who 1469 it. Furthermore, NDRN’s Michelle Bishop testified about and submitted a post - to receive regarding statement need for DOJ to enforce Section 208 for voters with briefing the 1470 no scope of this report, the Commission tes that the DOJ has Although disabilities. beyond the 1471 enforce the protections of the ADA for voters undertaken with disabilities. efforts to 1467 4 cases listed in note 146 . , See supra 1468 26 (statement by Jerry Vattamala); see also Vattamala, Written - note 234, at 225 supra Briefing Transcript , Testimony, supra note 454, at 10 (discussing Section 208 of the VRA). 1469 , NALEO, Written Testimony for the U.S. Comm’n on Civil Rights, for the record of Voting Rights Briefing North Carolina (Feb. 2, 2018), at 1. During the public comment period of the Commission’s national briefing, Eliazar Posada also stated that growing up in south Texas, his mother was never advised of her right to receive assistance to vote in Spanish, de spite the fact that his mother visibly struggled to understand the ballot and voting supra - 301 (statement by Eliazar Posada). process. See Briefing Transcript , note 234, at 299 1470 Discussion and Sources cited in Chapter 3, Accessibility for Voters wit - 77, See h Disabilities, at notes 1174 . supra 1471 The DOJ provided information about launching the ADA Voting Initiative and reaching settlement agreements s.” The most with jurisdictions “to ensure that people with disabilities can access and use all their voting facilitie recent agreements were in Coconino County, Arizona (2018); Monroe County, Illinois (2018); Isabella County, Michigan (2017); Chicago, Illinois (2017); Chesapeake, Virginia (2017); and Richland County, South Carolina (2017).

269 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 263 Amici & Statements of Interest 1472 27 amicus briefs and Statements of Interest since the 2006 VRA Reauthorization. DOJ filed 1473 to the significant expertise and resources of the DOJ, these briefs can be influential. Due 1472 These are: - Greater Houston v. Texas , No. 16 1. 51126 (5th Cir. 2017) (Section 208) (in a formerly covered state (TX); see OCA - .justice.gov/crt/jurisdictions - previously - covered - Jurisdictions Previously Covered Under Section 5, https://www - 5 ); section McCrory v. Harris , No. 15 - 2. 1262 (S. Ct. 2016) (redistricting) (formerly covered (NC)); 3. Bethune - Hill v. Virginia State Bd. Elections , No. 15 - 680 (S. Ct. 2016) (redistricting) (formerly covered (VA )); Brakebill v. Jaeger - CV - 00008 (D.N.D. 2016) (voter ID); 4. , No. 1:16 Wittman v. Pesonhuballah - 1504 (S. Ct. 2016) (Virginia redistricting) (formerly covered); , No. 14 5. Sanchez v. Cegavske , No. 3:16 - CV - 00523 (D. Nev. 2016) (NVRA, Section 5); 6. m Ministries v. Alabama , No. 2:15 - Greater Birmingha - 02193 (N.D. Ala. 2016) (voter ID) (formerly covered); 7. CV Poor Bear v. Jackson Cty. , No. 5:14 - CV - 8. 05059 (D.S.D. 2016) (insufficient polling locations); 9. Harris v. Arizona Indep. Redistricting Comm ., No. 14 - 232 (S. Ct. 2015) ( redistricting) (formerly covered (AZ)); person/one - 940 (S. Ct. 2015) (redistricting metrics; one - , No. 14 - vote) (formerly covered (TX)); 10. Evenwel v. Abbott Ohio NAACP v. DeWine , No. 14 - 11. 3877 (6th Cir. 2014) (cuts to early voting); 12. Alabama Legislative Black Ca ucus v. Alabama and Alabama Democratic Conf. v. Alabama - 895 and 13 - , Nos. 13 1138 (S. Ct. 2014) (redistricting) (formerly covered (AL)); 13. Frank v. Walker and League of United Latin Am. Citizens v. Deininger , Nos. 14 - 2058 and 14 - 2059 (7th Cir. 2014) (voter ID) (formerly covered (TX)); Montes v. City of Yakima - CV - 03108 (E.D. Wash. 2014) (vote dilution); 14. , No. 2:12 Ohio State Conference of The Nat. Ass’n For The Advancement of Colored People v. Husted - CV - 00404 , No. 2:14 15. (S.D. Ohio 2014) (cuts to early voting); Toyukak v. Treadwell , No. 3:13 - 16. - 00137 (D. Alaska 2014) (formerly covered (AK)); CV Mark Wandering Med. v. McCulloch , No. 1:12 - CV - 00135 (D. Mt. 2012 and 2014) (insufficient polling places) (2 17. - Shelby County (Oct. 2, 2012) and one post - Shelby County (April 25, 2014)); Statement of Interests filed; one pre 18. Mi Familia Vota v. Detzner , No. 812 - CV - 01294 (M.D. Fla. 2012) (voter purge) (formerly covered (FL)); , No. 3:12 - CV - 00118 (D. Alaska 2012) (formerly covered (AK)); 19. Samuelson v. Treadwell Petteway v. Galveston Ct y. , No. 3:11 - CV - 00511 (S.D. Tex. 2012) (formerly covered (TX)); 20. 21. Perez v. Perry , No. 5:11 - CV - 00360 (W.D. Tex. 2011, 2012, 2013); Nos. 11 713, 11 - 714, and 11 - 715 (S. Ct. 2011) - (redistricting) (formerly covered (TX)); 22. State of Florida v. United States , No. 4: 12 - MC - 00003 (N.D. Fla. 2012) (cuts to early voting) (formerly covered (FL)); Lepak v. City of Irving - CV - 00277 (N.D. Tex. 2010); No. 11 - 101094 (5th Cir. 2011) (vote dilution) 23. , No. 3:10 (formerly covered (TX)); Simmons v. Galvin , No. 09 - 920 (S. Ct. 2010) (fe lony disenfranchisement in Massachusetts); 24. 25. Pérez - Santiago v. Volusia Cty. , No. 6:08 - CV - 01868 (M.D. Fla. 2009) (Section 4(e)); 26. Morales v. Handel , No. 1:08 - - 03172 (N.D. Ga. 2008, 2009) (documentary proof of citizenship) (formerly CV covered (GA)); and 27. Myers v . City of McComb , No. 3:05 - CV - 00481 (S.D. Miss. 2007) (formerly covered (MS)). Source: DOJ Response to USCCR Interrogatory No. 32 (with case descriptions based on internal research). Commission staff notes that other voting cases in which the DOJ filed a S tatement of Interest were listed on the Voting Section website, but left off the list of cases sent in response to USCCR Interrogatories, which in turn included other cases not on the Voting Section website. U.S. Dep’t of Justice, Voting Section Litiga tion, See , Amicus Briefs and Statements of Interest - section - litigation (listing for https://www.justice.gov/crt/voting example: N. Carolina NAACP v. North Carolina State Bd. Elections , No. 1 :16 - CV - 1274 (M.D.N.C. 2016), nc https://www.justice.gov/crt/case document/nc - naacp - v - - - st - bd - elections (DOJ Statement of Interest regarding

270 An Assessment of Minority Voting Rights Access 264 of interests are powerful tools used by the DOJ to explain the interests of the United Statements 1474 to court and to clarify and interpret the law. Moreo ver, eight of the 27 (29.6 percent ) States the filed with the Supreme Court, were the most precedential, impactful cases are generally where 1475 The following chart illustrates the level of DOJ efforts in this regard in recent years. decided. Figure DOJ Amicus Bri efs and Stat ements of 29: Interest, 2006 - 2018 8 7 6 5 4 3 2 1 0 2008 2007 2006 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 1476 : DOJ Responses Source to USCCR Interrogatories in in the post - Shelby challenges which the DOJ activity evidences ongoing voting This is an area era. County Testimony Regarding DOJ Performance and Priorities testimony rate of received Commission the briefing, national its During expert the low lamenting the - County era, especially the in VRA Shelby of provisions remaining the of enforcement DOJ post the Commission also considering DOJ’s decreasing workload under Section 5. On the other hand, ; discriminatory voter challenge s ) 303 (S.D. Ohio 2016), A. Philip Randolph Inst. v. Husted, 2:16 - CV - - (Statement of Interest a gainst removal https://www.justice.gov/crt/case - document/si - randolph - institute - v husted of voters for inactivity) ) . 1473 Victor Zapanta, C.L. . See - The C.R. Statement ARV H , as a Tool in Federal Civil Rights Enforcement Interest of 227, 228 (2017). L. R EV . 1474 Id. at 228. 1475 Id. 1476 DOJ Response to USCCR Interrogatory No. 32.

271 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 265 testimony stating that the decreased level of DOJ VRA litigation was a sign that conditions heard improved, another panelist sharply criticize d the DOJ for misusing its resources. had while DOJ Section Deputy Chief G erry Hebert, who Voting has litigated over 100 voting rights Former submitted written testimony stating that , cases, the best of circumstances, the Department would have used all of the resources In allocated to Section 5 preclearance to create robust enforcement under previously of 2 . . . Without the protection preclearance, states and localities have Section discriminatory voting laws at a frightening enacted but the Department simply rate, 1477 been unwilling or unable to police them. has of “I was ask ed to discuss my suggestion of best practices for the Department Justice Hebert added: 1478 VRA claims. My suggestion is bringing simply this: bring them.” in sentiments were echoed by Ezra Rosenberg, who testified that his organization, with These much more limited res ources than the DOJ, was doing more to enforce the VRA than the DOJ: [ County ] Since the Department of Justice has filed three suits Shelby against , jurisdictions regarding voting changes that have required preclearance under would Section 5. By way of comp arison, the Lawyers’ Committee for Civil Rights Under Law, has a fraction of the resources of the Department , has filed five such which Of even greater concern is that since January 20, 2017, the Department has suits. filed single suit under the Voti ng Rights Act . Again, by way of comparison, not a Lawyers’ Committee for Civil Rights Under Law has filed three lawsuits during the that period, adding to an existing case docket of five other Section 2 cases same Section November 2015. Two of the filed 2 cases filed by the Lawyers’ since Committee Civil Rights Under Law, one of for which was filed this year, settled relatively quickly with the establishment of majority - minority election districts in Emanuel Georgia and Jones County, North Carolina, demon strating how County, relief of the voting rights laws can lead to immediate vigilant for enforcement 1479 minority populations. discussed above, ACLU’s Dale Ho succinctly As that his organization is counsel in five of noted the successful post - Shelby County Section 2 cases, whereas the DOJ, “with its considerable 1480 asked been counsel in only four. resources,” When has if private groups like the ACLU have similar resources to the DOJ, Ho answered: 1477 J. Gerald Hebert, Senior Director, Voting Rights and Redistricting, Campaign Legal Center, Written Testimony - 4 (internal citation omitted). for the U.S. Comm’n on Civil Rights, at 3 1478 Id. at 6. 1479 Rosenberg, Written Testimony, supra note 651, at 4 - 5 (citin g cases) (some emphasis added). 1480 Ho, Written Testimony, supra note 446, at 12 (citing cases).

272 An Assessment of Minority Voting Rights Access 266 t all — [v]oting rights cases are very expensive. We ’ ve heard this numerous No at Particularly times. 2 require [s] testimony from multiple experts. These Section expenses, into six figures in terms of expert so for a private citizen easily run cases that cost, it’s essentially to For that to happen the private bear impossible. like the ACLU, like the NAACP, Legal Defense Fund, [and] NARF , organizations bring some cases but we do not have can the resources either in terms of the or the personnel power that the Department of Justice does and financial resources think in it speaks v olumes in terms of how aggressive DOJ has been protecting I rights when an organization like mine has brought four more Section 2 cases voting 1481 has in the DOJ five years. than last ’s Natalie Landreth expressed deep concern that “the DOJ has not NARF ght a case on behalf brou 1482 Native Americans in almost 20 years.” of And r egarding the resources of the DOJ, Professor testified that: Levitt the attorneys also enforce the provisions of may Voting Rights Act and Private statutes designed to combat racial and ethnic discrimination other in the election at most a handful of attorneys within but any given state, and a handful of process, organizations with a few voting rights specialists, can match the national Perhaps of the Department of Justice. institutional none can match the expertise rights Data - intensive cases like voting cases also often rely Department’s resources. on the analysis of expert witnesses, whose time is also limited. Private heavily developed expertise entities in voting rights litigation may be able to muster a with time, challenge most a few policies at a to and often no more than one. They at could not be expected to deliver justice everywhere that it was warranted even in a 1483 regime the deterrence of preclearance, much less in a new world without. with the other hand, some advocates believe that the lack of enforcement is either a symptom of On or or competency issues in the DOJ Voting Section, a sign that current conditions do management evidence ongoing discrimination in voting. The Comm ission received not from former testimony Voting Section Attorney Christian Adams with his opinion. Adams testified that: election that after Shelby [ County ] , state Many laws that violate the Voting argue legislatures were passed suddenly by state Act i n a conspiratorial effort to Rights block minority voting. Yet, inexplicably, the Department of Justice dramatically reduced activity under Section 2 and 203 of the Voting Rights Act enforcement the 20, 2009. If it was such after target rich environment, wh y wasn’t January a Department of Justice shooting at targets. Resource issues are a fake excuse. The Voting Section had excess capacity and lawyers who were idling with no work. the Indeed, brought one of the last cases I Department filed to challenge at - large 1484 lections in a jurisdiction — almost a decade ago. e 1481 - , supra Briefing Transcript 96 (statement by Dale Ho). note 234, at 195 1482 Landreth, Written Testimony, supra note 1099, at 2. 1483 Levitt, Written Testimony, supra note at 304, at 12 - 13 (citations omitted). 1484 Adams, Written Testimony, supra note 669, at 5.

273 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 267 former DOJ official Hans von Spakovsky believes that the Shelby County decision did Similarly, impact trends. He testified that: not enforcement Voting the review record of the of Section during the administrations A litigation George W. Bush and Barack Obama shows a sharp, overall downward trends in of number of enforcement actions filed by the Justice Department under the the 2013, provisions o f the VRA 2001 to 2016, including after the year various from 1485 Shelby County the decided. of was above data are consistent with this observation, but the downward trend in VRA litigation by The DOJ may be due to other factors. the private in this report s how a high level of recent, successful Section 2 cases brought by The data 1486 an overall trend of discrimination in and continuing during recent years. Th is parties, voting could also indicate that DOJ was much more effective when preclearance was data in pla ce, prior to Shelby County . Although Section 2 cases have been decreasing, prior to Shelby County , the DOJ in stopping was discrimination in voting through its objections under Section 5, effective and 1487 active Section 5 enforcement in federa l court. through actions Still, the above data show that DOJ’s overall enforcement of VRA Section 2, the language access provisions, Section 208’s guarantees of right to assistance, has been decreasing since 2008. and 2 litigation was brought immediately after Sh elby County in North Carolina, and in three Section in Texas (although there has been a change of position in Texas). Nonetheless, a current or cases lack of performance in bringing VRA cases does not mean that past DOJ should not now or in the the future be more actively addressing ongoing discrimination in voting. rights SAC reports and recommendations regarding voting The underscore this Commission’s enforcement DOJ need to do more voting rights for work. For example, the Commission’s Kansas SAC recommended tha t the Commission advise DOJ to review the state’s documentary proof of citizenship following concerns about the lawfulness of that act raised in the Kansas SAC act, Kansas and Illinois SAC s also both asked review. the Commission to advise DOJ to analyz e The 1488 state’s respective implementation of the the HAVA the NVRA, and VRA. each The Alaska , SAC recommended that the Commission ask DOJ to enforce Section 203 and send federal 1489 observers Alaska. to 1485 von Spakovsky, Written Testimony, supra note 325 , at 2 - 3. 1486 Discussion and Sources cited at Figure 26 (relatively higher level of private Section 2 cases); U.S. Dep’t of See Voting Section Litigation , Justice, Civil Rights Division, - section - litigation (high https://www.justice.gov/crt/voting level of VRA enforcement, especially in Section 2 cases, in the 1980s and 1990s) (last updated Dec. 4, 2017); Chapter 3, supra (overall trend of restrictions that negatively impact minority voters ). 1487 Discussion and Sources cited at notes 1385 1400, supra See (Section 5 objections and litigation since the 2006 - VRA Reauthorization). 1488 See Summaries of Kansas and Illinois State Advisory Committee reports, Appendix D. 1489 Advisory Memorandrum, The Alask a Advisory Committee to the U.S. Comm’n on Civil Rights (Mar. 27, 2018), http://www.usccr.gov/pubs/2018/05 - 25 AK - Voting - Rights.pdf . -

274 An Assessment of Minority Voting Rights Access 268 The Role of Federal Election Observers and Monitors Section and analyzes testimony and evidence gathered regarding the role of This summarizes monitors in the 2016 Presidential Election, observers which was the first presidential federal and held since the Shelby election County decision. Since the enactmen t of the VRA in 1965, the DOJ able to monitor elections in several ways. been they can send their own personnel to has First, elections, and if the local jurisdiction agrees, they may monitor able to enter the polls — but be entering the polls depends on the consent of the local jurisdiction. Second, the VRA clearly permits General to certify the sending of federal observers to monitor elections inside the the Attorney in the formerly covered jurisdictions. Third, the DOJ must polls, federal observers if a court send 1490 1491 . so In many instances, court orders for were the result of c onsent d ecrees . orders observers The use of f ederal observers ha s been an important tool in protecting minority voting rights. As Representative Lewis wrote in 2005, the ability of the Attorney General to send federal John voting jurisdictions with a history of discrimination in has been “ essential to curtailing observers to 1492 Observers have been frequently sent to states discrimination in the South such as Mississippi, .” 1493 pres ence reportedly curbed discrimination in voting. their Federal observer deployment where signed key VRA was repeatedly reauthorized by Congress and a into law by Re publican provision 1494 presidents since 1965. Under Section 8 of the VRA, federal observers could be sent to all formerly covere d jurisdictions 1495 when Attorney General certified the need according to the statutory standards . Observers the 1490 See, e.g ., DOJ Fact Sheet, supra note 12 (regard ing monitors); see also 52 U.S.C. § 10305(a) (regarding observers). 1491 See Discussion and Sources cited at notes 135 - 37 and 324 - 28, supra (regarding judicial preclearance and ability Consent Decrees). to order observers under Section 3 of the VRA; and discussing related DOJ 1492 Rep. John Lewis, “The Voting Rights Act: Ensuring Dignity and Democracy,” Human Rights Magazine , Vol. 32, No. 2 (2005), https://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol32_2005/spring2005/hr _spring05_act.html . 1493 Tony Pugh , M C C LATCHY , Oct. 21, , Change to Voting Rights Act Makes It Harder to Monitor U.S. Election 6, - government/election/article109642487.html . (“In recent years, 201 http://www.mcclatchydc.com/news/politics local Mississippi elections have been a frequent ta rget of that Justice Department scrutiny. From June 2009 to September 2013 the department sent election observers to 31 jurisdictions in the state following complaints of sissippi for instance, people possible discrimination . . . . ‘To know the tricks that have been played here in Mis — posing as federal agents and asking individuals to identify themselves, challenging voters’ eligibility and using intimidation tactics to dissuade individuals from voting. This causes me a lot of concern that we won’t have the kind - Harvey, a Democrat who served of backup that’s desperately needed’ from the observers, said Constance Slaughter as Mississippi’s assistant secretary of state for elections from 1984 to 1996.”) 1494 See Discussion and Sources at notes 135 - 36, 181 and 169 9. 1495 52 U.S.C. § 10305(a)(2) of the VRA provides that: “ Whenever — 1. a court has authorized the appointment of observers under section 10302(a) of this title for a political subdivision; or named in, or included within the scope of, 2. the Attorney General certifies with respect to any political subdivision determinations made under section 10303(b) . . . that —

275 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 269 also be sent under federal court orders in cases where there are findings of repeated, could 1496 discrimination or through Consent Decrees . tutory Moreover , under the clear sta intentional , of enter the VRA, federal observers could the polls: language shall be to — (1) enter and attend at any place for holding an Observers authorized in such election subdivision for the purpose of observing whether persons who are entitl to vote are being permitted to vote; and (2) enter and attend at any place for ed votes cast at any tabulating election held in such subdivision for the purpose of the observing whether votes cast by persons entitled vote are being properly to 1497 tabulated. Although the Shelby County decision did not directly address the i ssue of federal ob servers , DOJ has Shelby County to mean that DOJ may no longer deploy federal observers to the interpreted of covered under Section 5, except under the limited circumstances jurisdictions a court formerly 1498 The F act S heet order. that DOJ issued after the Shelby County decision set forth it s the Attorney General has received written meritorious complaint (A) s from residents, elected officials, or civic participation organizations that efforts to deny or abridge the right to vote under the color of law on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title are likely to occur; or (B) in the Attorney General’s judgment (considering, among other factors, whether the ratio of nonwhite persons to vote within such subdivision appears to the Attorney General to be reasonably white persons registered to attributable to violations of the 14th or 15th amendment or whether substantial evidence exists that bona fide efforts are being made within such subdivision to comply with the 14th or 15th amendment), the assignment of observers is otherw ise necessary to enforce the guarantees of the 14th or 15th amendment; the Director of the Office of Personnel Management shall assign as many observers for such subdivision as the Director may deem appropriate.” 1496 nd Sources cited therein at notes 380 - 83, supra (noting that judicial See Discussion of Judicial Preclearance a orders regarding preclearance and observers are subject to the statutory language of Section 3 of the VRA, requiring intentional discrimination, and that federal courts have been reticen t to order remedies under Section 3, with the exception of those agreed to in Consent Decrees); U.S. Dep’t of Justice, Civil Rights Division, About see also election , - federal - observers Federal Observers and Election Monitoring and - https://www.justice.gov/crt/about - - monitoring (last updated Mar. 15, 2017) ; 52 U.S.C.§ 10302(a). Proceeding to enforce the right to vote, Authorization by court for appointment of Federal ob servers: Whenever the Attorney General or an aggrieved person institutes a proceeding under any statute to enforce the th th or 15 voting guarantees of the 14 amendment in any State or political subdivision the court shall authorize the l observers by the Director of the Office of Personnel Management in accordance with appointment of Federa 1 of title 42 to serve for such period of time and for such political subdivisions as the court shall section 1973d th th es of the 14 determine is appropriate to enforce the voting guarante or 15 amendment (1) as part of any interlocutory order if the court determines that the appointment of such observers is necessary to enforce such th th the 14 or 15 voting guarantees or (2) as part of any final judgment if the court finds that violations of amendment justifying equitable relief have occurred in such State or subdivision: , That the court need Provided not authorize the appointment of observers if any incidents of denial or abridgement of the right to vote on account of race or color, or in contravention of the voting guarantees set forth in section 10303(f)(2) of this title (1) have been few in number and have been promptly and effectively corrected by State or local action, (2) the continuing effect of such incidents has bee n eliminated, and (3) there is no reasonable probability of their recurrence in the future. 1497 52 U.S.C. § 10305(d). 1498 DOJ Fact Sheet, supra note 12.

276 An Assessment of Minority Voting Rights Access 270 that federal observers may no longer be sent by the Attorney General to monitor determination 1499 inside polls in previously covered jurisdictions. D OJ explained that when it sent elections the “based formerly co vered jurisdictions, it did so to in part on the Section 4(b) observers the coverage formula. In light of the Shelby [ County ] decision, the department is not [preclearance] on Section the 4(b) coverage formula as a way to identify jurisdictions for election relying 1500 monitoring.” is at least argu able that DOJ has been over ly cautious in determining the strictures of I Shelby t . Writing for the majority of the Supreme Chief Justice Roberts stated that: "Our County Court, in no way affects decision permanent, nation wide ban on racial discrimination in voting found the 1501 § 2. We issue no holding on § 5 itself, only on the coverage formula.” in Under this precedent, provisions of the VRA regarding observers could be considered one of the remaining the to as the lan guage of Shelby County is limited “the coverage formula,” in relation to provisions, 1502 1503 while Section observers fall under Section 8. 5, other hand, On the certification required to send observers could be implicitly dependent on the 1504 Roberts termed “th e coverage formula. ” what 8 of the VRA states that the Justice Section “assignment” of observers is permitted: “whenever . . . the Attorney General certifies with respect to any political subdivision named in, or included within the scope of, determinations made under ection 10303(b) [originally Section 4(b)] of this title, ” that they have received “meritorious S showing that discrimination in voting is likely to occur, or if “in the Attorney complaints” necessary judgement the assignment of observers is otherwise to enforce the guaran tees General’s 1505 the 14th or 15th amendment[.] ” County The DOJ’s post - Shelby of F act S heet stating that the use observers was “ based in part on the Section 4(b) [preclearance] coverage formula” of is statutory language. How ever, the fact that the references precise language of the Shelby County th relation decision str uck down the “coverage formula” in only to Section 5 demonstrates that it the DOJ may be avoiding risk by interpreting Shelby County cautiously, because the Court did not 1506 strike the obser ver provisions of the VRA. down they has been able to and can continue to send its own staff The to monitor elections, but DOJ can only enter the polls if they have permission the local jurisdic tion. DOJ informed the from Commission that: “In most instances, the Department has continued to work very successfully and productively election officials as part of this [election] monitoring work with [by Department 1499 07, - See supra . Discussion and Sources cited in Chapter 2, at notes 301 1500 DOJ Fact Sheet, supra note 12, at 1. 1501 , 570 U.S. at 557. Shelby Cty. 1502 . Id 1503 Cf . 52 U.S.C. § 10304 (Section 5, regarding 52 U.S.C. § 10305(a)(2) (Section 8, regarding observers); preclearance of voting changes). 1504 , 570 U.S. at 546. Shelby Cty. 1505 52 U.S.C. § 10305(a)(2). 1506 See Discussion and Sources cited at note 297 (quoting the precise holding of Shelby County ), supra.

277 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 271 work non - attorney staff]. The Depa rtment’s monitoring remains a very useful aspect attorney and 1507 its overall enforcement program.” of The figure below detail s how the number of federal observers and monitors ha s changed 1508 since 2006. Figure 30 : DOJ Election Monitoring — Federal Observers and Depa rtment Staff Year Fiscal to Fiscal 2006 2017 Year 1000 900 800 700 600 500 400 300 200 100 0 FY2013 FY2006 FY2008 FY2009 FY2010 FY2011 FY2007 FY2014 FY2015 FY2016 FY2017 FY2012 DOJ Staff Election Monitors OPM Federal Observers 1509 USCCR DOJ Responses Source: to Interrogatories 1507 Correspondence from DOJ, at 11. 1508 DOJ Responses to USCCR Interrogatories 12 and 13. 1509 Id.

278 An Assessment of Minority Voting Rights Access 272 : Total (OPM Federal Figure & 31 DOJ Staff Election Monitors), 2006 - 2017 Observers 1,500 1,400 1,300 1,200 1,100 1,000 900 800 700 600 500 400 300 200 100 0 1510 Source: DOJ Responses to USCCR Interrogatories charts and information about the jurisdictions where this of H and report G ces ppendi A provide federal 2006. since placed were monitors election and observers 2013 Shelby County decision , above data The a sharp decline immediately after the demonstrate While the in sent over both the federal observer and election monitoring programs. Department 1511 juri sdictions in 23 states in 2012 , 51 by 780 federal observers and 259 election monitors to in only 28 ju risdictions 2014, place activities” of monitoring person - in “conduct[ed] DOJ polling 1512 number of federal observers decreased in by 592 and the 18 states . From 2012 to 2014, the number decreased of election monitors increased since number of election monitors by 204. The level the previous presiden tial elections during th e earlier part of the to rise not did it but of then, above chart show that when taking into account the totals the Moreover, . studied period time in the overall number of federal personnel at the the decline in observers, between 2006 and 2017, declined by 45.2 polls percent . 1510 Id. 1511 , Nov. 2, 2012, U.S. Dep’t of Justice, Justice Department to Monitor Polls in 23 States on Election Day - polls - monitor - department - https://www.justice.gov/opa/pr/justice states - election - - day . 23 1512 Ground Monitoring at Polling Places in 18 States - the - Justice Department Announces On ce, U.S. Dep’t of Justi tps://www.justice.gov/opa/pr/justice - department - announces - ground - monitoring - on Election Day , Nov. 3, 2014, ht - 0 - day - election . states - 18 - places polling -

279 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 273 Commission received testimony from former DOJ official Vanita Gupta concerning the The between observing and election monitoring. Gupta explained that “observers difference federal allocated numbers pursuant to the Section in 4b [preclearance] formula and had were significant 1513 ways to be inside of the polling site in that the monitors are not .” greater In power much according to Gupta, there was a specific stream of funding for a high number of observers addition, 1514 of the polling sites c overed by preclearance. She also testified that when the DOJ all in was about the allocation of election monitors decisions 2016, the Department chose to send making in fewer DOJ trained monitors, who could only hundreds be outside of the polls, to polling place s during that election. She believes that this diminished number of monitors grossly inhibited the of information and evidence collection that can happen when monitors are not allowed to be kind which of polling sites to observe ways in v oters might be unlawfully challenged physically inside 1515 exercise their right to vote. Moreover, to the decrease in observers has had a dramatic negative 1516 on DOJ’s ability to collect evidence and bring some VRA cases. consequence are Sherrilyn Ifill stated that election monitors Similarly, not a substitute for federal LDF’s to observers are in a unique position observers identify barriers to voting that violate because federal voting rights laws, as they are able to gain a first - hand observation of the implementation 1517 of ng procedures and overall treatment of voters inside polling places. However, Ifill added voti 1518 Department should still deploy monitors to help protect against voting rights violations. that the of DOJ’s Observers Deployment Views Power Post - Shelby County Two addition to the legal dilemma discussed above about whether DOJ was required to stop sending In 1519 observers covered jurisdictions, formerly there are two main bodies of thought regarding the in me decision to interpret Shelby County as Justice aning it can no longer send Department’s is observers the formerly covered jurisdictions. The first to that federal observers are costly and unnecessary because the rate of reports of discriminatory actions has decreased. The second school of argues that federa l observers are integral to preventing discrimination at the polls, that thought did not require Shelby to be restricted, and that observers should County continue to be them deployed in full force to election polling places. One set of arguments is that observer s might not be necessary since the Shelby County decision enforcement has little impact on the Department’s had strategies , and because evidence of discrimination has decreased. Former DOJ official Hans von Spakovsky said that this was because 1513 note 234, at 43 (statement by Vanita Gupta). Briefing Transcript, supra 1514 Id. at 44 - 45. 1515 Id. at 45. 1516 Id. 1517 Sherrilyn Ifill, Supplement al Written Testimony for the U.S. Commission on Civil Rights, Mar. 22, 2018, at 1. 1518 Id . 1519 See Discussion and Sources cited at notes 1498 - 1506, supra .

280 An Assessment of Minority Voting Rights Access 274 “widespread against African - American voters in the U.S. has “long since discrimination” 1520 disappeared.” inside about the value of federal observers polling locations is that An argument opposing observers as the eyes and ears of the Justice Department” and are therefore “serve 1521 Voting r ights e xpert James Tucker indispensable. that federal observers are “critical” believes eliminate to disenfranchisement and that they can help to “prevent” and “remedy” voting 1522 has argued that even if federal obser vers do not directly deter discrimination. Tucker from occurring at the polls, the information that they gather and their first - hand discrimination 1523 are used by the DOJ to retroactively end discrimination. accounts the Commission’s national briefing, other former DOJ officials disagreed. Vanita Gupta During that on the lack of observers “had a very significant impact the ability to gather evidence testified problems, particularly in Section 203 and 208 cases, which often depend on direct observations” of 1524 a ctivity at poll sites on Election Day. of during the national briefing, Justin Levitt argued Also that the Shelby County decision made it “significantly more difficult” for the federal government 1525 the polls and collect evidence of to ac tions. discriminatory Levitt believes that monitor of observers one of the DOJ ’s “best sources are firsthand information” about on - the - ground 1526 with Section 2 of the VRA . He strongly believes that compliance Congress should restore the observer to reinstate this importan t mechanism to defending against discrimination in process . voting NARF’s Landreth of told the Commission Natalie that federal observers provide Additionally, first - hand information “unparalleled” about the realities of actions at the polls , and that they have 1527 “prophylactic effect.” She said that observers are “critically a important,” supporting the 1528 Gupta, arguments Ho, Levitt, and others. Describing the intersection of observers with of VRA, Landreth also argued that the DOJ assigned federal enforcing obse rvers to Alaska who the have positive impact on the state, but failed had to intervene in NARF’s cases to enforce language a 1529 any time between 2006 and 2010 . 2013, In access for the first time, the DOJ clarified the law covered under 203 and ruled that if voting materials were in English they must be in the Section 1530 This change resulted in voter turnout increase languages. in many Alaska Native villages that s 1531 from increases of 8 to 22 percent . the Landreth testified that after Shelby County , all of ranged 1520 note 325, at 6. von Spakovsky, Written Testimony, supra 1521 The Power of Observation : The Role of Federal Observers Under the Voting Rights Act, James Thomas Tucker, M ICH . J. 13 R ACE & L AW , 223, 233 (2007). OF 1522 Id. at 275. 1523 at 231. Id. 1524 Briefing Transcript , supra note 234, at 25 (statement by Vanita Gupta). 1525 supra note 304, at 1 5. Levitt, Written Testimony, 1526 . at 16. Id 1527 Landreth, Written Testimony, supra note 1099, at 3. 1528 Id. 1529 Id. at 2 - 3. 1530 Id . at 3. 1531 Id. at 4.

281 Chapter 5: Evaluati on of DOJ’s Enforcement Efforts Since 2006 275 done to enforce language access became more difficult, due in part to the DOJ no longer work 1532 observers. added that, “Preclearance was the only way to protect voters.” sending She ’s agreed that observers play a critical Jerry role in enfor cing the VRA. He F AALDE Vattamala advocated for “statutory authority” that would empower the DOJ to continue also send observers to 1533 jurisdiction s to enforce the language minority provisions of the VRA. These experts to specific believe that it necessary to deploy f ederal observers to polling places during federal elections, all is possible discriminatory deter actions. to reporting also stressed that DOJ’s sending observers to only five states during the Independent 1534 presidential election was concerning because 17 sta tes had tightened voting restrictions. 2016 reported that the 2016 presidential election observer deployment was “among the smallest Reuters 1965 since the Voting Rights Act was passed in to end racial discrimination at the deployments 1535 box.” observers) Gerry Hebe rt told Reuters that relying on DOJ personnel (rather than ballot to is “a far monitor cry” from deploying federal observers who are statutorily authorized to elections 1536 the polling place. Earls F ormer Deputy Assistant Attorney General Anita be also inside Reuters that federal observers explained being stationed inside polling places makes them to “more 1537 than Justice Department staff at catching voter suppression.” effective Summary of Current Conditions In sum, this chapter demonstrates that not only have Section 5 preclearance procedures halted, but also DOJ VRA enforcement actions, including affirmative litigation of other provisions of the that protecting voting rights, as well as sending minority observers and election monitors, have VRA declined during the time period studied, generally since the Shelby County decision. particularly Chapter 3 showed that current from include new types of potentially Data conditions voting practices arising in various states across the nation, and Ch apter 4 showed discriminatory in voting through an increasing number of successful Section 2 cases discrimination ongoing by private groups’ litigation on behalf of impacted minority voters. Both Chapters 3 and brought in an over - concentration of these trends showed th e jurisdictions formerly covered for 4 1538 under Section 5. preclearance Th e totality of this report shows that despite the DOJ’s diminishing enforcement actions, there is VRA in voting that would merit increased ongoing enforcement on the part of the discrimination report also provides data to consider in DOJ. any debate about whether and how preclearance The procedures could be restructured to protect minority voting rights based on current conditions. 1532 , supra note 234, at 280 (statement by Natalie Landreth). Briefing Transcript 1533 Vattamala, Written Testimony, supra note 454, at 10. 1534 See Julia Harte , Exclusive: U.S. Curtails Federal Election Observers R EUTERS (July 17, 2016), , https://www.reuters.com/article/us - usa - election - voting - observers - exclusi/exclusive - u - s - curtails - federal - election - observers - (quoting Dale Ho). idUSKCN0ZX0QR 1535 Id. 1536 Id. 1537 Id. 1538 Voting Rights Issues by State, Comparing See Appendix E : Chart s of Formerly Covered with Noncovered Jurisdictions ; and Table 12: Successful Post - Shelby County Section 2 Cases.

282 An Assessment of Minority Voting Rights Access 276 left [ page intentionally This blank ]

283 Chapter 6: Findings and Recommendations 277 FINDINGS AND RECOMME CHAPTER 6: NDATIONS Commission reviewing the testimony and briefing materials the received in the course of After investigation, this the Commission makes the following findings and recommendations: FINDINGS the Ballot Access to The right to vote is the bedrock of American democracy. It is, however, a right that has x proven fragile and in need of both Constitutional and robust statutory p rotections. Racial discrimination in voting has proven to be a particularly pernicious and enduring American problem. Voter access issues, discrimination, and barriers to equal access for voters with disabilities and for voters with limited - English profici ency continue today. x , racial For nearly one hundred years after the passage of the Reconstruction Amendments discrimination in voting became deeply embedded in many parts of the country. The federal government only began to successfully address flagrant vo ting discrimination once the Voting Rights Act of 1965 (VRA) was passed. Earlier legislative measures proved inadequate. x In 1975, Congress amended the VRA to increase protection for language minorities who Native , and Ame rican Indian, finding that denial of are Asian American, Latino, Alaska the right to vote of such minority group citizens is ordinarily directly related to high illiteracy. x The VRA works to dislodge and deter the construction of barriers by state and local e the right to vote of minority citizens. jurisdictions that block or abridg x The VRA is necessary to protect minority populations across the nation but different provisions play a special role in certain parts of the nation — for example, some communities substantially rely on limited - English proficiency protections, while other communities rely primarily upon the other VRA provisions to prevent jurisdictions from enforcing discriminatory voting changes. Ongoing Voting Discrimination In Shelby County , the Supreme Court acknowledged ongoing voting discrimination and x noted that Congress may draft new coverage criteria for preclearance based on current conditions that does not treat states unequally based on past conditions of discrimination. x Voting discrimination continues to be more concentra ted and persistent in some states and jurisdictions than in others. o Some jurisdictions have been found to use racially polarized voting patterns to fashion laws and procedures to adversely affect minority voters and weaken the impact of their votes. x Overall voter turnout is most strongly correlated with factors unrelated to voting procedures, such as the competitiveness of elections, attractiveness of candidates, campaign spending, community investment in voter registration and get out the vote effort s , and the population’s education levels. Accordingly, while voter turnout may be one

284 An Assessment of Minority Voting Rights Access 278 measure of voter access, an increase in turnout should be viewed in the context of all other factors and is not necessarily proof of the absence of discrimination in voti ng. Voter turnout alone is an imperfect indicator of ongoing discrimination in voting. x Nonetheless, persistent gaps in minority turnout may further indicate that minority citizens face greater burdens in voting. /Pacific Islander, Latino x , On a national level, the currently low turno ut rates among Asian and Native American voters are as low as the less than 50 turnout of eligible black percent voters that formed the basis for the initial preclearance formula in Section 5 at the time of the 1964 Presidential E lection. x Without Section 5 preclearance, the DOJ has not been able to object to prevent enactment of laws that courts later determined to have been specifically intended to limit black Americans’ and Latino Americans’ right to vote. Strict voter x ID laws ty pically produce the greatest burden for African - American and Latino American communities. - - American voters and x Significant voting rights barriers persist that are specific to Native - American communities, including long distances to travel to polling places Native particularly for those living on reservations without physically deliverable mailing addresses and lack of access to ballots resulting from the failure of state and local election , ions. officials to place voter registration and poll sites on the reservat x Widespread problems with inaccessibility for voters with disabilities are evident from the testimony and underlying data received by the Commission. The vast majority of polling places studied by the G overnment Accountability Office (G AO ) in 2016 wer e inaccessible to people with disabilities: only 40 of polling places had no barriers to people with percent disabilities. There are problems with physical barriers to get into polling sites as well as lack of working accessible voting equipment and lack o f sufficiently trained staff to assist in operating the equipment. x has a significant impact on voter access for people with Closure of polling places disabilities. Current Population Survey data from the 2016 election showed a sizable percentage of survey respondents stating that disability access prevented their voting. Persons with disabilities are disproportionately lower income and have less access, x compared to voters without disability, to voter ID, transportation, and funds. x Polling place changes can be used to impose barriers on minority voters. x Voter roll purges often disproportionately affect African - American or Latino - American voters. Shelby County Preclearance and After decades of resistance and overt discriminatory actions on the part of x officials in several states and local jurisdictions, the Section 5 “preclearance” provision s of the VRA proved necessary to deal with persistent and adaptive voting discrimination , because litigation was slow and ineffective in stopping racially discrimina tory election practices until after an election had taken place . x The narrowness of other mechanisms to halt discriminatory election procedures before they are instituted has resulted in elections with discriminatory voting measures in place. x After an elect ion with discriminatory voting measures in place, it is often impossible to adequately remedy the violation even if the election procedures are subsequently

285 Chapter 6: Findings and Recommendations 279 overturned as discriminatory. Officeholders chosen under discriminatory election rules have lawmaki the benefits of incumbency to continue those rules to ng power, a s well as perpetuate their continued election. x Preclearance proved a strong deterrent against state and local officials seeking to suppress the electoral power of growing minority communities through the enactment of policies the protection of the Voting Rights Act. and procedures that violate d Preclearance resulted in the DOJ making 490 objections to covered jurisdictions’ voting x changes from 1965 - 1982, and 626 objections from 1982 to 2004 (i n both time ranges, the DOJ made about 28.5 objections per year), substantiating the effectiveness of the s provision in preventing violations of the VRA. x In Shelby County , the Supreme Court struck down the geographic scope criteria for the ce provision, effectively halting heightened federal scrutiny in advance VRA’s preclearan of voting changes in jurisdictions with a history of discrimination in voting. The impacts of the Shelby County decision in formerly covered jurisdictions include: x plaintiff and not the o he burden of provi ng voting discrimination now lies with a T jurisdiction proposing the change even though the jurisdiction has easier access to data and analysis regarding the impact of a particular change and evidence of discriminatory intent; o Voting c hanges go into effect immediately, unless post - implementation or post - enactment litigation is brought that secures a preliminary injunction under the remaining provisions of the VRA, the Constitution, or another state or federal law , icult to obtain close to elections; which have proven diff Section 5’s rule against retrogression that is, preventing voting changes that worsen o — the position of minority voters as compared to the prior voting law or practice or is no longer i n operation; “benchmark” in covered jurisdictions — o Neither the DOJ nor voters have the right to receive notice of changes in voting procedures, shifting the burden of monitoring election changes to voting rights groups, and imposing a large burden on communities, who must now stretch limited r esources to track changes themselves in the absence of government transparency; The DOJ no longer has the obligation to reach out to members of impacted o communities to hear their point of view about the impact of proposed voting changes; o Under its interpretation, the DOJ is no longer able to send federal observers (unless they are separately ordered by a court) which makes it much more difficult to determine compliance with the VRA; and onger provides for o Under the DOJ’s interpretation of Section 4(f)(4), the VRA no l language access in some of the previously covered jurisdictions. x The Shelby County decision had the practical effect of signaling a loss of federal supervision in voting rights enforcement to states and local jurisdictions. x The voting la ws implemented in North Carolina and Texas immediately following the Shelby County decision are examples of the immediate impact of the decision on the behavior of state and local officials. In both states, the changes were eventually found, after prolonge d litigation, to be discriminatory. A review of these voting changes and the litigation challenging them show: o C hanges that were previously not cleared by the federal government under Section 5 in covered states were immediately implemented;

286 An Assessment of Minority Voting Rights Access 280 F held that the laws were motivated by an intent to discriminate against o ederal courts ” ; minority voters, in one case, “with surgical precision T hese voting changes remained in place through several elections, though courts o d by racial discrimination and/or had eventually found that the changes were motivate e ffects ; and discriminatory S tatewide discriminatory voting changes adversely impacted the rights of large o numbers of eligible voters; and future judicial preclearance or “bail in” was not ordered by the courts in the wake of findings of intentionally racially discriminatory election changes. Even after a ruling striking down the North Carolina voter ID provision as discriminatory, x strong legislative support for a proposed state constitutional amendment in North Carolin a calling for photo identification before voting in person reflects risk for minority voters who no longer enjoy preclearance protection. Section 2 Enforcement In the face of ongoing discrimination in voting procedures enacted by states across the x country, , enforcement and litigation under Section 2 of the VRA is an inadequate, costly and often slow method for protecting voting rights. x The number of successful Section 2 cases since the Supreme Court decided Shelby County has quadrupled. That persistence and increase in judicial findings of race discrimination involving voting practices illustrates that racial discrimination in voting continues. Preliminary injunctions or other effective interim remedies were rarely issued in post - x s filed, sometimes because of judicial concerns over Shelby County Section 2 case disrupting imminent elections. Preliminary injunctions were in most cases denied, and where they were issued, were then overturned. For the cases in which a Section 2 claim was ultimately declared merito rious months or years later — this pattern means that the — elections that occurred in the interim were conducted with racially discriminatory voting measures. It means that the voting rights were actually violated, without any remedy for the injured candidate s or communities. Language Minority Protections x Sections 4(e), 4(f)(4), 203 , and 208 are the “language minority” provisions of the Voting Rights Act. Section 203 requires that the Census Bureau identify jurisdictions that contain ho are limited in their English proficiency (LEP). These language minority voters w jurisdictions across the country must provide bilingual written voting materials and voting assistance in the minority languages covered by the VRA. Jurisdictions covered include both those provided under Section 4(f)(4) and those under Section 203. These sections mandate that bilingual election materials be provided where the number of United States citizens of voting age is a single language group within the jurisdiction and LEP members of that grou p either make up more than 10,000 or more than 5 percent of all voting age citizens, and the illiteracy rate is higher than the national rate; or within an Indian 5 percent reservation the population exceeds of all reservation residents. Section 4(e) prohi bits conditioning the voting rights of citizens educated in Puerto Rico in Spanish on their ability to read and understand the ballot in English.

287 Chapter 6: Findings and Recommendations 281 Failure to provide or make available legally required language access voting materials and x ion 208’s requirement that allows voters to bring an assistant of their to comply with Sect Asian , - choosing imposes unnecessary barriers to voting for limited English proficient and Native American voters. , Latino x nsive and time - Despite Native American Rights Fund’s (NARF) victories in expe consuming litigation in the state of Alaska, the state of Alaska has refused to comply with Section 203 and NARF has had to sue repeatedly. The Alaska SAC recommended that the Commission ask the DOJ to enforce Section 203 and send federal ob servers to Alaska. The DOJ has been enforcing a decreasing number of Section 203 and related language x access cases. The DOJ filed 20 language access cases from the 2006 VRA authorization until , and only 1 language access case after Shelby County . Shelby County x In 2013, for the first time, the DOJ clarified the law under Section 203 in Alaska and ruled that if voting materials were in English they must also be in the covered languages. This change resulted in voter turnout increases in many Alaska Native villages that ranged from percent to 22 increases of 8 . percent Protections for Voters with Disabilities x Section 208 of the VRA mandates that voters who require assistance to vote be provided assistance of the voter’s choice. Whether by reason of blindness , disability, or inability to read or write, a voter may be provided assistance by a person of their choosing, other than an employer, an agent of an employer, or an officer or agent of the voter’s union. The ability to have assistance of the voter’s choic e eases the strain on election workers and prevents issues with long lines by reducing the number of instances in which two election workers, of differing parties, must stop their other duties to provide direct assistance to a voter. Section 208 of the VRA has not been well - or enforced. The DOJ appears to have x utilized , limited its enforcement of Section 208 to language access cases and failed to provide adequate guidance or enforcement for compliance in support of voters with disabilities. The DOJ Efforts The DOJ’s enforcement power is hampered by loss of preclearance. x Under Section 5, the DOJ requests for information alone caused a significant increase o in local jurisdictions protecting minority voting rights. x The Commission’s research shows that there is a need for increased DOJ VRA enforcement efforts. litigation. Similarly, since the - Shelby County x The DOJ has done minimal Section 2, post brought seven Section 2 cases. 2006 VRA reauthorization, the DOJ has only x Due to high expenses and slow pace, private litigation under Section 2 cannot replace the DOJ enforcement efforts under the suspended Section 5 provision but private litigation — has far outpaced the DOJ efforts. x The data in this report show a high level of recent, successful Section 2 cases brought b y private parties, a historically much higher level of Section 2 cases brought by the DOJ Voting Section lawyers, and an overall trend of discrimination in voting emerging during recent years.

288 An Assessment of Minority Voting Rights Access 282 The DOJ does not send federal observers into formerly covered j x urisdictions unless there has been a court finding of discrimination and a court order for federal monitoring. o There has been a sharp decline in federal observer and election monitoring programs from the DOJ since Shelby County . While the Department sent o ver 780 federal observers and 259 election monitors to 51 jurisdictions in 23 states in 2012, by 2014, person monitoring of polling place activities” in only 28 the DOJ “conduct[ed] in - f federal jurisdictions in 18 states. Between 2006 and 2017, the overall number o personnel at the polls declined by 45.2 percent . x The dearth of the DOJ language access or assistance enforcement has left too many citizens without the access or ability to vote and undermined the ability to exercise their right to vote. o Shelby County decision is in The DOJ’ s filing of only one language case since the contrast to an ongoing need for language access protections. x The DOJ litigation or intervention in litigation can be “a powerful statement, but very rarely 1539 used for the benefit of Na tive Americans.” o The DOJ has not brought a case on behalf of Native American voters in nearly 20 years, leaving the burden on Native American voters to defend their own rights. The DOJ has participated in litigation regarding Native American voting rights only through amicus briefs and statements of interest. Recent Changes in Voting Procedures x Because of the nature of voting rules being broadly applicable to all eligible voters, a single change in law, procedure, or practice can disproportionately affect numbers of large eligible voters and possibly discriminate against certain groups of people whose voting rights are protected by the VRA. x Public confidence in elections is important. Measures to ensure public trust and confidence need to balance the weigh t of legitimate and verifiable risks regarding election integrity and the effects on voters’ fundamental ability to exercise their votes without unnecessary burdens on participating in American democracy. Study after study, including from the Republican Na tional Lawyers Association and a x , News21 analysis confirm that voter fraud is extremely rare in the United States. x In states across the country, voting procedures that wrongly prevent some citizens from voting have been enacted and have a disparate impact on voters of color and poor citizens, including but not limited to: voter ID laws, voter roll purges, proof of citizenship measures, challenges to voter eligibility, and polling places moves or closing s . x As applied, “strict” voter ID laws that limit the ac ceptable forms of proof of identity to a narrow list of documents correlate with an increased turnout gap between white and minority citizens. 1539 Landreth, Written Testimony, supra note 1099, at 3.

289 Chapter 6: Findings and Recommendations 283 Aggressive purges of voter rolls, particularly when based on flawed systems like x Crosscheck, will improperly remo ve many voters and may improperly remove a disparate amount of minority voters. When states cut early voting, they can create unduly long lines and limit minority citizens’ x had access to voting. In some places where early voting was reduced, minority citizens disproportionately utilized early voting. x In some states, cuts to polling places resulted in decreased minority voter access and influence. of x citizenship voter registration requirements disparately prevent Documentary proof ering to vote. Moreover, because these requirements force some people of color from regist citizens to pay fees to replace lost proof - of - citizenship documents, documentary proof of citizenship requirements impose a disparate cost on people of color. There is significant evidence that x some methods of identifying voters registered in more than one jurisdiction, such as the Crosscheck system, produce an extremely high number of false positives. Overreliance on such a system has led to inappropriate challenges to the legitimate registrati on of voters who share a name and birthdate with voters elsewhere. x Vote by mail in many jurisdictions appear s to have increased voter turnout , but there must be other options for voters in rural areas who do not have a reliable mail service or who do not h ave a street address or who have mailboxes that are long distances from their home and work.

290 An Assessment of Minority Voting Rights Access 284 left [ page intentionally This blank ]

291 Chapter 6: Findings and Recommendations 285 RECOMMENDATIONS of the depth of voting discrimination that across the nation today, citizens need Because continues proactive federal protections — in statute strong, in enforcement — for the right to vote. and Congress x Congress should amend the VRA to restore and/or expand protections against voting discrimination that are more streamlined and efficient than Section 2 of the VRA. In establishing the reach of an amended VRA coverage provision , Congress should o include current evidence of voting discrimination as required by Shelby County as , n. A new well as evidence of historical and persisting patterns of discriminatio coverage provision should account for evidence that voting discrimination tends to recur in certain parts of the country. It also should take account of the reality that voting discrimination may arise in jurisdictions that do not have extensive h istories of discrimination since minority population shift and efforts to impose voting impediments may follow. o Congress should invoke its powers under the Reconstruction Amendments and the ral interest in Elections Clause to ground the new provisions upon the strong fede protecting the right to vote in federal elections. Congress should consider but not exclusively base any new coverage provision for o Section 5 on turnout or registration statistics for various demographic groups. Congress should provide a st x reamlined remedy to review certain changes with known risks — not after potentially tainted elections. of discrimination before they take effect Congress should require greater transparency and effective public notice x - , including web based disclosure of votin , sufficiently in advance of g changes affecting federal elections elections so that voters are less likely to be to be surprised by changes and able to challenge those that have a discriminatory impact that would violate voting rights and - related election laws. Congress should take account of the range and geographic dispersion of racial and language x minorities in any new geography - based coverage rule, for example, by adding elements that identify certain practices that may require closer preclearance scrut iny nationwide if a threshold showing of potential voting discrimination can be made. x Congress should evaluate whether Section 203 should be amended to include coverage of b lack and Arab - American language minorities. x In amending the VRA, Congress should take account of the variety of measures that can impede minority voter access , and that many facially neutral measures can impose substantial disparities on minority communities and are sometimes intended to do so. Relatedly, small voting changes to pollin g place locations without notice and temporally close to an election are an example of a seemingly small change with a potentially far - reaching impact. x Congress should not exempt v oter ID laws from review in any amendment to the VRA. Rather, those measures should be evaluated under the legal framework of available voting statutes to determine whether the law or application imposes any discriminatory effect or intent.

292 An Assessment of Minority Voting Rights Access 286 Congress should expand the ability of the DOJ to use observers to monitor all potentially x language access compliance, and lower the d for iscriminatory practices, particularly threshold for the DOJ to deploy election observers where there are risks of voting discrimination. The DOJ Private litigants play a vital role as “private attorneys general ” enforcing the VRA ; x however, litigation, particularly without Section 5, requires significant resources that only the federal government is able to expend. The DOJ should pursue more Voting Rights Act enforcement in order to address the aggressive efforts by state and local officials to limit the vote of minority citizens and the many new efforts to limit access to the ballot in the - Shelby County landscape. post The DOJ should reinvigorate its efforts to protect voting rights through heighted x enforcement a ctivity of all of the provisions of the VRA. x The DOJ should remind jurisdictions of their obligations under the language minority provisions , and increase its monitoring of compliance and bring cases to enforce them. x ection 208 enforcement initiatives and litigation. The DOJ should significantly increase S The DOJ should provide additional guidance clarifying how Section 208 should and should not be interpreted by the states, including guidance regarding voters with disabilities. States rom passing additional language that restricts who can use Section should be prevented f 208 assistance. The DOJ should increase its Section 2 enforcement. The number of successful Section 2 x lawsuits brought by private parties post - Shelby County is indicative of continued votin g rights violations by jurisdictions. The DOJ, rather than private litigants, is best positioned to pursue these costly, complex Section 2 cases and should increase its enforcement presence. x oting rights litigation that The DOJ should file amicus briefs and statements of interest in v vindicate the purposes of the VRA to protect the franchise of all citizens. The DOJ should dedicate additional resources to ensure voter access for disabled persons , x and work with other relevant agencies to enforce laws mandati ng accessibility of polling places and voting machines. x The DOJ should increase its Voting Rights Act enforcement activity to address the needs of underserved minority populations including but not limited to Native American and Alaska Native communities.

293 Commissioners’ Statements 287 ENTS COMMISSONERS’ STATEM , in which Vice Chair Catherine E. Lhamon Patricia Timmons - Goodson Chair Statement Concurs report reflects, citizens in the United As States — across this our many states, not limited only to parts of the country — continue to suffer significant, and profoundly unequal, some on limitations to vote. That stark reality denigrates our democracy and diminishes our ideals. This their ability of ongoing discrimination confirms what was true before 1965, when the Voting Rights Act level law, and has remained true since 1965: became need strong and effective federal Americans protections to guarantee that ours is a real democracy. State of the Comm ission and its Advisory Committees lowlight the painful The investigations truth of that need, for example , in New Hampshire where 100 percent of polling contemporary 1 places physically inaccessible to people with disabilities in a recent municipal election. The were 2 3 4 Committees i n Ohio , ommission’s Illinois , C and Texas reported that voters of color Advisory recently and repeatedly suffered sometimes physical intimidation when they attempted to vote in multiple elections. The Commission’s Kansas Advisory Committee documented Native recent ID rejection at polling sites, even though tribal IDs are a legal form of voter ID in American tribal 5 state. In New York just three years the ago , baseless racially identifiable challenges citizenship 6 Americans from vot ing. impeded In Alaska , the Commission’s Advisory Committee reported that languages not access voting materials in the voters they speak during the most recent could 7 In North Carolina we heard testimony about elections. a voter over 90 years of age who had to 1 Voting Rights in New Hampshire , New Hampshire Advisory Committee to the U.S. Comm’n on Civil Rights, - - NH - Voting - https://www.usccr.gov/pubs/2018/05 16 (Mar. 2018), at 16, https://www.usccr.gov/pubs/2018/05 - Rights.pdf - NH - Voting - Rights.pdf . . 16 2 Ohio State Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in Ohio , May 2018, at 13, https://www.usccr.gov/pubs/2018/06 27 - OH - Voting - Rights.pdf . - 3 te Advisory Committee to the U.S. Comm’n on Civil Rights, Civil Rights and Voting in Illinois , Feb. Illinois Sta https://www.usccr.gov/pubs/2018/IL Rights.pdf Voting - 2018, at 20, . - 4 Texas State Adviso ry Committee to the U.S. Comm’n on Civil Rights Briefing Transcript 60 - 61 (2018), https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155615&cid=276 . 5 nsas State Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights and the Kansas Secure and Ka - , Mar. 2017, at 12, V oting - Rights - Report.pdf (citing Fair Elections Act https://www.usccr.gov/pubs/docs/KS - 80). O’Toole Testimony, Transcript, at 79 6 Report at - 41 . 140 7 Alaska State Advisory Committee to the U.S. Comm’n on Civil Rights, Alaska Native Voting Rights , Mar. 2018, at 5, https://www.usccr.gov/pubs/2018/05 - 25 - AK - Voting - Rights.pdf (citing James Tucker, Co - Counsel, Wilson, Elser, Moskowitz, Edelman, & Dicker LLP, written testimony submitted to the Alaska State Advisory Committee to the n on Civil Rights Briefing Transcript, at 4 (2017), U.S. Comm’ https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155497&cid=234 ) . https://www.usccr.gov/pubs/2018/05 - 25 - AK - Voting - Rights.pdf (citing James Tucker, Co - Counsel, Wilson, Elser, Moskowitz, Edelman, & Dicker LLP, written testimony submitted to the Alaska State Advisory Committee to the

294 An Assessment of Minority Voting Rights Access 288 ke trips to different state agencies and institutions to try and obtain the correct paperwork ma 11 8 her voter registration card did not match the name on her license. In recent elections in because 10 9 Indiana, the as documented by Commission’s Adv isory Committees in those states, Arizona and polling locations had accessible technology, poll workers were not trained in how to even though it, leaving use voters with disabilities without a way to vote. In Georgia a legislator openly stated that he does not want e arly voting because of the type of people — voters of color — who will use 11 it. these among so many circumstances still proliferating across the United States, we have let In our voters down, compromising the integrity of our self - concept. This report excavates, in American sometimes exhausting detail, the ongoing, repetitive, and unfortunately predictable nature of voting in varying forms that persists with insufficient legal deterrents and often discrimination entirely absent remedies. That excavat ion confirms the need for effective federal policy delayed or to the likelihood of voter discrimination and sufficient to deter such responsive and discrimination timely remedy it when it does occur. existing federal statutory Because protections for the right our t o vote fail actually to ensure that each eligible voter may in fact exercise that right in every election in every state every time, I join my Commissioners in calling on Congress urgently to fellow correct the gap in our existing civil rights protections to ensure that each among us may participate fairly in democratic citizenship. U.S. Comm’n on Civil Rights Briefing Transcript, at 4 (2017), https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155497&cid=234 ) . 8 note 234, at 303 - 04 (statement by Bishop Dr. William Barber II, P resident and Senior Briefing Transcript, supra Lecturer of Repairers of the Breach). 9 Testimony of Renaldo Fowler, Senior Staff Advocate, Arizona Center for Disability Law, at the Briefing before the Arizona Advisory Committee to the U.S. Comm’n on Civil Rights, briefing transcript at 83 (2018) (on file). 10 Testimony of Dawn Adams, Executive Director, Indiana Disability Rights, at the Briefing before the Indiana Advisory Committee to the U.S. Comm’n on Civil Rights, briefing transcript in Carmel, Indiana at 69 (2018) (on file). 11 W hile considering legislation on weekend voting availability in that state, a Georgia state legislator expressed his opposition “because Black and other voters of color take advantage of these voting opportunities disproportionately, explaining that he ‘pre fer[s] more educated voters than a greater increase in the number of voters.’” Written Testimony of Sherrilyn Ifill, President and Director - Counsel, NAACP Legal Defense and Education Fund, Inc. to the U.S. Comm’n on Civil Rights, Feb. 2, 2018, at 8 (on fil e).

295 Commissioners’ Statements 289 Chair Patricia Timmons Goodson Statement , in which Chair Catherine E. Lhamon Vice - 1 Concurs Introduction proud North Carolinian, I was honored that the a Commission chose to hold the briefing, “An As of Minority Voting Rights Access in the United States,” in my home state. I have lived Assessment of North Carolina for my adult life and served in its judiciary for 28 years. I am proud my state in accomplishments, and always look forward to its “showing it off” to visitors. and I also understood that the Commission’s decision to come However, North Carolina for the to voting rights briefing reflect ed its thinking that North Carolina was the epicenter of the post - Shelby 2 world. Given North Carolina’s histo ry of voting discrimination, “significant County election 3 litigation, and statewide discussion of voting rights issues” filled the legislation, television newspapers pre - and post - Shelby airwaves County . and the Civil War revolutionized the expectations of former Just slaves, the Voting Rights Act as revolutionized the expectations and lives of African Americans throughout the South. After its passage, we were imbued with hope, promise, and a spirit of determination. As a result, the number of American voters and African - American elected officials incre ased. African - Suppression in North Carolina Voter that progress and the level of voter participation are imperiled following Unfortunately, increasing decision in Shelby County . When the Supreme Court issued Shelby County in 2013, the governorship the North Carolina legislature and — but Democrats had won controlled Republicans state wide offices and demographics suggested that North Carolina would become other 4 blue. increasingly the Commission Report discusses, North Carolina Republicans then passed a new election bill As 5 reduced early voting, cut polling places, and required voter ID . that The report collects evidence 6 indicating those changes have had a discriminatory impact on poor and minority voters. that intent Recently, have admitted they had a discriminatory Republican — to prevent leaders 1 Chair Lhamon concurs in the spirit and substance of the Vice Chair’s statement while acknowledging that her observations as a former judge reflect her unique professional judgments and experiences regarding the special importance of the issues addressed i n this report. 2 U.S. C OMM . ON C IV . R IGHTS , An Assessment of Minority Voting Rights Access in the United States , at 58 - 69 (2018) [ hereinafter Commission Report]. 3 . Commission Report at 58 4 See, e.g., Julie Ajinkya and Rachel Wilf, arolina, C ENTER FOR A MERICAN P ROGRESS Toward 2050 in North C (M AY 8, 2012, 9:00 AM), https://www.americanprogress.org/issues/race/reports/2012/05/08/11543/toward - 2050 - in - north carolina/ . - 5 Commission Report at 58 - 59 . 6 See generally, Commission Report at 61 - 69 .

296 An Assessment of Minority Voting Rights Access 290 7 are disproportionately Africa n American, from voting. who In other words, North Democrats, Republicans Carolina voting laws to keep poor and black Democrats from voting. changed government the not need to preclear any changes federal after Shelby County , a court threw As did 8 changes because they targeted African Americans “with almost out precision” — but the surgical years of litigation. The Supreme Court did not deny review and finalize the case until only after 9 In the meantime, North Carolina had two rounds of elections for its State Se nate; two May 2017. of elections for its State rounds House; two (close) Senate elections; 26 United States House elections; a (very close) gubernatorial election; a round of state executive elections; and a (close) During those elections, Nor th Carolina Republicans politicized the right to presidential election. they entrenched their own power by suppressing the voice of the poor and people of color. vote: Po tential Force: Overcoming Voter Suppression Full of Commission’s briefing, Bishop Dr. William J. B arber II, President and Senior Lecturer During the 10 of the of Breach, asserted as follows: Repairers Without of the Voting Rights the Act preclearance provisions, Jim Crow protection era voter suppression efforts are reappearing in North Carolina and in too many othe r states across the country. The wave of voter suppression, which has impacted voters of color, imperils the confidence of all voters of disproportionately 11 and strikes to the very heart of our democracy. will good Bishop Barber intimates, the U.S. Supr eme Court’s decision in Shelby County will reverberate As in Carolina for years to come. I share Bishop Barber’s concern that African Americans in North losing lose particular confidence that we have slowly rebuilt after will our voting rights during the the era of Crow. Jim However, suppressive acts are not new to African Americans in North Carolina. At the turn of the 12 20th a state constitutional amendment disenfranchised black voters. Prior to that time, century, NC, for example, black people had public in jobs and were elected to several public Wilmington, 7 Inside the Republican creation of the North Carolina voting bill dubbed the ‘monster’ law, W ASH . William Wan, OST (Sept. 2, 2016), https:/ P - the - republican - creation - of - the - /www.washingtonpost.com/politics/courts_law/inside north - carolina - voting - bill - dubbed - the - monster - law/2016/09/01/79162398 - 6adf - 11e6 - 8225 - fbb8a6fc65bc_story.html?noredirect=on&utm_term=.264fe87d6481 . 8 nce of NAACP v. McCrory , 831 F.3d 204, 214 (4th Cir. 2016). N. Carolina State Confere 9 North Carolina NAACP v. McCrory (Amicus Brief) , B RENNAN C ENTER FOR J USTICE (M ay 15, 2017), mccrory https://www.brennancenter.org/legal - carolina - naacp - v - work/north - amicus - brief . - 10 Repairers of the Breach is a not - for - profit organization with a moral agenda focused on “how our society treats the poor, women, LGBTQ people, children, workers, immig rants, communities of color, and the sick.” See . https://www.breachrepairers.org/ 11 Briefing Transcript , supra 41 - 42 (statement by Bishop Dr. William Barber II). note 234, at 12 Vann R. Newkirk II, The Battle for North Carolina: Politics, social, and demographic forces in the battleground of North Carolina promise a reckoning with its Jim Crow past, HE A TLANTIC (Oct. 27, 2016), T https://www.theatlantic.com/politics/archive/2016/10/the - - for - north - carolina/501257/ . battle

297 Commissioners’ Statements 291 13 aldermen, and firemen. offices: Throughout the state, black people had been policemen, e growing resentment and whit engaged. supremacy foreclosed continued black politically But George to their disenfranchisement, Representative response Henry White, the advancement. In black congressman elected before the era of Jim last stated: Crow, Chairman, is perhaps the Negroes’ temporary far ewell to the American This, Mr. but let me say, Phoenix - like he will rise up someday and come again. Congress, parting words are in behalf of an outraged, heart - broken, bruised, and These but God - fearing people, faithful, industrious, loyal people─rising p eople, bleeding, 14 potential force. fully of 15 of Jim Crow, suppressive efforts included era literacy tests, the grandfather clauses, and During taxes. However, poll the Voting Rights Act helped increase African - American participation as it those suppressive methods. outlawed the Commission’s Report discusses, suppressive efforts continue today. Bishop Barber As North of the voter suppression tactics in Carolina which include reduced polling some enumerated and the “visible presence of KKK members and swastikas on streets near pro - voting places 16 as well as derogatory comments from bystanders.” marches Other suppressive tactics include ending voting on Sundays, ending same - day registration, and ending polling places on early campuses. college African Americans in N orth Carolina are still “full of [the] potential force” to which George Yet, White spoke. Reverend Barber testified that “community organizing and a strong sense of Henry duty, based on history, contributed to the fact that black turnout did not significa ntly decrease, civic communit[y] facing measures that ‘surgically targeted’ the ways despite that African the 17 vote in Carolina.” Americans North In response to suppressive efforts, African Americans have increased their commitment to voting to voting r ates similar to the general population. But, this equal rate of voting leading — masks the unequal efforts required for African Americans to vote, and falsely allows people to claim voting equality due to African Americans ’ disproportionate efforts. 13 The Negro in North Carolina Politics Since Reconstruction , 52 (Duke University William Alexander Mabry, Press, 1940). 14 Vann R. Newkirk II, The Battle for North Carolina: Politics, social, and demographic forces in the battleground of North Carolina promise a reckoning with its Jim Crow past, T HE A TLANTIC (Oct. 27, 2016), https://www.theatlantic.com/politics/archive/2016/10/the - battle - for - north - carolina/501257/ . 15 The Voting Rights Act in North Carolina: An Evaluation , 16 P UBLIUS Joel A. Thompson, - 53 (noting that , 139, 139 the Voting R ights Act of 1965 suspended literacy tests and other discriminatory voter registration tests and requirements that were practiced in 40 North Carolina counties). 16 Commission Report at 68 . 17 Commission Report at 203 - 04 .

298 An Assessment of Minority Voting Rights Access 292 In is commitment looks like hundreds standing in line to cast their vote on a Sunday in practice, th 18 voting cutbacks. This commitment looks like Souls Sunday to the Polls, a tradition aimed of spite 19 African American churchgoers to vote after a Sunday church se rvice. at This commitment getting African like Justice Henry Frye, North Carolina’s first Chief American elected official to the looks Assembly and later first African American Supreme Court justice. Frye was turned away General 20 registering to vote in the 1950s when he from not pass the literacy test, but the first bill he did 21 was a constitutional amendment abolishing the literacy test. introduced The commitment also on Rosanell Eaton, a longtime voting activist who two occasions had to prove her looks like to vote. On the first occasion, in 1942, Eaton successfully registered to vote after eligibility courthouse registrars required her to “put her hands by her side, stare straight ahead, Louisburg 22 and the Preamble to the Constitution.” On the recite second occasion, in 2013 and at 92 years old, Eaton traveled hundreds of miles and visited almost a dozen agencies and banks to reconcile 23 her and registration to prove her eligibility to vote. license Conclusion federal oversight, Republicans have incent ives to make voting more difficult for African - Without in North Carolina and other states. While African Americans have a history of American voters these relentless voter suppression tactics, in 2018 we should not have overcoming to continue to “overcome.” Instea d, the federal government should protect our voter rights. fully support all Findings and Recommendations While the Commission’s Report, I highlight I in a few that are relevant to voting injustices in North Carolina: the Findings x ID laws typi cally produce the greatest burden for African - American and Latino Strict voter communities. Voter roll purges often disproportionately affect African - American or Latino voters. x Recommendations x In amending the VRA, Congress should take account of the variety of measures that can impede minority voter access and that many facially neutral measures can impose 18 N ack Turnout with “Souls to the Polls” Events in NC , CBS Democrats Try for Bl EWS (O ct. 25, 2016 Sean Gallitz, https://www.cbsnews.com/news/democrats - try - for - black - tu 5:53 AM), - with - souls - to - the - polls - events - in - nc/ . rnout 19 Julienne Gage, North Carolina Churches Sending ‘Souls to the Polls’: Black churches continue to play a role in A LJAZEERA (Oct. 24, 2016), the US state’s civil rights movement, marching together to voting centres, - carolina https://www.aljazeera.com/indepth/features/2016/10/north souls - polls - 161024190219349.html . - 20 Nancy McLaughlin, Civ il Rights Icon Henry Frye Introduces Obama, Tells a Story , Oct. 11, 2016, https://www.greensboro.com/blogs/mclaughlin_faith_matters/civil - - icon - henry - frye - introduces - obama - tells - a - rights story/article_aeb0d4a6 - 5924 - 8985 - 6df2d3b5901f.html . d38c - 21 Henry Frye: First African - American on the N.C. Supreme Court , NC Department of Nat ural and Cultural Resources, https://www.ncdcr.gov/blog/2017/02/03/henry - frye - first - african - american - on - the - n - c - supreme - court . 22 k II, The Battle for North Carolina: Politics, social, and demographic forces in the battleground of Vann R. Newkir T North Carolina promise a reckoning with its Jim Crow past, A TLANTIC (Oct. 27, 2016), HE https://www.theatlantic.com/politics/archive/2016/10/the - battle - for - north - carolina/501257/ . 23 Id .

299 Commissioners’ Statements 293 substantial disparities on minority communities and are sometimes intended to do so. Relatedly, small voting changes to polling places without notice and close in tim e to an election are an example of a seemingly small change with a potentially far - reaching impact. x Congress should not exempt voter ID laws from review in any amendment to the VRA. Rather, those measures should be evaluated under the legal framework of av ailable voting statutes to determine whether the law or application imposes any discriminatory effect or intent.

300 An Assessment of Minority Voting Rights Access 294 [ This page intentionally left blank ]

301 Commissioners’ Statements 295 , Chair Catherine E. Lhamon, Vice - Commissioner Debo P. Adegbile Statement in which - Chair and Commissioner David Kladney Concur Goodson Patricia Timmons , through people expressing their voices freely their votes. Our depends upon Democracy this deceptively simple proposition is essential to the American commitment conception of to and freedom. Votes are the voice of the people collectively expressed, and we are a free liberty because we have both the right and society power to vote, to select our leaders, and express our the ballot box. preferences at is the essence of self - government. An d, framed at this level of generality it captures shared This that define us — this is who we are and who we want to be. Our history and experience, values teach us that democratic principles are however, self - executing. For most of our history there not was an i ntolerable and democracy - offending gap between our high democratic promises and our democratic practices. Most notably, for nearly a hundred years after the passage of the - low anti our constitutional promise of the right Amendment, to vote free f rom racial Fifteenth was honored more in the breach than in observance in too many places. discrimination explains, report As the federal government only began to successfully address flagrant voting this the Voting Rights Act of 1965 was passed . Earlier discrimination legislative measures had once proven inadequate. path to passage of the Voting Rights The was slow and arduous. Over time, change came as Act the direct result of bravery and sacrifice, including civil rights protests and activism, legal challenges, leadership, and landmark Congressional legislation. The Voting Rights Presidential 1965 was signed on August 6, 1965 and it is now recognized as one the most important Act of 1 s of any kind . enactment Congressional and why? How The Voting Rights Act is one of a small number of federal laws that some Americans How? to literally achieve. Our predecessors knew that we really could not be the America we aspire died and if the Constitution was brazenly ignored to Jim Crow made our system of elections be undemocratic. veteran Jimmy Lee Jackson in Alabama died Military for the right to vote, a brut al killing that directly gave rise to the history - altering march from Selma to Montgomery, a key catalyst the passage of the Voting Rights Act. Americans observing the intolerable injustice for join the protests, and Viola Liuzzo, a 39 - year traveled old mother of 5 from Detroit, Michigan to - was murdered in 1965 for our right to vote in Alabama. Andrew Goodman, 20, and Mic key Schw erner , 24, from New York together with Mississippian James Earl Chaney, 21, in Neshoba KKK County his home state, were murdered by the of because the three were brave enough to advocate for equal voting rights. Minister James Reeb, whose ministry took him from his Kansas 1 Ten Bills That Really Mattered , R OLL C ALL (May 2, 2005, 2:25 PM), http://www.rollcall.com/news/ - 9110 - 1.html .

302 An Assessment of Minority Voting Rights Access 296 to Philadelphia, right here to Washington D.C., to Boston, Massachusetts, and fatefully to roots, Alabama, Selma, beaten to death there because he stood up for our right to vote. was on the Edmund Pettus Bridge in Selma, a violence town in which a major Civil War The captured 2 was fought exactly one hundred years prior , been a modern - day, televised, brutal assault battle had men, women, and children but also on our democracy itself. The Edmund Pettus on Bridge proved a bridge that provided passage not only for cars and marchers but also for a nation that needed to be travel the distance from its systematic and unab ashedly racist voting exclusion to a more to and equality true democracy predicated on and inclusion. inclusive Texas events in Selma President Lyndon Johnson of to deliver what many believe to The moved one the best and most significant civil rights speeches ever delivered before be a joint session 3 Congress . of The speech urged the nation to end voting discri mination and to keep its long broken promise to its citizens. It should be assigned for viewing in every high school history constitutional The in speech reportedly caused civil rights leaders to weep recognition of the significance class. with hearing the resident, a son of the south, calling urgency for a federal voting law and using of P words of the Civil Rights Movement in doing so. the the is worth noting that But murders did not stop once the Voting Rights Act was passed. Voting it born. Dah mer died for the right to vote in Mississippi in 1966 — the year I was advocate Vernon targeted and his home burned down by He the KKK — because he was a passionate advocate was our for voter registration. It was a signal that black democracy would continue to be contes ted and that even the landmark Voting Rights Act could not dislodge the discrimination by itself. The Commission on Civil Rights has witnessed history and helped make it. We have recorded U.S. experience regarding voting exclusion across the nation and the work continues with this report the . investigations conducted by our State Advisory Committees Since its creation in 1957 the and the has conducted field hearings that supported the passage of the VRA and played an Commission documenting by important voting discrimination, its impacts, and the need for federal role responses. is the Voting Rights Act regarded as one of the most important federal laws of any Why kind? transformational. is revered because it was and is The Act It literally allowed the nati on to deliver on “a dream deferred” — on a promise broken — and to commit meaningfully to self - government by people. In tangible ways it gave access to the full measure of citizenship, it allowed long - the to register, vote, and have their excluded votes count equally. It brought the power of the voters United States to bear to enforce the Constitution and guarantee equal voting rights. It expanded electorates and helped legislative bodies and elected courts become more representative. It barred 4 inertia” of voter exclusion and shifted the burdens of “time and tools invidious from the victims 2 Selma 1865 — Alabama Public Radio (Aug 3, 2016), http://apr.org/post/selma - 1865 - The First "March to Freedom first - march - freedo m#stream/0 . 3 LBJ Library, President Johnson’s Special Message to the Congress: The American Promise , LBJ P RESIDENTIAL L IBRARY ( March 15, 1965), http://www.lbjlibrary.org/lyndon - baines - johnson/speeches - films/president - johnsons - - special message - to - the - congress - the - american - promise . 4 South Carolina v. Katzenbach , 383 U.S. 301, 328 (1966).

303 Commissioners’ Statements 297 voting discrimination to the perpetrators with a preclearance provision that created a system of of oversight voting changes in places with histories of voting di scrimination. federal of Voting Rights Act made a minority inclusion principle part of American federal simply, the Stated provided effective tools for ensuring law it. and Voting Rights Act of 1965 was later expanded and extended to states, like Texas, that urgently The minority voter protections , against practices that made it difficult for eligible voters to required language and other barriers to vote. The Act embraces the important notion that overcome should impose unacceptable barriers to not v oter access. disabilities right to vote is the bedrock of American democracy. It is, however, a right that has proven The and in need of both Constitutional and robust statutory protections. In his award - winning fragile of voting in America, Alexander Keyssar explains that American democracy is contested. history traces the history of He vote from the revolutionary period to the contemporary period and the shows that our nation, conceived in democratic ideals, has expanded the franchise only gradually through the c oncerted efforts of those demanding access to the vote, and through it, to and political inclusion the nation’s within life. meaningful reauthorized and President Bush signed a Voting Rights Act extension Congress in 2006. It strengthened Section 5 preclearance for and years and other special provisions renewed 25 the nation’s enduring commitment to minority inclusion in our democracy. In Shelby representing Holder, County the United States Supreme Court struck down the provision that gave effect to v. preclearance provision in many places eral where voting discrimination has proven the fed and adaptive. The Court recognized, as it must, that voting discrimination persists but persistent noted preclearance must be grounded on contemporary evidence of voting discrimination. The that important dissenters that the Court was suspending noted minority voter protections which were still vitally needed, and that the Constitution did not require the Court to second - guess Congress in way. this Commission’s 2018 Repor t, “An Assessment of Minority Voting Rights Access in the United The of focuses on an assessment of the U.S. Department Justice’s enforcement of the VRA in States,” years since the last reauthorization in 2006. Because it begins at that point, it examines the enforcement efforts before and after the Shelby County decision. One observation is that voting would have never had the force of changes law when there was Section 5 preclearance that have now gone into effect and adversely affected voters. Votin g discrimination persists in minority some of the states where Section 5 did important work. Some of these measures have been statewide that have far - reaching impact and continue during years of complex and costly laws ways that can impact litigation election ou tcomes. in notes that The are many measures that report impede minority voters that are based on there tenuous justifications, such as some very strict voter ID laws. that The of voting discrimination persists in ways problem are not simply “black and white, ” indeed, history teaches that it was never just that way. Native American and Alaska Native voters access face barriers to access, including language and ballot challenges that many are not aware of.

304 An Assessment of Minority Voting Rights Access 298 voters also face challenges to voter access: see mingly small voting changes affecting Latino places polling large statewide measures are sometimes intended or have the impact of or In LULAC v. Perry , Justice Kennedy against observed that the State of Texas discriminating them. voting laws to take away the ability of Latino manipulated voters to have an electoral impact 5 the time when they were prepared to do so. This is one pattern of at voting precisely — discriminatory measures are put in that when minority communities are on discrimination place precipice of exercising their political power, or sometimes in response the that new power, as to we have seen more recently in North Carolina, where an appellate court noted that the statewide law was enacted with surgical precision to discriminate. discriminatory “private report also the important role of attorneys general” — private litigants — that The examines to play a vital role in voting rights enforcement. Voting litigators and organizations with continue in this area advised that the resources and weight of DOJ enforcement call for DOJ to expertise active in become its enforcement efforts. more - of this notion, In and in a post support preclearance world, complex, expensive, and slow litigation is the best, if uncertain, route to attack voting discrimination and DO J is uniquely situated to do it. After election with discriminatory voting measures in place, it is often impossible to adequately an the violation even if the election procedures are subsequently overturned as discriminatory. remedy lawmaking chosen nder discriminatory election rules have u power, and the benefits Officeholders incumbency to continue those rules and perpetuate their of election. continued also notes that not only was a report and efficient enforcement tool lost with the The powerful County ruling, but also a transparent and a Shelby mechanism that required prophylactic jurisdictions to report their voting changes so that they could invite scrutiny and ensure that the imposed potentially discriminatory changes were not immediately or at all. burdens of thus blocked voting changes, shed light on them, and Preclearance provided significant deterrence in covered jurisdictions. of the Shelby County The decision was impact tangible and removed important voter protection tools. But significantly it also sent a signal, clearly received by some states and jurisdictions that the was in a retreat regarding federal minority voting rights enforcement. Both results are nation undesirable. the report explains, voting discrimination continues to be more concentrated and persistent in As and jurisdictions than some in others. states preclearance remedy, Section Without 2 of the VRA the is the core remedy for minority voter discrimination. As the report notes, however, enforcement and litigation under Section 2 of the VRA an inadequate, costly, and often slow method for protecting voting rights. is the of successful Section 2 cases since The Supreme Court decided Shelby County has number quadrupled, but that remedy is not always adequate to the threat to vote rs. Accordingly, we call upon Congress to act to improve voter protections in ways that account for historic and persisting 5 Latin Am. Citizens v. Perry , 548 U.S. 399, 428 - 41 (2006). League of United

305 Commissioners’ Statements 299 to minority voters, but also in ways that account for the tendency of voting discrimination threats be to at burgeoning com munities of minority voting power. Congress has the power and directed support it will soon embrace its longstanding bipartisan hope for the Voting Rights Act to we that the Act in a way that provides additional minority protection tools consistent with the amend C onstitution. the since the Commission voted unanimously to approve time this report calling for greater DOJ In 6 Congressional action, reports detailing enforcement cautioning about the impact of and and of voters have been released, and purging federal Judge found that Florida’s early widespread a restrictions evidence “a stark pattern of discrimination” voting at state college and university campuses. Students like John Lewis and many others were brutally beaten on the Edmund Pettus more than 50 ye ars ago, and today voting measures intended to suppress student and Bridge votes persist. minority a discrimination in voting has proven to be particularly pernicious and enduring American Racial The pattern that Keys s ar so carefully documented, our cont ested democracy problem. ebbs by characterized and flows than by unidirectional progress, persists. It is time for the more urged by this Commission and the American people, nation, to call upon Congress and however, l move DOJ away, once again, from the ebb and to et democracy flow. There are two ways to win elections — to mobilize more voters or suppress your opponent’s voters. Sadly, both methods can prove but only a choice to allow all eligible votes to be cast is consistent with the finest effective, of our nation and we should again make that choice. America’s minority voter inclusion traditions and embodied in the VRA helps to define us we must recommit ourselves to expanding principle The vote is the most powerful tool in a democracy. To harness its it. pow er however, voting full must be accessible, protected, broadly exercised, and an amended Voting Rights Act and more of would enhance the power DOJ the vote. enforcement led Alabama in 1965 In the Reverend CT Vivian Selma, a group of African Americans to the cou rthouse steps to register to vote. Vivian made a clear and unyielding case for their right to vote but met by Sheriff Jim Clark, the same man who later led the assault on the peaceful marchers was the Edmund Pettus Bridge. Rev. Vivian was told to yield and then, with television cameras on in the mouth by Sheriff Clark, punched drawing blood. Rev. Vivian responded by rolling, 7 that they were “willing to be beaten for democracy.” explaining Today we hope that we have moved the need to be beaten or to bleed for past democracy, but we just as assuredly know that we must continue to fight for it. 6 Jonathan Brater , , See, e.g., Myrna Pérez , and Christopher Deluzio , Purges: A Growing Threat to the Kevin Morris Right to Vote , T HE B RENNAN C ENTER (July 20, 2018), https://www.brennancenter.org/publication/purges - growing - threat right - vote . - 7 Eyes on the Prize, “Bridge to Freedom,” PBS (Feb. 25, 1987), https://www.youtube.com/watch?v=nQT7S8fuzGc .

306 An Assessment of Minority Voting Rights Access 300 left [ page intentionally This blank ]

307 Commissioners’ Statements 301 Statement Chair Catherine E. Lhamon, Vice - Commissioner Karen K. Narasaki , in which Goodson Chair Patricia Timmons and Commissioner David Kladney Concur , - Court the Voting Rights Act’s Section 4 coverage formula, the Supreme striking majority down In 1 County v. Holder reasoned that Shelby such “extraordinary legislation,” subjecting in opinion states to disparate scrutiny some on their history of racial discrimination, was no longer based in their view, “‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ justified because, 2 no , longer ex isted in these states. ” In dissent, Justice Ruth Bader Ginsberg discrimination that the Voting Rights Act observed has not eliminated all vestiges of discrimination,” as “surely evidenced by the large numbers of proposed changes submitted by covered jurisdictions that 3 The be struck down as discriminatory. tinued to ongoing necessity of rejecting these con desired changes demonstrated “that barriers to minority voting would quickly jurisdictions’ 4 the preclearance remedy resurface eliminated.” were 5 report documents , the majority’s belief was misplaced and As Justice Bader Ginsberg’s this 4 prescient. Unleashed by the 5 - proved decision, previously covered states and observation counties rushed to enact or enforce laws that had been or would clearly have been prevented by the of Justice under the Voting Rights Act. Several elections later, there is ample Department some states and jurisdictions merit additional scrutiny and oversight because they evidence that in taking actions that make it more difficult for minority citizens to register, to vote, and to persist 6 votes be counted. discrimination Voting have has merely assumed seeming ly benign, their guise enacted often with discriminatory intent in the modern of election integrity, just as forms was before the passag e of the Voting happening Rights Act over 50 years ago. The facts show that in the face of our nation’s changing demographics, there are elected officials who than work to win their vote are choosing instead to cling to power through claims of rather 7 fraud. C onservative jurist Judge Richard Posner, who initially voter accepted these claims, now 1 570 U.S. 529 at 552 (2013). 2 at 554. Id. 3 at 563 (Ginsbu rg, J., dissenting). Id. 4 Id. 5 I would like to thank the Commission’s Office of the Staff Director, Office of Management and its respective Divisions, Regional Programs Coordination Unit, Office of Civil Rights Evaluation, Office of the General Counsel, and State Advisory Committees, a s well as our Special Assistants for their contributions in organizing and staffing the North Carolina briefing, SAC briefings, and for their work researching, drafting, and revising this report. I would also like to thank my law clerk Aime Joo from Harvar d Law School for her work on this report and statement. 6 U.S. C OMM . ON C IV . R IGHTS , An Assessment of Minority Voting Rights Access in the United States , at 274. (findings) (2018) (“Voting discrimination continues to be more concentrated and persistent in some states and jurisdictions than in others.”) [hereinafter Report]. Please note page citations to the Report may be slightly off due to the final formatting of the Report. 7 Crawford v. Marion Cty. Election Bd. , 472 F.3d 949, 951 (7th Cir. 2007). Judge Posner, writing the opinion, framed the disproportionate impact Indiana’s contested voter ID laws may have on people of lower socioeconomic status as a political, rather than discriminatory, problem. The new restrictions merely “compell[ed] the [Democratic Party] to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the

308 An Assessment of Minority Voting Rights Access 302 that they are “a mere fig leaf” to conceal the driving motivation of “disenfranchis[ing] believes 8 not vote for the political party that does to control the state government.” likely Just as voters the Voting Rights Act, rather than allowing before minority voters to choose who will best address and concerns, these politicians are manipulating needs system to choose their voters their the instead. is no surprise that th e overly stringent voter ID laws studied in our report are all largely It enacted 9 conservative - controlled states, by where the voters blocked by these rules are largely minority 10 are “on the cusp of being able to exercise political power,” and ar e believed to lean groups, who 11 It does not matter if Democratic. more stringent voting restrictions are implemented for these 12 gain,” and not to explicitly disfranchise minorities. “partisan As closely intertwined as race and political increasingly are, t he use of “partisanship as affiliation a proxy for [race]” may itself be 13 14 discrimination. Thus, this is not “politics as usual.” intentional This is history repeating itself 15 through targeting of minorities with “almost surgical precision” to prevent them from vo ting the 16 st 17 discrimination political party. the This is what racial looks like in the 21 century. for other more than 50 years after the passage of the VRA, its full force is still needed. True, first Sadly, 18 of vote suppression have been elim inated, but by no means has discrimination forms generation 19 Like disappeared. a hydra, it has simply grown new heads and assumed new forms to replace the 20 that have been struck down. manifestations Literacy tests that arbitrarily bar minority voter Id. Any cost to the Democratic Party by the law “inducing eligible voters to new law from bothering to vote.” . id at 952, was offset by the legislature’s legitimate interest in “enact[ing] reasonable disfranchise themselves,” — related disorder.” regulations . . . to reduce election at 954. and campaign — Id. 8 , 773 F.3d 783, 788 (7th Cir. 2014). Seven years after his Crawford op inion, Posner recognized the Frank v. Walker discriminatory impact, if not intent, of voter ID laws in Wisconsin. He rejected his earlier statements that legislatures were empowered to pass election regulations that disparately impacted minority voters in the name of elec tion integrity. 9 Id. at 790 - 91. See also Report 82 . at 10 Report at 230 See also N. Carolina State Conference of NAACP v. McCrory , 831 F.3d 204, 238 (4th Cir. 2016) . (“The only clear factor linking these various “reforms” is their impact on African Ameri can voters. The record thus makes obvious that the “problem” the majority in the General Assembly sought to remedy was emerging support for the minority party. Identifying and restricting the ways African Americans vote was an easy and effective way to do so.”). 11 , 773 F.3d at 791. Frank 12 Report at 230 . 13 Id . 14 Frank , 773 F.3d at 791. 15 58 (quoting McCrory , 831 F.3d at 214). Report at 16 Id. at 68 . 17 Id. at 66 (quoting , 831 F.3d at 233) (“Even if done for partisan ends, that constituted racial McCrory discrimination”). 18 Id. at 17 - 19 . 19 at 275 (findings) (“After decades of resistance and overt discriminatory actions on the part of officials in Id. several states and local juri sdictions, the Section 5 ‘preclearance’ provisions of the VRA proved necessary to deal with persistent and adaptive voting discrimination, because litigation was slow and ineffective in stopping racially discriminatory election practices until after an ele ction had taken place.”). 20 Shelby . , 570 U.S. at 560 (Ginsburg, J., dissenting). Cty

309 Commissioners’ Statements 303 are registration but challenges to voters on the rolls still permit voters — likely to be easily gone, — be purged or denied registration, in to some instances even without proof minorities identifiable 21 challenge that them is valid. Poll taxes are unconstitutional, but voter ID laws still the against voters, who are more likely be poor and minority lack a government - issued ID or the force to 22 needed to obtain one, to expend time and money that many cannot afford. documents These difficulties exacerbated by aggressive voter purg es that rely on problematic systems like are names flag people simply by comparing full and birthdays of registered voters Crosscheck, which states, disproportionately removing citizens of color who are more likely to share common across 23 names. th 15 Amendment guaranteed all U.S. citizens the right to vote regardless of ‘race, color, “[T]he or 24 25 requiring of servitude,’” but practices like condition documentary proof of citizenship, previous 27 26 28 voting, places purging voters for inactivity, cutting closing polli ng without notice, early and 29 denying assistance all make exercising that Constitutional right much more difficult for language voters. minority what is more, the Supreme Court has And, gutted the federal government’s ability to protect voters color from the states with a continuing history of discrimination by eviscerating the enforcement of voter 5 of the VRA, the solution “uniquely tailored to [the] unique problem” of Section of 30 The Shelby majority was correct that Section 5 was “extr aordinary legislation” discrimination. 31 to correct an extraordinary fault. needed They were profoundly incorrect that the need for such extraordinary has passed. measures 21 Report at - 41 (discussing challenges of voters to the rolls). 132 22 at - 99 . The cost of obtaining a government - issued ID can range from $75 - $175, which is greater than the Id. 77 See id. at 89 . cost of the original poll tax after adjusting for inflation. 23 . at 280 (findings) (“Aggressive purges of voter rolls, particularly when based on flawed systems like Id Crosscheck, will improperly remove many voters and may improperly remove a disparate amount of minority of suspended voters in Kansas, people with foreign sounding id. at 107 - voters.”). . In at least one survey See also 10 names were more likely to be flagged as ineligible voters, potentially requiring them to produce documentary proof Id . at 117 of citizenship to avoid being purged. 18 . - 24 Id. at 1 0 . 25 at 122 - 32 . Id. 26 at 155 - 64 . Id. 27 Id. at 151 - 54 . 28 Id. at 165 - 80 . 29 Id. at 180 - 90 . 30 Briefing Transcript , supra note 234, at 33 (statement by Justin Levitt, Professor, Loyola L. Sch). See also Report at (findings) (“After decades of resistance and overt discriminatory actions on the part of officials in several 275 states and local jurisdictions, the Section 5 ‘preclearance’ provisions of the VRA proved necessary to deal with persistent and adaptive voting d iscrimination, because litigation was slow and ineffective in stopping racially discriminatory election practices until after an election had taken place.”). 31 Shelby Cty . , 570 U.S. at 552.

310 An Assessment of Minority Voting Rights Access 304 It untrue that other provisions of the VRA are adequate to ensure their rights are simply is 33 32 5 held a unique prophylactic power Section absent from other VRA protections. rded. safegua requiring jurisdictions to defend their desired changes, preclearance not only forced states to By through the consequences of their actions, but also provided offi cials the leverage needed to think 34 proposals in the face of powerful political pressure. discriminatory Ironically, some deny 35 cite to the fact that voter turnout did not suffer as much witnesses as expected, ignoring the enormous investment made necessary by S helby in volunteer and staff time by community - based civil rights legal groups to monitor and challenge what county and other local organizations and officials were doing; lawsuits that forced legislators to modify their initial legislation; and voting ensive outreach to educate int and assist minority voters because the federal government could no 36 protect their longer to vote. right adequately genius of The 5 was the further understanding that some jurisdictions are chronic Section 37 and that the harm from vote suppression is irreparable offenders, and cannot be remedied post - hoc. other harms that may be rectified through the courts by compensating plaintiffs with Unlike to real remedies are unavailable when it comes violated voting rights. As we damages, monetary 38 39 once an election has been held observed fairly or not — the result cannot be — , undone. Litigation takes too long to stop the discriminatory measures from going into effect, and 40 are seldom granted. Those officials injunctions who seek to subvert democracy have preliminary incentive to act even knowing that their actions violate the Constitution or what is left of the Voting Rights because they know that the election will not be undone and they will be able to hold Act 32 Report at 277 (findings) (“In the face of ongoing discriminati on in voting procedures enacted by states across the country, enforcement and litigation under Section 2 of the VRA is an inadequate, costly, and often slow method for protecting voting rights.”). Opponents of reviving Section 5 contend that even after the decision, the VRA Shelby von See “remains a powerful statute whose remedies are more than sufficient” to combat voting discrimination. Spakovsky Testimony, note 234, at 27. Briefing Transcript, supra 33 Report at 42 - . 40 34 Report at - 16 See (“DOJ reque sts for further information that led to the prevention or modification of a 215 discriminatory voting change . . . may be valuable indicia that discrimination was prevented, or that preclearance was effective.”). 35 Report at 200 - 10 . 36 at 54 ( Shelby “shift[ed] the burden of monitoring election changes to voting rights groups, and impos[ed] a Id. large burden on communities, who must now stretch limited resources to track changes themselves in the absence of government transparency”); footnote 30 9 (summarizing litigation and various election board monitoring see also and education programs). 37 Id. at 40 - . Section 2 litigation after Shelby illustrates that formerly covered jurisdictions are still some of the 45 worst culprits of voter discrimination, with mo re than half of all successful Section 2 litigation occurring in these Id. at historical offender states. - 28 . 223 38 Report at (“In both North Carolina and Texas, multiple elections were held, during which practices were 56 rmined to have been intentionally racially discriminatory and in violation of applied that federal courts dete longstanding constitutional and federal law.”) 39 Briefing Transcript supra note 234, at 33 (statement by Justin Levitt). , 40 Report at 231 - 34 . Not only is voting rights litigatio n notoriously cumbersome, it also burdens the victims with a (findings) (“The burden of proving voting discrimination now lies large informational disadvantage. id. at 276 See with a plaintiff and not the jurisdiction proposing the change even though the j urisdiction has easier access to data and analysis regarding the impact of a particular change and evidence of discriminatory intent.”).

311 Commissioners’ Statements 305 office and move their agenda for several years while litigation is pending. Moreover, the harm onto vote is twofold. Not only is the will of the people subverted, but also each from suppression the to vote is transgressed. Even if right suppressive rules would have f ailed inherent individual’s change election outcomes, an injury has nonetheless occurred. Section 5 was specifically to 41 be an “extraordinary remedy,” to precisely because Congress recognized that people designed to seeking suppress votes to stay in power will always be new ways to accomplish that willing 42 once their schemes were successful, its victims and will have suffered an irreversible harm. goal, was true in 1965, remains true today, and will be true in This foreseeable future. Congress can the and should correct the Supreme Court’s mistake. It is abundantly clear that “the most fundamental 43 several our democratic system” — the right to a fair and equal vote — is under siege in right in jurisdictions, and given that reality state and is not an inviolable right. states sovereignty the vast majority of Americans, voting is a fairly easy process, and so it is easy For miss the fact to that there are barriers for others. Some states have realized that their process for registration and and not easy for all Americans, voting these jurisdictions are rightfully working on increasing is 44 the ballot for those marginalized voters. to Unfortunately, other states are perpetuating the access illusion that voting is simple for all citizens, while quietly raising the barriers for low - inco me and minority to cast their ballots. Regardless of why the increased obstacles to the right to vote voters implemented, these measures inevitably result in voter discrimination. are recommendations believes lay out guiding principles the Commission are essential for Our discrimination. practices of voter suppression and They also follow this stopping persistent long history since its inception in 1957 of investigating voting rights Commission’s and violations advising Congress and the Executive on ways t o address these problems, including solutions 45 the Voting Rights Act. The recommendations incorporated made in this report are just as into needed for consideration and adoption as those have made in the past. we As President Lyndon B. Johnson asserted in his Special Message to Congress supporting the Voting Act, guaranteeing each citizen’s equal right to vote involves “no constitutional issue Rights only . no moral issue . . . [and] no issue of . rights or national rights. There is . the struggle States 46 human rights.” f And while marginalized communities or sadly — as they too often are — the are canaries in a coal mine, and thus suffer the most immediately and significantly from voter 41 (2015) (New York: Ari Berman, Give Us The Ballot: The Modern Struggle For Voting Rights In America City of Rome v. United States decision, held that Section 5 did Picador), at 171 (stating that Justice Marshall, in his not require finding discriminatory purpose, because it was designed to combat “persistent and intractable voting discrimination” and an intent requiremen t would undermine this objective). 42 Report at 39 - 40 . 43 Shelby County , 570 U.S. at 556 (Ginsburg, J., dissenting). 44 See Appendix C, Automatic Voter Registration. 45 See Appendix A (discussing the Commission’s 1961 report’s impact on the VRA). 46 Presi dent Lyndon B. Johnson, “Special Message to Congress: The American Promise,” March 15, 1965, http://www.l bjlibrary.org/lyndon - baines - johnson/speeches - films/president - johnsons - special - message - to - the - congress - the - american - promise .

312 An Assessment of Minority Voting Rights Access 306 we as a nation must recognize that this is not simply a minori ty problem. It is “an suppression, 47 American problem.” Act country has made progress since the Voting Rights was passed, and that progress should This be celebrated and acknowledged. rightly we have yet to fully “overcome the crippling legacy But 48 bigotry and injust ice.” of The continued protections of Section 5 and a new preclearance that are essential if we are to accomplish coverage goal. Over 50 years ago, our leaders formula recognized the critical and systemic threat of vote suppression to a fair and strong democ racy and took The same leadership and resolve is needed again. Fifty years from now, the court of action. judge this pivotal moment as one in which history our leaders chose decisively to act, or one will in which they failed to live up to our nation’s sac red ideals of democracy. I hope that we will all right be able to celebrate that today’s leaders made the choice. 47 Id. 48 Id.

313 Commissioners’ Statements 307 , in which Commissioner Michael Yaki Statement Chair Catherine E. Lhamon Concurs there If a sine qua non of the U.S. Commission of Civil Rights, it is the right to vote. One of the is 1 the Commission — achievements 1961 — was its report on voting rights in , which became early of for the legislation that became the predicate Voting Rights Act of 1965. factual the recent years, this In Commission has fallen short of its historic charter. In 2006, under a the Commission refused to even endorse the reauthorization of Section 5, conservative majority, 2 had received overwhelming support in the Congress. In 2012, with the Commission spl it which of on ideological lines, the Commission’s milquetoast analysis the Census and Section 5 evenly 3 flat. Both, fell in their own deficiencies, seemed to portend the seismic shift — parroting, in many 4 on the flawed logic of both reports, the decision in Shelby . ways, a stain on the fabric of civil rights in this country. It has given license to the same forces is Shelby of constituencies that obstructed and diminished the rights minority voters, albeit through more and 5 but no less onerous means. As t he record in this creative shows, racial gerrymandering , report 6 7 8 purges voter , restrictive voter ID laws registration , the termination of early voting and 9 to the polls decreasing have been unleashed because of the loss of access the preclearance protections of Section 5 of Voting Rights Act. the This Report rectifies the research and analytical flaws of our recent past, but in many ways it is a pyrrhic Even more sad, we saw this coming. Beginning with the Bossier II decision in victory. 10 , a majority of the Supreme Court has steadily weakened the commitment to enforce the 2000 to vote. We see our judicial system being filled with jurists cut from the same philosophical right who belong to or are given a seal cloth, approval by the Federalist Society and the li ke for the of sole purpose of tearing down the precedents on race set since the 1954 Brown decision. Most recently, many of these same organizations were that the election of President Obama proclaiming brought about a “post - racial” society while at the same time they used this as a justification to dismantle structural elements that brought down the barriers and provided access to many the in color to the polls voters 2008 and 2012. of governmental of The state and local governments and ability officials to flout the Voting Rights Act, knowing that litigation under Section 2 is costly and time - consuming, makes is impossible to provide coverage to every jurisdiction engaged in voter suppression and comprehensive 1 U.S. Comm’n on Civil Rights (USCCR), U.S. Comm’n on Civil Rights Report, Book 1: Voting, 1961. 2 U.S. Comm’n on Civil Rights (USCCR), Voting Rights Enforcement & Reauthorization (2006), at 91, dissent of Commissioner Yaki and Commissioner Melendez. 3 U.S. Comm’n on Civil Rights (USCCR), Redistricting and the 2010 Census: Enforcing Section 5 of the Voting Rights Act — 2012 Statutory Report , 2012, at 137, Statement of Commissioner Yaki and Commissioner Kladney. 4 570 U.S. 529 (2013). 5 229 , footnote 1329. Report at 6 141 - 55 . Report at 7 Report at 74 - 99 . 8 Report at 155 - 64 . 9 Report at 164 - 95 . 10 Reno v. Bossier Parish Sch. Bd. , 528 U.S. 320 (2000).

314 An Assessment of Minority Voting Rights Access 308 Shelby oppression. turned the concept of vot ing rights on its head, where officials now work has little restrict, not expand, the franchise. Worse, there is and attempt to conceal the racial animus to these actions or the transparency of their underlying to block the franchise and actions minorities. In this way, there is a direct line from Shelby to Charlottesville, where empowerment of filled right, neo - Nazi, and hate groups, in their putsch - - delusions, believe they can turn back the alt and preserve the supremacy of their self - defined racial puri ty. When government is acting clock under color of la w to enact the legal equivalant , it becomes a distinction without a difference. the to is breaking, and there is precious little time heal the wounds that are tearing the Our nation of our democracy asu nder. This Report, for all its factual evidence that the Voting Rights fabric and being rendered a hollow shell of its former self, only has meaning if the Congress is the Act upon its findings and recommendations. Enacting act a rejuvenated and re - invi gorated President th 5 is one step; appointing judges who believe that the 14 Section Amendment gives Congress the authority enact it is another. This is not a question of liberal and conservative — those are to b can and should be fought at the ballot ox, and in the chambers and under the discussions that of the Congress and state legislatures throughout this country. But there should not be domes any debate, any discussion, any disagreement that every person, regardless of race, color, creed, disability, language, s hould be given every opportunity to or cast a ballot in our country. Having a nation whose government is voted upon and governed by the broadest and fullest spectrum of our populace a necessary first step towards achieving our more perfect union. is be We wise to remember — as we should would every day — the words of Dr. King: So long as I do not firmly and irrevocably possess the right to vote I do not possess myself. cannot make up my mind — it is made I up for me. I cannot live as a democratic citizen, observing the laws I have helped to enact — I can only submit 11 edict of the others. to 11 Martin Luther King, Jr., Give Us the Ballot, We Will Transform the South , PBS, http://www.pbs.org/pov/pov2008/election/wvote/king.html .

315 Commissioners’ Statements 309 Statement and Rebuttal Commissioner Gail Heriot found report somewhat stronger than some recent this Commission reports. It contains some I information. Nevertheless, it suffers fro m some substantial useful flaws. Consequently, I could the staff - generated part of the report neither nor the accompanying findings and support 1 endations. recomm will try not to get into the minutiae of what I see as the report’s shortcomings — though some of I 2 comes from its treatment of Shelby County v. Holder my and (in particular) the way disagreement Shelby it touches on the possibility of post - County legislation. Chief Justice Roberts has in which ably explained the reasons for the Supreme already decision. Others have defended the Court’s 3 that additional legislation is not warranted at this position Since this is not my area of time. expertise, there is littl e I can add to the debate. Instead, I would like to make a few more general (and scattered) points about voting rights and the enforcement of those rights. On some somewhat points I suspect there will be substantial agreement. of these OF VO IMPORTANCE RIGHTS THE TING good way to illustrate the importance of voting rights A is to examine the behavior of actual politicians: Most of them will work hard to gain the goodwill of their constituents. By and large, that is a good thing. Non - voters, on the other hand , usually get less attention — except, as in the 4 children, when actual voters have very strong desire to benefit them. case of 1 Because of a death in my family, I was unable to attend the telephonic meeting at which Commissioners voted on th e report. For the record, I would have voted no. My understanding is that the report was adopted by a vote of 6 to 0. All of those voting were appointed by Democratic office holders. 2 570 U.S. 529 (2013). 3 See, e.g., Ilya Shapiro, Don’t Use MLK to Push Harmful Election Laws , Forbes (January 22, 2014), https://www.forbes.com/sites/ilyashapiro/2014/01/22/dont - use - mlk - to - push - ha rmful - election - laws/#26b47492750a . Although there have been proposals, no additional legislation has been enacted. Congressional leaders may have adopted something akin to Shapiro’s position at least for the time being. That could, of course, change in the future. 4 Whether the lack of voting rights is a problem in need of a solution will depend on the nature of the case. These days it would be difficult to find Americans willing to defend the concept of excluding voters based on their race. ns for denying a group the vote are much more defensible. For example, children are a large non - But other reaso voting population, but since parents almost always view themselves as protectors of their children rather than antagonists or competitors, this is rightly not v - year - olds with the maturity to iewed as a problem. The number of 8 exercise the franchise responsibly is certainly verging on zero if it is not actually zero. Another non - voting population is non - citizens. For most people, this is in essence by definition. A citizen is a member of the polity; a non - citizen is not. There are various rights and responsibilities that follow from that. One - citizens are “affected” by the decisions made by voting citizens and their could argue that resident non representatives. T - resident citizens. We live in an inter - connected world. Our hat’s true. But it’s also true of non nation’s policies on foreign aid, immigration, and trade often have a profound effect on individuals around the world. Yet (so far) no one has argued that non - resident, non - citizens should have a say in the political decision - making of a country. (Indeed, the current investigation into whether Russia attempted to influence the 2016 election demonstrates the general consensus that non - resident, non - citizens shou ld have no right to influence elections.)

316 An Assessment of Minority Voting Rights Access 310 the case of Senator Thomas E. Watson of Georgia (1856 - 1922), whose political (and Consider spanned many decade s, beginning prior career to the disfranchisement movement in journalism) South and concluding after disfranchisement was a fait accompli. The Tom Watson of the the unite a passionate fusion populist, seeking to was poor whites and poor African Americans 1880s 5 order to ga in what he saw as their fair share of the South’s then - meager resources. in For reasons Where a polity chooses to draw the line (or, put differently, how it chooses to define “citizen” for the purposes of the franchise) may vary. But the fact that politicians will, all other things being equal, pay m ore attention to the citizen citizen is considered by most to be a feature and not a bug. Once a non citizen becomes a citizen, the than to the non - - commitment of the polity to him or her increases significantly, and so does his or her commitment to the pol ity. U.S. citizens to vote in municipal elections. Rachel Chason, Note that some American municipalities allow non - Citizens Can Now Vote in College Park, Md ., Wash. Post (September 13, 2017). These municipalities are Non - essentially defining “citizen” for municipal purposes differently from the federal government. There is no inherent reason that this cannot be done. Whether such an expansion of the electorate is permissible under the law in any particular state or locality is a subject beyond the scope of this report. I can offer only the observation that there are conflicts of interest between elected officials and existing voters in these matters. A requirement that such matters be ty of the members of the municipal put directly to the voters or a requirement that they secure a supermajori legislature would therefore hardly come as a surprise. A third population that is sometimes disfranchised is felons. In part this is an element of the felon’s punishment (and in part the motivation for it stems from a la ck of confidence in the felon’s wisdom and from doubt that his or her interests are compatible with the polity’s). In an era that increasingly shrinks from incarceration, fines, and many other forms of punishment, stigmatizing felons by denying them the fr anchise is one of the milder punishments remaining. Objections come not so much from penologists as from political parties and activists who perceive, rightly or wrongly, that “the felon vote” will go to their coalition. ement were to deny as many African Americans the vote as possible rather than to If the reason for felon disfranchis deny felons the vote, this should be viewed as a Constitutional violation (even though Section 2 of the Fourteenth Amendment obviously anticipates that felons will be disfranc hised in some states and that this will be permissible). See Const. amend. XV; Const. amend. XIV, § 2. But the argument that felon disfranchisement is simply a clever way to deny African Americans the vote without appearing to do so is weak. The first ten states to disfranchise felons were Kentucky (1792), Vermont (1793), Ohio (1802), Louisiana (1812), Indiana (1816), Mississippi (1817), Connecticut (1818), Alabama (1819), Missouri (1820), and New York (1821). There is no discernible pattern here. Some have questioned why these states took so long to disfranchise felons. If the states were not motivated by the existence of large populations of free African Americans in their midst, what was motivating them? Why didn’t they th disfranchise felons a century earli century conception of felonies: They were er? The answer here lies in the 18 punishable by death. Consequently, it was seldom necessary to consider whether felons should be disfranchised. Dead men, regardless of race, don’t vote. See William Blackstone, IV Commentaries on the Laws of Engla nd 98 st (University of Chicago 1 ed. Facsimile 1979)(“The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform”). Moreover, p rior to the ratification of the Fifteenth Amendment, a state that wanted to disfranchise African Americans could do so without resorting to an extraordinarily weak and clumsy proxy. 5 The one Southern state in which fusion populism (in the form of an alli ance of the Republican and Populist Parties) briefly took control of government was North Carolina. Unlike states in the Deep South, North Carolina had an African - American population of only about 35% in 1890. In addition, western North Carolina had a larg e population of small white farmers whose sympathies had been with the Union and who generally voted Republican. Together - 1890s. Those who favored with members of the Populist Party, the group took control of North Carolina in the mid African - American disf ranchisement usually saw it specifically as a way to defeat that coalition. See Michael Perman, Struggle for Mastery: Disfranchisement in the South 1888 - 1908 148 - 72 (2001). By contrast, in South Carolina, disfranchisement was spearheaded by Governor “Pitch fork” Ben Tillman, a Democrat with a strong populist streak, who feared the African - American vote would form an alliance with the “conservative” vote (i.e. what Tillman viewed as the Low Country landowning and commercial elite). See id. at 91 - 115.

317 Commissioners’ Statements 311 Watson’s within a few years, African control, Americans had been effectively beyond 6 Georgia. vote Attempting to appeal to the African - American disfranchised there fore no in was useful strategy for an ambitious office seeker like a At that point, he began to voice longer Watson. 7 approval of disfranchisement. his By the 1910s and 1920s, Watson had morphed into one of the 8 to racists one could ever encounter. Ref erring “the Negro,” he remarked, “ In the virulent most we have to lynch him occasionally, and flog him, now and then, to keep him from South, 9 the Almighty, by his conduct, on account of his smell and his color .” blaspheming Compare career with that of A labama Governor George Corley Wallace (1919 - 1998). Watson’s being the other end of the history of African - American disfranchisement. After Wallace straddled for the first time, elected he said the following in his January governor 14, 1963 inaugural address: trast illustrates the differing political currents leading to African American disfranchisement in each state. That con - See generally id. But if there is one unifying theme, it may be this: Political alliances were so fluid in the South during the 1890s that no one could state with certainty how they would turn out. Would African Americans and poor whites living in the Appalachian Mountains form an alliance? Or would the alliance be African Americans and the landowning and commercial elites of the Tidewater/Low Coun try/Black Belt counties? Or would alliances be formed on the basis of race? We all know that in the end it was the last of these alternatives. But that was by no means obvious in the politically and economically turbulent turn - of - the - century South. See gen erally Michael Perman, Struggle for Mastery: Disfranchisement in the South 1888 - - 72 (2001); J. Morgan Kousser, The 1908 148 - Party South 1880 1910 (1974). Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One - 6 The Disfranchisem ent Movement in the South was a pivotal moment in American History. It began in earnest in about 1888, and came to head in each state in the South at different times. By the early 1900s, it had been mostly - accomplished. See Michael Perman, Struggle for Mas tery: Disfranchisement in the South 1888 1908 (2001). A few - obvious things are worth noting here: (1) In many locations in the South (including Watson’s Georgia), the non - American vote had already been severely depressed on account of extra - legal v African iolence and fraud (as well as laws that made that violence and fraud possible); this ultimately made things easier for the Disfranchisement Movement, which made disfranchisement an explicit part of state constitutions; (2) Many of those who advocated Afric - American disfranchisement would have preferred to disfranchise not just African Americans (most of whom an were illiterate at the time), but also illiterate whites (of which there were many); they did not, however, always have the political clout to accomp lish that end as to illiterate whites (though sometimes they did); (3) The movement was th in part a reaction to the populism (and in particular fusion populism) of the late 19 century, in part a Progressive reaction to election fraud, and in part an effort to weaken the Republican party both locally and nationally; and (4) While raw racism was certainly part of the motivation for many, almost never did the laws relating to disfranchisement explicitly refer to race and some states ( e.g., Arkansas and Tenness ee) accomplished disfranchisement of African Americans mainly through the mechanism of the poll tax, which tended to depress the white vote too. See Perman at 5, 11 - - 57 (1974). 12, 19, 177; J. Morgan Kousser, Shaping of Southern Politics 250 n Hackney, Populism to Progressivism in Alabama 147 (1969); Jack Temple Kirby, Darkness at the Also see Sheldo Dawning: Race and Reform in the Progressive Party 4 (1972); Dewey W. Grantham, Southern Progressivism: The Reconciliation of Progress and Tradition (1983). 7 mas E. Watson, The New Georgia Encyclopedia , http://www.georgiaencyclopedia.org/articles/history - Tho archaeology/thomas - e - watson - 1856 - 1922 . 8 For those w ho regard the Soviet Union and Nazi Germany as representing opposite ends of the political spectrum, Watson’s transformation from class - based to race - based fanaticism may seem surprising. For those who regard the two as close cousins, his transformation se ems far less remarkable. 9 Michael Newton, White Robes and Burning Crosses: A History of the Ku Klux Klan from 1866 38 (2014) (italics added).

318 An Assessment of Minority Voting Rights Access 312 In of the greatest people that have ever trod this earth, I draw the line in the name I dust the gauntlet before the feet of tyranny, and and say segregation now, the toss 10 segregation forever tomorrow, segregation . that was before the success of the V oting Rights Act of 1965. In just a few short years, African - But voter had skyrocketed in Alabama. By the registration 1970s, he was asking forgiveness American 11 past sins. And, for in a remarkable turn of events, he largely received it. He was re - elected to his 12 third term as governor in 1982 with a huge a share (90%) of African - American votes. Colman McCarthy was among those who thought Wallace’s transformation to be sincere. He wrote 1995: in the annals of religious and political conversions, few shifting s were as unlikely In Wallace's. In Montgomery, Ala., George week, the once irrepressible as last — now 75, infirm, pain - wracked and in a wheelchair since his 1972 governor — hands shooting with black southerners and sang “ We Shall Overcome. ” held him ov ercame is his past hatred that made What both the symbol and Wallace anti - black racism in the 1960s. On enforcer March 10, Wallace went to St. Jude's of church to be with some 200 others marking the 30th anniversary of the Selma - to - Montgomery rights march. civil was a reaching - out moment of reconciliation, of Wallace's asking for — and It he forgiveness. In a statement read for him — — was too ill to speak — receiving told those in the crowd who had marched 30 years ago: “ Much has Wallace transpired since those days. A grea t deal has been lost and a great deal gained, and May are. My here message to you today is, welcome to Montgomery. we your message be heard. May your never be forgotten. ” lessons In gracious and spiritual words, Joseph Lowery, a leader in the original marc h and now president of the Southern Christian Leadership Conference, thanked the the a “ for coming out of your sickness to meet us. You are former different separatist the today. We George both serve a God who can make Wallace desert bloom. We 13 God's bl essing you. ” ask on McCarthy wrote that Wallace “was using his waning political power to bond with those he once But scorned.” maybe he was right about Wallace’s sincerity. And whether Wallace was sincere or 10 George Wallace’s 1963 Inaugural Address , Wikipedia, https://en.wikipedia.org/wiki/George_Wallace%27s_1963_Inaugural_Address (italics added). 11 George C. Edwards, Martin P. Wattenberg & Robert Lineberry, Government in America: People, Politics and th Policy 80 (14 e stated in 1979 in connection with his infamous stand in the schoolhouse door, “‘I ed. 2009)(Wallac was wrong. Those days are over, and they ought to be over.’”). 12 Id. 13 , Washington Post (March 17, 1995), Colman McCarthy, George Wallace — From the Heart https://www.washingtonpost.com/wp - srv/politics/daily/sept98/wallace031795.htm?noredirect=on .

319 Commissioners’ Statements 313 y there a simpler point: In a reasonabl is well - functioning democratic republic, successful insincere, spend a lot of time trying to please voters; they seldom politicians spend as much time trying to - voters . In Wallace’s final term as governor, non appointed more than 160 blacks to state please he boards. He worked to double the number of black voter regi strars in Alabama's 67 governing 14 hired African Americans as staff me mbers . In that sense at least, he was a changed counties and 15 man. lesson? At least from the standpoint of discrete The and insul ar groups that are sufficiently large 16 matter on Election Day, the right to vote may well be our most important right. to Without it, 17 everything will be in jeopardy. The Jim Crow Era in Watson’s Georgia and Wallace’s else its unhinged devoti on to Alabama, racial segregation, would have been unthinkable without with 18 disfranchisement. Many of the Deep South’s laws designed to keep African Americans working on the plantation (instead of migrating north where their prospects were often better) would have 19 been impossible. similarly 14 Id. 15 a judge on the Third Judicial Circuit of Alabama. In some ways this was a return to Wallace’s early career as There, interestingly enough, he had a reputation for being fair regardless of the race of the litigants before him and - American attorneys. As a result, in his initial (failed) run for governor in 1958, he for being courteous to African was endorsed by the NAACP. It is said that he attributed his loss to the perception that he was “liberal” relative to to let that his opponent on race issues (although he put it in much cruder terms). It is further said that he vowed not https://en.wikipedia.org/wiki/George_Wallace . perception stand in the way of his election again. See 16 h the coalitions are constantly The group need not be large. American political parties are coalitions (althoug - organizing themselves). Even a small group, especially if it is well - organized and cohesive, can be changing and re or a the difference between victory and defeat, and hence courting such a group can be well worth a politician’s party’s time. 17 Indeed, in a nation like ours, where government has its fingers in all sorts of pies, the franchise can be important not just to protect rights, but also to protect patronage. Members of a disfranchised group are less likely to get gov ernment jobs or contracts. Government projects — from parks to roads to utilities — are less likely to be located or improved upon in the areas where those members will benefit from them. 18 American disfranchisement with th e era prior to the enfranchisement of It is interesting to compare African - women. Unlike African Americans at the time, women as a class could not be described as “insular.” Most women t lived in families that included both men and women. The argument against women’s suffrage was frequently tha husbands, fathers and sons could be trusted to look after the interests of women outside the home, while women looked after the interests of their menfolk inside the home. Yet it is hard to avoid noticing that legislation that purported to protect workin - only unions g women from strenuous work or long hours was often advocated by men whose members were in competition with women for jobs and that women themselves were in no position to vote. See Muller v. Oregon, 208 U.S. 412 (1908). Of course, Progressive women often supported such legislation too. But those lobbying for such legislation were seldom working women; more often, they were members of the upper - middle class. See Suzanne LaFollette, Concerning Women (1926). Whether women are well served by protec tionist th legislation has been a major theme in feminist literature of the 20 century. My point here is simply that the heyday of such legislation was during a period that women were unable to vote in many parts of the country. 19 These laws were at least as destructive as the Jim Crow laws. But they get considerably less attention today. See, e.g., Williams v. Fears, 179 U.S. 270 (1900)(upholding an 1898 prohibitive tax on labor recruiters in Georgia); David E. Bernstein, The Law and Economics of Post - Civil War Restrictions on Interstate Migration by African - Americans , 76 Tex. L. Rev. 781 (1998). See also Benno Schmidt, Jr., Peonage in The Oxford Companion to the Supreme Court of the United States 729 (Kermit Hall, et al., eds. 2 005). In order to abolish peonage, the laws that made peonage possible had to be

320 An Assessment of Minority Voting Rights Access 314 surprise to cast a ballot must therefore be guarded with great care. That will come as a The right one. Unfortunately, it doesn’t answer any no the hard questions: For example, what to of great care in this context? Along with the right to the ballot is the right to have one’s constitutes 20 count, which requires the exclusion of those who are not entitled to a ballot. ballot Policies that to facilitate the right to cast a are ballot — like early voting and requirements that election intended identity officials the voter’s word for his or her take — can increase the likelihood of voter fraud. We know there have been problems in North Carolina — the state that received the most attention 21 in report. One election had to be run again in order to ensure its integrity. this a task that involved multiple trips to the Supreme Court by both the United States and dismantled one by one — cases cited therein). private litigants. See Pollock v. Williams, 322 U.S. 4 (1944)(and 20 Opponents of voter ID laws frequently argue that cases of voter impersonation (the kind of fraud most obviously prevented by such laws) are very rare. While it is impossible to say for sure, I strongly suspect they are right. But of voter ID laws, like Justin Levitt, agree that some cases occur. See Justin Levitt, A even the fiercest critics Comprehensive Investigation of Voter Impersonation Finds 31 Credible Incidents Out of One Billion Ballots Cast , https://www.washingtonpost.com/news/wonk/wp/2014/08/06/a - comprehensi ve - Washington Post (August 6, 2014), - - - voter - impersonation - finds - 31 - credible - incidents investigation out - of - one - billion - ballots - of . cast/?utm_term=.e42a723f0d09 On the other hand, otherwise qualified voters lacking in an ID are also uncommon. And those who cannot acquire one without unreas onable inconvenience are very rare indeed. Efforts to estimate the numbers of those without IDs by comparing voting rolls with driver’s license and other ID lists are prone to over - estimation. Voting rolls are often heavy with individuals who have recently died, moved out of the jurisdiction, or become incapacitated. Driver’s license lists are more up to date. The best solution for the cases of no ID that do exist may be for political activists in ist them in securing an ID. those jurisdictions that choose to have voter ID laws to ass Moreover, opponents of voter ID laws should take into consideration the fact that voter ID laws help combat other kinds of voter fraud too. Consider the example of a felon in a jurisdiction where felons are not permitted to vot e. He may be perfectly aware that he is not entitled to vote, but may be willing to chance it anyway, thinking that if he is caught after the fact he will simply deny that he was the person who showed up at the polling station. This is a lot riskier in a j urisdiction that requires the presentation of an ID. Prosecuting authorities are unlikely to believe the “It e.g., non - citizens) who manage to register but wasn’t I” defense. The point holds true for other kinds of individuals ( are not entitled to vote. Un like the case of voter impersonation, cases of felons voting in jurisdictions where they are not entitled to vote When 1,099 Felons Vote in Race Won by 312 Ballots appear not to be rare at all. See Byron York, , Washington Examiner (August 6, 2012) (referri ng to the 2008 Senate race in Minnesota), - when - 1 - 099 - felons - vote - in - race - won - by - 312 - https://www.washingtonexaminer.com/york . See also John ballots Fu nd & Hans von Spakovsky, Who’s Counting (2012) (detailing various kinds of voter fraud and other kinds of election irregularities across the country). 21 See Mark Binker, New Election Ordered in Pembroke , WRAL (December 20, 2013), https://www.wral.com/new - election ordered - in - pembroke/13237755/ . - Commissioner Narasaki writes in her Statement that “once an election has been held — fairly or not — the result cannot be undone.” I agree that running an election again is a rarely invoked remedy (in part because the margin of - victory for the winning candidate is rarely so small as to leave the proper outcome in doubt). But, as in the Pembroke case, it does happen. Bell v. Southwell, 376 F.2 - known example. d 659 (1967), is an especially well 21 See, e.g., Hillary Clinton Says Supreme Court Nominee Brett Kavanaugh Will Bring Back Slavery , Tyler O’Neil, PJ Media (July 13, 2018)(“‘I used to worry that they [the Republicans] wanted to turn the cloc k back to the 1950s. Now I worry they want to turn it back to the 1850s.’”); Biden Tells African - American Audience GOP Ticket Would Put Them “Back in Chains,” CBS News (August 14, 2012), https://www.cbsnews.com/news/biden - tells - african - put american audience - gop - ticket - would - - - them - back - in - chains/ .

321 Commissioners’ Statements 315 ID the other hand, requirements that voters present an can exclude the occasional voter who On not have an ID and cannot get one except at great inconvenience. How do we reconcile those does intemperate considerations? It isn’t always easy, and statements about the motives competing two 22 of the opposing party don’t make it any easier. of As Thomas Sowell is fond of saying, members 23 are no solutions. There are only trade - offs.” “There For what it’s worth, large majorities of - considered statement about the Federalist Society for I should also mention in this context Commissioner Yaki’s ill Law and Public Policy. The Federalist Society is an organization of conservative, libertarian and classically liberal lawyers, law students and law professors. It has about 65,000 members, including many of the nation’s most dis - right tinguished jurists. It also happens to include both Commissioner Kirsanow and me as well as most center attorneys of my acquaintance. Not only do its members not fit the description Commissioner Yaki gives them, the organization has been described in quite positive terms by individuals usually viewed as left of center. For example: “For over a decade, I have been privileged to be involved in Federalist Society events, and it’s a really interesting thing that they have seen fit to invite me even though I generally don’t think like them on a lot of - for - all discussion is unparalleled, so it’s really been a things, and the quality of the speakers and the free privilege.” — Neal Katyal, Acting Solicitor General (Obama Administration). organization has definitely done is to contribute to free speech, free debate, and most “I think one thing your importantly, public understanding of, awareness of, and appreciation of the Constitution. So that’s a marvelous contribution, and ... in a way I must say I’m jealous at h ow the Federalist Society has thrived in law schools.” — Nadine Strossen, Professor of Law, New York Law School & Former President, American Civil Liberties Union. “[T]he Federalist Society has brought to campus the commitment to real, honest, vigorous, and open discussion. It is a result of the works of the Federalist Society to create a wonderful environment for discussing social, political, legal and constitutional issues.” — Paul Brest, Professor of Law & Former Dean, Stanford Law School. The Federalist So ciety’s programs are not held in secret; even Commissioner Yaki is welcome. It is one of the most open organizations I have ever known. And it strives to include speakers from across the ideological spectrum in its panel discussions. I can recall only one occasion when a panel on which I was a speaker was not balanced (only because the liberal speaker failed to show up). Although, as a speaker, I had already given my own view on the topic (which was a more conservative view), I spontaneously got up and gave the liberal point of view too, just to make sure that the Federalist Society maintained its tradition of presenting the many sides of each issue. s By contrast, I once witnessed an official of the supposedly “mainstream” Association of American Law School aggressively bar a conservative staff member of this Commission from attending one of its programs. The official who did so made it clear she believed that the staff member was somehow there to spy on the speakers (every last one of whom was so far to th e left that the average American would need a telescope to see them). In fact, the staff - of - member, who had traveled from Washington to New York for the event, was there to scout out left center speakers to invite to the Commission’s September 15, 2010 nat ional conference. Like the Federalist Society, but unlike the AALS, the Commission’s Chairman at the time, Gerald Reynolds, although a conservative himself, strongly preferred for the conference to include speakers with an array of viewpoints. The AALS i s also famous for having brought in over 20 speakers to discuss the then - recent passage of California’s Proposition 209 (which prohibited discrimination or preferential treatment on the basis of race, sex, or ethnicity in public employment, public contract ing and public education). Every last one of the speakers opposed the initiative; not a single supporter was invited to speak, despite the fact that several law professors who had worked on the campaign, including me (the campaign’s statewide co - chair), we re present at the meeting). See also Charles Fried, “Diversity”: From Left to Far Left , Washington Post (January 3, 2000)(comparing the AALS’s lack of viewpoint diversity in panel presentations to the Federalist Society’s strong viewpoint diversity). Somet hing has happened to organizations that are supposedly mainstream in the last 25 years. And it isn’t good. 23 4&feature=youtu.be Fox News Interview of Thomas Sowell, https://www.youtube.com/w atch?v=3_EtIWmja - . The extent to which the various Statements of my Commission colleagues fail to address these tradeoffs is disheartening. The soaring rhetoric they employ makes it all sound so easy: If only nice people were in charge o f

322 An Assessment of Minority Voting Rights Access 316 that both voter ID requirements and early voting are reasonable methods of Americans think 24 elections. conducting not just first - order questions that are difficult: Exactly who It’s have the power to protect should 25 right to cast a ballot? Who should decide which trade offs to make? the If too much power is - the nation, everything would be fine. Alas, it’s not that easy. I like soaring rhetoric as much as the next person ... well almost as much. But sooner or later one must get down the job of conducting fair and free elections, which requires reconciling o neself to the imperfect world we live in. William Blackstone famously said, “it is better that ten guilty persons escape than that one innocent suffer.” He is did not say that is better for 100,000 guilty persons go free rather than one innocent suffer im prisonment, and I would venture to say he would not have been willing to put such a large thumb on the side of innocence. What is the right tradeoff between the inclusion of eligible voters and the exclusion of fraudulent votes? I don’t know the answer t o that question. But at least I acknowledge that it’s a real question. My colleagues are apparently of the view that serious election fraud is fairly rare in this country. And I am inclined to believe they are right about that. May it ever be so. But as Americans we are lucky in this respect. Fraudulent elections in other parts of the globe are the rule rather than the exception. See, e.g., Bernd Beber & Alexander , Washing Scacco, The Devil Is in the Digits: Evidence that Iran’s Election Was Rigged ton Post (June 20, 2009); A Fraudulent Election Means Even More Problems for Venezuela , Brookings Institute Podcast (May Dany Bahar, 22, 2018); Kim Sengupta, Zimbabwe Elections: Opposition Politician Arrested Amid Allegations of Voting Fraud: Senior Offi cial in MDC is Seeking Political Asylum, After Claiming Poll Results Were Rigged , The Independent (August 8, 2017). A Symbiotic Relationship: Vote Moreover, election fraud was once common here too. See, e.g., John F. Reynolds, rm in the Gilded Age Fraud and Electoral Refo , 17 Soc. Sci. Hist. 227 (1993); Denis Tilden Lynch, “Boss” Tweed: The Story of a Grim Generation (2017); Pamela Colloff, What Happened to the Ballot Box that Saved Lyndon Johnson’s Career? , Texas Monthly (November 1998); Robert A. Car o, Means of Ascent: The Years of Lyndon Johnson (1990); T. Harry Williams, Huey Long (1969); Mike Royko, Boss: Richard J. Daley of Chicago (1971). - motivated voter It feels like my colleagues want it both ways. On the one hand, even though the racially exclusion and voter intimidation they fear is now rare, they refer back to a period before some of them were born as proof we must be ever - vigilant. And, yes, we must. But, on the other hand, they scoff at the notion that we must be vigilant about elect ion fraud too, even though that is also part of our history. And like racism, election corruption has never been entirely eradicated. 24 See, e.g., Four in Five Americans Support Voter ID, Early Voting , Gallup Poll (August 22, 2016), - https://news.gallup.com/poll/194741/four - americans - support - voter - laws - early five voting.aspx . - 25 The North Carolina ID case may be an example of how partisanship may, whether consciously or unconsciously, affect one’s perceptions. The North Carolina legislature is majority Republican and was accused by the plaintiffs in that case (led by the North Carolina NAACP) of targeting racial and ethnic minorities. Okay, maybe. Since I have not carefully read through the record in that case, I am not in a good position to judge. Here’s what I can say: The trial judge (appointed by George W. Bush) found no such intent. The appellate judges (two appointed by Barack Obama and one by William Jefferson Clinton), not only found such an intent, they stated that the statute targeted racial and ethnic minorities “with almost surgical precision.” None of that is comforting. The Supreme Court declined to take the case and hence neithe r agreed not disagreed with the decision of the Court of Appeals. In retrospect, I am glad the Supreme Court denied the petition for certiorari. If it had taken the case and issued one of the 5 - 4 decisions for which it has become famous, reversing the Cou rt of Appeals, it would have meant that every judge involved in the case voted along party lines. The issue isn’t worth the appearance of that kind of partisanship. But here is what I find troubling about the case: While I do not think I or my colleagu es have enough information to second - guess the differing results in the case, I do know enough to say the Court of Appeals is engaged in serious hyperbole in saying that the statute targeted minorities “with almost surgical precision.” It’s a highly quota ble turn of phrase, but it happens not to be true. Even the NAACP’s own expert witness (whose numbers I believe were

323 Commissioners’ Statements 317 in the hands of a single authority (whether it is the federal government or a local concentrated 26 sure executive officer or a judicial one), abuses are to follow. an This, I believe, is one registrar, the shortcomings of this report. The assumption lurking of behind some of its conclusions is that all would be well if the federal government (in the form of the Voting Section of the Civil Rights Division of the U.S. Department of Justice) were the primar y arbit