Texas, Iowa Voter Rule Changes at Issue in Court Hearings

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Texas, Iowa Voter Rule Changes at Issue in Court Hearings

Bloomberg Businessweek, September 6, 2012
News From Bloomberg
By Margaret Cronin Fisk

A U.S. appeals court heard arguments over challenges to a law passed by Texas Republicans limiting voter registration efforts before the Nov. 6 presidential election, while lawyers in state court in Iowa debated a plan to purge non-citizens from voter rolls.

Texas officials asked the U.S. Court of Appeals in New Orleans to stay an order issued last month barring enforcement of several provisions of a 2011 law regulating third-party voter registration activities. U.S. District Judge Gregg Costa determined that the law probably conflicted with federal rules and the U.S. Constitution.

“This order should be stayed pending appeal,” Jonathan Mitchell, an attorney for the state of Texas, said at a hearing today. “The problem in the district court’s analysis is that the First Amendment is not implicated in any way by Texas laws.”

Texas is taking away the techniques of the voter registration organizations, U.S. Circuit Court Judge James L. Dennis responded. “You are affecting the rights of voters.”

“We are trying to protect the rights of voters who trust these organizations,” Mitchell replied.

The appellate panel didn’t issue a decision.

Voter Rolls
In a separate lawsuit, two civil rights organizations asked a state court judge in Des Moines today to stop Iowa Secretary of State Matt Schultz from implementing a rule change using lists of foreign nationals to purge non-citizens from voter rolls. The American Civil Liberties Union and a Latino rights group claim the new rules, which Schultz announced in July, would unfairly affect new citizens.

The rules don’t harm Iowa voters and the organizations don’t have standing, or the right, to object to them, Jeffrey Thompson, a state deputy attorney general, argued at the hearing today.

“The rules are actually intended to provide protection to the very individuals” the organizations say they represent, Thompson told Polk County District Court Judge Mary Pat Gunderson. “They run the risk if they get what they’re asking for of doing harm to the people they’re trying to protect.”

Gunderson, an appointee of Republican Governor Terry Branstad, said she would issue a decision today.

Court Battles
The lawsuits are among the multiple court battles over U.S. voting rules, particularly in so-called swing states such as Florida, Ohio, Pennsylvania and Wisconsin, where both the Republican and Democratic presidential campaigns see possible victories.

At least two lawsuits challenging a proposed voter purge are pending in Florida, and a federal judge last month blocked implementation in that state of a new law restricting voter registration activities. Voter cases are also under way in Alabama, Texas, Tennessee and South Carolina.

The Republican-dominated Texas Legislature passed several revisions in its election code in 2011, imposing new requirements for third-party voter registrations.

This included barring non-Texans from becoming volunteer deputy registrars, or VDRs, prohibiting them from accepting applications for residents outside the county in which they were appointed, requiring them to personally deliver rather than mail applications to election officials and restricting their compensation. The rules were passed to prevent voter registration fraud, attorneys for the state argued in court papers.

Registration Drives
The nonprofit organization Project Vote and its affiliate, Voting for America Inc., sued Texas Secretary of State Hope Andrade in February, seeking an injunction barring the state from enforcing provisions of the law. Registration drives conducted by third-party organizations are critical to increasing the number of voters in the state, particularly racial minorities, the plaintiffs argued in court filings.

Costa granted the injunction Aug. 2, finding that the plaintiffs were likely to succeed in proving that certain provisions either conflicted with the federal Voting Rights Act or violated the First Amendment to the U.S. Constitution.

“The in-state requirement excludes millions of Americans from serving as VDRs in Texas. The county limitation substantially restricts the number of potential voters a VDR can help register. And the compensation prohibition reduces the number of people willing to hire VDRs or to work as VDRs because it criminalizes performance-based pay,” Costa said.

Pressing Need
He also found no pressing need for stricter rules on voter registration.

“The state has not produced evidence showing that rampant fraud by out-of-state VDRs existed in pre-2011 Texas elections or continues to exist in those states that permit all Americans to engage in the voter registration activities protected by the First Amendment,” Costa said. On Aug. 14, Costa, appointed by President Barack Obama, denied the state’s request for a stay pending appeal.

The state appealed the order to the court in New Orleans.

“The state will be irreparably injured if the district court’s order remains in effect between now and the upcoming November elections,” lawyers for the state argued in an Aug. 16 filing.

The appeal is being heard by three judges, Dennis, who was appointed by President Bill Clinton; Catharina Haynes, appointed by George W. Bush; and Jerry E. Smith, appointed by President Ronald Reagan.

Six Decisions
“In order to approve this motion for a stay, the court would have to ignore at least six U.S. Supreme Court decisions,” plaintiffs’ attorney Chad Dunn told the panel at the hearing today. These decisions concerned laws that affected freedom of speech, Dunn said in court papers.

“This court is supposed to give huge deference to the district court judgment, especially this close to the election,” Dunn said.

“I think this is a difficult area,” Haynes said. “I’m looking for the evidence here” that the laws are impeding voter registration, she said. “There’s nothing in this statute that says you can’t encourage people to vote.”

The plaintiffs had shown that voter registration “is part of free political expression,” Dennis said at the hearing. “This is core political expression.”

Foreign Nationals
The ACLU and the League of United Latin American Citizens of Iowa claim that Schultz, a Republican, instituted a new administrative rule in July that would require his office to periodically obtain lists of foreign nationals “from unspecified state and federal agencies and attempt to match those names to voter registration records,” as part of an effort to purge non-citizens from the voting rolls.

The secretary of state would then send notices to registered voters whose names appeared on one of these lists that they may not be citizens and may be illegally registered to vote, according to the lawsuit. The voter would have to respond within 14 days to dispute this information, or face being stricken from the eligible voters list, the ACLU lawyers said.

“The public has no way to be sure he’s using accurate, up- to-date voters from Iowa’s voter lists,” Ben Stone, executive director of the ACLU of Iowa, said in a statement.

The rules don’t provide obstacles to legitimate voters, lawyers for the state said in court papers.

‘Emergency Rules’
“Ironically, the emergency rules challenged by the petitioners were promulgated by Secretary Schultz to protect the voting rights of Iowans whose immigration status in the state’s drivers’ license database might be incorrect or out of date,” Iowa Attorney General Tom Miller and Thompson said in a filing last month. Miller is a Democrat.

The rules would “ensure that any affected individual receive notice and a hearing before his/her name is removed from the voter registration records,” the state’s lawyers said. The state also contends the district court has no jurisdiction to order a temporary injunction barring the rules.

“There’s no such injury alleged or at issue in this case,” Thompson said today. “This is about whether the secretary of state had the authority to do what he did.”

The organizations are “just misguided” and “misreading this thing absolutely backward,” Thompson said. The purge rule offered by the Iowa secretary of state was done in order to gain access to the federal SAVE database, which provides more accurate information than drivers’ license data, Thompson said.

“We don’t have to prove that an injury actually occurred but that an injury is likely to occur to 4,000 Latino Iowans,” plaintiffs’ attorney Joseph Glazebrook argued today. The issue is whether Schultz had the statutory right to make the rules, he said.

The cases are Voting for America Inc. v. Andrade, 12-40914, U.S. Court of Appeals for the Fifth Circuit (New Orleans); and American Civil Liberties Union of Iowa Foundation v. Iowa Secretary of State Matt Schultz, CV 9311, District Court, Polk County, Iowa (Des Moines).

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